By On the occasion of our 20th anniversary
By Gustavo Arellano
By R. Scott Moxley
By Alfonso Delgado
By Courtney Hamilton
By Joel Beers
By Peter Maguire
By Charles Lam
With all the deviants running around these days, you can only imagine what could happen in an Orange County public restroom. David Allen Gunther, a fellow who knows depravity well, said he was traumatized by his Nov. 11, 2003, experience at the Anaheim West Car Wash. Gunther, who is wheelchair-bound, found a bathroom mirror mounted a few inches too high for him to "preen" himself. In a legal complaint, he insisted the experience caused him "anguish, anxiety, humiliation, anger, frustration, distress, embarrassment, apprehension and disgust." He demanded that the owner of the business pay him $4,000. Would you believe that Gunther has the law on his side?
Slouched in his custom-made wheelchair at his daily hangout—a Garden Grove Starbucks—Gunther doesn't look capable of throwing Southern California business owners into a panic. But he has. He'd left his usual head attire, an oily baseball cap, at home and instead had showered, combed his hair and worn a clean shirt for the interview. He's got large brown eyes, a Johnny Cash face much older than his 43 years and delivers mostly clipped answers in a raspy cigarette voice. He's wearing shorts today; gruesome scars mark his right leg. Appearances are critical, and on this late September afternoon, Gunther is angry that people don't see him as a hero.
"I get hate mail," he said. "I'm called a scumbag. Someone told me they hope I rot in hell. Another guy said I deserve to be in a wheelchair."
The hostility is understandable. Since 2003, Gunther has filed more than 200 lawsuits against small businesses he claims have violated the accessibility provisions of the Americans With Disabilities Act (ADA) and California's tougher version, the Unruh Act. The laws are simple in one respect: if a disabled person finds an accessibility barrier—for example, no designated handicapped parking, a heavy bathroom door or a toilet paper dispenser mounted out of easy reach for someone in a wheelchair—that person is entitled to sue and collect $4,000 per violation from the business.
It doesn't take a genius to calculate that the well-intentioned laws can be a lucrative scheme in the hands of an unscrupulous person. Lawyers familiar with Gunther's activities estimate he's taken more than $400,000 in the last 36 months, mostly from mom-and-pop shops in Garden Grove, Anaheim, Fountain Valley, Orange, Tustin, Buena Park, Stanton, Seal Beach, Santa Ana, Dana Point, Huntington Beach and Los Angeles. If true, that's quite a haul for a man who has spent most of his adult life unemployed, according to records obtained by the Weekly.
Asked about his financial windfall, Gunther ignored the question—a tactic he shares with Morse Mehrban, his Los Angeles-based lawyer. (Full disclosure: Alleging discrimination against men, Mehrban sued OC Weekly and its sister paper LA Weekly in 2002 because a personals telephone chat line advertisement allowed women to use a service for free. The case settled out of court.)
I'd watched Mehrban maneuver in court to avoid complying with a discovery demand for the details of Gunther's ADA settlements. Mehrban resisted for weeks, arguing that the information was "confidential and proprietary." Said Mehrban, "There is nothing to be gained by examination of the documents." Eventually, he told a judge that the issue was moot. He routinely destroys all Gunther's paper records and erases the memories of his office computers, he said.
Gunther took a similar stance when pressed about the settlement money. He looked at his wristwatch and said he needed to end the interview soon because of a sudden engagement. He fidgeted, rolled back in his wheelchair several feet and smiled faintly.
"My attorney handles all the numbers," Gunther finally volunteered. "I'm just not going to go into all that."
I nodded, looked at him but did not ask another question.
"I'm just trying to make the world a better place," he said.
It was obvious that Gunther craved a cigarette, but for some reason he put it off, twiddling his fingers anxiously. When he thought I'd left Starbucks, he chain-smoked with another unemployed buddy.
A Weekly investigation traced Gunther's activities around the western U.S. during the last quarter of a century, uncovering evidence that not only has he exaggerated his reliance on a wheelchair, but he's also whitewashed his own history of chronic unemployment, multiple drug addictions, narcotics trafficking, assaults, petty thefts, burglaries, a decade of missed child support payments, and more than a dozen arrests and stints in jail.
