F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

C H R I S K O H L E R , Plaintiff-Appellant

,

v.

B E D B A T H & B E Y O N D O F C A L I F O R

N I A , L L C, DB A B e d B ath & B ey ond #1136, Defendant-Appellee

. N o. 12-56520

D.C. No. 2:11-cv-04451- RSW L -SP

A ppeal from the United States District Court for the Central District of California Ronald S.W . L ew, Senior District J udg e, Presiding

C H R I S K O H L E R , Plaintiff-Appellant

,

v

.

B E D B A T H & B E Y O N D O F C A L I F O R

N I A , L L C, DB A B e d B ath & B ey ond #1136, Defendant-Appellee

. N o. 12-56771

D.C. No. 2:11-cv-04451- RGK-SP

OPI NI ON

A ppeal from the United States District Court for the Central District of California R. Gary Klausner, District J udg e, PresidingK O H L E R V

. B E D B A T H & B E Y O N D

2

Arg ued and Submitted

F ebruary 3
, 2015—Pasadena California

F iled March 24, 2015

B efore: Stephen Reinhardt and Ronald M. Gould, Circuit J udg es and J . F rederick Motz

, * Senior District J udg e.

O pinion by

J udg e Gould

SUMMARY * *

Am ericans w ith Disabilities Act

The panel affirmed the district court’s summary judg ment

a n d reversed its award of a ttorney s’ fees in f avor o f t h e de fe n d a n t in an action under Title I I I of the Americans with Disabilities Act.

A ffirming the g r a

n t of summary judg ment on a cl a i m reg arding c learance nex t to a restroom door i n a s t o r e, the panel followed the holding of Kohler v. Bed Bath & Beyond of Cal., LLC , ___ F .3d ___, No. 12-56727, slip op. a t 11–12 ( 9th Cir. F eb. 19, 2015), that the ADA A c cessibilit y Guidelines do not require any leng th of wall space o n the side of the doorframe opposite the hing es.

* T h e Ho n o rab l e J

. F r ed erick Mo tz, Sen io r District J u dg e f o r t h e U .S. District Co u

rt f o r th e District o f

Mary l an d , sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.K O H L E R V

. B E D B A T H & B E Y O N D 3

The p anel also affirmed the district court’s ruling that the defendant, as a tenan t , was not liable for ADA violations occurri n g i n the parking lot outside of its store where that

area of the p roperty was con t r o lled by the landlord and was not leased by

the defendant.

Reversing the d istrict c ourt’s award of attorney s’ fees to the defendant as a prevailing party , the p a n e l held that the district court erred in c oncluding that eig ht of the plaintiff’s ten claims were frivolous.

COUNSEL

Scottly nn J

. Hubbard, I V ( ar gu e d )

, L aw O ffices of L y nn Hubbard, Chico, California, for Plaintiff-Appellant.

Matthew S. Kenefick ( a

r g ued), and Martin H. Orl i c k, J effer Mang els B utler & Mitchell L L P, San F rancisco, C a l ifornia, for Defendant-Appellee.

OP INION

GOUL D, Circuit J udg e :

Chris Kohler appeals from a g rant of summary judg ment to d efendant B ed B ath & B ey ond of California (“B B & B ”) on K ohler’s claims u nder Title I I I of the Americans with Di sabilities Act (“ADA”), a nd also appeals the a

ward o f attorney s’ fees and costs to B B & B as a prevailing defendant. Reg arding sum m a r y judg ment, Kohler contends that the district court erred in concluding that t h e A DA does not require wall space w ithin the maneuvering clearance nex t toK O H L E R V

. B E D B A T H & B E Y O N D

4

t h e f rame of a restroom door that must be pulled open; a n d that the district court erred in ruling that, B B & B
, as a tenant,

was not liable for ADA violations occurring in the parking lot outside of its store. Koh ler further contends that the district
court erred in concluding that several of his claims warranted the a ward of attorney s ’ fees to B B & B ; and that the district
court erred in its calculation of fee s a w a r ded. W e have jurisdic t i o n u nder 28 U.S.C. § 1291. W e conclude that Kohler’s substantive claims related to maneuvering clearance and tenant l i a b ility must be rejected and according ly we affirm summary judg ment. However, w e ag ree that B B & B

was n ot entitled to attorney s’ fees for any of Kohler’s claims, and so we reverse the district court’s fee award.

