REFLECTIONS ON O’CAMPO V.

CHICO MALL, LLP
FEDERAL COURT ADA ACTION FROM A CASP INSPECTOR’S PERSPECTIVE CRAIG D. WILLIAMS ARCHITECT AND CERTIFIED ACCESS SPECIALIST JANUARY 2011
In a recent case filed in US Federal Court, Eastern District of California , judge Karlton ruled to exclude California’s Civil Rules of Court Procedure. California’s rules, under the Construction-Related Accessibility Standards Compliance Act (CRASCA – Senate Bill 1608) a California court may grant, on motion, a defendant’s request for a 90-day stay and mandatory Early Evaluation Conference to pursue resolution of the dispute in a court supervised alternative dispute resolution forum. The O’Campo ruling highlights some of the problems associated with differences in State and Federal court’s interpretations of civil codes procedural rules, particularly when they “play by those rules”. Federal courts procedural rules, by precedent, preempt state’s court rules of civil procedure, a technicality that may not have been foreseen or fully understood by the California legislature when it first crafted the rules under California Civil Code 55.51-55.54. These procedural rules were enacted and signed into law by then Governor Schwarzenegger in 2008 under SB-1608, Corbett. The bill was passed to, among other things, attempt to stem the tide of lawsuits filed for the purposes of obtaining money and punitive damages in awards made in civil lawsuits claiming discrimination on the basis of disability. It was unclear how federal courts in California would adjudicate a claim in light of the procedural provisions under SB-1608. Of particular concern is to what extent legal protections will impute to a qualified defendant subsequent to a site inspection conducted by a Certified Access Specialist Inspector (credentialed by the California Division of the State Architect) prior to a claim being filed in Federal Court. Most ADA or accessibility claims are filed in Federal courts because federal courts can, and often do, assume supplemental jurisdiction over California’s Civil Codes in addition to hearing a claim involving federal law under the Americans with Disabilities Act (ADA). Background: If a California business or commercial property owner that has retained a CASp to survey its facilities, has obtained a CASp report and a determination from the CASp regarding the presence or absence of barriers at the inspected site is sued in a US Federal ADA lawsuit, their attorney is likely to suggest they can either settle or defend. This is not an easy choice, and requires a careful analysis, by the attorney, of the many factors that are involved such as, but not necessarily limited to: merit of the claims in light of the CASp process under SB-1608, whether the defendant can exhibit diligent pursuit of remedial action suggested in the CASp report if and when barriers are identified, applicability of the benefits and protections under the California Construction-Related Accessibility Standards Compliance Act in US Federal Court, familiarity with a particular judge and local court procedural rules, probability of either side prevailing, cost of trial, attorneys fees, value of trial to each party, cost of settlement and perhaps most impotently, the basis upon which defendant’s decision is formed with the benefit of competent, independent counsel. Typically, the cost of defending an ADA action is high, not only because the cases are fact intensive and require expert testimony and detailed discovery, but because plaintiffs’ attorneys tend to be aggressive since they know that attorney's fees can be recovered if they prevail in the case. Often such cases are pursued by two or more attorneys in order to maximize the amount of recovery of attorney’s fees. On the other hand, settling an unmeritorious case to avoid payment of legal fees can make the business appear to be a soft touch inviting more lawsuits. The guidance of a smart, savvy, and tenacious defense attorney is critical. The benefit to the defendant of having Craig Williams retained as an expert witness and CASp accessibility specialist, can be a valuable asset to the defendant and its legal representatives in defending against a claim. Litigation is never pleasant, is usually stressful and expensive, and should be avoided if at all possible. A conscientious lawyer can help a business or commercial property owner avoid litigation by eliminating conditions that can invite lawsuits. Obtaining the services of a Certified Access Specialist to conduct a survey, prepare an inspection report,
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O’CAMPO V. CHICO MALL, LLP; NO. CIV. S-10-1105 LKK/CMK

Certified Access Consultants | 707.823.2724 P a g e |1

Many of the lawsuits are over relatively minor infractions that are unintended rather than deliberate attempts to circumvent or ignore the law. D-San Leandro.823. Runner & Calderon. Many of these cases are filed by a handful of “frequent filers”. One quadriplegic attorney who has filed more than 1. the business should retain an attorney who has the experience. raising concerns about whether the spirit of the law is being abused. under California law. Due to the significant costs of defending and litigating lawsuits (frivolous or otherwise). Others claim he is in it for the money – easy money – and he is using the law for purposes not intended by the original framers in Congress. The plaintiff attorney. (See below for the O’Campo Case Regrettably. However. In response to the outcry of business owners.000 and $6. many business owners feel they have no option but to settle out-of-court as quickly as possible. Steinberg. A majority of these cases have been filed in California. guile. THE INTENT OF SB-1608 AND THE CASP PROGRAM State and Federal laws encourage parties to litigation or threatened litigation to work things out without going to trial. a plaintiff is not only entitled to their attorneys’ fees and injunctive relief but can also recover substantial monetary damages. thousands of ADA cases have been filed against public accommodations in federal courts. If a business is sued.2724 P a g e |2 . intelligence. and help it decide whether to settle or go to trial. 2:10-CV-01105-LKK-CMK.000. CHICO MALL.COMMERCIAL / RETAIL CENTER 466 Primero Court. 