                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ESTATE OF DOROTHY MARTIN; and           
MARY MARTIN,
                Plaintiff-Appellants,
                 v.
CALIFORNIA DEPARTMENT OF
VETERANS AFFAIRS, a California
Public Corporation; BRUCE
THIESEN, individually and as
Secretary of the California
Department of Veterans Affairs;                No. 06-16850
GEORGE H. ANDRIES, JR.,                          D.C. No.
individually and as Deputy                 CIV-02-02334-DFL-
Secretary for Veterans Homes;                      GGH
MARCELLA MCCORMACK,
                                                OPINION
individually and as Administrator
of Veterans Home of California,
Yountville; JOHN HELTSLY,
individually and as Administrator
of Veterans Home of California,
Barstow; and TOM ARNOLD,
individually and as Administrator
of Veterans Home of California,
Chula Vista,
              Defendants-Appellees.
                                        
        Appeal from the United States District Court
           for the Eastern District of California
          David F. Levi, District Judge, Presiding

                  Argued and Submitted
         June 13, 2008—San Francisco, California

                             3601
3602        ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT
                        Filed March 26, 2009

       Before: J. Clifford Wallace, Harry Pregerson,* and
                Susan P. Graber, Circuit Judges.

                Opinion by Judge Graber;
Partial Concurrence and Partial Dissent by Judge Pregerson




   *Judge Pregerson was drawn to replace Judge Schiavelli. He has read
the briefs, reviewed the record, and listened to the recording of oral argu-
ment held on June 13, 2008.
         ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT     3605




                        COUNSEL

Chad Carlock, Law Offices of Chad Carlock, Davis, Califor-
nia, for the plaintiffs-appellants.

John Ruocco, California Department of Veterans Affairs, Sac-
ramento, California, for the defendants-appellees.


                        OPINION

GRABER, Circuit Judge:

  Plaintiffs, the Estate of Dorothy Martin and Mary Martin,
Dorothy’s daughter, claim that Defendants the California
Department of Veterans Affairs (“Department”) and its offi-
3606        ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT
cers and administrators illegally denied Dorothy Martin
admission to the Veterans’ Home of California (“Home”)
because of a disability, specifically, Alzheimer’s disease and
Alzheimer’s-related dementia. The district court granted judg-
ment as a matter of law to Defendants on some of Plaintiffs’
claims, and a jury returned a verdict in favor of Defendants
on the remainder. We hold that the rejection of Dorothy Mar-
tin’s applications did not violate the Equal Protection Clause,
the Rehabilitation Act, or the Americans with Disabilities Act
and therefore affirm.1

          FACTUAL AND PROCEDURAL HISTORY

   Plaintiffs’ claims arise from Dorothy’s unsuccessful appli-
cations to reside at the Home.2 These facilities provide a
“home . . . for aged and disabled persons who served in the
Armed Forces of the United States of America[,] who were
discharged or released from active duty under honorable con-
ditions,” and who are California residents at the time of appli-
cation. Cal. Mil. & Vet. Code § 1012(a).

   Admission also depends on additional factors. Department
regulations direct the Home to admit eligible applicants, “pro-
vided that care for their needs can be furnished within the
available resources of the Veterans Home and subject to the
levels of care for which direct admission is permitted.” Cal.
Code Regs. tit. 12, § 501(a). The regulations further provide
that the “ability of the Veterans Home to provide adequately
and appropriately for the applicant’s medical and social needs
and the applicant’s ability and willingness to adapt to the Vet-
erans Home environment shall be determining factors.” Id.
  1
     Plaintiffs also challenge the district court’s jury instructions and certain
of its evidentiary rulings. On those issues, we agree with the district court
and affirm its rulings.
   2
     The Department operates the Home at three Campuses, one each in
Barstow, Chula Vista, and Yountville. Applicants apply to each Campus
separately.
            ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT                 3607
§ 501(d) (emphasis added). The Home “shall refuse admis-
sion to applicants with medical conditions or disabilities
requiring specialized care, handling, or treatment . . . or other
resources not available at the Veterans Home.” Id. § 501.1
(emphasis added). In addition, admission is provided only on
a “first come, first served basis.” Id. § 502(a).

   The Home is licensed by the State of California Depart-
ment of Health Services to provide five levels of care: (1)
independent living or domiciliary; (2) assisted living or resi-
dential care; (3) intermediate care; (4) skilled nursing care;
and (5) acute hospital care.3 Id. § 503. Residents move
through the levels of care according to their medical needs.

