Hollow victory in ADA lawsuit reform

Legislation meant to help businesses repel some predatory lawsuits took a surprising step forward this week, but only after lawmakers bowed to disability activists and gutted Assemblywoman Kristin Olsen’s key goals.

Olsen put on a happy face after Tuesday’s 10-0 vote by the Assembly Judiciary Committee, calling it a “first step in the right direction.” She also acknowledged disappointment that the committee removed meaningful reform from her legislation, Assembly Bill 54, replacing key language with a small tax credit seen as inoffensive to reform opponents.

“Every little bit helps,” Olsen, the Assembly Republican leader from Riverbank, said Thursday. “But it’s kind of a bummer.”

AB 54 is one of several current bills addressing a wave of lawsuits washing over the Northern San Joaquin Valley in the past couple of years, hitting about 60 businesses in Stanislaus and Merced counties alone. Many say the lawsuits amount to extortion by professional victims working with unscrupulous attorneys, and a few companies closed rather than fight in court or buckle to settlement demands for tens of thousands of dollars.

The lawsuits allege violations of the Americans with Disabilities Act, whose aim is making life easier for disabled shoppers and diners. A similar state law makes it easier for plaintiffs to collect in California than most other states, but business advocates seeking relief have not been able to overcome trial attorney interests and reform attempts over the years have gone nowhere.

AB 54, as Olsen wrote it, would have given companies two months to fix ADA violations. Such “right to cure” language, with varying amounts of time, also is found in Assemblyman Adam Gray’s AB 52 and in Sen. Cathleen Galgiani’s Senate Bill 67.

“Right to cure is off the table for trial attorneys,” Gray, a Merced Democrat, glumly told editors of The Modesto Bee last week. He said he had “not made great progress” lobbying leadership of the same committee, where Gray’s bill awaited a hearing; its chairman is Mark Stone, D-Scotts Valley.

On Tuesday, disability activists – some in wheelchairs – argued against Olsen’s right to cure language. Stone deleted it and inserted a provision giving companies a $250 tax credit toward the cost of hiring a state-certified inspector to survey conditions at a business and suggest changes.

Such inspections do nothing to prevent anyone with a beef from suing, Gray said last week, referring to the program as “absolute fluff” with “no real protection.”

“I’m not interested in moving forward something that doesn’t really do anything,” Gray said. On Thursday, he withdrew his bill.

Although frustrated, Olsen noted that Tuesday’s committee vote is the first movement toward reform in years. AB 54 is scheduled for an Assembly Revenue and Taxation hearing next month.

“This moves us in the right direction,” she said, “but I am very disappointed.”

Seven Democratic members of the Assembly joined three Republicans Tuesday after Olsen’s bill was revamped.

“While we support the bill and are pleased with its passage, it’s by no means a complete solution,” said Kim Stone, president of the Civil Justice Association of California. “There still is lots of room for improvement. My organization still wholeheartedly believes that the most elegant and fair solution is notice of opportunity to cure; tell businesses what the problem is and give them a chance to fix it before you sue them.”

Among those suing local companies is Robert McCarthy, a pedophile from Arizona who has brought 15 lawsuits. The latest was filed in February against downtown Modesto’s Skewers Kabob House restaurant; it settled out of court earlier this month with undisclosed terms.

This story was originally published April 23, 2015 at 6:52 PM with the headline "Hollow victory in ADA lawsuit reform."