I

Kohler is disabled; he is a parapleg ic and requires the use of a wheelchair to move in public. S e veral times in May 2011, Kohler visited the B B & B store at the L ake Elsinore Marketplace in L ake Elsinore, California. During those visits he encountered purported a rchitectura l barriers, both within the store and in the p arking lot of the shopping center, that he claimed impeded his a

bility to f u l ly use the store. Kohler broug ht suit ag ainst B B & B in the U.S. D istrict Court for the Central Dist ri c t of California. Kohler c laimed violations o f the A DA
, 4 2 U .S.C. §§ 12101–12213, and related state law provisions. I n hi s c o mplaint, Kohler alleg ed ten purported

access barriers; those relevant to this appeal relate to: (1) floor and wall space adjacent to t h e restroom door; (2) slopes a

nd cross-slopes in the shopping center’s parking lot; and (3) the placement and operation of toi l e t p a p e r a nd paper towel dispensers within the B B & B ’s restroom.K O H L E R V

. B E D B A T H & B E Y O N D 5

The p arties filed cross-motions for summary judg ment. W ith respect to the c laims of insufficient clearance n ex t to the
restroom door, the district court concluded tha t t h e ADA Accessibility G uidelines (“Guidelines”), which set out t he ADA complianc e r equirements for phy sical structures, required only a minimum amount of floor space, rather than both floor a

nd wall space on the pull side of a doo r

. T h e district court also concluded that B B & B did not “own, lease

or o perate” the shopping center parking lot, and therefore was not liable for any ADA barriers occurring there. F inally

, the district court concluded that K ohler had not asserted an actionable barrier wit h reg ard to the location of the toilet paper dispenser, as his complaint asserted only violations of
state law, and that any viol a t i ons related to the paper towel dispenser had been r en d e red moot when B B & B installed a new, c ompliant d ispenser. 1 On this basis, the district court denied Kohler’s motion a n d g rant e d B B & B ’s motion on all of Kohler’s ADA claims. The d istrict cou r t declined to

ex e r cise supplemental jurisdiction over K ohler’s state law claims and dismissed them without prejudice.

B B & B thereafter moved for attorn e y s ’ fees as the “prevailing party ” under 42 U .S.C. § 12205. The district court concluded that eig h t of Kohler’s ten claims “were, at a minimum, litig ated w ithout any foun d ation.” Reg arding Kohler’s maneuvering space claims, the district court noted that it had described the claims as “illog ical” in its summary judg ment order, and that K ohler’s c ounsel had unsuccessfully

1 “ B ecau se a p riv ate plain tif f can su e o n ly f

o r in j u n ctiv e relief (i.e., f

or

rem o v al o f

th e b arrier) u n d er th e A DA , a d ef en dan t’ s v o lu n t ary

rem o v al

o f alleg ed b arriers p rio r to trial can h av e th e ef f ect o f m o o tin g a p lain tif

f ’ s A DA claim .” Oliver v. Ra lp h s G ro cery Co
., 65 4 F.3 d 9 0 3
, 9 05 (9 th Cir. 2 0 1 1 ).K O H L E R V

. B E D B A T H & B E Y O N D

6

litig ated similar c laims. Reg arding the parking lot claims, the district court held that Kohler should have been aware that B B & B did not own, lease or operate the park i n g l o t for
approx imately the last y ear, as he had sued the sh opping

c e n ter’s landlord and settled with it over the parkin g l o t violations in September 2011. Reg arding the toilet paper dispenser claim, the d istrict court concluded that it was frivolous because it a lleg ed a violation of a requirement not found in the ADA. F inally , the district c ourt a lso concluded that Kohler’s paper towel dispenser claim was “filed without
any basis in law or fact,” because K ohler a ll e ged that operating the dispenser required “tig ht g rasping

