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Write a 350 – 500 word brief of the 9th Circuit Court of Appeals case entitled Kohler v. Bed, Bath and Beyond. The attachment is the case and case brief example. Please follow the example.


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Kohler v. BED BATH & BEYOND OF CALIFORNIA, LLC, Court of Appeals, 9th Circuit 2015 ­ Google Scholar
CHRIS KOHLER, Plaintiff­Appellant,
BED BATH & BEYOND OF CALIFORNIA, LLC, DBA Bed Bath & Beyond #1136, Defendant­Appellee.
CHRIS KOHLER, Plaintiff­Appellant,
BED BATH & BEYOND OF CALIFORNIA, LLC, DBA Bed Bath & Beyond #1136, Defendant­Appellee.
Nos. 12­56520, 12­56771.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted February 3, 2015—Pasadena California.
Filed March 24, 2015.
Scottlynn J. Hubbard, IV (argued), Law Offices of Lynn Hubbard, Chico, California, for Plaintiff­Appellant.
Matthew S. Kenefick (argued), and Martin H. Orlick, Jeffer Mangels Butler & Mitchell LLP, San Francisco, California, for
Before: Stephen Reinhardt and Ronald M. Gould, Circuit Judges and J. Frederick Motz,[*] Senior District Judge.
GOULD, Circuit Judge.
Chris Kohler appeals from a grant of summary judgment to defendant Bed Bath & Beyond of California (“BB&B”) on Kohler’s
claims under Title III of the Americans with Disabilities Act (“ADA”), and also appeals the award of attorneys’ fees and costs to
BB&B as a prevailing defendant. Regarding summary judgment, Kohler contends that the district court erred in concluding that
the ADA does not require wall space within the maneuvering clearance next to the frame of a restroom door that must be pulled
open; and that the district court erred in ruling that, BB&B, as a tenant, was not liable for ADA violations occurring in the parking
lot outside of its store. Kohler further contends that the district court erred in concluding that several of his claims warranted the
award of attorneys’ fees to BB&B; and that the district court erred in its calculation of fees awarded. We have jurisdiction under 28
U.S.C. § 1291. We conclude that Kohler’s substantive claims related to maneuvering clearance and tenant liability must be
rejected and accordingly we affirm summary judgment. However, we agree that BB&B was not entitled to attorneys’ fees for any
of Kohler’s claims, and so we reverse the district court’s fee award.
Kohler is disabled; he is a paraplegic and requires the use of a wheelchair to move in public. Several times in May 2011, Kohler
visited the BB&B store at the Lake Elsinore Marketplace in Lake Elsinore, California. During those visits he encountered
purported architectural barriers, both within the store and in the parking lot of the shopping center, that he claimed impeded his
ability to fully use the store. Kohler brought suit against BB&B in the U.S. District Court for the Central District of California. Kohler
claimed violations of the ADA, 42 U.S.C. §§ 12101­12213, and related state law provisions. In his complaint, Kohler alleged ten
purported access barriers; those relevant to this appeal relate to: (1) floor and wall space adjacent to the restroom door; (2)
slopes and cross­slopes in the shopping center’s parking lot; and (3) the placement and operation of toilet paper and paper towel
dispensers within the BB&B’s restroom.
The parties filed cross­motions for summary judgment. With respect to the claims of insufficient clearance next to the restroom
door, the district court concluded that the ADA Accessibility Guidelines (“Guidelines”), which set out the ADA compliance
requirements for physical structures, required only a minimum amount of floor space, rather than both floor and wall space on the
pull side of a door. The district court also concluded that BB&B did not “own, lease or operate” the shopping center parking lot,
and therefore was not liable for any ADA barriers occurring there. Finally, the district court concluded that Kohler had not,39&as_vis=1
Kohler v. BED BATH & BEYOND OF CALIFORNIA, LLC, Court of Appeals, 9th Circuit 2015 ­ Google Scholar
asserted an actionable barrier with regard to the location of the toilet paper dispenser, as his complaint asserted only violations
of state law, and that any violations related to the paper towel dispenser had been rendered moot when BB&B installed a new,
compliant dispenser.[1] On this basis, the district court denied Kohler’s motion and granted BB&B’s motion on all of Kohler’s ADA
claims. The district court declined to exercise supplemental jurisdiction over Kohler’s state law claims and dismissed them
without prejudice.