2000.000 federal lawsuits claiming violations of the Americans with Disabilities Act claims he is an agent of change. Chapter 549. Federal court records in the Eastern District of California indicate one particularly frequent filer attorney has been the plaintiff in at least 1. Such lawsuit abuse is rampant by trial attorneys and plaintiffs more interested in monetary rewards than in ADA compliance. California’s disability laws have unintended built-in incentives for abuse of the legal system. The CASp report and the CASp’s expert opinions will be indispensable at trial and any settlement proceeding.aspx 3 DIMAS O’CAMPO v. Cotati CA 94931 Accessibility Evaluation and Survey PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT suggest solutions if and when barriers are identified and propose a timeline for barrier removal when such is readily achievable can be an important first step in evaluating and moving towards compliance. ADA compliance lawsuits have hit businesses all over California in recent years. One of the intended purposes of SB-1608 was to offer defendants who have engaged a CASp to conduct a survey of their site and prepare a report a judicial process that seeks to relieve not only the parties to the dispute from the burden of costly litigation but also the burden on the resources of the judiciary. California business owners have been particularly hard hit with disabled access private attorney general litigation. in an interview. said the average settlement with business owners has been between $4.com/Headlines/Pages/SB1608DisabilityAccessLawReformHowDoesItHelpBusinessOwners. This is in large part due to California’s disability laws pertaining to access. Federal courts have been slow to recognize and respond to an apparent misuse of the legal mechanisms intended to protect the rights of persons with disabilities. Smyth & Wolk) http://www.079 ADA lawsuits since 2003. Case No. Under the federal disability law. Statutes of 2008) (Corbett. FEDERAL LAWSUITS Since January 1. A majority of members of the disability community seem to agree.calchamber. US District Court. California legislators led by Senate Member Ellen Corbett was 2 successful in passing Senate Bill 1608. and tenacity to make sure that justice is ultimately served. Both state and federal courts have experienced an increase in litigation and find it exceedingly challenging to keep up with the demands to 2 (Ellen Corbett. LP. Details of the bill’s practical application are still being worked out and only until recently has the effect on Federal ADA cases provisions of California’s procedural rules under SB-1608 been 3 tested. Harman. Eastern District of California (2010) Certified Access Consultants | 707. an attorney can guide his client through the litigation process. The business should also retain the CASp that performed the inspection. a private plaintiff is entitled to injunctive relief and attorneys’ fees. If the decision is made to go to trial. prepared the report and assisted requesting parties monitor and report on accessibility improvements.

under court supervision.timely hear evidence at trial and make rulings that are faithful to due process. . The Construction-Related Accessibility Standards Compliance Act (CRASCA) enacted in California in 2009 under Senate Bill 1608 was intended. a California court must grant a 90-day stay and schedule a mandatory early evaluation conference conducted by a superior court judge or commissioner. regardless if the process “follows the letter of the law” and looses sight of the spirit and intent behind those laws. in part. court costs. who had found a lucrative means to use the federal and California State laws.54(b)(1)] 6 Id. Certified Access Consultants | 707. The CASp program and the inspectors credentialed by the Division of the State Architect (Craig Williams being so credentialed) enables business owners to follow procedures to identify barriers. the state legislature recognized the importance an alternate dispute resolution program could play in resolving issues related to accessibility in the built environment.2724 P a g e |3 . the California Disabled Persons Act. “upon being served with a summons and complaint asserting a construction-related accessibility claim . Specifically. But a recent court decision suggests this may not be the case when sued in federal court. attorneys fees. are well reasoned and founded in law.] [Cal. California’s recently enacted the Construction-Related Accessibility Standards Compliance Act (“CRASCA”) is a statute that entitles qualified defendants in construction-related accessibility suits to a stay and an early evaluation 5 conference (EEC) for the lawsuit.823. the state legislature intended to first and foremost shift the focus towards compliance and improving accessibility. In recognition of this. suggesting that CASp may not offer all the benefits intended by the California State Legislature. but prefer them over litigation as a better and more constructive method to resolve disputes. it was hoped that the parties could.” 4 4 5 [Cal. were able to make handsome sums of money whether through settlements under the threat of litigation or from litigation itself. It is my belief. can and often does. . In response to a growing number of “professional plaintiffs. Justice. making it possible to avoid expensive and lengthy proceedings that drive up legal fees. engage constructively to quickly resolve the dispute and focus on issues of improving accessibility rather than on punitive damages. By creating the incentive of an early evaluation conference and a stay (stoppage) of litigation.54. at least in California. plan for accessibility improvements. or perhaps my naive hope. implement such efforts and eventually "certify" that their facilities meet state and federal accessibility standards. to reduce abusive ADA litigation by creating the Certified Access Specialist program (CASp). One benefit the CASp program offers is that business owners with a certification of inspection have the option to stay or stop all construction-related ADA litigation initiated against them and instead proceed to mediation. Mandatory Stay: Immediately after receiving s complete application satisfactorily meeting the requirements to grant a stay and request for an EEC.51-55. the California Unruh Act and any other state or federal law. a qualified defendant may file a request for a court stay and an early evaluation conference in the proceedings of that claim prior to or simultaneous with the qualified defendant’s 6 responsive pleading or other initial appearance in the action that includes the claim. Under CRASCA a defendant has 30 days to file an application for a stay and request an early evaluation conference (EEC). defy logic. Civ. Civ. Code § 55. that the state and federal judiciaries in carrying out the mandate of its citizens not only support alternative dispute resolution forums. California's Construction-Related Accessibility Standards Compliance Act (CRASCA) The Act as signed into law under Senate Bill-1608 defines a construction-related accessibility lawsuit as any civil claim brought against a public accommodation based on a violation of standards that require new or existing construction to comply with accessibility guidelines laid out in the Americans with Disability Act (the "ADA"). Code §§ 55. and legal maneuvering. By creating the CASp program.