, pinching o r twisting of the wrist” but it was u n d i s puted that he h ad full

use of his hands. The district c o u r t m a d e a djustments to B B & B ’s claimed lode s t a r , r educed that amount by twenty percent (to account f

or the proport ional number of c laims found frivolous), and awarded B B & B fees of $59,892.

K o h l e r timely appealed the district court’s judg ment, which is now before us.

II

W e review a district court’s g rant of summary judg ment de novo

. Doran v. 7-Eleven, I nc. , 524 F .3d 1034, 1 047 (9th Cir. 2 008). W e will u

phold a summary judg ment if “there is

no g enuine dispute as to any material fact and the movant is entitled to judg ment as a matter of law.” F ed. R. Civ. P. 56(a). W e may affirm the district c o u r t o n any basis supported b y the recor d

. F

o r e st G uardians v. U.S. F orest Serv.
, 329 F .3d 1089, 1097 (9th Cir. 2003).

W e r eview a g rant o f a ttorney s’ fees for an abuse o f discretion. A rmstrong v. Davis
, 318 F .3d 965, 970 (9th Cir.K O H L E R V

. B E D B A T H & B E Y O N D 7

2003). H owever, “[ a] c ourt may abuse its discretion if it u ses incorrect leg al standards, which we review de novo.” E EOC v. Bruno’s Rest. , 13 F .3d 285, 287 (9th Cir. 1993)

III

Cong r ess passed the ADA in 1990 “to provide clear,

s t r o n g, c o n s i s t e n t , e n fo r c e a b le standards addr e s s i n g discrimination ag ainst individu a l s w i t h d i s abilities.” 42 U.S.C. § 1 2 1 01(b)(2). Title I I I of the ADA prohibits discrim i nation in public accommodations, stating that “[ n ] o individual shall be discriminat e d ag ainst o n the basis o f disability in the ful l a

n d equal enjoy

ment of the g oods,

s e r v i c e s , f

a c i l i t i e s , p r i v i l e g e s , a d v a n t a g e s , o r accommodations of a n y place of p ublic accommodation b y any person who owns, leases (or lea s e s t o )

, or operates a place of public accommodation.” Molski v. M.J. Cable, Inc.
, 4 8 1 F .3d 7 24, 730 (9th Cir. 2007) ( quoting 42 U .S.C. § 12182(a)). D iscrimination includes “a failure to remove architectural b arriers

. . . in ex isting facilities

. . . where such

r e moval is readily a chievable.” Id. (quoting 42 U.S

. C

. § 12182(b)(2)(A)(iv)).

I n a ppealing the summary judg ment order, Kohler ad d resses only two sets o f claims: those d e aling with maneuvering clearance around the B B & B restroom d oors, and those dealing with the slopes and cross-sl opes in the shopping center parking

lot. 2

2 T h ou g h K o h l e r r e fe r s to h is p ap er to w el an d to i let p ap er d isp en s er claim s in b o th h is “ F acts an d P ro ceed in g s” an d “ Statem en t o f th e Issu es”

s e c t i o n s , th e on ly erro rs h e arg u es related to th o se claim s d eal w ith th e

aw ard o f atto rn ey s’ fe e s

. K o h l er h as w aiv ed h is ch allen g e to su m m ary j u d g m en t on th o s e claim s. S ee S imp so n v. Un i o n Oil C o

. o f Ca l.

, 4 1 1 F.2 dK O H L E R V

. B E D B A T H & B E Y O N D

8

A

Kohler arg u es that the Guidelines require at least eig hteen inches of clear wall leng th opposite t h e h i n ge side of a door that is p ulled open. I n Ko h l e r v

. B e d Bath & Beyond of California, LLC
, No. 1 2 -56727, we rejected the same claim;

as a matter of law, the Guidelines do not requi r e any leng th of wall space on the side of the doorframe opposite the hing es.