BB&B thereafter moved for attorneys’ fees as the “prevailing party” under 42 U.S.C. § 12205. The district court concluded that
eight of Kohler’s ten claims “were, at a minimum, litigated without any foundation.” Regarding Kohler’s maneuvering space
claims, the district court noted that it had described the claims as “illogical” in its summary judgment order, and that Kohler’s
counsel had unsuccessfully litigated similar claims. Regarding the parking lot claims, the district court held that Kohler should
have been aware that BB&B did not own, lease or operate the parking lot for approximately the last year, as he had sued the
shopping center’s landlord and settled with it over the parking lot violations in September 2011. Regarding the toilet paper
dispenser claim, the district court concluded that it was frivolous because it alleged a violation of a requirement not found in the
ADA. Finally, the district court also concluded that Kohler’s paper towel dispenser claim was “filed without any basis in law or
fact,” because Kohler alleged that operating the dispenser required “tight grasping, pinching or twisting of the wrist” but it was
undisputed that he had full use of his hands. The district court made adjustments to BB&B’s claimed lodestar, reduced that
amount by twenty percent (to account for the proportional number of claims found frivolous), and awarded BB&B fees of $59,892.
Kohler timely appealed the district court’s judgment, which is now before us.
We review a district court’s grant of summary judgment de novo. Doran v. 7­Eleven, Inc., 524 F.3d 1034, 1047 (9th Cir. 2008). We
will uphold a summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). We may affirm the district court on any basis supported by the record. Forest Guardians v. U.S.
Forest Serv., 329 F.3d 1089, 1097 (9th Cir. 2003).
We review a grant of attorneys’ fees for an abuse of discretion. Armstrong v. Davis, 318 F.3d 965, 970 (9th Cir. 2003). However, ”
[a] court may abuse its discretion if it uses incorrect legal standards, which we review de novo.” EEOC v. Bruno’s Rest., 13 F.3d
285, 287 (9th Cir. 1993)
Congress passed the ADA in 1990 “to provide clear, strong, consistent, enforceable standards addressing discrimination against
individuals with disabilities.” 42 U.S.C. § 12101(b)(2). Title III of the ADA prohibits discrimination in public accommodations,
stating that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public accommodation.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007)
(quoting 42 U.S.C. § 12182(a)). Discrimination includes “a failure to remove architectural barriers . . . in existing facilities . . .
where such removal is readily achievable.” Id. (quoting 42 U.S.C. § 12182(b)(2)(A)(iv)).
In appealing the summary judgment order, Kohler addresses only two sets of claims: those dealing with maneuvering clearance
around the BB&B restroom doors, and those dealing with the slopes and cross­slopes in the shopping center parking lot.[2]
Kohler argues that the Guidelines require at least eighteen inches of clear wall length opposite the hinge side of a door that is
pulled open. In Kohler v. Bed Bath & Beyond of California, LLC, No. 12­56727, we rejected the same claim; as a matter of law, the
Guidelines do not require any length of wall space on the side of the doorframe opposite the hinges. ___ F.3d ___, No. 12­
56727, slip op. at 11­12 (9th Cir. Feb. 19, 2015). We affirm the grant of summary judgment to BB&B on this claim.
Kohler v. BED BATH & BEYOND OF CALIFORNIA, LLC, Court of Appeals, 9th Circuit 2015 ­ Google Scholar
Kohler claims that the district court erred in determining that BB&B did not lease the parking lot at the shopping center, and that
BB&B should have been obligated to remediate purported access barriers occurring in the parking lot. Further, he contends that
BB&B’s lease, which defined the parking lot as a “Common Area” and further stated that the “Landlord shall operate, maintain,
repair and replace the Common Areas . . . [and] shall comply with all applicable Legal Requirements,” was an attempt to contract
away its ADA liability in violation of our decision in Botosan v. Paul McNally Real., 216 F.3d 827 (9th Cir. 2000). However,
Kohler’s reliance on that case is misplaced; our decision did not create liability for tenants, or landlords, where the ADA did not
already impose it.
In Botosan, a landlord argued that it could not be held liable for ADA violations on leased property because all ADA compliance
responsibility had been shifted to its 897, 900 n.2 (9th Cir. 1969) (rev’d on other grounds, 396 U.S. 13 (1969)). tenants. See id. at
832. Examining the text and history of the ADA, as well as its implementing regulations, we concluded that the ADA imposes
concurrent obligations on landlords and tenants, and that a landlord, as an owner of the property, should be liable for ADA
compliance even on property leased to, and controlled by, a tenant. See id. at 832­34. The landlord could not contract away its
responsibility under the ADA.