53(a)(1)] 10 [Cal. Code § 55.54(b) of CRASCA. interpretation of technical infeasibility and equivalent facilitation and such subjective terms as “reasonable” and “readily achievable” it may be impossible to conclusively determine a site is ever or ever will be in full compliance. Civ. Code § 4459. 12 [Cal. “means a provision. . it provides that. Civ. Code § 55. “‘CASp inspected’ means the site was inspected by a CASp and determined to meet all applicable construction-related accessibility standards” under the Act. based wholly or in part on an alleged violation of any construction-related accessibility 8 standard. a qualified defendant has thirty days to file an application (motion) for a stay 12 and early evaluation conference.5. . and 3. to not be recognized in US Federal Court. NOTE: Because the regulations are so complex. if the site is CASp inspected.” A construction-related accessibility standard. in turn. Civ.inspected’ or ‘CASp determination pending’ prior to the date the 7 defendant was served with the summons and complaint . immediately after receipt of the application for stay and early evaluation. that there have been no modifications completed or commenced since the date of inspection that may impact compliance with construction-related accessibility standards to the best of the defendant’s knowledge. Under Section 55. Civ. a program implemented by the State Architect.52(8). A CASp inspector is defined as any person who has been certified pursuant to Cal.COMMERCIAL / RETAIL CENTER 466 Primero Court.52(4). Code § 55. and the California Unruh Act.52(3).52(1)] 9 [Cal. at § 55. See O’Campo v Chico Mall. a CASp determination pending site)]. at § 55. CRASCA defines a “construction-related accessibility claim” as “any civil claim in a civil action with respect to a place of public accommodation . Gov.823.54(c)(1)] Certified Access Consultants | 707. Further. “if the CASp determines the site meets all applicable construction-related accessibility standards. Cotati CA 94931 Accessibility Evaluation and Survey PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT The statute defines a “qualified defendant” as a “place of public accommodation [as defined in the ADA] that met the requirements of ‘CASp *(certified access specialist)+ . variability of interpretations (particularly by the courts) of technical regulations.” At Cal. the CASp shall provide a written inspection report to the requested party” that describes the property and includes a statement 9 relevant to whether the inspected site (or that portion of the site which was CASp inspected) is in compliance . standard. variability of interpretation as to the applicability of exceptions to rules. “[I]f the CASp determines that corrections are needed to the site in order for the site to meet all applicable construction-related accessibility standards [(i. Furthermore.e. [Cal. Under CRASCA. but for which the CASp has not yet issued a determination of compliance with the Act. there are so many factors that can contribute to or result in non-compliance shortly after an inspection has been completed. that an inspection report has been issued by a CASp. confusion regarding scoping requirements. Civ. . or regulation under state or federal law requiring compliance with standards for making new construction and existing facilities accessible to persons with disabilities” including the statutes under which a plaintiff typically brings a claim in Federal court: the ADA and the California Disabled Persons Act. A signed declaration that declares that the site “has been CASp-inspected or is CASp determination pending. This application must include : 1. Code § 55.53 of the California Civil Code in CRASCA sets forth the obligations of the CASp. Id. In particular. and 2.53(a)(2)] 11 Such motions appear. Code § 55. . Id. Eastern District of California.2724 P a g e |4 . . the CASp shall provide a signed and dated written inspection report to the requesting party” that describes the corrections needed to meet the 10 standards and a reasonable schedule for completion of the corrections. A “CASp determination pending” defendant is one in which the public accommodation was inspected. for the time being. the court must grant a 90 day stay of the proceedings with respect to the construction-related accessibility claim and schedule a mandatory 13 11 7 8 Id. Section 55.

