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
1
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

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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. If a business is sued, an
attorney can guide his client through the litigation process, and help it decide whether to settle or go to trial. If the
decision is made to go to trial, the business should retain an attorney who has the experience, guile, intelligence, and
tenacity to make sure that justice is ultimately served. The business should also retain the CASp that performed the
inspection, prepared the report and assisted requesting parties monitor and report on accessibility improvements.
The CASp report and the CASp’s expert opinions will be indispensable at trial and any settlement proceeding.

FEDERAL LAWSUITS
Since January 1, 2000, thousands of ADA cases have been filed against public accommodations in federal courts. A
majority of these cases have been filed in California. Many of these cases are filed by a handful of “frequent filers”.
One quadriplegic attorney who has filed more than 1,000 federal lawsuits claiming violations of the Americans with
Disabilities Act claims he is an agent of change. 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. A majority of members of the disability
community seem to agree.

Federal court records in the Eastern District of California indicate one particularly frequent filer attorney has been
the plaintiff in at least 1,079 ADA lawsuits since 2003. The plaintiff attorney, in an interview, said the average
settlement with business owners has been between $4,000 and $6,000.

ADA compliance lawsuits have hit businesses all over California in recent years, raising concerns about whether the
spirit of the law is being abused. California business owners have been particularly hard hit with disabled access
private attorney general litigation. This is in large part due to California’s disability laws pertaining to access. Under
the federal disability law, a private plaintiff is entitled to injunctive relief and attorneys’ fees. However, under
California law, a plaintiff is not only entitled to their attorneys’ fees and injunctive relief but can also recover
substantial monetary damages.

California’s disability laws have unintended built-in incentives for abuse of the legal system. Such lawsuit abuse is
rampant by trial attorneys and plaintiffs more interested in monetary rewards than in ADA compliance. Many of the
lawsuits are over relatively minor infractions that are unintended rather than deliberate attempts to circumvent or
ignore the law. Due to the significant costs of defending and litigating lawsuits (frivolous or otherwise), many
business owners feel they have no option but to settle out-of-court as quickly as possible.
In response to the outcry of business owners, California legislators led by Senate Member Ellen Corbett was
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successful in passing Senate Bill 1608. 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
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tested. (See below for the O’Campo Case Regrettably, 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.

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. 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. 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; D-San Leandro, Chapter 549, Statutes of 2008)
(Corbett, Harman, Steinberg, Runner & Calderon; Smyth & Wolk)
http://www.calchamber.com/Headlines/Pages/SB1608DisabilityAccessLawReformHowDoesItHelpBusinessOwners.aspx
3
DIMAS O’CAMPO v. CHICO MALL, LP; Case No. 2:10-CV-01105-LKK-CMK; US District Court, Eastern District of
California (2010)

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timely hear evidence at trial and make rulings that are faithful to due process, are well reasoned and founded in law.
In recognition of this, at least in California, the state legislature recognized the importance an alternate dispute
resolution program could play in resolving issues related to accessibility in the built environment. In response to a
growing number of “professional plaintiffs, who had found a lucrative means to use the federal and California State
laws, were able to make handsome sums of money whether through settlements under the threat of litigation or
from litigation itself.

By creating the CASp program, the state legislature intended to first and foremost shift the focus towards compliance
and improving accessibility. By creating the incentive of an early evaluation conference and a stay (stoppage) of
litigation, it was hoped that the parties could, under court supervision, engage constructively to quickly resolve the
dispute and focus on issues of improving accessibility rather than on punitive damages, court costs, attorneys fees,
and legal maneuvering.

It is my belief, or perhaps my naive hope, that the state and federal judiciaries in carrying out the mandate of its
citizens not only support alternative dispute resolution forums, but prefer them over litigation as a better and more
constructive method to resolve disputes. Justice, can and often does, defy logic, regardless if the process “follows the
letter of the law” and looses sight of the spirit and intent behind those laws.

The Construction-Related Accessibility Standards Compliance Act (CRASCA) enacted in California in 2009 under
Senate Bill 1608 was intended, in part, to reduce abusive ADA litigation by creating the Certified Access Specialist
program (CASp). 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, plan for
accessibility improvements, implement such efforts and eventually "certify" that their facilities meet state and
federal accessibility standards. 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, making it possible to avoid expensive and lengthy proceedings that drive up legal fees. But a
recent court decision suggests this may not be the case when sued in federal court, suggesting that CASp may not
offer all the benefits intended by the California State Legislature.

