                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


                                         No. 11-56814
CHRIS KOHLER,
                 Plaintiff-Appellant,       D.C. NO.
                                         3:10-cv-00730-
                v.                          IEG-NLS

FLAVA ENTERPRISES, INC.,
               Defendant-Appellee.


                                         No. 12-55518
CHRIS KOHLER,
                 Plaintiff - Appellee,      D.C. NO.
                                         3:10-cv-00730-
                v.                          IEG-NLS

FLAVA ENTERPRISES, INC.,
              Defendant-Appellant.         OPINION



      Appeal from the United States District Court
         for the Southern District of California
      Irma E. Gonzalez, District Judge, Presiding

                Argued and Submitted
        February 3, 2015—Pasadena, California

                 Filed March 6, 2015
2            KOHLER V. FLAVA ENTERPRISES, INC.


    Before: Stephen Reinhardt and Ronald M. Gould, Circuit
     Judges and J. Frederick Motz, Senior District Judge. ∗

                     Opinion by Judge Motz


                          SUMMARY **


               Americans with Disabilities Act

    The panel affirmed the district court’s grant of
summary judgment and its denial of attorneys’ fees in an
action under Title III of the Americans with Disabilities
Act.

   Affirming the district court’s summary judgment in
favor of the defendant, the panel held that a dressing room
bench longer than forty-eight inches complied with the
1991 version of the ADA Accessibility Guidelines even
though the arrangement of the bench prevented the plaintiff
from making a diagonal transfer onto the bench from his
wheelchair. The panel held that the bench did not comply
with the ADAAG’s mandate but nonetheless qualified as an
“equivalent facilitation” because the plaintiff could make a



∗
 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. FLAVA ENTERPRISES, INC.             3

parallel transfer. Because the bench thus complied with the
1991 standards and had not been altered since March 15,
2012, it fell within a safe harbor and was not required to
comply with the newer ADAAG standards promulgated in
2010.

    The panel also affirmed the district court’s denial of
defendant’s motion for attorneys’ fees under the ADA and
28 U.S.C. § 1927.


                       COUNSEL

Scottlyn J. Hubbard IV (argued), Law Offices of Lynn
Hubbard, Chico, California, for Plaintiff-Appellant/Cross-
Appellee.

David Warren Peters (argued), California Justice Alliance,
APC,    San    Diego,     California,   for    Defendant-
Appellee/Cross-Appellant.



                        OPINION

MOTZ, Senior District Judge:

    Chris Kohler appeals the district court’s grant of
summary judgment to defendant Flava Enterprises Inc.
(“Flava”), on Kohler’s claim under Title III of the
Americans with Disabilities Act (“ADA”). Kohler appeals
only the district court’s conclusion that a dressing room
bench longer than forty-eight inches complies with the
Americans with Disabilities Act Accessibility Guidelines
(“ADAAG”). We affirm. Flava cross-appeals the district
4          KOHLER V. FLAVA ENTERPRISES, INC.

court’s denial of Flava’s motion for attorneys’ fees. We
affirm the district court’s ruling on attorneys’ fees.

                              I.

    Kohler is disabled and uses a wheelchair. In February
2010 he visited Flava’s retail clothing store “House of
Flava” to browse and try on clothing. While doing so, he
allegedly encountered various barriers that interfered with
his ability to use and enjoy “House of Flava.” The barrier
he encountered that is relevant to this appeal was a bench in
the dressing room that was longer than forty-eight inches
and ran along the entire length of the dressing room wall.
This arrangement prevented Kohler from making a
diagonal transfer onto the bench from his wheelchair.

    Kohler filed suit against Flava alleging violations of
Title III of the ADA; the California Disabled Persons Act
(“DPA”), Cal. Civ. Code § 54; the Unruh Civil Rights Act,
Cal. Civ. Code § 51; and the California Health and Safety
Code. The parties filed cross-motions for summary
judgment. The district court granted Flava’s motion for
summary judgment on all of Kohler’s ADA claims, and
declined to exercise jurisdiction over his state law claims.
Kohler v. Flava Enters., Inc., 826 F. Supp. 2d 1221 (S.D.
Cal. 2011). Flava timely appealed only the district court’s
ruling with respect to the bench length.