LLC. the California Rules of Evidence. Civ. 479 U. Chico Mall. It is likely that the case will be settled and we will never know of such particulars.” 16 In any EEC proceeding. California’s procedural laws are preempted b US Federal procedural laws. and concluded that any state law requiring that a claim brought under the ADA be subjected to such a procedure conflicts with federal law. may very well have provided the needed court supervision and guidance to realize the procedural benefits that could have accrued to the parties had the court availed itself of CRASCA. in denying the application of CRASCA this ruling serves to extend the vulnerability and embolden those who would continue to abuse the ADA in the courts. the procedural court rules and procedural law in CRASCA will only apply in California’s courts. Certified Access Consultants | 707. since no specific mention is included in the transcript. 554 F. functioning similar to a pre-trial conference. LLP that in an action filed in federal court under the ADA. CRASCA is preempted by Federal rules. The EEC under CRASCA. importance.2724 P a g e |5 . Judge Karlton. The O'Campo court arrived at the same result regarding parallel state law claims. 18 It is unclear in the published transcripts from the Court if other components of SB-1608 (substantive law) were considered. standing. 14 CASP AND FEDERAL LAWSUITS Recent Federal ADA Litigation Points to Possible Restrictions on CASp Benefits The US District Court. The O'Campo court found that the ADA does not provide for mandatory stays and early settlement conferences for a CASp-inspected public accommodation. instead of viewing the CRASCA procedures as supporting early constructive resolution. Senior Judge Lawrence Karlton opined in O'Campo v.54(d)] 15 [Cal. SoBreck. 2009) (citing Cal. and whether a triable cause of action was present. Code § 55. Rather than responding. The judge opined that CRASC imposed a “procedural burden” on the plaintiff.823. 280-81 (1987)). The court ruled that because the ADA and state claims turn on virtually identical facts and similar theories of liability. CRASCA procedural rules will not be applicable in Federal ADA claims filed in US Federal court in the Eastern District of California. value and legitimacy of California’s Rules of Civil Procedure as inseparable from and derived in conjunction with California’s substantive laws as legislated by its citizens through its elected representatives in furthering a substantial public interest.3d 742 (9th Cir. Sav. it is not necessary that a federal statute expressly state that it preempts state law. Guerra. 17 Hubbard v. denied the defendant’s procedural motion intended to provide a forum for an early evaluation conference to review the merits of the case. recently ruled that California procedural law was preempted by federal court rules. “[F]or federal law to preempt state law. particularly when the monetary damages and attorney’s fees provisions of state laws is triggered under supplementary jurisdiction." Judge Lawrence Karlton opined. it would be "an inappropriate use of judicial resources to have the federal courts and the state courts simultaneously resolve cases with virtually identical facts. Until US Federal courts recognize California Civil Code procedural provisions associated with California’s Construction-Related Accessibility Standards Compliance Act (CRASCA SB-1608). a "public accommodation" inspected by a CASp credentialed inspector under CRASCA is not entitled to the state procedural benefits and protections afforded by CRASCA. 14 [Cal. The Ninth Circuit has held that. to address the vulnerability to abuse of the ADA in Federal ADA trials.early evaluation conference. “Early evaluation conferences shall be conducted by a superior court judge or 15 commissioner. According to the Federal Judge in this case. 272. section 1152 apply. In August 2010. State rules cannot impose any additional procedural hurdles to a plaintiff bringing a claim under the ADA. keep in mind.” The ruling suggests there is still a great deal of reluctance by some 18 Federal judges to contemplate any benefit afforded by mandatory alternative dispute resolution . as the California state legislature did with SB-1608.S. 13 Implies a court responsive to and exhibiting recognition of the intent. or a court early evaluation conference officer. Eastern District of California. Civ. & Loan Ass'n v. Code § 55.54(f)] 16 Again. Federal law preempts state law if the state 17 law "actually conflicts" with federal law. and thereby conserving judicial resources. Fed.