_ __ F. 3 d

_ __, No. 12-56727, slip op. at 11–12 (9th Cir. F eb. 19, 20 1 5 )

. W e a ffirm the g rant of summary judg ment to B B & B on this claim.

B

Kohler claims that the district court erred in d etermining that B B & B did not lease the p a r k i n g lot a t the shopping

c e n t e r, and that B B & B should have been oblig ated t o remediate purported access barriers occurring in the parking lot. F urther, he contends that B B & B ’s lea s e , w hich defined the parking lot as a “Common Area” and f u rt h e r stated that the “L andlord shall operate, maintain, repair and r eplace the Common Areas

. . . [ and] shall comply wit h a ll applicable L e g al Requirements,” was an attempt to contract awa y i t s ADA liability in violation of our decision in B o tosan v. Paul McNally Real.

, 216 F

. 3d 827 (9th Ci r

. 2000). However, Kohler’s reliance on that case is misplaced; our decision did

n o t c reate liability for tenants, or landlords, where the A DA did not already

impose it.

I n Botosan
, a landlord arg ued that it coul d n o t be h eld liable for ADA violations on leased property because all ADA complian ce r esponsibility had been shifted to its

8 9 7
, 9 0 0 n .2 (9 th C ir. 1 9 6 9 ) ( rev’d o n o t h er gro u n d

s , 3 9 6 U .S. 13 (1 9 6 9 )).K O H L E R V

. B E D B A T H & B E Y O N D 9

tenants. See id. at 832. Ex amining the tex t and history of the ADA, a s well a s its implementing reg ulations, we concluded that the ADA imposes c oncurrent oblig ations on l an dlords and tenants, and that a landlord, a s an o wner of the property , should be liable f

or ADA compliance e ven on property leased to, and controlled by

, a t e n ant. See id. at 832–34. The landlord could not contract away its responsibility under the ADA.

Here, Ko h ler seeks to ex tend Botosan to the inverse situation, to ex tend ADA liability f or tenants to those areas o f the p roperty controlled by the landlord. B ut such an

ex tension undermines the f undamental log ic of Botosan

. B B & B has no l i a b i l i ty to contract away on parts of the parking l o t over which it has no control. Absent a lease, a landlord remains in full con t r o l o f a n entire property , as its

owner. T he A DA imposes complianc e o b l ig ations on “any
person who owns, leases (or leases to), o r operates a place o f public accommodation.” 42 U.S.C. § 1 2 1 82(a). The

ex istence of a lease that deleg ates contro l o f p a r ts o f that property to a tenant has no effect o n the landlord’s p reex isting oblig ation, b ecause under the ADA, a party is prevented from doing any

thing “throug h contractual, licensing

, o r o ther
arrang ements” that it is prevented from doi n g “directly

. ” 42 U.S.C. § 12182(b)(1)(A)(i). Here, in contrast, B B & B
, like
any tenant, has no preex isting control of a property

. Absent

a lease, it lacks any leg al relationship at all t o the property

. That it takes control of a part of the property , sub ject to a lease, imposes ADA compliance oblig ations o n it for that part of the property it controls; the landlord’s p reex isting oblig ations to the entire property continue u na f f ected. Botosan a llowed a plaintiff to sue both landlord and tenant for ADA violations, confident that one party would be liable for barrier removal notwiths tanding the lease p rovisions; thisK O H L E R V

