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V. LITIGATION PROCEDURE



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V. LITIGATION
PROCEDURE


§5.02  Relief for Construction-Related Accessibility Claims

Statutory damages under CC §52(a) or §54.3(a) may be recovered in a construction-related accessibility claim against a place of public accommodation only if a violation or violations of one or more construction-related accessibility standards denied the plaintiff full and equal access to the place of public accommodation on a particular occasion. [CC §55.56(a)] A plaintiff is denied full and equal access only if he or she (1) personally encountered the violation on a particular occasion, or (2) was deterred from accessing a place of public accommodation on a particular occasion. [CC §55.56(b); see CC §55.57 (applies to claims filed on or after January 1, 2009)]

A personal encounter may be sufficient to cause a denial of full and equal access if the plaintiff experienced difficulty, discomfort, or embarrassment because of the violation. [CC §55.56(c)] A plaintiff is deterred from accessing a place of public accommodation on a particular occasion if [CC §55.56(d)]:

  • The plaintiff had actual knowledge of a violation or violations that prevented or reasonably dissuaded the plaintiff from accessing a place of public accommodation that he or she intended to use on a particular occasion, and
  • The violation or violations would have actually denied the plaintiff full and equal access if he or she had accessed the place of public accommodation on that particular occasion.

Examples Example:

Tom, who was confined to a wheelchair, patronized a car wash owned by Bill. When Tom visited the restroom at the location, he could not use the mirror because it was mounted too high. Tom filed suit against Bill, alleging violations of the Disabled Persons Act and the Unruh Civil Rights Act. A mirror that is mounted too high to be used by a person in a wheelchair is an architectural barrier that potentially violates a federal construction-related accessibility standard and therefore raises a construction-related accessibility claim within the purview of CC §§55.51–55.57. To prevail on this claim, Tom must prove that he was denied full and equal access after personally encountering an ADA violation. In deciding whether Tom met his burden of proof, you may consider whether he offered any evidence showing that the violation caused him difficulty, discomfort, or embarrassment. Tom did not offer such evidence, so he is not entitled as a matter of law to a finding that he was denied full and equal access due to the placement of the restroom mirror. [Thomas Mundy v Pro-Thro Enterprises (2011) 192 CA4th Supp 1, 4–6]

These statutory damages may be assessed based on each particular occasion that the plaintiff was denied full and equal access, but not on the number of violations of construction-related accessibility standards identified at the place of public accommodation where the denial of access occurred. If the place of public accommodation, however, consists of distinct facilities that offer distinct services, statutory damages may be assessed based on each denial of full and equal access to each distinct facility. [CC §55.56(e)]

Examples Examples:

A restaurant, convenience store, or theater normally serves only one function: a place to eat, shop, or watch a movie. Multiple violations of one or more construction-related accessibility standards at such a place do not constitute separate denials of full and equal access. By contrast, other places of public accommodation offer more than one type of service, facility, or other function. For example, a hotel or resort may offer sleeping rooms, a restaurant, a golf course, and a spa. Likewise, a shopping center may consist of one large common area and many separate stores and restaurants. In such cases, damages may be assessed based on each denial to the distinct facility.

The statutory minimums per incident can add up if a particular plaintiff has been denied access on several occasions, because each instance is a separate violation under the statutes. [See Feezor v Del Taco, Inc. (SD Cal 2005) 431 FSupp2d 1088, 1090–1091]  But when a disabled person sues a business owner due to an accessibility violation of the Unruh Civil Rights Act and the Disabled Persons Act and then settles and releases all known and unknown claims and waives the protection of CC §1542, the disabled person is contractually barred from suing the business owner in a second lawsuit regarding any violation that previously existed and could have been enjoined in the first lawsuit pursuant to CC §55. [Mundy v Lenc (2012) 203 CA4th 1401, 1410­–1411]

Limitations on Damages
A defendant's liability for statutory damages in a construction-related accessibility claim against a place of public accommodation is reduced to a minimum of $1000 for each offense if the defendant demonstrates that it has corrected all construction-related violations that are the basis of a claim within 60 days of being served with the complaint, and the defendant demonstrates any of the following [CC §55.56(f)(1)]:

  • The structure or area of the alleged violation was determined to be “CASp-inspected” or “meets applicable standards” and, to the best of the defendant's knowledge, there were no modifications or alterations that impacted compliance with construction-related accessibility standards with respect to the plaintiff's claim that were completed or commenced between the date of that determination and the particular occasion on which the plaintiff was allegedly denied full and equal access; or
  • The structure or area of the alleged violation was the subject of an inspection report indicating “CASp determination pending” or “Inspected by a CASp,” and the defendant has implemented reasonable measures to correct the alleged violation prior to the particular occasion on which the plaintiff was allegedly denied full and equal access, or the defendant was in the process of correcting the alleged violation within a reasonable time and manner prior to the particular occasion on which the plaintiff was allegedly denied full and equal access; or
  • The structure or area of the alleged violation was a new construction or an improvement that was approved by, and passed inspection by, the local building department permit and inspection process on or after January 1, 2008, and before January 1, 2016, and, to the best of the defendant's knowledge, there were no modifications or alterations that impacted compliance with respect to the plaintiff's claim that were completed or commenced between the completion date of the new construction or improvement and the particular occasion on which the plaintiff was allegedly denied full and equal access (claims must be filed before 2018); or
  • The structure or area of the alleged violation was new construction or an improvement that was approved by, and passed inspection by a local building department official who is a certified access specialist, and, to the best of the defendant's knowledge, there were no modifications or alterations that affected compliance with respect to the plaintiff's claim that were completed or commenced between the completion date of the new construction or improvement and the particular occasion on which the plaintiff was allegedly denied full and equal access.

A defendant's liability for statutory damages in such cases is reduced to a minimum of $2000 for each offense if the defendant demonstrates both of the following [CC §55.56(f)(2)]:

  • The defendant has corrected all construction-related violations that are the basis of a claim within 30 days of being served with the complaint; and
  • The defendant is a small business that has employed 25 or fewer employees on average over the past three years, or for the years it has been in existence if less than three years, as evidenced by wage report forms filed with the Economic Development Department, and has average annual gross receipts of less than $3,500,000 over the previous three years, or for the years it has been in existence if less than three years, as evidenced by federal or state income tax returns.

Note!Note: Section 55.56(f) does not affect a complaint filed before September 19, 2012. Nor does it apply to intentional violations or affect the awarding of actual damages or treble actual damages. [CC §55.56(f)(3)–(5)]

 

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