                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

CHRIS KOHLER,                           No. 12-56520
                 Plaintiff-Appellant,
                                           D.C. No.
                v.                      2:11-cv-04451-
                                          RSWL-SP
BED BATH & BEYOND OF
CALIFORNIA, LLC, DBA Bed Bath &
Beyond #1136,
              Defendant-Appellee.


     Appeal from the United States District Court
         for the Central District of California
   Ronald S.W. Lew, Senior District Judge, Presiding

CHRIS KOHLER,                           No. 12-56771
                Plaintiff-Appellant,
                                           D.C. No.
                v.                      2:11-cv-04451-
                                           RGK-SP
BED BATH & BEYOND OF
CALIFORNIA, LLC, DBA Bed Bath &
Beyond #1136,                             OPINION
              Defendant-Appellee.


     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 (9th Cir. 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.
