NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIAN WHITAKER ,

Appellant ,

v. 370 NORTH CANON DRIVE, LP; TASHMAN MANAGEMENT, LLC; and ALO, LLC , Appellee s
. No. 20

- 56068
D.C. No. 2:19

- cv - 02918

- CJC

- GJS

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding Submitted October 18, 2021 * * Pasadena, California
Before: CALLAHAN and FORREST, Circuit Judges, and AMON, ** * District Judge. Brian Whitaker appeals the district court’s award of attorney fees to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Carol Ba gley Amon, United States District Judge for the Eastern District of New York, sitting by designation. 

# FILED

OCT 20 2021
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Appellees

. We have jurisdiction under 28 U.S.C. § 1291. Reviewing “the legal standard applied by a district court to rule on a request for attorney fees” de novo , Jankey v. Poop Deck , 537 F.3d 1122, 1129 (9th Cir. 2008) , and the decision to grant attorney fees for an abuse of discretion , Kohler v. Bed Bath & Beyond of Cal., LLC , 780 F.3d 1260, 1263 (9th Cir. 2015) , we affirm. Whitaker challenges the district court ’ s determination that his litigation “was frivolous, unreasonable , or without foundation , ” justify ing the imposition of attorney fees under 42 U.S.C. § 12205 of the Americans with Disabilities Act ( “ ADA ” ). See Summers v. A. Teichert & Son, Inc. , 127 F.3d 1150, 1154 (9th Cir. 1997) (quoting Christiansburg Garment Co. v. EEOC , 434 U.S. 412, 421 (1978))

. According to Whitaker, he made two nonfrivolous arguments that Appellees ’ store
violated the ADA’ s requ irement that sales counters include a lowered, accessible portion

. Fi rst, the lowered counter at Appellees’ store was not a “sales” counter

. S econd, Appellees did not “provide” him with access to the supposedly compliant

counter. We agree with the district court that Whitaker’s arguments were frivolous

. Whitaker provides no legal support for his claims that any of the counter’s purported deficiencies made it not a “sales” counter. H is factual analysis is also
flaw ed when consi dering the undisputed facts at summary judgment . Hi s argument
that the counter was not staffed is unsupported. S taff stood behind the L

- shaped counter of which the lowered portion was a part. His argument that the counter was3

not visible and tucked away is equally meritless. H is investigator took photos before
the complaint was filed that showed the lowered counter. By the time Whitaker brought his summary judgment motion, he knew that a dedicated point

- of

- sale system had been installed. And Whitaker ’s only evidence of clutter was a photograph showing clothing that “occupied half of the counter, at most.” Additionally , prior to summary judgment, Whitaker knew that the counter was used for sales; that it was connected to the manned, main count er in an L shape; that it was only sometimes used for folding clothing; and that even prior to the installation of a dedicated iPad, there was an iPad that was moved to the lowered counter area
as needed for sales transactions

. Despite this knowledge, he continued to litigate the

case. Given the lack of factual or legal foundation for this argument , the district court did not abuse its discretion in determining that Whitaker ’s continued litigation
was frivolous. See Christiansburg , 434 U.S. at 422 ( holdi ng that a plaintiff may be assessed its opponent’s attorney fees when a plaintiff continues to litigate after the litigation clearly became frivolous, unreasonable, or groundless ). Equally meritless is Whitaker’s argument that Appellees did not provide him
with an accessible counter by failing to direct him to it

. The ADA does not require
a business to affirmatively alert disabled customers to the existence of an obviously
available accessible feature

. Cf. 28 C.F.R. § Pt. 36, App. B. Whitaker’s reliance on Fortyune v. American Multi

- Cinema, Inc. , 364 F.3d 1075 (9th Cir. 2004) , a case in4

which the plaintiff actively requested a reasonable accommodation, is inapposite.
The district court also construed Whita ker’s arguments as including claims
that there was no lowered counter whatsoever and that clutter on the counter made
it inaccessible and found th ose claims frivolous . Whitaker’s only substantive response is that he never made these arguments

. This is no t accurate. T he district court correctly found both that Whitaker made these arguments and that they were
frivolous

. Whitaker’s remaining arguments are meritless

. AFFIRMED

.