The Legislature enacted SB 1186 to address litigation abuse, such as “vexatious litigation” — lawsuits that are not pursued to rectify wrongs or to advance or create a public benefit. As stated by the author of the bill:
Vexatious special access lawsuits unduly burden our courts and taxpayers and do not result in improved access for those with special access needs. Those lawsuits cost California jobs and economic prosperity, unfairly threaten small businesses, force businesses to respond with higher costs for goods and services, and have adverse impacts on levels of employment and employee compensation.
Here is a summary of SB 1186 – the details of which are codified at California Civil Code Section 1938.
Pre-litigation letters must now contain a factual statement which would allow a reasonable person to be able to identify the violation. The specific access barrier (or reason the individual was deterred) must be set forth in plain language, with enough information about the location of the barrier for a reasonable person to be able to identify it. Further, the letter must explain how the barrier interfered with the person’s full and equal access. It must include the date(s) on which the interference occurred.
Plaintiffs who chose to file their lawsuit without sending a notice must provide the property owner with an advisory of their rights. This must include information pertaining to the limitation of damages and procedural protections, which owners can invoke in order to gain time to address the plaintiff’s claim.
Qualifying landlords or property owners can seek an immediate stay (of 90-days), which stops the lawsuit from proceeding. Plaintiffs must then present their claim at an “Early Evaluation Conference” which allows the merits of the case to be assessed. This conference is ordered within 50-70 days of filing the application for stay, and the parties must all personally appear. The courts is required to view the evidence on both sides and verify that the plaintiff’s claims are supported.
Establishing liability: Plaintiff must show through one of two methods that the violation denied them full and equal access to the place of public accommodation on a particular occasion.
The plaintiff may recover damages based on the specific instance that he was denied access. Plaintiffs may not recover based on the number of existing violations, but only per instance where he was denied full and equal access. It is also more difficult for a plaintiff to claim he was denied full and equal access on more than one occasion, because he must show that he acted reasonably, when visiting a location despite being aware of a barrier to access.
New damage limits: Damages are reduced under the law from $4,000 down to $1,000 per offense, where the defendant remedies the violation within 60 days and where either:
Small businesses may have minimum damages reduced from $4,000 to $2,000 where the business: 1) has had less than 25 employees on average over three years; 2) has averaged gross receipts of less than $3,500,000; and 3) corrects construction-related violations within 30 days of receiving the complaint.
Leases of commercial property entered into on or after July 1, 2013 must indicate whether a CASp inspection was made, and whether any violations were found. For more on this topic, see our article here. (note: insert a link to “New Commercial Lease Disclosure Requirements Concerning Disability Access” at https://whiteandbright.com/articles/new-commercial-lease-disclosure-requirements-concerning-disability-access/)
A $1.00 tax will be charged for applications for local business licenses or the equivalent. The funds will be contributed to the expansion of the CASp program.
SB 1186 helps level the playing field for businesses and leads to faster resolution of ADA claims.
 Stats. 2012, c. 383 (S.B.1186), § 1(b), eff. Sept. 19, 2012, operative Jan. 1, 2013.
 Id. at Section 1(c).