Furthermore. By denying due process under state civil procedure. and address the substantive and factual merits of the plaintiff’s claims and defendant’s affirmative defenses under California Civil Procedure rules. the California Legislature intended that the purpose of the evaluation conference shall…” include. In failing to allow state civil procedure along with the decision to grant supplemental jurisdiction. Nor are there any such provisions addressing a situation where a CASp inspector finds conditions of non-compliance with con construction-related accessibility standards and the covered entity is on a structured path towards compliance. It is clear that the state Legislators intended the process to provide a venue where the parties could. even when the plaintiff seeks to enjoin state substantive law in its pleadings. in good faith. defendants are denied a legitimate forum intended to resolve issues quickly without the burden of costly and protracted litigation. Certified Access Consultants | 707. the Act is preempted to the extent it applies to plaintiff’s ADA claim. evaluation of all of the following: 1. Whether the defendant is entitled to the 90-day stay for some or all of the identified issues in the case.823. then. clearly conflicts with federal law. The court in O’Campo concluded that federal rules of procedure apply. the court ruled. and demonstrating a commitment to accessibility by complying with construction-related standards) can serve to materially and substantively alter and define an outcome at trial. In this particular case. In the opinion of this CASp. Cotati CA 94931 Accessibility Evaluation and Survey PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT At issue is that neither the ADA nor Federal procedural rules have a provision for mandatory stays and early settlement conferences where a public accommodation has been inspected by a CASp credentialed inspector and found to be in compliance with federal as well as state law. Judge Lawrence Karlton. Additionally. State procedural law. The impact of this case on applicability of the CASp program has yet to be seen. the court supervised discovery process within an Early Evaluation Conference forum might have been instrumental at arriving at a much more timely and constructive resolution to the dispute. Chico Mall. The state legislators shared an interest with Judge Karlton – to conserve judicial resources. as a qualified defendant. Karlton also believed that the stay would not be determinative on the outcome. LLP the defendant requested that this court decline supplemental jurisdiction if it finds that application of CRASCA to the ADA is preempted. believed the defendant’s request for a 90-day stay to be pointless because the parties would only be engaged in discovery for plaintiff’s federal and state law claims during the period of the stay. which the defendant wanted considered due in part to the provisions of CRASCA. it is the opinion of the CASp that a showing of good faith is clearly demonstrated by a defendant’s conduct (hiring a CASp. the court erred in concluding that state procedural rules would have had no determinative effect on the outcome. Thus. Courts typically assume supplemental jurisdiction (will hear a state claim) when a federal and state case would otherwise be tried with virtually identical facts. were denied. Karlton not only expanded demands on judicial resources but failed to recognize the value defendant’s ongoing good faith conduct. but not be limited to.2724 P a g e |6 . In O'Campo v. undertaking work to remove barriers where readily achievable.COMMERCIAL / RETAIL CENTER 466 Primero Court. even though the court agreed to accept the plaintiff’s request of the court to take supplemental jurisdiction over state claims issues along with the relief that may be granted a plaintiff under California’s Unruh Act (monetary damages = statutory damages plus attorneys fess). Any state law requirement that a claim brought under the ADA be subjected to such a procedure. Courts will. theUS District Court failed to recognize the legitimate interests of the people of California in developing procedural laws for enforcing California substantive law in a manner that is intended to curb abuse of accessibility laws by those seeking monetary gain. in the interest of conserving judicial resources. exercise supplemental jurisdiction over the state law claims. Quite to the contrary. in expressing his opinion. the provisions of CRASCA appear might have been determinative insofar as allowing state civil procedure in this case would have substantively limited the damages available to plaintiff and the burden on plaintiff to prove the standing could have been greater. arrive at a resolution to a dispute involving issues of accessibility under both Federal ADA standards and the state’s often more restrictive codes. the federal and state claims turn on virtually identical facts and similar theories of liability. However. Perhaps more importantly.

4. In the meantime. hopefully Federal and State accessibility requirements and their enforcement can become more harmonized. and the initiative the courts have taken on their own. The court may schedule additional conferences and may extend the 90-day stay for good cause shown. Whether the case. still offers other benefits.The current condition of the site and the status of any plan of corrections. Certification under CASp. to compel alternative dispute resolution. other Districts (such as the Northern District and Southern District of California) with standing general orders in ADA cases providing protections afforded under the ADA may reach different results. perhaps more reasoned conclusion. however bad it is. including whether the qualified defendant has corrected or is willing to correct the alleged violations. we must now look to other courts to derive a better. and ultimately to overrule this case. Interpretation of O’Campo: Perhaps some court officers are reluctant. and legal research in support of the very alternative dispute resolution process represented by CRASCA. this Federal judge prefers to ignore and stifle efforts by the State of California to reign in abuse of the ADA. The O’Campo ruling shows that. including. Only one additional 90-day extension may be granted. Certified Access Consultants | 707. can be settled in whole or in part. In spite of the O’Campo decision. 3. What the O'Campo trial has shown us is that the CASp program is not a "panacea" that will enable a qualified defendant in a federal action to stop all construction-related ADA litigation and proceed to an early evaluation conference / mediation. CRASCA also provides that statutory damages are recoverable only if the violation or violations of one or more of the construction-related accessibility standards actually as a result of that barrier deterred or denied the plaintiff full and equal access to the place of the public accommodation on a particular occasion.2724 P a g e |7 . and the timeline for doing so. According to Judge Karleton’s opinion. faithfulness to the people’s will. particularly where the abuse of those laws is emboldened and abetted by the very procedures narrowly construed by the court. Debate and future trials will continue to shape incentives towards alternative dispute resolution of the kind promised by CRASCA (at least as applies in California Court). In spite of the fact that the ruling by the Federal Judge in the O’Campo case does not recognize California’s rules of civil procedure as pertinent to and inseparable from California Civil Code (substantive law) suggests that a revisit of the applicability of Erie v . guidance on achieving compliance with state and federal construction-related accessibility standards. 2. federal rule preemption and the conflicts between federal and state jurisprudence are likely to continue to be fraught with controversy and unsettled debate as new laws are subjected to the test of time and evolve. however. judicial committee findings. even mandatory ADR. Any party can make an offer to compromise pursuant to Section 998 of the Code of Civil Procedure. The salient issue is whether ADR should be a procedural requirement. Since O'Campo is an Eastern District of California Court Opinion. prudent California commercial property owners and business operators should continue to obtain and maintain current CASp certifications. The politics of state’s sovereignty. in spite of the direction given by Congress to the Federal courts. Until the lucrative nature of litigation ceases to be the primary driving factor in the majority of ADA cases there will likely never be support for a consistent process to resolve disputes where state and federal rules collide. such an imposition amounts to a burdensome hurdle with no perceived value and would not be a determinative factor in effecting the outcome at trial. for example. at the very least. at least to the extent they relate directly to pertinent issues in the California Civil Code (Unruh Act and Disabled Persons Act) will require a carefully reasoned and sound argument.823. Perhaps what was not sufficiently argued by the defendant’s attorneys in its response was guidance given in the extensive information in the federal record. Over time. including any claim for damages or injunctive relief. at least as far as when a claim is filed against them in the Eastern District of California. Whether the parties should share other information that may facilitate early evaluation and resolution of the dispute. until the Ninth Circuit Court of Appeals decides to issue an opinion. Ultimately to compel Judges like Lawrence Karlton to alter their rulings in favor of allowing the California procedural rules.

