Defending Facilities-Based Disability Rights Lawsuits in California: Strategies for Compliance and Litigation

  1. Introduction

California has stringent accessibility requirements for businesses to ensure that individuals with disabilities have equal access to public places. While the intention behind these laws is noble, many businesses find themselves embroiled in facilities-based disability rights lawsuits, often concerning physical barriers to access. In this article, we’ll explore strategies for defending against such lawsuits, focusing on proactive compliance measures, federal lawsuits, and claims in state court.

  1. Proactive Compliance Measures

Certified Access Specialists (CASps): To ensure that you are complying with the law and mitigate the risk of being sued for violations of disability access laws, business owners should consider hiring Certified Access Specialists (CASps) to inspect their premises or evaluate their policies. CASps are trained professionals who can inspect businesses for compliance with disability access requirements. Regular inspections by CASps, particularly when the business is compliant, can help identify and rectify any issues promptly.

Safe harbor provision: California incentivizes business owners to hire a CASp by creating safe harbors from costly lawsuits. California’s Unruh Act provides a safe harbor provision (Cal. Civ. Code, § 55.54) that can offer some protection to business owners who make specific improvements based on a CASp inspection. This provision can either create immunity against liability or limit liability for certain construction-related accessibility claims if improvements are made within certain time frames following the inspection. 

  1. Federal Lawsuits

Federal judges and state law damages claims: Often, plaintiffs file their disability rights lawsuits in federal court, asserting ADA violations, and a claim for damages under the state law Unruh Act. However, federal judges are known to dismiss state law damages claims under the Unruh Act, because state courts have special procedures and incentives to deal with the state court claims. This leaves only claims for an injunction (court order for forced defendants to remediate their premises). 

Immediate remediation and standing: Those same federal judges will often dismiss the remaining injunctive claim if the physical barriers are promptly remedied. This underscores the importance of fixing accessibility issues as soon as possible when faced with a federal lawsuit. This is because federal courts are courts of limited jurisdiction and require plaintiffs to have “standing” under the Americans with Disabilities Act (ADA). This means plaintiffs must demonstrate an ongoing risk of harm due to non compliance. Business owners can use this as a defense by promptly addressing the barriers, thereby eliminating the ongoing risk and any reason for the federal court to remain involved.

  1. State Court Claims

Settlements: In state court, facilities-based disability rights lawsuits often lead to settlements. Given the cost and uncertainty of litigation, settling early with the plaintiff may be a pragmatic option. Negotiating a settlement can help limit expenses and resolve the matter more quickly. However without an attorney, plaintiffs may not be willing to give you as fair a deal on settlement. A good lawyer will know how to present and emphasize the weaknesses in a plaintiff’s case to get the best settlement.

Discovery and challenging the merits: If a case in state court does not settle early, business owners may need to engage in costly discovery to defend against the claims. Usually, the purpose of this is to discover whether the plaintiff was or was not negatively affected by the non-conformities, or whether remediations would fundamentally alter the premises or be financially burdensome. Defenses may exist to liability, but they are often not certain and only lead to victory after a long and expensive road. An experienced lawyer will know how to ask the right questions to determine whether you have any chance of successfully defending the lawsuit.

  1. Conclusion

Facilities-based disability rights lawsuits in California can pose significant challenges for business owners. However, proactive compliance measures, such as regular CASp inspections and taking advantage of the safe harbor provision, can reduce the risk of such lawsuits. In federal lawsuits, immediate remediation is often the best defense considering judges’ tendencies to dismiss cases when barriers are promptly addressed. In state court, settlements and strategic use of discovery may be the most practical ways to navigate the litigation process. Ultimately, understanding the intricacies of accessibility laws and engaging legal counsel experienced in disability access litigation are essential for effective defense and risk mitigation.

The attorneys at Atabek & Co are seasoned in litigating these matters, and more importantly, are experienced in advising their clients toward the most efficient paths to resolution. If you have questions or need to defend such a lawsuit, feel free to call us.