Damages for Accessibility Claims

Division 1, Part 2.53 deals with attorneys’ fees and statutory damages in construction-related accessibility standards claims in California.

Section 55.55 provides that, in determining an award of reasonable attorney’s fees and recoverable costs with respect to any construction-related accessibility claim, the court may consider, along with other relevant information, written settlement offers made and rejected by the parties.

Section 55.56 explains that statutory damages 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.

A plaintiff is denied full and equal access only if the plaintiff personally encountered the violation on a particular occasion, or the plaintiff was deterred from accessing a place of public accommodation on a particular occasion. A violation personally encountered by a plaintiff may be sufficient to cause a denial of full and equal access if the plaintiff experienced difficulty, discomfort, or embarrassment because of the violation. A plaintiff demonstrates that he or she was deterred from accessing a place of public accommodation on a particular occasion only if both of the specified circumstances apply.

The specified technical violations are presumed to not cause a person difficulty, discomfort, or embarrassment for the purpose of an award of minimum statutory damages in a construction-related accessibility claim where the defendant is a small business, the defendant has corrected, within 15 days of the service of a summons and complaint asserting a construction-related accessibility claim or receipt of a written notice, whichever is earlier, all of the technical violations that are the basis of the claim, and the claim is based on one or more of the seven specified violations.

Statutory damages may be assessed based on each particular occasion that the plaintiff was denied full and equal access, and not upon the number of violations of construction-related accessibility standards identified at the place of public accommodation where the denial of full and equal access occurred. If the place of public accommodation consists of distinct facilities that offer distinct services, statutory damages may be assessed based on each denial of full and equal access to the distinct facility, and not upon the number of violations of construction-related accessibility standards identified at the place of public accommodation where the denial of full and equal access occurred.

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 $1,000 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 four specified conditions is met.

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 $2,000 for each offense if the defendant demonstrates both of the specified conditions are met.

A defendant is not liable for minimum statutory damages in a construction-related accessibility claim, with respect to a violation noted in a report by a certified access specialist (CASp), for a period of 120 days following the date of the inspection if the defendant demonstrates compliance with each of four specified conditions. A defendant who claims the benefit of the reduction of, or protection from liability for, minimum statutory damages under this subdivision is required to disclose the date and findings of any CASp inspection to a plaintiff if relevant to a claim or defense in an action.

A defendant may claim the protection from liability for minimum statutory damages only once for each structure or area inspected by a CASp, unless the inspected structure or area has undergone modifications or alterations that affect the compliance with construction-related accessibility standards of those structures or areas after the date of the last inspection, and the defendant obtains an additional CASp inspection within 30 days of final approval by the building department or certificate of occupancy, as appropriate, regarding the modification or alterations.

If the defendant has failed to correct, within 120 days of the date of the inspection, all construction-related violations in the structure or area inspected by the CASp that are noted in the CASp report, the defendant cannot receive any protection from liability for minimum statutory damages, unless a building permit is required for the repairs which cannot reasonably be completed by the defendant within 120 days and the defendant is in the process of correcting the violations noted in the CASp report, as evidenced by having, at least, an active building permit necessary for the repairs to correct the violation that was noted, but not corrected, in the CASp report and all of the repairs are completed within 180 days of the date of the inspection.