A DISABLED LITIGANT who relied on “dreams and window shopping” to prove that he had legal standing to sue a Napa County realtor under the Americans with Disabilities Act had those dreams dashed last week when a federal judge dismissed his suit.
Judge Susan Illston of the U.S. District Court for the Northern District of California found that Andres Gomez, a Florida resident, had not demonstrated that the alleged problems with the realtor’s website prevented him from accessing goods or services at an actual physical location and therefore he had no standing to bring his claim.
Gomez is legally blind and uses screen reader software to use the internet. He sued Lesti Real Estate Inc. of Napa because its website allegedly did not conform to “easily accessible, well-established industry standard guidelines for making websites accessible to people with visual-impairments.”
He said that he had tried to get information about Lesti’s listings in Napa, but because of the website technology, he was unable to access the information he needed.
He asked the court to grant him injunctive relief and attorney’s fees as provided in the ADA. He also asked for money damages under California’s Unruh Act, which makes an ADA violation a violation of the Unruh Act.
Gomez is a frequent filer of ADA suits in the district. According to a Bay City News analysis, Gomez filed 134 lawsuits in the district since January 2021. He filed 84 suits in 2021, an average of 6.6 cases per month.
Gomez stepped up his pace in 2022, filing an average of 13.5 cases a month in the first four months of the year.
Thousands of ADA cases
Gomez is represented by the San Diego law firm Potter Handy, which was sued last month by the district attorneys of San Francisco and Los Angeles for allegedly scheming to file thousands of ADA cases in federal court based on false statements from the firm’s clients about their standing to sue.
Potter Hardy disputes those allegations and says the suit against it is politically motivated.
The ADA allows a disabled person to bring a claim for barriers to accessibility at a place of public accommodation like a store, a business or a restaurant, but only actual physical locations are covered. An accessibility issue with a website is an ADA violation only if the website is the way that one accesses the goods or services of the place of public accommodation.
“I occasionally buy lottery tickets and dream of buying homes in expensive areas such as the Napa Valley area.”Andres Gomez, litigant
Lesti’s lawyer, Ara Sahelian, had litigated against Gomez in other website cases in the past and through discovery had learned that Gomez was unemployed and reliant on Social Security disability payments to support himself.
Sahelian argued that Gomez was not actually trying to buy a house in Napa and therefore there was no nexus between the website and the place of public accommodation.
Judge Illston issued an order to show cause on April 26 in which she directed the plaintiff “to file a declaration signed under penalty of perjury stating the factual basis for standing under the ADA, namely, whether (1) he intends to visit defendant’s physical location, assuming one exists, or (2) he was deterred from accessing the services offered by defendant’s assumed physical location, i.e., the sale of real estate.”
Gomez filed his declaration on May 6 alleging that he liked “upscale areas.” He said, “Napa is one of my dream destinations to live in. I have a particular interest in the Napa area as I have family near there.”
While he acknowledged that it was “unlikely that he would purchase a home in the near term,” he said there was value to him in consuming the website’s information even if he did not have specific plans to purchase.
He said, “I enjoy window shopping those listings to get an idea of what it costs to live in the area and I like imagining moving there.”
He said, “Being aware of developments in high-end real estate markets both provides me entertainment and motivates me to develop my assets in a way that might enable me to purchase property in the future.”
He added, “I occasionally buy lottery tickets and dream of buying homes in expensive areas such as the Napa Valley area.”
Illston did not find Gomez’s “dreams and window shopping” declaration to be persuasive on the question of whether there was a true nexus between the site and the physical place of public accommodation.
She found that his declaration only showed that he wanted to access the information on the website, not that he was deterred from buying real estate at the realtor’s place of business. Accordingly, she dismissed the suit without offering Gomez an opportunity to amend his complaint.
Sahelian commented that being a dreamer and a window shopper is “quite a contrast from being a prospective customer.”
Referring to Gomez’s prolific filings, many of which were quickly settled, he added, “I feel sorry for those who settled and paid.”