A Southern California law firm announced Wednesday that it has obtained footage of a frequent filer of suits under the Americans with Disabilities Act that allegedly shows he is not “legally blind” as he has maintained in hundreds of ADA lawsuits.
Excerpts of the footage are embedded in a video created by the law firm and filed with Los Angeles County Superior Court on Sept. 21 in the hope of obtaining an order from the court compelling Andres Gomez to pay the costs of defending a lawsuit brought against the firm’s client.
While the specific case was in Los Angeles, the video has potentially significant impact in the Bay Area, where Gomez has filed more than a hundred lawsuits — many against wineries, hotels and realtors in Napa County — claiming that their websites were not accessible to him because of his impaired vision.
Scott Karlin, name partner in The Karlin Law Firm LLP of Tustin, California, was responsible for the creation of the video. Karlin touts his firm as one of the most active ADA defense firms in the country.
In the course of defending clients against more than 20 suits initiated by Gomez, Karlin and his colleagues developed a suspicion that Gomez was lying about the extent of his visual impairment.
They arranged for an investigator to follow Gomez coming to and leaving a deposition at a law office in Florida where Gomez lives. They then made a video by splicing some of the surveillance footage with portions of Gomez’s deposition testimony and court filings.
The 15-minute video purports to show Gomez undertaking activities that he testified under oath that he could not do.
The video pairs Gomez’s deposition testimony to the effect that he is unable to walk without assistance with footage of him seeming to easily walk down the sidewalk in a heavily trafficked area without a cane or another person or service animal to guide him.
Similarly, Gomez’s testimony that he could not climb stairs without holding a handrail is followed by video footage of Gomez appearing to walk up the stairs to his apartment building without touching the handrail, though Gomez does appear to hesitate at the top step to determine if there is another.
The video also contains Gomez’s testimony that he could not make out letters of the alphabet at the size of the largest letter on a standard optometrist’s eye chart.
According to Karlin’s declaration, the largest letter on the chart tests a person’s vision at a distance of 20 feet. If a person is unable to read a letter that size from such a distance, he is allegedly considered to be legally blind (visual acuity of 20/200 or less) and would need assistance in routine everyday tasks such as walking into a room or going up stairs.
At the deposition, Karlin confronted Gomez with letters the same size as the largest on the optometrist’s chart, but had Gomez read them, not at a distance of 20 feet, but from 18 inches.
Gomez is heard in the video saying that he cannot make out any of the letters.
According to Karlin, when the short distance is considered, the letters would appear eight times larger than at 20 feet. Karlin said, “If Plaintiff could not read lettering of this size at 18 inches, he would be so blind he could not make his way into a doorway without assistance. It is the functional equivalent of complete blindness.”
According to the allegations in Karlin’s court filing, Gomez has perpetrated a “monumental fraud” that has allowed him to extract settlements from hundreds of small business owners throughout the state.
Karlin’s filing specifically states that he makes no claim that Gomez’s lawyers were aware of the fraud. He points out that Gomez has used many different lawyers.
Dennis Price, a partner in the firm Potter Handy LLP that represents Gomez in Karlin’s case, responded to a request for comment by stating that “Mr. Gomez is noted as legally blind in his complaint and is recognized by the state of Florida as such. He has been examined by medical experts confirming physical damage to his eyes consistent with someone who would be legally blind due to degenerative myopia.”
Price continued, “Visual disabilities are very difficult for those without them to understand as it’s not a simple distinction of being able to see or not and the vast majority of Americans with visual disabilities have something other than ‘total’ blindness.”
While Price did not contest that his firm’s client was the person seen in the video, he said “the numerous hours of private investigator footage cobbled together by the Karlin Firm into short clips do not undermine Mr. Gomez’s disability, and in fact you can see Mr. Gomez’s walking habits within the videos consistent with his disability, such as when he is unsure of whether there is another step, and his persistent use of headphones when using his phone.”
Price summed up, “This is an effort to smear a disabled man with ableist preconceptions about disability. Living with disability is an on-going struggle to live in ways that do not limit you. Mr. Gomez is no different.”
Gomez’s truthfulness on the question of his disability could have implications for litigation pending in the Bay Area.
Although he lives in Florida, Gomez is a frequent filer of ADA website accessibility suits in the U.S. District Court for the Northern District of California.
According to a Bay City News analysis in April of 2022, Gomez filed 134 lawsuits in the district since January 2021.
Gomez filed 84 suits in 2021, an average of 6.6 cases per month, and he stepped up the pace in 2022, filing an average of 13.5 cases a month in the first four months of the year.
Gomez’s filings in the district ended in late April 2022 shortly after the district attorneys of San Francisco and Los Angeles brought a widely publicized civil lawsuit against Potter Handy, which represents a number of ADA plaintiffs, including Gomez, in federal court in the Bay Area. That case was dismissed on Aug. 8.
According to court records, all but 14 of Gomez’s cases in the district have been resolved, many by way of settlements in which the defendant agreed to remedy the alleged violation and make a settlement payment to Gomez and his counsel.
Karlin says that there can be tremendous pressure on an ADA defendant to settle a case quickly without mounting a vigorous defense. A defendant who litigates a case in federal court has to pay its own attorneys, and if the plaintiff prevails, the defendant has to pay the plaintiff’s legal fees as well.
Karlin says that his firm has defended more than 3,500 ADA cases. He says that if such an ADA case is tried to conclusion in front of a jury in federal court, the combined legal costs for the two firms could run between $50,000 and $200,000.
He says that the exposure for a small business defendant is made all the greater because the standards for website accessibility are very unclear. He says that there are more than 50 million commercial websites in the country. “If you brought me all 50 million, it’d be hard for me to find a single one that somebody could not arguably say was not sufficiently accessible.”
The ADA provides for an award of attorney fees to a prevailing plaintiff but not a prevailing defendant.
Dan Danet, an associate attorney in Karlin’s firm, said “the one-sided attorneys fee provision” is “a very, very powerful tool” for ADA plaintiffs and their attorneys. “It really incentivizes them to be aggressive in these types of lawsuits.”
Gomez has previously run into legal challenges in some of his Bay Area cases that do not involve the question of whether he has been truthful about his visual impairment.
Many of Gomez’s cases were brought against Napa realtors, alleging that he wasn’t able to use screen reader software to access the realtor’s website.
In one case, ADA defense lawyer Ara Sahelian was representing a Napa realtor that Gomez sued because its website allegedly violated the ADA.
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 directly 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 physical place of public accommodation. Put differently, there must be a “nexus” between the website and the plaintiff’s desire to use and enjoy the goods and services the defendant offers at its physical location.
Gomez lives in Florida, although he alleges that he regularly visits Southern California where he has family.
In discovery, Sahelian learned that Gomez was unemployed and reliant on Social Security disability payments to support himself.
Sahelian argued that Gomez was not actually using the website to try to buy a house in the high-end Napa real estate market, and therefore there was no nexus between the website and services at a physical place of public accommodation.
U.S. District Court Judge Susan Illston of the U.S. District Court for the Northern District of California issued an order to show cause on April 26 in which she directed Gomez to file a declaration signed under penalty of perjury stating “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 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 said in response to an inquiry Monday that he obtained dismissals in 11 other cases brought by Gomez against real estate agents or brokers and none of his clients “paid a single dime to either Mr. Gomez or his attorneys.”
At a press conference Wednesday, Karlin explained that he thought it was important to bring the information the firm developed about Gomez to the court’s attention.
In the filing he said, “The expeditious entering of judgment in this case may, in some small way, help future victims of Mr. Gomez’s fraud by letting them know that he was not able to extort settlements in every case he has filed.”