   The evidence at trial showed that Dorothy required Skilled
Nursing Care,4 the second-highest level of care available to
residents, at the time of her applications. During the period
she sought admission, an applicant could not be admitted
directly to Skilled Nursing Care unless the occupancy rate at
that care level was below 75%. Id. § 503(f). In addition, at
that time, the Barstow and Chula Vista Campuses did not pro-
vide Skilled Nursing Care to new applicants,5 and the Yount-
ville Campus was admitting residents to the domiciliary level
of care only.

   Dorothy was diagnosed with Alzheimer’s and Alzheimer’s-
related dementia in 1998. Over an approximately 18-month
  3
     Acute hospital care is the highest level of care available and provides
intensive care on a 24-hour basis. Cal. Code Regs. tit. 12, § 503(g). Veter-
ans cannot enter a Home at this level of care, so it is not relevant to the
issues on appeal.
   4
     Skilled Nursing Care provides residents with 24-hour in-patient care by
licensed nursing staff who help with all activities of daily living. Id.
§ 503(f).
   5
     The Barstow Campus lacked the required certification to provide
Skilled Nursing Care and was prohibited from admitting outside appli-
cants at that level of care. The Chula Vista Campus did not open a Skilled
Nursing Care facility until February 2002, after Dorothy died.
3608     ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT
period beginning in early 2000, Dorothy applied to, and was
denied admission by, each Campus of the Home.

   Mary Martin cared for her mother until her mother died in
November 2001. During that time, Mary used her own money
to pay for her mother’s care. Mary also suffered “anxiety,
frustration, sleeplessness, and despair.”

   Following Dorothy’s death, Plaintiffs brought this action,
alleging that Defendants illegally denied Dorothy admission
to the Home because of her disability and stating claims under
numerous theories of recovery. Over the next three years,
those claims were winnowed down to claims against the
Department under the Rehabilitation Act, 29 U.S.C. § 794,
and the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12132, and claims against the Department’s officers in their
individual capacities under 42 U.S.C. § 1983 for violations of
the Equal Protection Clause and California tort law. Plaintiffs
sought to recover compensatory, special, and punitive dam-
ages.

   The case was tried to a jury for a week. Before the jury
returned its verdict, the parties filed cross-motions for judg-
ment as a matter of law under Federal Rule of Civil Procedure
50(a). The district court granted Defendants’ motion in part,
dismissing Plaintiffs’ equal protection and state law tort
claims against the Department’s officers, Mary Martin’s
claims under the ADA and the Rehabilitation Act against the
Department, and the Estate’s request for compensatory dam-
ages under the ADA and the Rehabilitation Act. The jury
returned a verdict in favor of the Department on Plaintiffs’
remaining ADA and Rehabilitation Act claims. Plaintiffs
again moved for judgment as a matter of law or, in the alter-
native, a new trial. Defendants moved for costs. The district
court denied Plaintiffs’ motion and granted costs to Defen-
dants, but only those associated with the Rehabilitation Act,
equal protection, and state law tort claims. Plaintiffs timely
appeal.
          ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT         3609
                 STANDARDS OF REVIEW

   We review de novo both the district court’s entry of judg-
ment as a matter of law, Horphag Research Ltd. v. Pellegrini,
337 F.3d 1036, 1040 (9th Cir. 2003), and its denial of a
renewed motion for judgment as a matter of law, Josephs v.
Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006). In both
instances, we view the evidence in the light most favorable to
the nonmoving party and draw all reasonable inferences in
that party’s favor. Id.; Horphag, 337 F.3d at 1040.

   “Judgment as a matter of law is proper when the evidence
permits a reasonable jury to reach only one conclusion.”
Quiksilver, Inc. v. Kymsta Corp., 466 F.3d 749, 755 (9th Cir.
2006) (internal quotation marks omitted). A renewed motion
for judgment as a matter of law should be granted if the evi-
dence permits only one conclusion and that conclusion is con-
trary to the jury’s verdict. Pavao v. Pagay, 307 F.3d 915, 918
(9th Cir. 2002).

   We also review de novo the existence of standing. Doran
v. 7-Eleven, Inc., 524 F.3d 1034, 1039 n.3 (9th Cir. 2008).

   We review for abuse of discretion the denial of a motion
for a new trial. Pavao, 307 F.3d at 918. “A trial court may
grant a new trial only if the verdict is against the clear weight
of the evidence, and may not grant it simply because the court
would have arrived at a different verdict.” Id. We also review
for abuse of discretion a district court’s evidentiary rulings
and will not reverse in the absence of prejudice. Josephs, 443
F.3d at 1064.