LaVerne Gibson was one of the first entrepreneurs Gunther sued in 2003, the year he began filing an avalanche of court actions. Gibson operated a tiny Anaheim flower and gift shop in an old converted house facing Brookhurst Street near Disneyland. Gunther wanted the elderly woman to pay him $4,000 because he allegedly couldn't find a wheelchair ramp at her business. The event caused him "anguish, anxiety, humiliation, anger, frustration, distress, embarrassment, apprehension and disgust," Gunther said in his legal complaint.
Gibson is not here to share her opinion of Gunther. She passed away last December. But here's the kicker: Gibson lived with only one leg, was herself truly confined to a wheelchair and had built a ramp to her shop long before Gunther claimed otherwise.
"This rude guy [a process server for Gunther] walks in one day, drops the lawsuit and says, ‘You've been served,'" Cheryl Gibson recalled. "Mom just laughed and laughed. She was a wonderful woman and here was the man trying to steal her money when she was battling her own serious medical problems."
After learning that Gibson wasn't an ideal target to sue, Mehrban—infamous for using obscure provisions in the law to sue small California businesses—tried to dismiss the case. Gibson initially declined, her daughter remembered.
"Mom wanted to go to court to teach [Gunther] a lesson," Cheryl Gibson said. "We knew he had never come to our shop. It was a scam."
Records show that the elder Gibson filed a hand-written response at the courthouse. She attached pictures of herself in a wheelchair and of the large, J-shaped ramp that led into her flower shop.
"I am disabled," she told the judge. "I am in a wheelchair. There is a ramp in the back of my shop accessible to anybody with mobility problems. I demand an apology to the court and to me."
The case was dismissed, but Gibson went to her grave without an apology. Gunther was too busy. He'd filed dozens of other lawsuits.
"I don't go driving around looking for businesses to hit," he told me. "It's only when I want to patronize a business [and find problems]."
In fact, however, on the day Gunther said he drove to Gibson's flower shop, he claimed in separate legal filings that he also wanted to patronize Gibson's neighbors: a massage parlor, a dental office and a palm reader.
Dempsey Todorovich, who has given psychic readings in the same converted residence since 1968, said he was startled to get Gunther's lawsuit. He'd never met the man.
"Nobody had ever complained before," Todorovich said as he pointed to the entrance at his front door. "I've always had a ramp right there. You can easily see it from the road."
Though Mehrban's lawsuit letter advised him not to call his office, Todorovich called anyway.
"I asked [Mehrban] why he was demanding money," he recalled. "When I told him that he could come and see the ramp, the lawyer was quiet and then he said he'd drop the case."
Marie Pelletier, owner of Roman Spa and Massage, wasn't so lucky. She says she had to pay Gunther $4,000 because of the step at the entrance to her business—one that was less than an inch high.
"Can you believe that?" Pelletier asked while scrubbing a shower room wall. "He could have gotten in here if he'd wanted to, if he had really come here, which I doubt. He's a crook. This is how this guy makes his money. It's the biggest damn racket I've ever seen."
Attorney Phil Fife says he'll never forget Gunther, who sued his client, an Anaheim Jack in the Box, in 2004. After a deposition at Fife's Los Alamitos office, Gunther sued him too, claiming that the restroom at his office park was inadequate: the door was too heavy to open and, inside, a coat hook wasn't low enough for him to use.
"I fully support laws requiring accommodations for the disabled, but I don't support the disabled abusing the law," said Fife. "It's just pure extortion, a shakedown."
He relayed those sentiments to Orange County's judiciary. A judge was sympathetic, deeming Gunther's testimony not credible. Yet, Gunther still received an out-of-court settlement for $4,000 from the property owner of Fife's office building.
Gunther isn't apologetic.
"I see myself as a champion of the rights of disabled people," he said. "This is a good thing, but I'm not surprised that people get angry at me."
He described a torturous daily life filled with discrimination—no wheelchair ramps; no marked handicapped parking; no grab bars in toilet stalls; heavy doors; exposed hot-water sink pipes; and mirrors, coat hooks, toilet-seat-cover dispensers and towel dispensers that are mounted too high.