Cotati CA 94931 Accessibility Evaluation and Survey PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT Someday. The Federal judiciary has historically resisted mandatory arbitration for a variety of reasons. ADR BY STATUTE AND REGULATION Since the late 1980s. craft language that would require any court. particularly considering the preponderance of evidence showing that the ADA has and continues to be abused by some litigants and their attorneys. Congress enacted the Judicial Improvements and Access to Justice Act which permitted U. Congress has recognized that ADR provides a cost-efficient alternative to traditional methods 19 for dispute resolution. Many judges feel it is better to let the parties select ADR voluntarily. There is an overwhelming amount of information in support of promoting. In this way.S. 112 Stat. the Federal court must. In 1988. § 652] Pub. In contrast. or at least their judicial counsels.S. The California state legislature may.C. Both the integrity of the law (procedural and substantive) and the integrity of the office of the court can be upheld while respecting the will of the people (as enacted by their duly elected state legislature). For example. No. that litigants in all civil cases at least consider using an ADR process at the appropriate state of litigation.2724 P a g e |8 . District Court for the Western District of Texas recognizes early neutral 19 20 [28 U. Someday there may be a recognition that legal processes used (or denied) at trial are a very definite determinative factor in outcomes. It appears. the U. not in the absence of integrated procedural requirements giving the intended effect of those laws. both parties must agree to voluntarily engage in an ADR forum. state substantive laws.S.A. to suggest a strong prejudice by the Central District US Federal Court against mandatory or court supervised ADR (whether state or federal) as a reasonable and viable method of efficiently resolving a claim. It is true there is a distinct and troubling conflict between Karlton in his interpreting application of Federal procedural law and the will of the people of California as established in it own state laws. There may also be a recognition that in order to assume supplementary jurisdiction over state law. The following is provided as an introduction to some of these alternatives to litigating disputes. encouraging and supporting ADR mechanisms in judicial settings.C.In limited instances. in the O’Campo trial. One possible solution could be a Federal statute that adopts CRASCA (or something similar) such that if and when a plaintiff pleads and the US Court assumes supplementary jurisdiction of State law. they must include the procedural laws or decline to assume the supplementary jurisdiction altogether (an “all or nothing rule” so to speak). burdensome procedures that [they feel] would delay and ultimately escalate the cost of resolution if trial was inevitable. should reasonably provide for the will of the people of that state in effectuating those state laws. L. all of state law (substantive and procedural) should be applied. district courts to submit disputes to arbitration. Federal courts have used mandatory ADR.S. district courts typically do provide a wide array of non-mandatory ADR methods.COMMERCIAL / RETAIL CENTER 466 Primero Court. Local rules of U. in some cases. 2994 Certified Access Consultants | 707.A.823. Federal Judges like Karlton. the ADR under CRASCA and California’s procedural rules. ADR in these instances is voluntary. Congress amended this statute with the enactment of 20 the Alternative Dispute Resolution Act of 1998 which requires each district court to require. as a condition of the supplementary jurisdiction apply the State’s procedural rules to the extent that such procedures have a specific and particularized application to the associated relevant Civil Code those procedures are intended to address. when tried in Federal court. allows a qualified defendant the “right” to a stay and Early Evaluation Conference if supported by the merits of defendant’s motion. if and when Federal courts assume supplemental jurisdiction over California’s Civil Codes. including federal court. In other words. to recognize and apply specific state procedural rules as apply and are specifically related to the substantive law contained in State Civil Codes in order to give the intended particularized effect to the state Civil Code statutes. 2003) [28 U. § 652] (1993 & Supp. Perhaps additional federal legislation can occur to frame mandatory ADR applicable to federal courts in a manner similar to California’s legislative response to the issues raised as a result of abuse of the ADA for monetary gain. by local rule. will recognize the folly of carelessly using federal preemption when it derails viable and constructive means to appropriate resolution of a dispute as provide for in states procedural law. most notably a reluctance to require plaintiffs to undergo.S. 105-315. through a cleanup amendment to SB-1608.