   When evaluating a challenge to jury instructions, we con-
sider “the charge as a whole to determine whether it is mis-
leading or misstates the law . . . and [we] will not reverse a
judgment because of an erroneous instruction if the instruc-
tions fairly and adequately cover the issues.” Id. at 1065
(internal quotation marks omitted). Although the district court
3610         ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT
has “substantial latitude in tailoring jury instructions,” we
review the instructions de novo if they are challenged as a
misstatement of law. Mockler v. Multnomah County, 140 F.3d
808, 812 (9th Cir. 1998). But reversal is not required “if the
error was more probably than not harmless.” Id. (internal quo-
tation marks omitted).

  We also review for abuse of discretion an award of costs
and will overturn the award “if it is based on an erroneous
determination of law.” Lussier v. Dollar Tree Stores, Inc., 518
F.3d 1062, 1065 (9th Cir. 2008).

                               DISCUSSION

A.     The Estate’s ADA and Rehabilitation Act Claims

   [1] The Estate first argues that the Department violated the
ADA and the Rehabilitation Act. Title II of the ADA and sec-
tion 504 of the Rehabilitation Act prohibit discrimination
because of a disability.6 To establish a violation of either stat-
ute, the Estate must show that: (1) Dorothy Martin was dis-
abled within the meaning of the statute; (2) she was
“otherwise qualified” for the Home’s services—i.e., that she
  6
     Title II of the ADA provides:
         Subject to the provisions of this subchapter, no qualified indi-
      vidual with a disability shall, by reason of such disability, be
      excluded from participation in or be denied the benefits of the
      services, programs, or activities of a public entity, or be subjected
      to discrimination by any such entity.
42 U.S.C. § 12132.
  The Rehabilitation Act provides in pertinent part:
      No otherwise qualified individual with a disability in the United
      States . . . shall, solely by reason of her or his disability, be
      excluded from the participation in, be denied the benefits of, or
      be subjected to discrimination under any program or activity
      receiving Federal financial assistance . . . .
29 U.S.C. § 794(a).
           ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT                3611
could meet the essential eligibility requirements of such ser-
vices, with or without reasonable accommodation; (3) she was
denied the services because of her disability; and (4) the
Department received federal financial assistance (for the
Rehabilitation Act claim) or was a public entity (for the ADA
claim).7 Zukle v. Regents of Univ. of Cal., 166 F.3d 1041,
1045 (9th Cir. 1999).

   [2] The parties agree that Dorothy was “disabled” within
the meaning of the ADA and the Rehabilitation Act and that
the Department is a public entity that receives federal assis-
tance. The parties disagree, however, on whether Dorothy was
“otherwise qualified” for services and whether she was denied
those services because of her disability.

   [3] Plaintiffs contend that Dorothy was a “qualified” indi-
vidual because she satisfied the statutory requirements of Cal-
ifornia Military & Veterans Code section 1012(a). We agree.
Dorothy was an honorably discharged veteran and a Califor-
nia resident, so she met those basic eligibility requirements.

   [4] In so holding, we reject Defendants’ argument that the
regulatory requirements appearing in California Code of Reg-
ulations sections 501-503 are eligibility requirements. Those
regulations prescribe space and resources considerations that
must be taken into account when deciding whether an other-
wise eligible applicant should be admitted to the Home. For
example, section 501(a) provides that the Home “shall admit
all eligible applicants, provided that care for their needs can
be furnished within the available resources of the Veterans
Home and subject to the levels of care for which direct admis-
sion is permitted.” Cal. Code Regs. tit. 12, § 501(a). By
requiring that the Home admit all eligible applicants as long
  7
   Because “[t]here is no significant difference in analysis of the rights
and obligations created by the ADA and the Rehabilitation Act,” we have
consistently applied “the same analysis to claims brought under both stat-
utes,” Zukle, 166 F.3d at 1045 n.11, and again do so here.
3612      ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT
as adequate resources are available, the text of section 501(a)
implies that the eligibility criteria come from another source,
not from section 501(a).

   Similarly, section 501(b) states, in part, that the Home
“shall provide equal opportunity for admission to all eligible
applicants.” Id. § 501(b). The reference to “eligible appli-
cants” in this regulation confirms that it supplies admission
criteria, and not eligibility requirements. The other regulations
also speak in terms of admission criteria rather than eligibility
requirements. See, e.g., id. § 501.1 (“The Veterans Home
shall refuse admission to applicants with medical conditions
or disabilities requiring special care . . . .” (emphasis added));
id. § 502(a) (“The Veterans Home shall admit veterans on a
first come, first served basis . . . .” (emphasis added)).