    Following the district court’s grant of summary
judgment, Flava filed a motion for attorneys’ fees, litigation
expenses, and costs under the ADA, 42 U.S.C. § 12205;
Section 1927, 28 U.S.C. § 1927; and the “inherent power of
the court.” Flava argued that Kohler’s lawsuit was
frivolous. The district court denied Flava’s motion and
Flava timely cross-appealed that decision.
           KOHLER V. FLAVA ENTERPRISES, INC.                5

                             II.

    We review the granting of summary judgment de novo.
Curley v. City of North Las Vegas, 772 F.3d 629, 631 (9th
Cir. 2014). A district court’s decision to deny a motion for
attorneys’ fees is reviewed for abuse of discretion. Skaff v.
Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 837
(9th Cir. 2007).

                             III.

    Title III of the ADA requires public accommodations to
provide equal access to disabled patrons. 42 U.S.C.
§ 12182(a). To clarify what constitutes “equal access” in
specific circumstances, the Department of Justice has
promulgated the Accessibility Guidelines (“ADAAG”) that
specify precise structural requirements. See, e.g., Chapman
v. Pier I Imports (U.S.) Inc., 631 F.3d 939, 945 (9th Cir.
2011) (en banc). Regarding dressing room benches, the
1991 ADAAG standards require that:

       [E]very accessible dressing room shall have
       a 24 in by 48 in . . . bench fixed to the wall
       along the longer dimension. . . . Clear floor
       space shall be provided alongside the bench
       to allow a person using a wheelchair to make
       a parallel transfer onto the bench.

28 C.F.R. Pt. 36, App. A § 4.35.4 (emphasis added).

    The 1991 ADAAG also contain an “equivalent
facilitation” provision. See id. Pt. 36, App. D § 2.2. This
allows “[d]epartures from particular technical and scoping
requirements” of the ADAAG, if those variations “provide
substantially equivalent or greater access to and usability of
the facility.” Id. Pt. 36, App. A § 2.2.
6          KOHLER V. FLAVA ENTERPRISES, INC.

    The parties stipulate that the bench is longer than the
required forty-eight inches. Given the ADAAG’s use of
the word “shall,” it is clear that the bench does not comply
with the guideline’s mandate. The issue is then whether the
bench qualifies as an “equivalent facilitation” under the
ADAAG. We conclude that it does.

    The key fact is that Kohler admitted he could perform a
parallel transfer onto the bench in Flava’s store. See
Kohler, 826 F. Supp. 2d at 1230 (citing Kohler’s
deposition). The guidelines only require that a person
“using a wheelchair” be able “to make a parallel transfer
onto the bench.” 28 C.F.R. Pt. 36, App. A § 4.35.4. Given
Kohler’s ability to do so, the bench at Flava “provide[s]
substantially equivalent or greater access” to him. Id. Pt.
36, App. A, § 2.2. Accordingly, it qualifies as an
equivalent facilitation.

    Kohler attempts to avoid this conclusion with two
arguments. First, he claims that he did not receive adequate
notice because Flava did not properly plead equivalent
facilitation as an affirmative defense. The district court
rejected this argument, and we agree. Flava pleaded in its
answer that its store was compliant due to its use of
“alternative methods” of accessibility. This term does stem
from a distinct portion of the ADA apart from the
equivalent     facilitation.      Compare       42    U.S.C.
§ 12182(b)(2)(A)(v) (alternative methods) with 28 C.F.R.
Pt. 36, App. A § 2.2 (equivalent facilitation). Nonetheless,
the “fair notice” required by the pleading standards only
requires describing the defense in “general terms.”
5 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1274 (3d ed. 1998). We will not
disturb the district court’s finding that Kohler received
sufficient notice.
           KOHLER V. FLAVA ENTERPRISES, INC.                7

    Second, Kohler argues that because the bench is not
exactly forty-eight inches, it does not comply with the 1991
ADAAG and must comply with the newer ADAAG
guidelines promulgated in 2010. The 2010 guidelines
require that “seats [] are 42 inches [] long minimum,” and
that a minimum of “30 inches . . . by 48 inches” of clear
space is provided at the end of the bench. 36 C.F.R. Pt.
1191, App. D §§ 305, 903. Clear space at the end of the
bench allows disabled persons the ability to make a distinct
maneuver, known as a diagonal transfer, onto the bench.

