                                                                           FILED
                           NOT FOR PUBLICATION                             FEB 23 2015

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


SANDI RUSH,                                      No. 12-56565

              Plaintiff - Appellee,              D.C. No. 5:11-cv-00030-DOC-
                                                 DTB
  v.

DENCO ENTERPRISES, INC., DBA                     MEMORANDUM*
Denny’s #7156,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                      Argued and Submitted February 4, 2015
                               Pasadena California

Before: REINHARDT and GOULD, Circuit Judges, and MOTZ, Senior District
Judge.**

       Based on our decision in Kohler v. Bed Bath & Beyond of California, LLC,

___ F.3d ___, No. 12-56727 (9th Cir. Feb. 19, 2015), we conclude that the district


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable J. Frederick Motz, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
court erred by granting summary judgment to Rush based on (1) Rush’s argument

that the Americans with Disabilities Act (ADA) and the ADA Accessibility

Guidelines (ADAAG) require at least eighteen inches of strike-side wall space and

(2) Denco’s failure to rebut Rush’s prima facie case of discrimination.

      Rush did not present a prima facie case of discrimination under the ADA

because, as a matter of law, the ADAAG do not require any length of wall space on

the strike-side of a doorframe. See Kohler v. Bed Bath & Beyond of California,

No. 12-56727, slip op. at 11–12 (9th Cir. Feb. 19, 2015). Also, summary judgment

was not warranted by Denco’s lack of response in opposition because Rule 56(e)

of the Federal Rules of Civil Procedure should not “be misconstrued as condoning

summary judgment by default.” Heinemann v. Satterberg, 731 F.3d 914, 917 (9th

Cir. 2013) (citing the 2010 Advisory Committee Notes accompanying Rule 56 of

the Federal Rules of Civil Procedure).

      We reverse and remand to the district court for further proceedings

consistent with our opinion in Kohler v. Bed Bath & Beyond of California, LLC

and our decision here.1




      1
       Because we reverse the district court on these grounds, we do not reach any
of Denco’s other issues.
                                          2
    Further, Appellee’s Motion to Strike Appellant’s Excerpts of Record is

DENIED.

    REVERSED AND REMANDED.




                                      3