Loc.S. and that courts should encourage or require the use of arbitration for those actions whenever possible. How such rules or their interpretation may apply to ADA clams is unknown. (b) It is the intent of the Legislature that: (1) Arbitration hearings held pursuant to this chapter shall provide parties with a simplified and economical procedure for obtaining prompt and equitable resolution of their disputes.31: Judicial Arbitration 22 This section of the code outlines the civil arbitration process for superior courts.10-1141. Likewise. 1979. CALIFORNIA ALTERNATIVE DISPUTE RESOLUTION STATUTES California Code of Civil Procedure Section 1141. § 1401 (1997). holding that it was not the place of a court of appeals to resolve the dispute on its merits. and arbitral award limits and modifications.10-1141. Versions of the Uniform Arbitration Act.31 Certified Access Consultants | 707. possess authority to submit most types of cases to mediation or arbitration in lieu of litigation. de novo trial requests. Ct. The Commissioners on Uniform Laws have approved several uniform laws. 504. which reviews complaints brought by employees of Congress.C.gov/cgi-bin/displaycode?section=ccp&group=01001-02000&file=1141. Most other district courts have adopted similar rules. 149 L. The Ninth Circuit then remanded the case to the arbitration panel with instructions to enter an award in favor of the player for the amount he claimed.ca. moderated settlement conference. In Major League Baseball Players Ass'n v. The Legislature further finds and declares that arbitration has proven to be an efficient and equitable method for resolving small civil cases.S. have been adopted by 49 states. in addition to holding a board hearing or initiating a civil action in federal court. Fla.1011 (1997). (a) The Legislature finds and declares that litigation involving small civil cases can be so costly and complex that efficiently resolving these civil cases is difficult.C. For instance.leginfo. W. ADR often takes the form of mediation in disputes involving labor and employment relations and equal employment opportunity. March 31. first approved in 1956. Judges in Florida. Congress has also included ADR provisions in a number of statutes to resolve a variety of disputes. 2 U. related to ADR proceedings. drafted in conjunction with the American Bar Association's Section on Dispute Resolution in 2001.S. Similar statutes apply to such conflicts as labor disputes and claims by individuals with disabilities. Tex. on agreement of both parties.A. and that the resulting delays and expenses may deny parties their right to a timely resolution of minor civil disputes. provides rules on the issues of confidentiality and privileges in mediation.31 1141. the court may order ADR on the motion of a party.10. Courts frequently uphold decisions made during ADR proceedings. the Uniform Mediation Act. Garvey.823. or on its own motion. Congress amended the Administrative Procedure Act in 1990 to authorize and encourage administrative agencies to submit administrative disputes to ADR. may order counseling or mediation.10-1141. Ed. minitrial. State legislatures have similarly provided for ADR in many of their statutes. amended 2006 http://www. and arbitration as acceptable forms of ADR. Stat. mediation.D. among other topics. 21 22 Major League Baseball Players Association v. 2d 740 (2001) Legislative Counsel of California. Several federal agencies provide guides about ADR proceedings to prospective complainants and other constituents. 5 U.A. § 572 (1996).2724 P a g e |9 . § 44. ADR has had an impact on administrative agencies as well. It addresses which cases should be referred to arbitration.evaluation. Noting that Judicial Review of labor arbitration decisions is limited. 121 S. summary jury trial.S. arbitrator qualifications and compensation. the Supreme Court reversed the Ninth Circuit's decision. R. for example. CV-88. Garvey 21 the U. which may be adopted by the various states. CODE OF CIVIL PROCEDURE SECTION 1141. the Board of Directors of the Office of Compliance. Supreme Court reviewed a decision in which the Ninth Circuit Court of Appeals had reversed a decision of an arbitration panel regarding a complaint by former Baseball player Steve Garvey about a contract dispute. 1724. 532 U. According to these rules.