   Moreover, construing the regulations in sections 501-503 as
admission criteria, rather than eligibility requirements, better
reflects the common understanding of the concept of eligibil-
ity. An individual’s eligibility for a certain program generally
refers to a determination based on that individual’s own char-
acteristics. By contrast, the requirements in sections 501-503
restrict admission because of factors that have little to do with
an applicant’s personal eligibility for services, such as the
availability of resources to care for the applicant.

   [5] For these reasons, we conclude that Dorothy was “oth-
erwise” qualified for the Home’s services. She met the eligi-
bility requirements of section 1012(a) and did not have to
meet the requirements of sections 501-503. Because Dorothy
was “otherwise” qualified, we need not address whether rea-
sonable accommodation was possible.

   We next turn to the causation element of Plaintiffs’ claims.
Although Dorothy was otherwise qualified for Home services,
the Estate failed to establish violations of the ADA and the
Rehabilitation Act because it could not prove that Dorothy
was denied those services “by reason of” (for the ADA claim)
            ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT                      3613
or “solely because of” (for the Rehabilitation Act claim) her
disability.

   [6] With respect to the ADA claim, we have held that the
phrase “by reason of” in the statute establishes a “motivating
factor” causal standard for liability when there are two or
more possible reasons for the challenged decision and at least
one of them may be legitimate. Head v. Glacier Nw., Inc., 413
F.3d 1053, 1066 (9th Cir. 2005). That is, if the evidence could
support a finding that there is more than one reason for an
allegedly discriminatory decision, a plaintiff need show only
that discrimination on the basis of disability was a “motivat-
ing factor” for the decision. Id. Here, however, Dorothy never
argued that there was more than one reason for denying her
admission to the Home. She consistently argued that the only
reason was her disability.8

   [7] Because Dorothy eschewed a mixed-motive theory, it is
questionable whether the “motivating factor” test should
apply. But, even if it should, Dorothy failed to show that her
disability was a motivating factor for denying her admission
to the Home. The evidence at trial demonstrated that Dorothy
was denied admission because of the Home’s lack of
resources and space to provide the level of care that she
required. Dorothy required help with at least five activities of
   8
     The district court discussed this issue in its order holding that Plaintiffs
were not entitled to a “motivating factor” instruction. See Head, 413 F.3d
at 1065-66 (noting that a “motivating factor” instruction is not necessary
if the evidence in a particular case does not suggest “more than one possi-
ble reason” for the challenged action). The court noted that Plaintiffs’ pro-
posed jury instructions directed the jury to consider whether Dorothy’s
disability was “the” determining factor for the denial or admissions, not
“a” determining factor. Plaintiffs’ proposed jury instructions also stated
that “plaintiff[s] claim[ ] that Dorothy Martin’s disability was the sole rea-
son for the defendant[s’] decision not to provide benefits and services to
Dorothy Martin.” (Emphasis added.) The district court further noted that
discrimination on the basis of disability alone was Plaintiffs’ theory of the
case “from the beginning of the litigation,” so no mixed motive instruction
was necessary.
3614       ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT
daily living, which meant that she qualified only for Skilled
Nursing Care. No beds were available in the Yountville Cam-
pus Skilled Nursing Care facility when Dorothy applied, and
neither the Chula Vista Campus nor the Barstow Campus had
licensed Skilled Nursing Care facilities into which she could
have been admitted. In other words, Dorothy was denied
admission because none of the facilities had adequate
resources to be able to care for her properly, not because of
her disability. The verdict form reflects that the jury unani-
mously found that Dorothy failed to prove “that the defendant
California Department of Veterans Affairs discriminated
against Dorothy Martin by reason of her disability” (emphasis
added), and the evidence at trial supports that finding.

   The causal standard for the Rehabilitation Act is even stric-
ter, demanding that Dorothy show that she was denied ser-
vices “solely by reason of” her disability. 29 U.S.C. § 794(a).
As we have explained above, Dorothy failed to show that she
was denied admission solely by reason of her disability.

   [8] In sum, we hold that, on this record, the jury reasonably
found that the Department did not discriminate against Doro-
thy Martin on the basis of her disability. The policies that
Plaintiffs attack, rather than discriminating on the basis of dis-
ability, simply reflect the unfortunate fact that a facility with
limited resources cannot serve every disabled individual who
needs care. The Department must decide whom to admit and
whom to turn away. Here, it has made decisions on the per-
missible basis of the availability of adequate resources to care
for an individual applicant, not on the impermissible basis of
disability discrimination.

