                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAR 10 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CHRIS KOHLER,                                    No. 14-55317

              Plaintiff - Appellant,             D.C. No. 3:12-cv-03022-JM-
                                                 WMC
 v.

CSK AUTO, INC., DBA O’Reilly Auto                MEMORANDUM*
Parts #2941,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Southern District of California
                 Jeffrey T. Miller, Senior District Judge, Presiding

                           Submitted February 11, 2016**
                               Pasadena, California

Before: FARRIS, CLIFTON, and BEA, Circuit Judges.

      Chris Kohler appeals the district court’s order entering summary judgment

in favor of CSK Auto, Inc. in Kohler’s action under the Americans with

Disabilities Act. We vacate and remand for further proceedings.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      The related case upon which the district court relied to apply the doctrine of

issue preclusion, Kohler v. Midway Land, LLC, No. 12-cv-0148 JM (WMc), 2013

WL 10733705 (S.D. Cal., Apr. 5, 2013) (“Midway”), was vacated in part by this

Court on appeal with respect to whether the slopes of the parking spaces and access

aisles in the challenged parking area were ADA-compliant. See Kohler v. Midway

Land, LLC, 592 F. App’x 622 (9th Cir. 2015). Thus, Kohler is not here precluded

from claiming that the slopes were not ADA-compliant. We vacate the district

court’s order granting summary judgment in favor of CSK on this ground and

remand for further proceedings.

      We decline to affirm the district court’s order on the alternative ground that

Kohler failed to submit evidence to show that the parking area of the shopping

center was within the control of CSK. See Katz v. Children’s Hospital of Orange

County, 28 F.3d 1520, 1534 (9th Cir. 1994). Nowhere in CSK’s moving papers

was this issue raised as a ground for granting CSK summary judgment.

      Costs awarded to Kohler.

      VACATED and REMANDED for further proceedings consistent with this

disposition.




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