. B E D B A T H & B E Y O N D

10

outcome served the g oals of the ADA by “hamper[ ing ] efforts of a landlord and a tenant to e v a d e A D A requirements.” Botosan
, 216 F .3d a t 834. B ut Kohler’s rea d i n g of our decision w ould impose u p o n a sing le tenant—e.g ., the c ell phone kiosk operating in a shopping c e nter’s lobby —liability for ADA violations occ u r r ing at the far end of the shopping center’s p arking lot; such an outcome serves no purpose other than to mag nify

the potential targ ets for an ADA lawsuit. 3

Kohler p o ints to the same two provisions of the ADA quoted above to support his arg u ment, but neither is amenable
to the construction he urg es. To r eiterate, § 12182(a) imposes compliance oblig ations on “any person w ho owns, leases (or leases to), or operates a place o f p u blic a ccommodation,” while § 12182(b)(1)(A)(i) p rohibits discrim i n ation, either “directly

, or throug h cont r a ctual, licensing

, o r other
arrang ements.” 42 U.S.C. § 12182(a)–(b). However, there is

no dispute that both landlords and tenan t s have compliance oblig ations under the ADA, and neither provision ex plains the scope of such an oblig ation, the crux of th e m a t t e r h ere. As in B otosan , reference to the leg islative history behind e ach provision sug g ests a particular construction of that scope. The history

behind § 12182(a) ex p lains that the provision

makes it clear th a t t he owner of the building which houses the public accommodation, a s well as the owner or operator o f the public

3 It also u n n ecessarily co m p l icates t h e p ro cess o f rem ed iatin g t h e A DA

v io latio n

. W ere a co u rt t o g ran t an in j u n ctio n a g a i n st a ten an t to

rem ed iate a v i o l atio n in an area o f th e p ro perty u n d er th e lan d lo rd ’ s

ex clu siv e co n tro l, su ch an in j u n ctio n w ou ld req u ire th e ten an t to t h en su e t h e lan d lo rd

, u n d er an u n certain cau se of actio n , to en su re su b s e q ue n t

rem ed iatio n

. T h e g o als o f th e A DA are b etter s erv ed b y allo catin g su ch

co m plian ce o b lig atio n s d irectly to th e lan d lo rd

.K O H L E R V

. B E D B A T H & B E Y O N D 11

accommodatio n itself, has oblig ations under this Act. F or e x ample, if an office building contains a doctor’s office, both the o w n er o f the b uilding and the d o c tor’s office a re

r e q u i r e d t o m a k e r e a d i l y a c h i e v a b l e alterations. I t simply makes no p r actical

sen se to require the individual public accommodation, a d o c t o r ’ s o f f i c e f o r

ex a mple, to make readily achievable chang e s t o the public a ccommodation with o u t requiri ng the owner to make readily achievable chang es to the primary entrance to the building

.

H.R. Rep. No. 101-485, p t. I I I
, at 55–56 ( 1990) (Conf. Rep.). And the history

behind § 12182(b) further ex plains that

the reference to contractual arrang ements is to make clear that an entity may not do indi r ectly throug h contractual a rrang e ments what it is prohibited from doing directly under this Act. H

o w ever, it should also be emphasized that this limitation creates no subs t antive requirements in and of itself. T h u s, for ex ample, a store located in a n inaccessible mall or o ther b u ilding

, 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 wi th that entity

. This is because, a s noted, the store’s leg al oblig ations ex t ends [ sic] only to individuals in their status as its

own clients or customers, not in their status a s the clients or customers of othe r publicK O H L E R V

. B E D B A T H & B E Y O N D

12

accommodations. L ikewise, of cours e , a covered entity may not u se a con tractual provision to reduce a

ny o f i ts oblig ations

u n d e r t h i s A c t

. In s u m , a p u b l i c

a c c o m m o d a t i o n ’

s o b l i g a t i o n s a r e n o t extended or chang ed in any m anner by virtue of its lease with the other entity

.

Id.

, p t. I I a t 1 04 ( emphasis added). Taken tog ether, these conference reports from the leg islative history hig hlig h t the implausibility

of Kohler’s urg ed construction of the ADA.