"I've gone to place after place and can't get into the restroom," he said. "It's embarrassing and it happens every day of my life. Usually, I'm blocked by narrow doorways or some other kind of architectural barrier. It took a couple of years of this before I got fired up."
Sometime in 2003, he decided to take action. "I had urinated all over myself because I couldn't get into a bathroom," said Gunther. "I said to myself, ‘I've got to do something about this.' I got an attorney and started filing the lawsuits here and in San Francisco and LA. . . . It's pretty simple: the best way to address this problem is the lawsuits. I know people say I'm a con artist but the ability to file the suits gives teeth to the access laws. Without it, people would continue to ignore us."
Gunther isn't shy about swinging the legal bat he's been handed. On just three days in July and August 2004, for example, he claimed in lawsuits that he'd needed to shop and use the bathrooms at nine different Ralphs supermarkets in Anaheim, Fountain Valley, Huntington Beach and Los Angeles. At some of the stores, he complained that he was "humiliated" because he couldn't "preen" himself. The bathroom mirrors were inches too high, he argued.
Based on the number of alleged violations contained in the nine lawsuits against Ralphs, he demanded more than $75,000. The resolution isn't known. Said Gunther, "Most businesses settle out of court because they don't want it broadcast they had violations."
One reform business owners seek is a mandatory 30-, 60- or 90-day notice to correct access problems before the disabled can sue and collect money. They say the threat of a suit after a notice would bring remaining shops into compliance and satisfy the goal of the ADA. But the proposal infuriates Gunther. He promises that he and other wheelchair-bound individuals will lobby against the reform in Sacramento and Washington, D.C.
"It makes about as much sense as sending a notice to a bank robber and telling him he's got 30 or 60 days to stop robbing banks," said Gunther. "According to the law, I've already been damaged if I find an access problem. Why should a business be allowed to damage me?"
Last year, Gunther launched Equal Access Now, a nonprofit organization run from the Garden Grove house he shares with his wife Olga, a Canadian immigrant of Ukrainian decent who got a green card thanks to their marriage in Las Vegas nine years ago. The group claims 50 members (mostly in California but "a few" in Nevada) and a goal of educating the public and media about "access discrimination." The public and media aren't allowed to attend the monthly meetings.
"Sorry, it's private," said Gunther. "I teach disabled people about their rights."
One result of the meetings is clear, however: Gunther now leads an ADA wheelchair posse of sorts. According to court records, Gunther has traveled to businesses—usually restaurants—with three other wheelchair-bound individuals: Karl Roundtree, Debra Lara and Kevin Conrad. When they've alleged violations, they've each demanded $4,000 for the same access issue.
The financial threat to a small business is, of course, enormous—worse if Gunther plays another game of hardball. Take the case of the Harbor House Cafe in Dana Point. The posse didn't tell the owner about their May 13 problem (a narrow bathroom entrance) that allegedly caused them "anguish, anxiety, humiliation, anger, frustration, distress, embarrassment, apprehension and disgust." Yet five days later, Gunther and Roundtree returned to the popular restaurant and decided they both needed to use the restroom again. The first that Harbor House management knew of the complaint was two months after that second visit. Using Mehrban, the men filed two lawsuits for the same alleged problem and demanded double the damages. In essence, they'd taken a single issue (narrow passage) and quadrupled their own windfall from $4,000 to $16,000.
In our interview, Gunther didn't want to explore questions about fairness and said he wasn't interested in talking about specific cases. "When people hear about my lawsuits, that's the best way to get them to comply with the law," he said. "Everybody should be in compliance!"
Gunther didn't always celebrate law enforcement. A recent visit to Kern County and his hometown of Taft, an hour west of Bakersfield, helped reveal past addictions to marijuana, cocaine and heroin, some of them funded by crime sprees.
Though Taft officials say they have destroyed much of Gunther's criminal record, I was able to obtain official documents detailing his admission to having a $100-a-day heroin addiction and to being a major narcotics trafficker in the late 1980s and early 1990s. In 1989, he was arrested and jailed for savagely beating girlfriend Belinda K. Callahan in front of their six-year-old daughter, according to records. He broke her arm and her nose.
