BRIAN WHITAKER V. TERENCE L YEE, ET AL.

Case Number

24CV06350

Case Type

Hearing Date / Time

Mon, 01/27/2025 - 10:00

Nature of Proceedings

OSC re “High Frequency Litigant” Fee

Tentative Ruling

Brian Whitaker v. Terence L Yee, et al.,

Case No. 24CV06350

Hearing Date:         1/27/2025                                           

HEARING:    OSC re “High Frequency Litigant” Fee

           

ATTORNEYS:          Prathima Reddy Price/ Sumedh Rishi of The Reddy Law Firm LLC for Plaintiff

                                    No appearance yet for defendants

                       

TENTATIVE RULING:  Unless plaintiff appears at the hearing (via Zoom or otherwise) and provides evidence that the required  $1,000 supplemental filing fee was paid within 20 days of the court clerk’s mailing of the Notice of Payment Due, or provides evidence sufficient to rebut the presumption that the fees were not paid which was created by the clerk’s certificate of mailing of that notice, the complaint will be voided.

The Clerk’s Office has set an OSC re High Frequency Litigant fee for hearing in this matter.

STATUTORY REQUIREMENTS: The Legislature has enacted a statutory scheme related to complaints asserting construction-related accessibility claims. The scheme fully recognizes importance of the protection of the civil rights of persons with disabilities, and the importance of private enforcement to achieve the goal. However, it also acknowledged that numerous complaints that were filed by a limited number of plaintiffs and law firms with respect to construction-related accessibility claims in the state, many of which were filed to seek quick cash settlements rather than seeking correction of the violation. The statutory scheme therefore imposes various requirements on the filing of such claims, in order to balance the relevant interests.

High litigant fee payment provisions One such requirement is the payment of a “high-frequency litigant” fee, for an individual or attorney who qualifies, under the statutes, as a “high-frequency litigant.” Government Code section 70616.5 provides:

(a) In addition to the first paper filing fee required by Section 70611 or 70613, a single high-frequency litigant fee shall be paid to the clerk on behalf of a plaintiff who is a high-frequency litigant, as that term is defined in Section 425.55 of the Code of Civil Procedure, at the time of the filing of the first paper if the complaint alleges a construction-related accessibility claim, as those terms are defined in subdivision (a) of Section 55.3 of the Civil Code.

(b) The fee established by this section shall be one thousand dollars ($1,000). The fee shall be transmitted as provided in Section 68085.35.

(c) Failure to pay the fees required by this section shall have the same effect as the failure to pay a filing fee, and shall be subject to the same enforcement and penalties. [Emphasis added.]

The Court notes that Government Code section 70611 sets forth the required filing fee for an unlimited jurisdiction civil complaint, and Section 70613 sets for the required filing fees for limited jurisdiction and small claims civil complaints.

As noted above, Government Code section 70616.5(c) provides that the failure to pay the fees required by that section “shall have the same effect as the failure to pay a filing fee, and shall be subject to the same enforcement and penalties.” Where only the supplemental fee was not paid, that failure would be properly analyzed as a payment of less than the required fee. Code of Civil Procedure section 411.21 addresses at length what occurs when a party has paid less than the filing fee required. It provides, in relevant parts:

(a) If a complaint or other first paper is accompanied by payment by check in an amount less than the required fee, the clerk shall accept the paper for filing, but shall not issue a summons until the court receives full payment of the required fee. The clerk shall, by mail, notify the party tendering the check that (1) the check was made out for an mount less than the required filing fee, (2) the administrative charge specified in subdivision (g) has been imposed to reimburse the court for the costs of processing the partial payment and providing the notice specified in this subdivision, and (3) the party has 20 days form the date of mailing of the notice within which to pay the remainder of the required fee and the administrative charge, except as provided in subdivision (f). If the person who tendered the check is not a party to the action or proposed action, but only is acting on behalf of a party, the clerk shall notify not only the person who tendered the check, and also the party or that party’s attorney, if the party is represented. The clerk’s certificate as to the mailing of the notice pursuant to this section establishes a rebuttable presumption that the fees were not paid. The presumption is a presumption affecting the burden of producing evidence. This subdivision does not apply to an unlawful detainer action.