    Kohler’s argument misinterprets the statutory scheme.
The 2010 guidelines went into effect on March 15, 2012.
See 28 C.F.R. § 36.304(d)(2)(ii)(B).           The guidelines
explicitly contain a “safe harbor” provision, however,
which provides that accommodations, which have not been
altered in existing facilities on or after March 15, 2012, and
that complied with the 1991 guidelines, are not required to
be modified to conform to the 2010 standards. 28 C.F.R.
§ 36.304(d)(2)(i).

   Kohler’s argument then must be that if the bench is an
“equivalent facilitation” under the 1991 standards, it is non-
compliant, and as a result, it is required to comply with the
2010 standards. But Kohler has not cited any authority
which indicates that an “equivalent facilitation” is non-
compliant.     By definition, an equivalent facilitation
provides “equal or greater access” to disabled patrons—it
cannot provide less access. 28 C.F.R. Pt. 36, App. A § 2.2.
To say that such a facilitation is non-compliant would
undermine Congress’s objective in including the
8            KOHLER V. FLAVA ENTERPRISES, INC.

“equivalent facilitation” provision in the ADA. 1 We thus
hold that a longer bench that permits patrons to complete a
parallel transfer is an equivalent facilitation under the 1991
ADAAG. For accommodations that have not been altered
since March 15, 2012, the facilities are not required to be
equipped to allow a diagonal transfer. This ruling makes
explicit what a panel of this court suggested in an
unpublished decision in 2014. See Martinez v. Columbia
Sportswear USA Corp., 553 F. App’x 760, 762 (9th Cir.
2014). 2




1
   Holding that an equivalent facilitation was non-compliant and
required to adhere to the 2010 guidelines would also lead to
incongruent results. Counsel for Kohler admitted as much at oral
argument when he conceded that a bench forty-eight inches in length
and surrounded by walls on three sides would not allow a disabled
person to complete a diagonal transfer, but would be compliant under
the 1991 ADAAG. A bench that is governed by the 1991 ADAAG, in
Kohler’s logic, only has to be constructed to permit a diagonal transfer
when it is longer than forty-eight inches.
2
  Kohler relies on two district court decisions that denied defendants’
motions for summary judgment on the bench issue. See Rush v. Hyun
Suk Kim, 908 F.Supp.2d 1117 (C.D. Cal 2012); Strong v. Horton Plaza,
LP, et al., Case No. 3:09–cv–2901–JM (NLSx), Doc. No. 82, at 4–5
(S.D. Cal. Apr. 29, 2010). These decisions were decided prior to
Martinez. Furthermore, they did not hold that a bench longer than 48
inches was non-compliant, only that the determination if a bench were
compliant was a factual issue to be resolved at trial. This opinion
makes explicit that a bench longer than forty-eight inches that allows
for a person to make a parallel transfer is an equivalent facilitation
under the 1991 ADAAG.
           KOHLER V. FLAVA ENTERPRISES, INC.              9

                            IV.

    We affirm the district court’s denial of Flava’s motion
for attorneys’ fees. Flava seeks attorneys’ fees under the
ADA. See 42 U.S.C. § 12205. We have held that civil
defendants can be awarded fees under this statute only in
exceptional circumstances. Summers v. Teichert, 127 F.3d
1150, 1154 (9th Cir. 1997). Such circumstances include
complaints that are “frivolous, unreasonable, or without
foundation.” Id. (internal citation omitted).

     Kohler’s claims were not frivolous. The claims
resulted in us interpreting a provision of the ADA for the
first time in a published opinion and clarifying a question
with split district court decisions. Kohler was entitled to
bring this suit to seek resolution of this question.

      Flava also seeks fees under 28 U.S.C. § 1927. This
statute requires proving that the opposing party acted with
“subjective bad faith.”          New Alaska Dev. Corp. v.
Guetschow, 869 F.2d 1298, 1306 (9th Cir. 1989); see also
Estate of Blas v. Winkler, 792 F.2d 858, 860 (9th Cir. 1986)
(“Bad faith is present when an attorney knowingly or
recklessly raises a frivolous argument . . . or argues a
meritorious claim for the purpose of harassing an opponent
. . . .”) (internal citations omitted).

    Flava makes allegations of subjective bad faith but
there is no evidence in the record to support its claims.
Moreover, nothing in the record would substantiate
sanctions under the court’s inherent power. Accordingly,
the district court’s ruling on the fees is affirmed.
10        KOHLER V. FLAVA ENTERPRISES, INC.

                         V.

    The district court did not err in granting summary
judgment to Flava and in denying Flava’s motion for
attorneys’ fees.

     AFFIRMED.