While he was incarcerated for that assault, Callahan took the girl and $30,000 from his drug sales and fled. In an ensuing child-support battle (he didn't pay a dime of child support for almost a decade) waged in a Fresno County courthouse, records show that Gunther also admitted that his occupation for many years wasn't something for a résumé: drug addict, petty thief and burglar. From 1993 to 1995, his primary source of legitimate income was government food stamps. For at least three months, he was homeless.
During a 2001 hearing in Fresno, a prosecutor asked him how he could have afforded expensive drug habits when he was unemployed. Gunther replied, "Doing crimes." Indeed, in addition to the assault on the mother of his child and the drug dealing, Gunther's criminal past in Kern and Fresno counties includes:
July 1989: Jailed for petty theft.
June 1990: Cited for operating a vehicle with a broken windshield and registration irregularities.
July 1990: Arrested for driving on a revoked license and without insurance; later arrested again and jailed for 14 days for failing to appear in court on the charges.
Jan. 1991: Cited for driving with a revoked license, no insurance and a faulty registration.
March 1991: Arrested for petty theft; pleaded no contest. He received three years' probation and was ordered not to drive without a license.
June 1991: Arrested for violating his probation by driving with a revoked license.
Jan. 1992: Cited for four vehicle violations including driving with a revoked license; pleaded guilty and received a one-year suspended jail sentence.
Nov. 1992: Cited for driving with a revoked license; pleaded guilty and again received a one-year suspended jail sentence.
March 1993: Arrested for burglary; pleaded guilty and was sentenced to a substance abuse program but failed to comply with the court order; was re-arrested and sent to jail for 180 days.
April 1993: Arrested for driving under the influence of a controlled substance and with a revoked license; pleaded no contest; received a one-year jail sentence with all but 10 days suspended and an order "not to indulge in the use of intoxicants or visit any places where intoxicants are sold."
May 1993: Arrested for failing to appear on a theft charge; pleaded no contest and was sentenced to 30 days in jail.
June 1993: Arrested for walking in the street under the influence of a controlled substance; pleaded no contest and was sentenced to 30 days in jail.
June 1994: Arrested for burglary; pleaded no contest and was sentenced to 180 days in jail.
Dec. 1994: Arrested and jailed in Washoe County, Nevada for "knowingly using a Schedule 1 controlled substance, namely a central nervous system stimulant by injection."
March 1995: Arrested for assault with a deadly weapon and two other battery counts after beating a man in Taft; pleaded guilty to the assault and received 10 days in jail; later failed to pay restitution to the victim and was re-arrested, placed on three years' probation and ordered not "to become involved in any more acts of violence or aggression."
Aug. 1996: Arrested and jailed for 10 days for driving with a revoked license.
Any hint of that criminal record was missing during a June 2005 deposition involving his ADA lawsuit against an Anaheim Jack in the Box franchise. Gunther claimed, "In 1987, I broke my back." Four years earlier with Fresno County prosecutors, transcripts show he said he broke his back in 1989. Though his own hefty rap sheet seemingly contradicts the assertion, Gunther maintains that he spent most of the 1990s "paralyzed from the waist down."
It gets more suspicious. Gunther's next crisis involved his Harley motorcycle, not often the ride of choice for a paralyzed man. But he claims he was riding on Highway 99 near Bakersfield in September 1996 when "an old woman driving 90 miles per hour rear-ended me." (Or was the accident in December 1997? He's used both dates.) California Highway Patrol officers in Kern County searched their records for 1996 and 1997 and couldn't find a record of the incident.
Gunther said his memory is vivid.
"I saw blue sky and then hit the pavement," he told the Weekly. "I was dragged about 55 yards."
It was this accident that Gunther says tore the skin off his right leg, shoulder and buttocks; damaged his knee; broke eight teeth; and put him in his current state: "I can't stand and I can't walk. . . . When I move, it's extremely painful."
In interviews, Gunther has claimed the accident put him in the hospital for "six months"—but records show that within a month of the "near death" collision, he was mobile enough to move to Nevada and begin a $7-per-hour job at a drug-rehab facility.
In March 2000, four years after the motorcycle accident, Anaheim doctor Jhinho Kim examined Gunther and, according to records, noted "he does not have leg pain these days." The doctor's biggest concern was Gunther's weight problem, according to the report: "I advised him to join a health spa that has a swimming pool and swim every day as a back exercise." He also advised him on "the importance of aggressive weight control . . . I do not think extensive back surgery would do much better for him."
