California bill would limit ADA lawsuits. Why did he die?

from Kate WolfeCalMatters

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For years, state Sen. Roger Niello sought to address what he sees as a persistent problem: predatory law firms and their disabled clients suing scores of small businesses for disability access violations.

It started when he heard about Scott Johnson, a quadriplegic in his area who filed thousands of lawsuits against small businesses in Northern California, enriching themselves in the process. Since then, Niello, a Republican from Fair Oaks who also helps run his family’s auto dealership group, has been pushing for change. His last suggestion, Senate Bill 84would have given small businesses 120 days to correct violations of the Americans with Disabilities Act before they could be sued.

It did not die with a vote of the legislators. Senators overwhelmingly approved it last year, and a bipartisan majority signed on as authors or co-authors. He died procedurally in the Assembly, where a committee chairman refused to take him in for a hearing, a rare occurrence in the California legislature.

Instead, the Assembly Judiciary Committee crafted and approved a separate bill with a different approach to dealing with serial ADA lawsuits, which would require businesses to be more proactive and spend more money upfront to obtain compensation against lawsuits. This bill passed the final Senate political committee last week and heads to the Appropriations Committee.

Why was the bill not heard?

The chairman of the committee is a national representative Ash Kalraa Democrat representing South San Jose. The former defense attorney is a former chairman of the Legislative Progressive Caucus and was appointed chairman of the Judiciary Committee in 2023.

Calra said in an interview with CalMatters that he did not schedule the bill for a hearing because Niello disagreed with the amendments his committee proposed in conversations outside the public process.

“To have a piece of legislation that completely undermines the ADA without making any amendments is a slap in the face to the disability community,” he said.

This was the second time a “Right to Cure” proposal from Niello had been ignored to death by Kalra. In 2023, Niello’s Senate Bill 585 met the same fate.

Again this year, disability rights groups fiercely opposed Niello’s bill, which they say would discourage proactive compliance and make it harder for people with disabilities to hold businesses accountable.

Business groups including the California Chamber of Commerce, the California Restaurant Association and about 50 local chambers of commerce supported the bill. In a letter to the Senate Judiciary Committee, a coalition of supporters said small businesses have been targeted by a limited group of lawyers seeking settlements for technical violations “regardless of whether the alleged violation actually impedes physical access to the facility for disabled visitors.”

“Let both bills go forward and let the bill with the best merit win.”

Sen. Roger Niello, R-Fair Oaks

Lawmakers often discuss how they want bills changed before public hearingsand secret negotiations can force lawmakers to withdraw their bills. But longtime lobbyist Chris Micheli said it’s rare for a bill to be killed like this outside its birthplace.

“The Assembly will sometimes refuse to hear a bill from its own house, and maybe the Senate can do the same with (a Senate bill), but it’s rare for that to happen for a second house bill,” he said. Micheli represents the California Civil Justice Association, which supported Niello’s legislation.

But the Kalra Committee had just finished forming Assembly Bill 649 on the same topic. Member of the Democratic Assembly in Long Beach Josh Lowenthal has worked with the committee to create a proposal building on the existing Certified Access Specialist program. Businesses that are inspected for existing ADA violations and corrected, a process that can cost thousands of dollars, currently have 120 days to correct additional problems before they can be sued. Lowenthal’s bill would extend the buffer to six years.

Niello said the problem is philosophical. The committee wanted his bill to be exactly like Lowenthal’s, which he didn’t think would work given what he says is a shortage of certified access inspectors in the state. His colleagues in the Senate approved his approach and he did not understand why Kalra did not listen to him.

“I said to (Kalra), let both bills go forward and let the bill with the best merit win, and if they both pass the legislature, then let the governor decide, and I’m perfectly happy to submit my fate to that particular whim, but he’s not.”

Kalra described Niello’s continued advocacy of the bill as “bullying.”

“Just trying to get the chair to have a hearing without considering other opinions is not the way to do business,” he said.

Niello said it was “frankly offensive” that Kalra would describe the situation as harassment, and said he had spoken with the disability rights community about the bill. Disability rights groups remain opposed.

“No civil rights law requires an affected person to first send a warning letter to the wrongdoer and wait months to see if the wrongdoer changes their ways before the injured person is allowed to file a lawsuit to enforce their rights,” Disability Rights California and its coalition partners wrote in a letter to the Legislature. After initial opposition, the groups now support Lowenthal’s bill, which they say strikes a better balance between business interests and those of people with disabilities.

Kalra is closely associated with the Consumer Attorneys of California, which also opposes Niello’s bill. According to Digital Democracy Database.

Asked if those campaign donations influenced his decision, Kalra said he had “almost no conversations” with consumer advocates about Niello’s bill, but had several conversations with members of the disability rights community.

“To suggest that I am in any way influenced by a group with whom I have barely spoken to about this bill is categorically untrue.”

Other legislation in preparation

Lowenthal’s competing bill is moving forward and will be heard again later this summer. It barely passed the Senate Judiciary Committee, with several of Niello’s co-authors voting against it.

“I appreciate the Senate, you know, as last-minute as things can get, I appreciate that we’re having this hearing and then we’re going to vote on your bill,” Sen said. Henry Stern Lowenthal said during the hearing.

He added that he thinks with the amount of support Niello’s measure has received, he would expect “at least a vote on that concept as well.”

For his part, Niello said he is considering re-introducing the issue if he is re-elected in November.

“SB 84 is dead, but the idea is not dead.”

This article was originally published on CalMatters and is republished under Creative Commons Attribution-NonCommercial-No Derivatives license.