Here, Kohler seeks to extend Botosan to the inverse situation, to extend ADA liability for tenants to those areas of the property
controlled by the landlord. But such an extension undermines the fundamental logic of Botosan. BB&B has no liability to contract
away on parts of the parking lot over which it has no control. Absent a lease, a landlord remains in full control of an entire
property, as its owner. The ADA imposes compliance obligations on “any person who owns, leases (or leases to), or operates a
place of public accommodation.” 42 U.S.C. § 12182(a). The existence of a lease that delegates control of parts of that property to
a tenant has no effect on the landlord’s preexisting obligation, because under the ADA, a party is prevented from doing anything
“through contractual, licensing, or other arrangements” that it is prevented from doing “directly.” 42 U.S.C. § 12182(b)(1)(A)(i).
Here, in contrast, BB&B, like any tenant, has no preexisting control of a property. Absent a lease, it lacks any legal relationship at
all to the property. That it takes control of a part of the property, subject to a lease, imposes ADA compliance obligations on it for
that part of the property it controls; the landlord’s preexisting obligations to the entire property continue unaffected. Botosan
allowed a plaintiff to sue both landlord and tenant for ADA violations, confident that one party would be liable for barrier removal
notwithstanding the lease provisions; this outcome served the goals of the ADA by “hamper[ing] efforts of a landlord and a tenant
to evade ADA requirements.” Botosan, 216 F.3d at 834. But Kohler’s reading of our decision would impose upon a single tenant
—e.g., the cell phone kiosk operating in a shopping center’s lobby—liability for ADA violations occurring at the far end of the
shopping center’s parking lot; such an outcome serves no purpose other than to magnify the potential targets for an ADA lawsuit.
Kohler points to the same two provisions of the ADA quoted above to support his argument, but neither is amenable to the
construction he urges. To reiterate, § 12182(a) imposes compliance obligations on “any person who owns, leases (or leases to),
or operates a place of public accommodation,” while § 12182(b)(1)(A)(i) prohibits discrimination, either “directly, or through
contractual, licensing, or other arrangements.” 42 U.S.C. § 12182(a)­(b). However, there is no dispute that both landlords and
tenants have compliance obligations under the ADA, and neither provision explains the scope of such an obligation, the crux of
the matter here. As in Botosan, reference to the legislative history behind each provision suggests a particular construction of that
scope. The history behind § 12182(a) explains that the provision
makes it clear that the owner of the building which houses the public accommodation, as well as the owner or
operator of the public accommodation itself, has obligations under this Act. For example, if an office building
contains a doctor’s office, both the owner of the building and the doctor’s office are required to make readily
achievable alterations. It simply makes no practical sense to require the individual public accommodation, a
doctor’s office for example, to make readily achievable changes to the public accommodation without requiring the
owner to make readily achievable changes to the primary entrance to the building.
H.R. Rep. No. 101­485, pt. III, at 55­56 (1990) (Conf. Rep.). And the history behind § 12182(b) further explains that
the reference to contractual arrangements is to make clear that an entity may not do indirectly through contractual
arrangements what it is prohibited from doing directly under this Act. However, it should also be emphasized that
this limitation creates no substantive requirements in and of itself. Thus, for example, a store located in an
inaccessible mall or other building, which is operated by another entity, is not liable for the failure of that other
entity to comply with this Act by virtue of having a lease or other contract with that entity. This is because, as noted,
the store’s legal obligations extends [sic] only to individuals in their status as its own clients or customers, not in
their status as the clients or customers of other public accommodations. Likewise, of course, a covered entity may,39&as_vis=1
Kohler v. BED BATH & BEYOND OF CALIFORNIA, LLC, Court of Appeals, 9th Circuit 2015 ­ Google Scholar
not use a contractual provision to reduce any of its obligations under this Act. In sum, a public accommodation’s
obligations are not extended or changed in any manner by virtue of its lease with the other entity.
Id., pt. II at 104 (emphasis added). Taken together, these conference reports from the legislative history highlight the implausibility
of Kohler’s urged construction of the ADA.