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"), the California
Disabled Persons Act, the California Unruh Act and any other state or federal law. Under CRASCA a defendant has 30
days to file an application for a stay and request an early evaluation conference (EEC).

Mandatory Stay: Immediately after receiving s complete application satisfactorily meeting the requirements to grant
a stay and request for an EEC, a California court must grant a 90-day stay and schedule a mandatory early evaluation
conference conducted by a superior court judge or commissioner.
4
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
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conference (EEC) for the lawsuit. Specifically, “upon being served with a summons and complaint asserting a
construction-related accessibility claim . . . 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
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responsive pleading or other initial appearance in the action that includes the claim.”

4
[Cal. Civ. Code §§ 55.51-55.54.]
5
[Cal. Civ. Code § 55.54(b)(1)]
6
Id.

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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)+ - inspected’ or ‘CASp determination pending’ prior to the date the
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defendant was served with the summons and complaint . . . .”

At Cal. Civ. Code § 55.52(8). A CASp inspector is defined as any person who has been certified pursuant to Cal. Gov.
Code § 4459.5, a program implemented by the State Architect. Id. at § 55.52(3). “‘CASp inspected’ means the site was
inspected by a CASp and determined to meet all applicable construction-related accessibility standards” under the
Act. Id. at § 55.52(4). A “CASp determination pending” defendant is one in which the public accommodation was
inspected, but for which the CASp has not yet issued a determination of compliance with the Act.

CRASCA defines a “construction-related accessibility claim” as “any civil claim in a civil action with respect to a place
of public accommodation . . . based wholly or in part on an alleged violation of any construction-related accessibility
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standard.” A construction-related accessibility standard, in turn, “means a provision, standard, 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, and the California Unruh Act.

Section 55.53 of the California Civil Code in CRASCA sets forth the obligations of the CASp. In particular, it provides
that, “if the CASp determines the site meets all applicable construction-related accessibility standards, the CASp shall
provide a written inspection report to the requested party” that describes the property and includes a statement
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relevant to whether the inspected site (or that portion of the site which was CASp inspected) is in compliance .
Further, “[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.e. a CASp determination pending site)], the CASp shall provide a signed
and dated written inspection report to the requesting party” that describes the corrections needed to meet the
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standards and a reasonable schedule for completion of the corrections.

NOTE: Because the regulations are so complex, variability of interpretations (particularly by the courts) of technical
regulations, confusion regarding scoping requirements, variability of interpretation as to the applicability of
exceptions to rules, 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. Furthermore, there are so many factors that can contribute to or result in non-compliance shortly
after an inspection has been completed.
11
Under Section 55.54(b) of CRASCA, a qualified defendant has thirty days to file an application (motion) for a stay
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and early evaluation conference. This application must include :
1. A signed declaration that declares that the site “has been CASp-inspected or is CASp determination pending;
and
2. if the site is CASp inspected, 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; and
3. that an inspection report has been issued by a CASp.
13
Under CRASCA, immediately after receipt of the application for stay and early evaluation, the court must grant a 90
day stay of the proceedings with respect to the construction-related accessibility claim and schedule a mandatory

7
Id.
8
[Cal. Civ. Code § 55.52(1)]
9
[Cal. Civ. Code § 55.53(a)(1)]
10
[Cal. Civ. Code § 55.53(a)(2)]
11 Such motions appear, for the time being, to not be recognized in US Federal Court, Eastern District of California.
See O’Campo v Chico Mall.
12
[Cal. Civ. Code § 55.54(c)(1)]

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early evaluation conference. “Early evaluation conferences shall be conducted by a superior court judge or
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commissioner, or a court early evaluation conference officer.”
16
In any EEC proceeding, the California Rules of Evidence, section 1152 apply.