Gunther—six feet tall and 235 pounds—resisted the doctor's advice to work out. In a 2001 Fresno court hearing regarding the deadbeat dad issue, he explained why: "I can't [work out or work] due to my mental disorders." The motorcycle accident left him with Post Traumatic Stress Disorder as well as "insomnia, excessive worry, preoccupation with danger, hyper-vigilance, intrusive and frequent recollections and nightmares," he said.
Yet in May 2000, another Orange County doctor, Archana Shende, said Gunther wasn't paralyzed, but that he "should not stand and/or walk for more than two hours or sit for more than four hours," Shende wrote after an examination.
Said Fresno County prosecutor James Falkowski in August 2000, "Mr. Gunther's injuries are grossly exaggerated, if not outright fraud."
Quick story: Daniel J. Dewit is a lawyer with an office in Santa Ana. On July 12, 2004, he met with Gunther, then his client. During the meeting, Gunther—in his wheelchair—asked to use the employees' bathroom. Dewit gave him the key and when Gunther returned "about 10 or 15 minutes later," the meeting resumed without incident. Eight months later, Dewit received a notice from Mehrban. Gunther was suing him for alleged ADA access violations that prevented him from using the bathroom at the earlier meeting. He wanted $12,000.
"We were blown away," Dewit said. "There had been no sign of distress when Gunther returned from the bathroom."
Dewit and his office manager had another observation: Gunther was "able to get up from his wheelchair without great difficulty or discomfort," according to a court record. But also this: during the three previous meetings from June 2002 to April 2004 they had watched Gunther walk into their office.
Nevertheless, Gunther walked away with cash. To avoid exorbitant court costs and legal fees, Dewit said the property owner of his building settled out of court for $5,000.
In early September, Santa Ana small business owners who say they are Gunther's victims met with District Attorney Tony Rackauckas. They expressed frustration that their shops had been approved by city inspectors and yet they were still exposed to the technical demands of the ADA. Many of them had paid thousands of dollars to Gunther and feared other wheelchair-bound individuals would try to "extort" even more money.
Everyone present was emotional, sources said. But Jin Kim, owner of a barbecue restaurant at 17th Street and Grand Avenue, cried. He recounted the shock of getting the lawsuit without warning, how Mehrban had coldly refused to negotiate despite pleas, and that he had to sell his wife's ring and a vehicle to pay Gunther $16,000—and his own attorney another $4,000 in fees. His crime? His restroom mirror was allegedly mounted a few inches too high and the door was a few pounds too heavy to push.
"Why did I get hit by this person?" Kim told the Weekly. "If he had asked for any help with anything, me and my wife would have gladly helped him. We work very hard to please our customers."
The experience has likely ruined any chance for a profit this year. Kim thinks he may have to sell the restaurant that he's poured his life's savings into. "I told that lawyer [Mehrban] that I would immediately fix any problems he saw and give him $6,000, and on that same day he sued me again using Karl Roundtree for the same thing," said Kim. "I was going to fight back, but there is so much money involved in fighting a lawsuit against these people. We get lots of senior citizens in here and nobody has ever complained before. Something is wrong in this country when that guy can get away with this. The whole thing has made me think about moving back to Korea."
Rackauckas left the meeting outraged, the business owner said. On Sept. 13, the DA advised them that Gunther and Mehrban had made themselves targets for investigation. "Protecting business owners against frivolous lawsuits is an important priority in my office," Rackauckas wrote in a letter. "I am taking immediate action. I have assigned several prosecutors and district attorney investigators to look into this matter."
Gunther doesn't seem worried.
"The law is on my side," he said. "I'm trying to stop the humiliation and I've got a whole lot of fight left in me."
Ironically, one businessman he hasn't sued is his own lawyer. Like so many businesses Gunther has sued, Mehrban's Koreatown office is located in a converted house. It's on the second floor, and to get there, a person in a wheelchair faces an insurmountable hurdle: 15 steps up a narrow hallway.
Mehrban says it would not be practical to make his office accessible to the handicapped.
Research assistance by Vickie Chang and Christine Pelisek.