B.     Mary Martin’s ADA and Rehabilitation Act Claims

   Mary Martin appeals the district court’s grant of judgment
as a matter of law to the Department on her ADA and Reha-
bilitation Act claims, which allege financial and emotional
loss as a result of the Department’s alleged discrimination
          ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT           3615
against her mother. The district court held that Mary’s ADA
and Rehabilitation Act claims were procedurally improper
because the Department did not cause her direct injury.

   [9] We need not reach the question whether Mary can bring
third-party claims under the ADA and the Rehabilitation Act
because her derivative claims are premised entirely on the
existence of illegal discrimination against Dorothy. Because
the Department did not discriminate against Dorothy, no
derivative claim could succeed on the merits, even if it were
procedurally proper. See United States v. Washington, 969
F.2d 752, 755 (9th Cir. 1992) (“We may affirm on any basis
supported by the record even if the district court did not rely
on that basis.” (internal quotation marks omitted)).

C.   The Estate’s § 1983 Claim

   [10] In a claim brought under 42 U.S.C. § 1983, the Estate
alleges that the Department’s officers violated the Equal Pro-
tection Clause by treating Dorothy and similarly situated
applicants—those with Alzheimer’s-related dementia who are
not self-sufficient—differently than other applicants. “[A]
governmental policy that purposefully treats the disabled dif-
ferently from the non-disabled need only be ‘rationally related
to legitimate legislative goals’ to pass constitutional muster.”
Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001)
(quoting Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir.
1996)); see also City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 442-43 (1985) (declining to apply heightened scru-
tiny to a classification based on mental retardation). Applying
that standard, we have no difficulty concluding that the
Department’s admission policies pass constitutional muster.

   [11] The government “must have substantial latitude to
establish classifications that . . . account for limitations on the
practical ability . . . to remedy every ill.” Plyler v. Doe, 457
U.S. 202, 216 (1982); see also Lipscomb v. Simmons, 962
F.2d 1374, 1380-81 (9th Cir. 1992) (en banc) (upholding the
3616       ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT
allocation of “finite resources available to the state” in foster
home funding because it was rationally related to the govern-
ment’s interest in “maximiz[ing] the amount of money avail-
able” for the program). The Home does not reject applicants
because of dementia; rather, the Home accepts applicants with
dementia if there are resources available at the level of care
required for them and sufficient resources remain to meet the
anticipated care requirements of all current residents. The
Department’s officers’ method of classifying applicants on
the basis of their initial level of self-sufficiency is rationally
related to the goal of providing life-long care to as large a
group as possible, given limited resources and a huge popula-
tion of potentially eligible California veterans.9 Consequently,
we affirm the district court’s grant of judgment to Defendants
as a matter of law on this claim.

D.     Mary Martin’s § 1983 Claim

   [12] Mary Martin advances a § 1983 claim for the violation
of Dorothy Martin’s equal protection rights. As a general rule,
a third party does not having standing to bring a claim assert-
ing a violation of someone else’s rights. See Powers v. Ohio,
499 U.S. 400, 410 (1991) (“In the ordinary course, a litigant
must assert his or her own legal rights and interests, and can-
not rest a claim to relief on the legal rights or interests of third
parties.”). We recognize an exception to this general rule if,
among other things, “there . . . exist[s] some hindrance to the
third party’s ability to protect his or her own interests.” Voigt
v. Savell, 70 F.3d 1552, 1564 (9th Cir. 1995) (internal quota-
  9
    In 2007, California was home to nearly 2.2 million veterans. See Geo-
graphic Distribution of VA Expenditures for FY 2007, California,
http://www1.va.gov/vetdata/docs/GDX_FY07.xls (last visited Nov. 5,
2008) (estimating the total veteran population as of Sept. 30, 2007). To
serve that population, the Home has space available for only 2,000 resi-
dents in its three Campuses. See Information for Applying to the Veterans
Home of California, http://www.cdva.ca.gov/Homes/DocsAndImages/
vhcinfo.pdf (last visited Mar. 18, 2009) (describing the approximate num-
ber of beds available at each Campus).
           ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT         3617
tion marks omitted). Here, the Estate, which is the other
Plaintiff in this action, has pursued a procedurally proper
(albeit substantively unsuccessful) equal protection claim
directly on behalf of Dorothy Martin. We therefore hold that
Mary Martin does not have standing to bring a claim under
§ 1983 alleging that Defendants violated her mother’s right to
equal protection under the laws.

E.     The Estate’s State Law Tort Claims for Emotional Dis-
       tress

   [13] The Estate alleges tort claims of intentional infliction
of emotional distress and negligent infliction of emotional dis-
tress under California law. The district court held that, under
California law, the Estate’s tort claims for emotional distress
did not survive the death of Dorothy Martin. We agree.