CASP AND FEDERAL LAWSUITS

Recent Federal ADA Litigation Points to Possible Restrictions on CASp Benefits

The US District Court, Eastern District of California, recently ruled that California procedural law was preempted by
federal court rules. Until US Federal courts recognize California Civil Code procedural provisions associated with
California’s Construction-Related Accessibility Standards Compliance Act (CRASCA SB-1608), the procedural court
rules and procedural law in CRASCA will only apply in California’s courts. According to the Federal Judge in this case,
CRASCA procedural rules will not be applicable in Federal ADA claims filed in US Federal court in the Eastern District
of California. In August 2010, Senior Judge Lawrence Karlton opined in O'Campo v. Chico Mall, LLP that in an action
filed in federal court under the ADA, a "public accommodation" inspected by a CASp credentialed inspector under
CRASCA is not entitled to the state procedural benefits and protections afforded by CRASCA. The O'Campo court
found that the ADA does not provide for mandatory stays and early settlement conferences for a CASp-inspected
public accommodation, and concluded that any state law requiring that a claim brought under the ADA be subjected
to such a procedure conflicts with federal law. The O'Campo court arrived at the same result regarding parallel state
law claims. The court ruled that because the ADA and state claims turn on virtually identical facts and similar theories
of liability, 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."

Judge Lawrence Karlton opined, CRASCA is preempted by Federal rules. State rules cannot impose any additional
procedural hurdles to a plaintiff bringing a claim under the ADA. Judge Karlton, instead of viewing the CRASCA
procedures as supporting early constructive resolution, and thereby conserving judicial resources, denied the
defendant’s procedural motion intended to provide a forum for an early evaluation conference to review the merits
of the case, standing, and whether a triable cause of action was present. The judge opined that CRASC imposed a
“procedural burden” on the plaintiff. The Ninth Circuit has held that, “[F]or federal law to preempt state law, it is not
necessary that a federal statute expressly state that it preempts state law. Federal law preempts state law if the state
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law "actually conflicts" with federal law.” The ruling suggests there is still a great deal of reluctance by some
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Federal judges to contemplate any benefit afforded by mandatory alternative dispute resolution . The EEC under
CRASCA, functioning similar to a pre-trial conference, 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. Rather than responding, as the California state legislature did with SB-1608, to address the vulnerability to
abuse of the ADA in Federal ADA trials, particularly when the monetary damages and attorney’s fees provisions of
state laws is triggered under supplementary jurisdiction, 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.

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Implies a court responsive to and exhibiting recognition of the intent, importance, 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.
14
[Cal. Civ. Code § 55.54(d)]
15
[Cal. Civ. Code § 55.54(f)]
16 Again, keep in mind, California’s procedural laws are preempted b US Federal procedural laws.
17
Hubbard v. SoBreck, LLC, 554 F.3d 742 (9th Cir. 2009) (citing Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272,
280-81 (1987)).
18 It is unclear in the published transcripts from the Court if other components of SB-1608 (substantive law) were
considered, since no specific mention is included in the transcript. It is likely that the case will be settled and we
will never know of such particulars.

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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. 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. Any state law requirement that a claim brought
under the ADA be subjected to such a procedure, then, clearly conflicts with federal law. Thus, the Act is preempted
to the extent it applies to plaintiff’s ADA claim.

In O'Campo v. Chico Mall, LLP the defendant requested that this court decline supplemental jurisdiction if it finds
that application of CRASCA to the ADA is preempted. In this particular case, the court ruled, the federal and state
claims turn on virtually identical facts and similar theories of liability. Courts typically assume supplemental
jurisdiction (will hear a state claim) when a federal and state case would otherwise be tried with virtually identical
facts. Courts will, in the interest of conserving judicial resources, exercise supplemental jurisdiction over the state
law claims.

The court in O’Campo concluded that federal rules of procedure apply, even when the plaintiff seeks to enjoin state
substantive law in its pleadings. State procedural law, which the defendant wanted considered due in part to the
provisions of CRASCA, were denied, 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). In the opinion of this CASp, the
court erred in concluding that state procedural rules would have had no determinative effect on the outcome. Quite
to the contrary, it is the opinion of the CASp that a showing of good faith is clearly demonstrated by a defendant’s
conduct (hiring a CASp, undertaking work to remove barriers where readily achievable, 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.

It is clear that the state Legislators intended the process to provide a venue where the parties could, in good faith,
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 state legislators shared an interest with Judge Karlton – to conserve judicial
resources. In failing to allow state civil procedure along with the decision to grant supplemental jurisdiction, Karlton
not only expanded demands on judicial resources but failed to recognize the value defendant’s ongoing good faith
conduct. By denying due process under state civil procedure, defendants are denied a legitimate forum intended to
resolve issues quickly without the burden of costly and protracted litigation, and address the substantive and factual
merits of the plaintiff’s claims and defendant’s affirmative defenses under California Civil Procedure rules. Perhaps
more importantly, 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. The impact of this case on applicability of the CASp program has
yet to be seen.