Our conclusion today is further supported by regulations, promulgated by the Department of Justice (“DOJ”), which implement the
ADA. Specifically, § 36.403, which speaks to the scope of landlord and tenant obligations dealing with what is known as the “path
of travel,” implies that a tenant’s obligations as to ADA compliance are limited to those parts of the property that it controls:
[A]lterations by the tenant in areas that only the tenant occupies do not trigger a path of travel obligation upon the
landlord with respect to areas of the facility under the landlord’s authority, if those areas are not otherwise being
28 C.F.R. § 36.403. This reading is further supported by the DOJ’s formal interpretation of the regulation in its Technical
Assistance Manual, which includes the following scenario:
What if a tenant remodels his store in a manner that would trigger the path of travel obligation, but the tenant has
no authority to create an accessible path of travel because the common areas are under the control of the
landlord? Does this mean the landlord must now make an accessible path of travel to the remodeled store? No.
Alterations by a tenant do not trigger a path of travel obligation for the landlord. Nor is the tenant required to make
changes in areas not under his control.
DOJ, Technical Assistance Manual on the Americans with Disabilities Act § III­6.2000 (1994) (emphasis added). “The [DOJ]’s
interpretation of its own regulations, such as the Technical Assistance Manual, must also be given substantial deference and will
be disregarded only if plainly erroneous or inconsistent with the regulation.” Bay Area Addiction Research & Treatment, Inc. v.
City of Antioch, 179 F.3d 725, 732 n.11 (9th Cir. 1999) (internal quotation marks omitted). Here, the DOJ’s formal interpretation is
entirely consistent with the regulation, and we give it the deference it is due.
We hold that neither the ADA, nor our decision in Botosan, imposes upon tenants liability for ADA violations that occur in those
areas exclusively under the control of the landlord.[5]
Finally, we reverse the district court’s award to BB&B of attorneys’ fees.
The ADA allows a “prevailing party” its fees. 42 U.S.C. § 12205. But while prevailing plaintiffs regularly recover their fees, “policy
considerations which support the award of fees to a prevailing plaintiff are not present in the case of a prevailing defendant.”
Christianburg Garment Co. v. EEOC, 434 U.S. 412, 418­19 (1978). Accordingly, “fees should be granted to a defendant in a civil
rights action only upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation.” Summers v. A.
Teichert & Son, 127 F.3d 1150, 1154 (9th Cir. 1997) (internal quotation marks omitted).
The district court erred in concluding that eight of Kohler’s ten claims were frivolous. We have repeatedly cautioned that district
courts should not “engage in post hoc reasoning,” awarding fees simply “because a plaintiff did not ultimately prevail.” Bruno’s
Rest., 13 F.3d at 290. This admonition applies even in cases which are resolved at summary judgment because no “reasonable
jury could return a verdict in [the plaintiff’s] favor.” See Thomas v. Douglas, 877 F.2d 1428, 1434 & n.8 (9th Cir. 1989). Here,
Kohler’s claims regarding maneuvering space and the liability of a tenant for common areas were not clearly resolved by our
prior caselaw interpreting the ADA. Kohler was entitled to bring this suit to seek resolution of these questions. See Gibson v.
Office of Att’y Gen., State of Cal., 561 F.3d 920, 929 (9th Cir. 2009) (“Because Plaintiffs raised a question that was not answered
clearly by our precedent, we hold that their claim was not frivolous.”). The law grows with clarity for benefit of the public through
such actions even if they are not successful.
We also reverse the district court regarding Kohler’s paper towel dispenser claim, which was rendered moot by BB&B’s voluntary
remediation of the barrier. Though Kohler may indeed have litigated the claim without foundation, resolution of a claim via the
mooting of any possible relief does not make BB&B a “prevailing party” entitled to fees, as there is no “judicially sanctioned,39&as_vis=1
Kohler v. BED BATH & BEYOND OF CALIFORNIA, LLC, Court of Appeals, 9th Circuit 2015 ­ Google Scholar
change in the legal relationship of the parties.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Resources,
532 U.S. 598, 605 (2001).
Kohler’s final claim, related to the toilet paper dispenser, was also not frivolous. Kohler alleged that the dispenser was “difficult—if
not impossible—for [him] to reach and use” due to its distance from the front of the toilet. The applicable Guideline does require
dispensers to be “within reach,” though it imposes no requirement that a dispenser be mounted a particular distance from the
front of the toilet (only …
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