     Under California law,

         [i]n an action or proceeding by a decedent’s per-
      sonal representative or successor in interest on the
      decedent’s cause of action, the damages recoverable
      are limited to the loss or damage that the decedent
      sustained or incurred before death, including any
      penalties or punitive or exemplary damages that
      decedent would have been entitled to recover had the
      decedent lived, and do not include damages for pain,
      suffering, or disfigurement.

Cal. Civ. Proc. Code § 377.34 (emphasis added). Notwith-
standing the emphasized text, which clearly precludes recov-
ery of emotional distress damages, the Estate reasons that the
tort claims survive because Dorothy could have recovered
punitive damages.

   The California Court of Appeal recently considered and
rejected this precise argument. Berkley v. Dowds, 61 Cal.
Rptr. 3d 304, 316 (Ct. App. 2007). Section 377.34 does not
3618      ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT
permit recovery for emotional distress upon the death of the
person allegedly harmed and, under long-established Califor-
nia authority, “an award of compensatory damages in some
amount is a prerequisite to a punitive damage award.” Berk-
ley, 61 Cal. Rptr. 3d at 316. We see no reason to disagree with
the analysis of the California Court of Appeal. See Vestar
Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th
Cir. 2001) (stating that, if the state’s highest court has not
decided the issue and “there is no convincing evidence that
the state supreme court would decide differently, a federal
court is obligated to follow the decisions of the state’s inter-
mediate appellate courts” (internal quotation marks omitted)).
Accordingly, we affirm the district court’s grant of judgment
as a matter of law to Defendants on the Estate’s state law tort
claims for emotional distress.

F.   Mary Martin’s State Law Tort Claims for Emotional
     Distress

   [14] Mary Martin alleges a claim of intentional infliction of
emotional distress under California Law and argues that the
alleged violations of the ADA, Rehabilitation Act, and § 1983
support her claim that Defendants’ conduct was outrageous.
In order to establish a claim of intentional infliction of emo-
tional distress, Mary must prove, among other things, “ex-
treme and outrageous conduct by the defendant with the
intention of causing, or reckless disregard of the probability
of causing, emotional distress.” Christensen v. Superior
Court, 820 P.2d 181, 202 (Cal. 1991) (internal quotation
marks omitted). As discussed above, Plaintiffs’ claims of dis-
crimination under the ADA, the Rehabilitation Act, and
§ 1983 fail. Consequently, this state law claim fails as well.

   Mary also alleges a “bystander” claim of negligent inflic-
tion of emotional distress under California law. In order to
establish that claim, Mary must prove, among other things,
that she “[wa]s present at the scene of the injury producing
event at the time it occur[red] and [wa]s then aware that it
          ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT         3619
[wa]s causing injury to the victim.” Thing v. La Chusa, 771
P.2d 814, 829-30 (Cal. 1989). Because we have held that Dor-
othy suffered no legally cognizable injury, Mary cannot
recover on a bystander theory. Accordingly, we affirm the
district court on Mary Martin’s state law tort claims of emo-
tional distress.

G.   Costs to Defendants

  Finally, Plaintiffs challenge the district court’s award of
costs to Defendants. We are not persuaded by their argu-
ments.

   [15] The district court ruled that Defendants were not enti-
tled to costs under the ADA because such costs are appropri-
ate only if the claim is frivolous, unreasonable, or without
foundation. See Brown v. Lucky Stores, Inc., 246 F.3d 1182,
1190 (9th Cir. 2001) (holding that the standard announced in
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421
(1978)—permitting the recovery of attorney fees by a prevail-
ing defendant under Title VII only when the claim “was frivo-
lous, unreasonable, or without foundation”—also applies to
the award of costs under the ADA). The court held that Plain-
tiffs’ ADA claims did not meet that standard.

   The district court awarded costs under the Rehabilitation
Act, however. Although there was no direct authority to guide
it, the district court observed that the costs provision of the
Rehabilitation Act is more similar to the costs provision in
Title VII than to the costs provision in the ADA. For that rea-
son, the district court concluded that costs under the Rehabili-
tation Act are governed by National Organization for Women
v. Bank of Cal., N.A., 680 F.2d 1291, 1294 (9th Cir. 1982)
(per curiam), which held that costs under Title VII follow the
general rule that costs are awarded “as a matter of course
absent express statutory provision, ‘unless the court otherwise
directs.’ ” Id. at 1294 (quoting Fed. R. Civ. P. 54(d)). The dis-
trict court also ruled that Defendants were entitled to costs on
3620      ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT
Plaintiffs’ state law tort claims. The court apportioned costs
and, because the ADA claim was the central claim in Plain-
tiffs’ action, awarded only 50% of Defendants’ request.