(b) The clerk shall void the filing if the party who tendered a check in an amount less than the required filing fee or on whose behalf a check in an amount less than the required filing fee was tendered has not paid the full amount of the fee and the administrative charge by a means specified in subdivision (a) within 20 days of the date on which the notice required by subdivision (a) was mailed. Any filing voided by this section may be disposed of immediately after the 20 days have elapsed without preserving a copy in the court records notwithstanding Section 68152 of the Government Code.

(c) If a check for less than the required fee was tendered, the remainder of the required fee and the administrative charge were not paid within the period specified in subdivision (a), and a refund of the partial payment has not been requested in a writing mailed or presented by the party or person who tendered the check within 20 days from the date on which the remainder of the required fee was due, the partial payment shall be remitted to the State Treasurer to be deposited in the Trial Court Trust Fund, except for the amount of the administrative charge described in subdivision (g), that shall be deducted from the partial payment and shall be distributed as described in subdivision (g) to the court which incurred the charge. If the party or person who tendered the check for partial payment requests a refund of the partial payment, in writing, within the time specified in this subdivision, the clerk shall refund the amount of the partial payment less the amount of the administrative charge imposed by the court. . . . [Emphasis added.]

Subdivision (f), referred to in subdivision (a), applies when a trial or other hearing is scheduled to be heard prior to the expiration of the 20-day period, and requires that the fee be paid prior to the trial or hearing.

Determination of who is a “high-frequency litigant” Code of Civil Procedure section 425.55(b), referred to in Section 6defines a “high-frequency litigant” as follows:

(b) For the purposes of this article, “high-frequency litigant” means a person, except as specified in paragraph (3), who utilizes court resources in actions arising form alleged construction-related access violations at such a high level that it is appropriate that additional safeguards apply so as to ensure that the claims are warranted. A “high-frequency litigant” means one or more of the following:

(1) A plaintiff who has filed 10 or more complaints alleging a construction-related accessibility violation within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation.

(2) An attorney who has represented as an attorney of record 10 or more high-frequency litigant plaintiffs in actions that were resolved within the 12-month period immediately preceding the filing of the current complaint alleging a construction-related accessibility violation, excluding all of the following actions:

(A) An action in which an early evaluation conference was held pursuant to Section 55.54 of the Civil Code.

(B) An action in which judgment was entered in favor of the plaintiff.

(C) An action in which the construction-related accessibility violations alleged in the complaint were remedied in whole or in part, or a favorable result was achieved, after the plaintiff filed a complaint or provided a demand letter, as defined in Section 55.3 of the Civil Code.

(3) This section does not apply to an attorney employed or retained by a qualified legal services project or a qualified support center, as defined in Section 6213 of the Business and Professions Code, when acting within the scope of employment to represent a client in asserting a construction-related accessibility claim, or the client in such a case.

Civil Code section 55.3(b) defines “construction-related accessibility claim” as follows:

“Construction-related accessibility claim” means any claim of a violation of any construction-related accessibility standard, as defined by paragraph (6) of subdivision (a) of Section 55.52, with respect to a place of public accommodation. “Construction-related accessibility claim” does not include a claim of interference with housing within the meaning of paragraph (2) of subdivision (b) of Section 54.1, or any claim of interference caused by something other than the construction-related accessibility condition of the property, including, but not limited to, the conduct of any person.”

Civil Code section 55.52(a)(6), referenced in Section 55.3(b), provides:

“Construction-related accessibility standard” 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, but not limited to, any provision, standard, or regulation set forth in Section 51, 54, 54.1, or 55 of this code, Section 19955.5 of the Health and Safety Code, the California Building Standards Code (Title 24 of the California Code of Regulations), the federal Americans with Disabilities Act of 1990 (Public Law 101-336; 42 U.S.C. Sec. 12101 et seq.), and the federal Americans with Disabilities Act Accessibility Guidelines (Appendix A to Part 36 of Title 28 of the Code of Federal Regulations.”