thereby allowing the courts to process their remaining cases more efficiently. 30. Statewide court ethical guidelines or standards: California General Rules Relating to Mediation of Civil Cases. amended 2006 http://www. http://uscode. It also addresses non-agreement procedures. Oct. Cotati CA 94931 Accessibility Evaluation and Survey PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT (2) Arbitration hearings shall be as informal as possible and shall provide the parties themselves maximum opportunity to participate directly in the resolution of their disputes.S. (ADRA . Findings and Declaration of Policy.org/library/view. (3) Members of the State Bar selected to serve as arbitrators should have experience with cases of the type under dispute and are urged to volunteer their services without compensation whenever possible. when supported by the bench and bar.S. § 651-658 (1998). and allows cases eligible for arbitration in Los Angeles County. It sets a jurisdictional limit of $50.2724 P a g e | 10 . and all other counties that elect to apply to the statute.823.php?ID=2750 Statewide court grievance/complaint procedure: California General Rules Relating to Mediation of Civil Cases. and collaborative stakeholder engagement in appropriate circumstances.gov/cgi-bin/displaycode?section=ccp&group=01001-02000&file=1775-1775.C. and (3) the continued growth of Federal appellate court-annexed mediation programs suggests that this form of alternative dispute resolution can be equally effective in resolving disputes in the Federal trial 24 23 Legislative Counsel of California. 1993.leginfo. Congress passed the Alternative Dispute 25 Resolution Act of 1998.originally enacted in 1990) Purpose: In Section 2 of the ADRA.house.15: Civil Action Mediation 23 This section of the code lists civil action cases eligible for mediation.000 on cases that may be referred to mediation. to be referred to mediation as an alternative resolution process.org/library/view. early neutral evaluation. 1998. including mediation. Congress stated in its findings that-(1) alternative dispute resolution. innovative methods of resolving disputes. has the potential to provide a variety of benefits. Article 2: Rules of Conduct for Mediators in CourtConnected Mediation Programs for Civil Cases http://courtadr. Article 3: Requirements for Addressing Complaints About Court-Program Mediators http://courtadr.ca. including greater satisfaction of the parties. mediator selection and compensation. (2) certain forms of alternative dispute resolution. and utilizing properly trained neutrals in a program adequately administered by the court.shtml 25 [28 USC 651] PL 105-315 Certified Access Consultants | 707. This act authorizes each United States District Court to require litigants in all civil cases to consider the use of ADR process.COMMERCIAL / RETAIL CENTER 466 Primero Court. the US Congress and the Executive branch have encouraged the use of ADR.php?ID=2750 FEDERAL ALTERNATIVE DISPUTE RESOLUTION STATUTES U. California Code of Civil Procedure Section 1775-1775. It provides the framework by which each district court should promulgate procedures and rules regarding the ADR process within its jurisdiction.gov/search/criteria.15 24 28 U. Alternative Dispute Resolution Act of 1998 Since 1990. and shall be held during nonjudicial hours whenever possible. and greater efficiency in achieving settlements. and other topics. may have potential to reduce the large backlog of cases now pending in some Federal courts throughout the United States. minitrials. House of Representatives Office of the Law Revision Counsel. conflict prevention. and voluntary arbitration.

28 http://www.htm 29 See 1983 amendments to FED.C.courts. the number of states which formally incorporated ADR methods grew to 27 states and the District of Columbia. provides for the staged resolution or bifurcation of issues for trial consistent with Rule 42(b) of the Federal Rules of Civil Procedure. and (ii) phase discovery into two or more stages. minitrial.law. or (B) the court may make available. including mediation.S.gov/documents/ycr/adr1998.cornell. CIV. 30 The Civil Justice Reform Act of 1990 also required every federal district court to consider court-sponsored ADR. 31 The Civil Justice Expense and Delay Reduction Plans (3) “for all cases that the court or an individual judicial officer determines are complex and any other appropriate cases. In 1983. and (D) sets. §§ 471–482] (2006). In addition.–Apr. FEDERAL COURT ADR PROCESSES Court-annexed ADR programs were set up throughout the U. 1995. 30 [28 U. The ADRA requires Federal District Courts to.S.S.edu/rules/frcp/Rule16. at 1. and summary jury trial. Mar. §16(c)(7) and Advisory Committee Notes. and (6) authorization to refer appropriate cases to alternative dispute resolution programs that (A) have been designated for use in a district court.dot. and legislation was enacted to encourage the use of 27 28 ADR. overseeing and evaluating the court’s ADR programs. among other things:  adopt a local rule authorizing the use of ADR processes in all civil actions  devise and implement an ADR program to encourage and promote the use of ADR  designate a person responsible for implementing. 26 27 For the text of ADRA see: http://www. settlement or proceeding with the litigation. and the propriety of.2724 P a g e | 11 . R. at the earliest practicable time. (5) conservation of judicial resources by prohibiting the consideration of discovery motions unless accompanied by a certification that the moving party has made a reasonable and good faith effort to reach agreement with opposing counsel on the matters set forth in the motion.C. (B) identifies or formulates the principal issues in contention and.dotcr. deadlines for filing motions and a time framework for their disposition. (C) prepares a discovery schedule and plan consistent with any presumptive time limits that a district court may set for the completion of discovery and with any procedures a district court may develop to (i) identify and limit the volume of discovery available to avoid unnecessary or unduly burdensome or expensive discovery. § 23] (2010) Certified Access Consultants | 707.823.htm From 1984 to 1994. Rule 16 of the Federal Rules of Civil Procedure was amended to exhort courts to consider the 29 “possibility of settlement” or “the use of extrajudicial procedures to resolve the dispute” at pre-trial conferences. (4) encouragement of cost-effective discovery through voluntary exchange of information among litigants and their attorneys and through the use of cooperative discovery devices. careful and deliberate monitoring through a discovery-case management conference or a series of such conferences at which the presiding judicial officer -(A) explores the parties' receptivity to.ost. NIDR NEWS. in appropriate cases. therefore. Dispute Resolution Options in State Courts: NIDR Survey Reveals Significant Growth. 31 [28 U. administering. the ADR Act of 1998 gave district courts the mandate to establish ADR programs and listed mediation as an appropriate. See Judith Filner. the district courts should consider including mediation in their local alternative dispute 26 resolution programs. P.