Judge Lawrence Karlton, in expressing his opinion, 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. Karlton also believed that the stay would not be determinative on the outcome.
However, 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. Additionally, 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.

Furthermore, the California Legislature intended that the purpose of the evaluation conference shall…” include, but
not be limited to, 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, as a qualified defendant.

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 2. The current condition of the site and the status of any plan of corrections, including whether the
qualified defendant has corrected or is willing to correct the alleged violations, and the timeline for
doing so.
3. Whether the case, including any claim for damages or injunctive relief, can be settled in whole or in
part.
4. Whether the parties should share other information that may facilitate early evaluation and
resolution of the dispute.
Any party can make an offer to compromise pursuant to Section 998 of the Code of Civil Procedure. The
court may schedule additional conferences and may extend the 90-day stay for good cause shown. Only
one additional 90-day extension may be granted.

Since O'Campo is an Eastern District of California Court Opinion, until the Ninth Circuit Court of Appeals decides to
issue an opinion, 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. Certification
under CASp, however, still offers other benefits, including, for example, guidance on achieving compliance with state
and federal construction-related accessibility standards. 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.

In spite of the O’Campo decision, however bad it is, we must now look to other courts to derive a better, perhaps
more reasoned conclusion, and ultimately to overrule this case. In the meantime, prudent California commercial
property owners and business operators should continue to obtain and maintain current CASp certifications.
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; at least as far as when a claim is filed against them in the Eastern District of California.
Interpretation of O’Campo: Perhaps some court officers are reluctant, in spite of the direction given by Congress to
the Federal courts, and the initiative the courts have taken on their own, to compel alternative dispute resolution,
even mandatory ADR. 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). The salient issue is whether ADR
should be a procedural requirement. According to Judge Karleton’s opinion, 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.
The politics of state’s sovereignty, faithfulness to the people’s will, 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. Over time, hopefully Federal and State accessibility
requirements and their enforcement can become more harmonized. 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, particularly where the abuse of those laws is emboldened
and abetted by the very procedures narrowly construed by the court. The O’Campo ruling shows that, at the very
least, this Federal judge prefers to ignore and stifle efforts by the State of California to reign in abuse of the ADA.
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 . 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, judicial committee findings, and legal research in
support of the very alternative dispute resolution process represented by CRASCA. Ultimately to compel Judges like
Lawrence Karlton to alter their rulings in favor of allowing the California procedural rules, 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.

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Someday, Federal Judges like Karlton, or at least their judicial counsels, 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. 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).
Someday there may be a recognition that legal processes used (or denied) at trial are a very definite determinative
factor in outcomes. There may also be a recognition that in order to assume supplementary jurisdiction over state
law, all of state law (substantive and procedural) should be applied; state substantive laws, when tried in Federal
court, should reasonably provide for the will of the people of that state in effectuating those state laws, not in the
absence of integrated procedural requirements giving the intended effect of those laws. It appears, in the O’Campo
trial, 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; particularly
considering the preponderance of evidence showing that the ADA has and continues to be abused by some litigants
and their attorneys. 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 is an overwhelming amount of information in support of promoting, encouraging and supporting ADR
mechanisms in judicial settings. The following is provided as an introduction to some of these alternatives to
litigating disputes.

ADR BY STATUTE AND REGULATION

Since the late 1980s, Congress has recognized that ADR provides a cost-efficient alternative to traditional methods
19
for dispute resolution. In 1988, Congress enacted the Judicial Improvements and Access to Justice Act which
permitted U.S. district courts to submit disputes to arbitration. Congress amended this statute with the enactment of
20
the Alternative Dispute Resolution Act of 1998 which requires each district court to require, by local rule, that
litigants in all civil cases at least consider using an ADR process at the appropriate state of litigation. ADR in these
instances is voluntary. In contrast, the ADR under CRASCA and California’s procedural rules, allows a qualified
defendant the “right” to a stay and Early Evaluation Conference if supported by the merits of defendant’s motion.
The Federal judiciary has historically resisted mandatory arbitration for a variety of reasons, most notably a
reluctance to require plaintiffs to undergo, in some cases, burdensome procedures that [they feel] would delay and
ultimately escalate the cost of resolution if trial was inevitable. Many judges feel it is better to let the parties select
ADR voluntarily. 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. 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, the Federal court
must, 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.