Our c onclusion today is further supported by reg ulations, promulg a ted by th e De partment of J ustice (“DOJ ”), which implement the ADA. Specifically

, § 36.403, which speaks to the scope of landlord and tenant ob l i gations dealing with what is known as the “path of travel,” implies that a tenant’s oblig ations 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 occup i e s d o not trig g er a path o f travel oblig ation upon the landlord with
resp e c t to areas of the facility under the landlord's authority

, if those areas are not otherwise being

altered. 4

4 A “ p ath o f trav el” is a co n tin u ou s, accessib l e p ath w ay f ro m a p articu lar altered area t o “ an ex terio r ap p ro ach (in clu di n g s i d e w alk s, streets, an d
p ark in g areas), an en tran ce to th e f acility

, an d o th er p arts o f t h e f acility .” 2 8 C.F.R. § 36 .4 0 3 (e)(1 ). In th e co n t ex t o f a s h o p p in g cen ter, su ch a p ath

o f trav el w o u ld in clu de m an y f eatu res co n sid ered to b e w i th in th e

“ C o m m o n A rea” u n d er B B & B ’ s lease, su ch as “ w alk s an d s id ew alk s, cu rb

ram p s an d o th er in t e r i o r o r ex terio r p ed estrian ram p s ; clear f

l o or p ath s th ro u g h l o b b ies, co rrid o rs, ro o m s , an d o t h er im p ro v e d areas; p ark in gK O H L E R V

. B E D B A T H & B E Y O N D 13

28 C.F .R. § 36.403. This reading is further supported by the DOJ ’s formal interpretation of the reg u lation in its Technical Assistance Manual, which includes the following scenario:

W h at if a tenant remodels his store i n a

manner that would trig g e r the p ath of travel

o b l ig ation, but the tenant has no authority t o create an accessible path of travel because the

common areas are u nder the control of the landlord? Does this mean the landlord must

now make an accessible path o f travel to the remodeled store? N o. Alterations by a tenant d o n ot trig g er a path of travel oblig ation fo r the landlord. Nor i s t h e tenant required to make changes in areas not under his control.

DOJ
, Technical Assistance Manual o n the Americans with Disabilities Act § I I I

–6.2000 (1994) (emphasis added). “The [ DOJ ] ’s interpretation of its own reg ul a t i ons, such as the Technical A ssistance Manual, must also be g iven substantial deference and will be disreg arded o nly if plainly erroneous o r inconsistent w i t h the r e g ulation.” Bay Area Addiction Research & Treatment, Inc. v. City of A n tioch

, 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 reg u lation, and we g ive it the deference it is due.

W e hold th a t n e i ther the A DA, nor o ur decision in Botosan
, imposes upon tenants l i ability for ADA violations

access aisles; elev ato rs an d lif ts; o r a co m

b in atio n o f th ese elem en t s.” 2 8 C.F.R. § 3 6.4 0 3 (e)(2 ).K O H L E R V

. B E D B A T H & B E Y O N D

14

that occur in those areas ex clusively under the control of the landlord. 5

IV

F inally

, we reverse the district court’s award to B B & B o f attorney s’ fees.

The ADA allows a “prevailing party ” its fees. 42 U .S.C. § 12205. But while prevailing plaintiffs reg ularly r ecover their fees, “policy considerations which support the award o f fees to a prevailing p lai n t i f f a r e not present in the case of a prevailing d e fendant.” Christianburg Garment Co. v. EEOC
, 434 U.S. 412, 418–19 ( 1978). A ccording ly , “fees should be
g ranted to a defendant in a civil r ig hts action only u pon a finding that the plaintiff’s action w as 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 concl u d i n g that eig ht o f Ko h l e r ’ s ten c laims were frivolous. W e have repeatedly cautioned that district courts should not “eng ag e in post h oc