Code of Civil Procedure section 425.50 also sets forth pleading requirements for complaints alleging construction-related accessibility claims filed by high-frequency litigants (Section 425.50, subd. (a), a requirement that complaints alleging construction-related accessibility claims be verified (Section 425.50, subd. (b)(1)), and a requirement that construction-related accessibility claims filed by or on behalf of a high-frequency litigant state in the caption “ACTION SUBJECT TO THE SUPPLEMENTAL FEE IN GOVERNMENT CODE SECTION 70616.5.” (Section 425.50, subd. (b)(2).)

Section 425.50(c) also provides that any person or attorney signing the complaint has, by signing it, made the certifications that would subject him or her to sanctions pursuant to Code of Civil Procedure section 128.7.

Section 425.50(f) provides that the determination whether an attorney is a high-frequency litigant must be made solely on the basis of the verified complaint and other publicly available documents, and discovery into that issue is not permitted.

CURRENT CASE: Plaintiff Brian Whitaker filed the current lawsuit for violations of the Unruh Civil Rights Act and the California Disabled Persons Act on November 13, 2024. The complaint alleges a construction-related accessibility claim against defendants Terence L. Yee and Julia C. Yee as owners of real property located at 437 State Street, in Santa Barbara, and against defendant Uncle Rocco’s N.Y. Pizza, as owners of the Uncle Rocco’s NY Pizza restaurant located at that address. The complaint is verified, and contains in its caption the required advisory that:  “ACTION SUBJECT TO THE SUPPLEMENTAL FEE IN GOVERNMETN CODE SECTION 70616.5.” It alleges that plaintiff qualifies as a high frequency litigant as defined by Code of Civil Procedure section 425.55. Plaintiff’s complaint therefore clearly acknowledges that he is a high-frequency litigant asserting a construction-related accessibility claim, and is subject to the supplemental $1,000 filing fee required of such litigants.

When plaintiff filed the complaint, he paid only the regular filing fee. On December 4, 2024, the Clerk’s Office issued a “Notice of Payment Due,” providing that the supplemental $1,000 filing fee required to be paid by high-frequency litigants was due and, if not remitted on or before December 20, 2024, would result in the setting of an Order to Show Cause hearing. The notice was served by mail upon plaintiff’s attorney at the address reflected on the face of the complaint, and the court clerk executed a certificate of mailing.

When such payment was not received, the current OSC was issued on January 10, 2025. The OSC was, once again, served by mail upon plaintiff’s attorney at the address reflected on plaintiff’s complaint.

Plaintiff has not filed any response to the OSC. Court records do not reflect that the supplemental fee has ever been paid.

ANALYSIS: The complaint filed by Plaintiff Whitaker acknowledge and establish that he is a “high-frequency litigant,” subject to the supplemental $1,000 filing fee required by Government Code section 70616.5. When the complaint was filed, plaintiff filed only the regular filing fee, and did not pay the supplemental fee. The Clerk’s Office served plaintiff’s attorney by mail with a Notice noting that the fee was due and, if it was not paid, an Order to Show Cause would be issued. While the Notice served by the Clerk’s Office purported to require payment in 16 days, rather than 20 days, when the supplemental fee was not paid, the OSC was issued 37 days after the service of the Notice. Court records contain no evidence that the fee was ever paid.

Unless plaintiff appears at the hearing and provides evidence that the required $1,000 supplemental filing fee was paid within 20 days of the mailing of the Notice of Payment Due, or provides evidence sufficient to rebut the presumption that the fees were not paid which was created by the clerk’s certificate of mailing of that notice, the complaint will be voided.

Since court records do not reflect that any request for refund of the fee paid was made by plaintiff, the fee will therefore be remitted to the State Treasurer to be deposited in the Trial Court Trust Fund.