   Plaintiffs argue that the same standard—the Christiansburg
standard—that governs costs under the ADA should govern
costs under the Rehabilitation Act. To our knowledge, none
of our sister circuits has applied the Christiansburg standard
to costs under the Rehabilitation Act, and we decline to do so
here.

   [16] In Brown, we examined the text of the ADA to deter-
mine whether our ruling in Summers v. A. Teichert & Son,
Inc., 127 F.3d 1150, 1154 (9th Cir. 1997), in which we
acknowledged that the Christiansburg standard applies to a
request for attorney fees under the ADA, also applied to a
request for costs under the ADA. Brown, 246 F.3d at 1190.
We looked at the text of the costs provision of the ADA:
“[T]he court . . . , in its discretion, may allow the prevailing
party . . . a reasonable attorney’s fee, including litigation
expenses, and costs . . . .” 42 U.S.C. § 12205 (emphases
added). We observed that the ADA makes fees and costs par-
allel and held that, as a result, the Christiansburg standard
does apply to costs under the ADA. Brown, 246 F.3d at 1190.

    That parallel structure in the ADA between costs and attor-
ney fees is critically absent from the relevant texts of both the
Rehabilitation Act and Title VII. Compare 29 U.S.C.
§ 794a(b) [Rehabilitation Act] (permitting the prevailing party
to recover “a reasonable attorney’s fee as part of the costs”
(emphasis added)), and 42 U.S.C. § 2000e-5(k) [Title VII]
(allowing “a reasonable attorney’s fee . . . as part of the costs”
(emphasis added)), with 42 U.S.C. § 12205 [ADA] (permit-
ting the court to award “a reasonable attorney’s fee, including
litigation expenses, and costs” (emphases added)). Thus, our
rationale in Brown for applying Christiansburg to the award
of costs under the ADA does not carry over to costs under the
Rehabilitation Act.
          ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT          3621
   [17] Considering the similarity between the costs provi-
sions in Title VII and the Rehabilitation Act, it is appropriate
to use our Title VII precedent, as the district court did, to
establish a standard for the award of costs under the substan-
tively identical text in the Rehabilitation Act. As is the case
with Title VII, “[t]here is no express statutory provision for
applying Christiansburg to cost awards [under the Rehabilita-
tion Act], and we see no reason to impose rigid limitations on
the district court’s discretion.” Nat’l Org. for Women, 680
F.2d at 1294.

   Moreover, the text of the Rehabilitation Act supports an
inference that costs are to be awarded in the ordinary course.
Section 794a(b) of the Rehabilitation Act provides that, “[i]n
any action or proceeding to enforce or charge a violation of
[the Rehabilitation Act], the court, in its discretion, may allow
the prevailing party . . . a reasonable attorney’s fee as part of
the costs.” That text makes an attorney fee award discretion-
ary; if given, it may be made a part of the costs. The text does
not suggest that “the costs” are similarly discretionary, but
rather that they are a given, to which fees may attach. Accord-
ingly, the wording of the statute supports an inference that the
general provision in Rule 54(d)(1) of the Federal Rules of
Civil Procedure—that costs are allowed in the ordinary course
to the prevailing party—applies. Rule 54(d)(1) “creates a pre-
sumption in favor of awarding costs to a prevailing party.”
Ass’n of Mexican-Am. Educators v. California, 231 F.3d 572,
591 (9th Cir. 2000) (en banc).

   [18] For these reasons, we hold that an award of costs
under the Rehabilitation Act need not satisfy the Christians-
burg test and that the district court did not abuse its discretion
in awarding costs to Defendants as the prevailing party on the
Rehabilitation Act claim.

   With respect to the calculation of costs, the district court
justified its award by explaining that, although Defendants
could not recover costs on Plaintiffs’ central claim—the ADA
3622      ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT
claim—the remaining three primary claims accounted for
about half the case. Thus, the court awarded 50% of Defen-
dants’ total request. Having presided over the case from its
inception, the court knew the relative proportion of the total
litigation that each of the primary claims represented. The
court’s explanation, although not extensive, was sufficient
and was reasonable. Therefore, we affirm the award of costs.

  AFFIRMED.



PREGERSON, Circuit Judge, concurring in part and dissent-
ing in part:

   I dissent in part and concur in part in the court’s opinion.
I disagree with the majority’s opinion on two points: (1) that
“an award of costs under the Rehabilitation Act need not sat-
isfy the Christiansburg test” and (2) “that the district court did
not abuse its discretion in awarding costs to Defendants as the
prevailing party on the Rehabilitation Act claim.” Maj. Op. at
3621. In all other respects, I agree and concur.