5 Ko h ler, i n h i s rep ly b rief

, p o in ts f or th e f i rst t im e to an F A Q d ocu m en t f ro m t h e DOJ
, d iscu ssin g lan d lo rd an d ten an t o b lig atio n s in t h e co n tex t of leased m ed ical o f

f ice sp ace. T h at do cu m e n t d o e s ref er to a p o ten tial

arran g em en t w

h ere a ten an t co u ld b e liab le f o r A DA v i o latio n s in

to ilets

u sed b y o th er ten an ts. S e e D O J Disab ility Rig h ts Sectio n , “ A m erican s

w ith D isab ilities A ct, A ccess to Med ical Care f o r I n d i v i d u als w i th Mo b ility Disab i l i ties,” at 3
, a va ila b le a t : h ttp ://w w w .ad a.g o v

/ m ed care_

m o b ility

_ ta/m ed care_ t a.h tm

. B u

t th is is a g e n eral statem en t, describ in g

a p ossib l e arran g em en t b etw een lan d lo rd an d ten an t; n o th in g in th is so u rce p ersu asiv ely su g g ests th at th e DOJ h as m o v ed aw ay f ro m i ts s p ecif

ic an d d ef in i te statem en t in

th e T ech n ical A ssistan ce Man u al, q u o ted ab ov e.K O H L E R V

. B E D B A T H & B E Y O N D 15

reasoning ,” a

warding fees simply “because a plaintiff did not ultimately prevail.” Bruno’s Rest.
, 13 F .3d at 290. Th i s admonition applies even in cases which are r esolved at summary judg ment because no “reasonable jury c ould return a verdict in [ the plaintiff’s] favor.” See Thomas v. Douglas

, 8 77 F .2d 1428, 1434 & n.8 (9th Cir. 1989). Here, Ko h l e r’ s claims reg arding maneuveri n g space and the liability of a tenant f o r common areas were not clearly resolved by our prior c aselaw interpreting the ADA. Kohler was entitled to bring this s u i t to seek resolution o f these questions. See Gibson v. Office of Att’y G e n., State of Cal

., 561 F .3d 920, 929 (9th Cir. 2 009) (“B ecause Plaintiffs r aised a question that

was not answered clearly by our precedent, we hold that their

c l a i m w a s not frivolous.”). The law g rows with clarity f o r benefit o f the public throug h such a c tions even if they are not successful.

W e also reverse the district court reg arding Kohler’s
paper towel dispenser claim, which was ren d e red moot b y B B & B ’s voluntary remed i a t i o n of the barrier. Thoug h Kohler may indeed h a v e litig ated the claim without foundation, resolution of a claim via the mootin g o f any possibl e relief does not make B B & B a “prevailing party ” entitled to fees, as there is no “ judicially sanctioned chang e in the leg al rela t i o n s hip o f the parties.” Buckhannon Bd. & Care Home, Inc. v. W

. Va. De p ’t o f Health & H

uman Resources , 532 U.S. 598, 605 (2001).

Kohler’s final claim, related to the toilet p aper dispenser,

was a lso not frivolous. Kohler alleg e d that the dispenser was “difficult—if n ot i m p o s sible—for [ him] to reach and use” due to its distance f

rom the front of the toilet. The applicable Gu i d e l ine does require dispensers to be “within r each,” thoug h it imposes n o requirement that a dispenser be mountedK O H L E R V

. B E D B A T H & B E Y O N D

16

a particular distance from the front of the toilet (only from the floor). 2 8 C.F .R. Pt. 36, App. D § 4.16.6. Kohler supported his claim b y r ely ing on a requirement found in California law, which the district court correctly concluded did not g overn an ADA claim. B u t in this instance, Kohler’s c laim did not b e come frivolous simply because he referred to a sta t e l a w requirement, and we revers e t h e district court’s contrary conclusion.

V

The district court did not e rr i n granting summary judg ment to B B & B on Kohler’s ADA claims and we affirm

as to summary judg ment. Bu t t he district court erred in determining that any of Kohler’s claims were frivolous

, a nd

we reverse the award of attorney s’ fees. Each party shall bear its own costs.

AF F IRMED in part and REVERSED in part.