ADA Compliance and Defense Blog
Section 55.54 Protections
For years, California businesses and their organizations have been trying to rein in the plethora of ADA lawsuits, particularly those filed by a handful of plaintiffs and their law firms to curb litigation abuse. Those trying to curb ADA litigation abuse have made several apparently important inroads.
One such inroad designed to curb litigation abuse is California Civil Code Section 55.54 which was enacted to provide protective measures against serial ADA lawsuits filed by “High Frequency Litigants.” If the plaintiff is a high-frequency litigant, as defined by California Code of Civil Procedure Section 425.55(b), then a defendant may seek a 90-day stay of the litigation, and an Early Neutral Evaluation. A high-frequency litigant is defined by a plaintiff who has filed 10 or more complaints alleging construction-related accessibility violations within the 12-month period immediately preceding the filing of the complaint. The process is incredibly simple, and requires the filing of a single form, checking off a few boxes. The most important rule is that the Section 55.54 application must be filed before or concurrently with the Answer, or responsive pleading, to the Complaint.
The goal of the Early Neutral Evaluation, and the 90-day stay, is for parties to reach early settlement. The Court will set forth the necessary procedures, documents, and goals for the early neutral evaluation. The Court may also require parties to conduct a joint inspection of the property in question.
Most importantly, Section 55.54 explicitly requires that “the parties, and any other person who authority is required to negotiate and enter into settlement, to appear in person at the time set for the conference.” Section 55.54 specifically prohibits having only counsel appear, and, if possible, requires both plaintiffs and defendants to appear.
Many California Courts Are Unaware of This Civil Code
Despite the clear protective language in Section 55.54, several California Courts are unaware of this relatively new civil code. This may cause the litigation to continue on full force, even if you are entitled to a stay. Here’s our most recent experience using the stay procedure of Section 55.54. It may surprise you as it did our ADA Compliance and Defense team and our trial judge. Most recently, a Los Angeles Superior Court judge completely ignored our Section 55.54 application, and, at the Case Management Conference, shockingly informed us that she was not even aware such a procedure existed or that our application was in her case file. She never had a stay request presented to her. The Application for a Stay simply sat in her file. She informed us that the Court will need a separate “proposed order”, highlighting the provisions of Section 55.54 warranting the stay and Early Neutral Evaluation. In all fairness, many lawyers who defend ADA lawsuits are either unaware of Section 55.54 or elect not to pursue a stay.
What is more interesting is that, while Section 55.54 is a California Civil Code, the United State District Courts often have local rules acknowledging and implementing similar stays and evaluations. The United States District Court, Southern District of California has a local rule specifically allowing stays for cases filed by serial ADA plaintiffs.
This is a New Area of ADA Litigation that Requires Careful Navigation
What we are learning is that Section 55.54 is still a very new area of the law. If California judges are unaware of this procedure, then it is likely that most ADA lawyers, plaintiffs and defendants alike, are unaware of it. It is imperative that defendants in serial ADA litigation know all of their rights and protections to properly, and economically, defend these cases. If you file the stay application, don’t think it will automatically or quickly be acted upon. Be proactive! Follow up with your judge’s clerk regularly on the status of the application. Otherwise, it may simply languish in the court’s file.
If you received an accessibility letter or lawsuit, please reach out to us by email at mho@jmbm.com and cwhang@jmbm.com or phone (415) 984-9624, so that we can provide you the proper defense to your case.