The California state legislature may, through a cleanup amendment to SB-1608, craft language that would require
any court, including federal court, 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. In this way, if and when Federal courts assume supplemental jurisdiction over California’s
Civil Codes, they must include the procedural laws or decline to assume the supplementary jurisdiction altogether
(an “all or nothing rule” so to speak).
Local rules of U.S. district courts typically do provide a wide array of non-mandatory ADR methods. In other words,
both parties must agree to voluntarily engage in an ADR forum.In limited instances, Federal courts have used
mandatory ADR. For example, the U.S. District Court for the Western District of Texas recognizes early neutral

19
[28 U.S.C.A. § 652] (1993 & Supp. 2003)
20
[28 U.S.C.A. § 652] Pub. L. No. 105-315, 112 Stat. 2994

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evaluation, mediation, minitrial, moderated settlement conference, summary jury trial, and arbitration as acceptable
forms of ADR. W.D. Tex. Loc. R. CV-88. According to these rules, the court may order ADR on the motion of a party,
on agreement of both parties, or on its own motion. Most other district courts have adopted similar rules. Congress
has also included ADR provisions in a number of statutes to resolve a variety of disputes. For instance, the Board of
Directors of the Office of Compliance, which reviews complaints brought by employees of Congress, may order
counseling or mediation, in addition to holding a board hearing or initiating a civil action in federal court. 2 U.S.C.A. §
1401 (1997). Similar statutes apply to such conflicts as labor disputes and claims by individuals with disabilities. How
such rules or their interpretation may apply to ADA clams is unknown.
State legislatures have similarly provided for ADR in many of their statutes. Judges in Florida, for example, possess
authority to submit most types of cases to mediation or arbitration in lieu of litigation. Fla. Stat. § 44.1011 (1997).
The Commissioners on Uniform Laws have approved several uniform laws, which may be adopted by the various
states, related to ADR proceedings. Versions of the Uniform Arbitration Act, first approved in 1956, have been
adopted by 49 states. Likewise, the Uniform Mediation Act, drafted in conjunction with the American Bar
Association's Section on Dispute Resolution in 2001, provides rules on the issues of confidentiality and privileges in
mediation.
ADR has had an impact on administrative agencies as well. Congress amended the Administrative Procedure Act in
1990 to authorize and encourage administrative agencies to submit administrative disputes to ADR. 5 U.S.C.A. § 572
(1996). ADR often takes the form of mediation in disputes involving labor and employment relations and equal
employment opportunity. Several federal agencies provide guides about ADR proceedings to prospective
complainants and other constituents.
Courts frequently uphold decisions made during ADR proceedings. In Major League Baseball Players Ass'n v. Garvey
21
the U.S. 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. 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. Noting that Judicial Review of labor arbitration decisions is limited, the Supreme
Court reversed the Ninth Circuit's decision, holding that it was not the place of a court of appeals to resolve the
dispute on its merits.

CALIFORNIA ALTERNATIVE DISPUTE RESOLUTION STATUTES

22
California Code of Civil Procedure Section 1141.10-1141.31: Judicial Arbitration
This section of the code outlines the civil arbitration process for superior courts. It addresses which cases should be
referred to arbitration, arbitrator qualifications and compensation, de novo trial requests, and arbitral award limits
and modifications, among other topics.

CODE OF CIVIL PROCEDURE

SECTION 1141.10-1141.31
1141.10. (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, and that the resulting delays and
expenses may deny parties their right to a timely resolution of minor civil disputes. The Legislature further
finds and declares that arbitration has proven to be an efficient and equitable method for resolving small
civil cases, and that courts should encourage or require the use of arbitration for those actions whenever
possible.
(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.

