FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRIS KOHLER,

Plaintiff-Appellant,

v.

BED BATH & BEYOND OF

CALIFORNIA, LLC, DBA Bed Bath &

Beyond #1136,

Defendant-Appellee.

No. 12-56520

D.C. No.

2:11-cv-04451-

RSWL-SP

Appeal from the United States District Court

for the Central District of California

Ronald S.W. Lew, Senior District Judge, Presiding

CHRIS KOHLER,

Plaintiff-Appellant,

v.

BED BATH & BEYOND OF

CALIFORNIA, LLC, DBA Bed Bath &

Beyond #1136,

Defendant-Appellee.

No. 12-56771

D.C. No.

2:11-cv-04451-

RGK-SP

OPINION

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding
2 KOHLER V. BED BATH & BEYOND

Argued and Submitted

February 3, 2015—Pasadena California

Filed March 24, 2015

Before: Stephen Reinhardt and Ronald M. Gould, Circuit

Judges and J. Frederick Motz,

*

 Senior District Judge.

Opinion by Judge Gould

SUMMARY**

Americans with Disabilities Act

The panel affirmed the district court’s summary judgment

and reversed its award of attorneys’ fees in favor of the

defendant in an action under Title III of the Americans with

Disabilities Act.

Affirming the grant of summary judgment on a claim

regarding clearance next to a restroom door in a store, the

panel followed the holding of Kohler v. Bed Bath & Beyond

of Cal., LLC, ___ F.3d ___, No. 12-56727, slip op. at 11–12

(9th Cir. Feb. 19, 2015), that the ADA Accessibility

Guidelines do not require any length of wall space on the side

of the doorframe opposite the hinges.

* The Honorable J. Frederick Motz, Senior District Judge for the U.S.

District Court for the District of Maryland, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
KOHLER V. BED BATH & BEYOND 3

The panel also affirmed the district court’s ruling that the

defendant, as a tenant, was not liable for ADA violations

occurring in the parking lot outside of its store where that

area of the property was controlled by the landlord and was

not leased by the defendant.

Reversing the district court’s award of attorneys’ fees to

the defendant as a prevailing party, the panel held that the

district court erred in concluding that eight of the plaintiff’s

ten claims were frivolous.

COUNSEL

Scottlynn J. Hubbard, IV (argued), Law Offices of Lynn

Hubbard, Chico, California, for Plaintiff-Appellant.

Matthew S. Kenefick (argued), and Martin H. Orlick, Jeffer

Mangels Butler & Mitchell LLP, San Francisco, California,

for Defendant-Appellee.

OPINION

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
4 KOHLER V. BED BATH & BEYOND

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.

I

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. §§ 12101–12213, 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 cross-slopes 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.
KOHLER V. BED BATH & BEYOND 5

The parties filed cross-motions 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 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

 

1

 “Because a private plaintiff can sue only for injunctive relief (i.e., for

removal of the barrier) under the ADA, a defendant’s voluntary removal

of alleged barriers prior to trial can have the effect of mooting a plaintiff’s

ADA claim.” Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th Cir.

2011).
6 KOHLER V. BED BATH & BEYOND

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.

II

We review a district court’s grant of summary judgment

de novo. Doran v. 7-Eleven, 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.
KOHLER V. BED BATH & BEYOND 7

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)

III

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 cross-slopes in the

shopping center parking lot.2

2 Though Kohler refers to his paper towel and toilet paper dispenser

claims in both his “Facts and Proceedings” and “Statement of the Issues”

sections, the only errors he argues related to those claims deal with the

award of attorneys’ fees. Kohler has waived his challenge to summary

judgment on those claims. See Simpson v. Union Oil Co. of Cal., 411 F.2d
8 KOHLER V. BED BATH & BEYOND

A

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. 12-56727, 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 11–12 (9th

Cir. Feb. 19, 2015). We affirm the grant of summary

judgment to BB&B on this claim.

B

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 (9thCir. 1969) (rev’d on other grounds, 396 U.S. 13 (1969)).
KOHLER V. BED BATH & BEYOND 9

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 832–34. 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
10 KOHLER V. BED BATH & BEYOND

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.3

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

3

It also unnecessarily complicates the process of remediating the ADA

violation. Were a court to grant an injunction against a tenant to

remediate a violation in an area of the property under the landlord’s

exclusive control, such an injunction would require the tenant to then sue

the landlord, under an uncertain cause of action, to ensure subsequent

remediation. The goals of the ADA are better served by allocating such

compliance obligations directly to the landlord.
KOHLER V. BED BATH & BEYOND 11

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. 101-485, pt. III, at 55–56 (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
12 KOHLER V. BED BATH & BEYOND

accommodations. Likewise, of course, a

covered entity may 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 altered.4

4 A “path of travel” is a continuous, accessible pathway from a particular

altered area to “an exterior approach (including sidewalks, streets, and

parking areas), an entrance to the facility, and other parts of the facility.” 

28 C.F.R. § 36.403(e)(1). In the context of a shopping center, such a path

of travel would include many features considered to be within the

“Common Area” under BB&B’s lease, such as “walks and sidewalks, curb

ramps and other interior or exterior pedestrian ramps; clear floor paths

through lobbies, corridors, rooms, and other improved areas; parking
KOHLER V. BED BATH & BEYOND 13

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 § III–6.2000 (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

access aisles; elevators and lifts; or a combination of these elements.” 28

C.F.R. § 36.403(e)(2).
14 KOHLER V. BED BATH & BEYOND

that occur in those areas exclusively under the control of the

landlord.5

IV

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, 418–19 (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

5 Kohler, in his reply brief, points for the first time to an FAQ document

from the DOJ, discussing landlord and tenant obligations in the context of

leased medical office space. That document does refer to a potential

arrangement where a tenant could be liable for ADA violations in toilets

used by other tenants. See DOJ Disability Rights Section, “Americans

with Disabilities Act, Access to Medical Care for Individuals with

Mobility Disabilities,” at 3, available at: http://www.ada.gov/medcare_

mobility_ta/medcare_ta.htm. But this is a general statement, describing

a possible arrangement between landlord and tenant; nothing in this source

persuasively suggests that the DOJ has moved away from its specific and

definite statement in the Technical Assistance Manual, quoted above.
KOHLER V. BED BATH & BEYOND 15

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 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
16 KOHLER V. BED BATH & BEYOND

a particular distance from the front of the toilet (only from the

floor). 28 C.F.R. Pt. 36, App. D § 4.16.6. Kohler supported

his claim by relying on a requirement found in California law,

which the district court correctly concluded did not govern an

ADA claim. But in this instance, Kohler’s claim did not

become frivolous simply because he referred to a state law

requirement, and we reverse the district court’s contrary

conclusion.

V

The district court did not err in granting summary

judgment to BB&B on Kohler’s ADA claims and we affirm

as to summary judgment. But the district court erred in

determining that any of Kohler’s claims were frivolous, and

we reverse the award of attorneys’ fees. Each party shall bear

its own costs.

AFFIRMED in part and REVERSED in part.