21
Major League Baseball Players Association v. Garvey, 532 U.S. 504, 121 S. Ct. 1724, 149 L. Ed. 2d 740 (2001)
22
Legislative Counsel of California. March 31, 1979; amended 2006
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=01001-02000&file=1141.10-1141.31

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(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, and shall be held during
nonjudicial hours whenever possible.
(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.
23
California Code of Civil Procedure Section 1775-1775.15: Civil Action Mediation
This section of the code lists civil action cases eligible for mediation. It sets a jurisdictional limit of $50,000 on cases
that may be referred to mediation, and allows cases eligible for arbitration in Los Angeles County, and all other
counties that elect to apply to the statute, to be referred to mediation as an alternative resolution process. It also
addresses non-agreement procedures, mediator selection and compensation, and other topics.
Statewide court ethical guidelines or standards:
California General Rules Relating to Mediation of Civil Cases, Article 2: Rules of Conduct for Mediators in Court-
Connected Mediation Programs for Civil Cases http://courtadr.org/library/view.php?ID=2750
Statewide court grievance/complaint procedure:
California General Rules Relating to Mediation of Civil Cases, Article 3: Requirements for Addressing Complaints
About Court-Program Mediators
http://courtadr.org/library/view.php?ID=2750

FEDERAL ALTERNATIVE DISPUTE RESOLUTION STATUTES

24
U.S. House of Representatives Office of the Law Revision Counsel.
This act authorizes each United States District Court to require litigants in all civil cases to consider the use of ADR
process. It provides the framework by which each district court should promulgate procedures and rules regarding
the ADR process within its jurisdiction.

Alternative Dispute Resolution Act of 1998

Since 1990, the US Congress and the Executive branch have encouraged the use of ADR, conflict prevention, and
collaborative stakeholder engagement in appropriate circumstances. Congress passed the Alternative Dispute
25
Resolution Act of 1998, (ADRA - originally enacted in 1990)
Purpose: In Section 2 of the ADRA, Findings and Declaration of Policy, Congress stated in its findings that--
(1) alternative dispute resolution, when supported by the bench and bar, and utilizing properly
trained neutrals in a program adequately administered by the court, has the potential to provide a variety
of benefits, including greater satisfaction of the parties, innovative methods of resolving disputes, and
greater efficiency in achieving settlements;
(2) certain forms of alternative dispute resolution, including mediation, early neutral evaluation,
minitrials, and voluntary arbitration, may have potential to reduce the large backlog of cases now pending
in some Federal courts throughout the United States, thereby allowing the courts to process their
remaining cases more efficiently; 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

23
Legislative Counsel of California. 1993; amended 2006
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=01001-02000&file=1775-1775.15
24
28 U.S.C. § 651-658 (1998), Oct. 30, 1998; http://uscode.house.gov/search/criteria.shtml
25
[28 USC 651] PL 105-315

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courts; therefore, the district courts should consider including mediation in their local alternative dispute
26
resolution programs.
The ADRA requires Federal District Courts to, 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, administering, overseeing and evaluating the court’s ADR
programs.

FEDERAL COURT ADR PROCESSES

Court-annexed ADR programs were set up throughout the U.S. and legislation was enacted to encourage the use of
27 28
ADR. In 1983, 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.
30
The Civil Justice Reform Act of 1990 also required every federal district court to consider court-sponsored ADR. In
addition, the ADR Act of 1998 gave district courts the mandate to establish ADR programs and listed mediation as an
appropriate.

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, 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, and the propriety of, settlement or proceeding with the litigation;
(B) identifies or formulates the principal issues in contention and, in appropriate cases, provides for the
staged resolution or bifurcation of issues for trial consistent with Rule 42(b) of the Federal Rules of Civil
Procedure;
(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; and
(ii) phase discovery into two or more stages; and
(D) sets, at the earliest practicable time, deadlines for filing motions and a time framework for their
disposition;
(4) encouragement of cost-effective discovery through voluntary exchange of information among litigants and their
attorneys and through the use of cooperative discovery devices;
(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; and
(6) authorization to refer appropriate cases to alternative dispute resolution programs that -
(A) have been designated for use in a district court; or
(B) the court may make available, including mediation, minitrial, and summary jury trial.

26
For the text of ADRA see: http://www.dotcr.ost.dot.gov/documents/ycr/adr1998.htm
27
From 1984 to 1994, the number of states which formally incorporated ADR methods grew to 27 states and the
District of Columbia. See Judith Filner, Dispute Resolution Options in State Courts: NIDR Survey Reveals Significant
Growth, NIDR NEWS, Mar.–Apr. 1995, at 1.
28
http://www.law.cornell.edu/rules/frcp/Rule16.htm
29
See 1983 amendments to FED. R. CIV. P. §16(c)(7) and Advisory Committee Notes.
30
[28 U.S.C. §§ 471–482] (2006).
31
[28 U.S.C. § 23] (2010)

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