   In Christiansburg Garment Co. v. EEOC, 434 U.S. 412,
421 (1978), the Supreme Court held that, under Title VII, a
prevailing defendant may only recover attorney’s fees when
the plaintiff’s claim is “frivolous, unreasonable, or without
foundation.” In particular, the Supreme Court noted that “as-
sessing attorney’s fees against plaintiffs simply because they
do not finally prevail would substantially add to the risks
inhering in most litigation and would undercut the efforts of
Congress to promote vigorous enforcement of the provisions
of Title VII.” Id. at 422.

  We have applied the Christiansburg standard to both attor-
ney’s fees and costs under the American with Disabilities Act
(“ADA”). See Summers v. A. Teichert & Son, Inc., 127 F.3d
1150, 1154 (9th Cir. 1997) (applying the Christiansburg stan-
          ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT          3623
dard to an award of attorney’s fees under the ADA); Brown
v. Lucky Stores, Inc., 246 F.3d 1182, 1190 (9th Cir. 2001)
(applying the Christiansburg standard to an award of costs
under the ADA). But here the majority’s opinion concludes
that the Christiansburg standard does not apply to an award
of costs to a prevailing defendant under the Rehabilitation
Act. Maj. Op. at 3619-21.

   The majority’s opinion states that “the wording of the stat-
ute supports an inference . . . that costs are allowed in the
ordinary course to the prevailing party.” Maj. Op. at 3621. I
believe that the plain text of the Rehabilitation Act’s cost pro-
vision is ambiguous. The Rehabilitation Act’s cost provision
states that “the court, in its discretion, may allow the prevail-
ing party . . . a reasonable attorney’s fee as part of the costs.”
29 U.S.C. § 794a(b). The Rehabilitation Act, however, does
not clearly state whether costs are discretionary or presumed,
nor does the Rehabilitation Act state which standard should
be applied to an award of costs.

   “If the statute’s terms are ambiguous, we may use canons
of construction, legislative history, and the statute’s overall
purpose to illuminate Congress’s intent.” Jonah R. v. Car-
mona, 446 F.3d 1000, 1007 (9th Cir.2006) (citing Milne v.
Stephen Slesinger, Inc., 430 F.3d 1036, 1045 (9th Cir. 2005).
While the majority’s opinion prefers to resolve any ambiguity
by analogizing the text of the Rehabilitation Act to the text of
Title VII, I believe that it is more appropriate that we look to
the Rehabilitation Act’s overall purpose, and that we ensure
that the cost provisions of the Rehabilitation Act and the ADA
are interpreted consistently because they deal with the same
subject: disability rights. See United States v. Nader, 542 F.3d
713, 717 (9th Cir. 2008) (quoting Jonah R., 446 F.3d at 1007)
(stating that “we may consider related statutes because ‘stat-
utes dealing with similar subjects should be interpreted har-
moniously’ ”).

   Both the Rehabilitation Act and the ADA were enacted for
the specific purpose of protecting the rights of individuals liv-
3624      ESTATE OF MARTIN v. CALIFORNIA DEPARTMENT
ing with disabilities. Compare 29 U.S.C. § 701(b)(2) (stating
that the purpose of the Rehabilitation Act is “to ensure that
the Federal Government plays a leadership role in promoting
the employment of individuals with disabilities, especially
individuals with significant disabilities”) with 42 U.S.C.
§ 12101 (stating that the purpose of the ADA is “to provide
clear, strong, consistent, enforceable standards addressing dis-
crimination against individuals with disabilities” and “to
ensure that the Federal Government plays a central role in
enforcing the standards established in this chapter on behalf
of individuals with disabilities”). Indeed, as was the case here,
many plaintiffs living with disabilities present claims under
both the ADA and Rehabilitation Act when bringing a federal
action to protect their rights. Accordingly, the standard for
awarding costs to a prevailing defendant under the ADA and
the Rehabilitation Act should be consistent.

   Therefore, the better rule would be to apply the Christians-
burg standard to an award of costs to a prevailing defendant
under both the Rehabilitation Act and the ADA. If a plaintiff
pursues an unsuccessful Rehabilitation Act claim, he should
not be forced to bear the costs associated with litigation unless
his claim was frivolous, unreasonable, or without foundation.
Subjecting a plaintiff to an award of costs on reasonable
Rehabilitation Act claims will likely deter individuals with
disabilities from bringing suit and thus limit effective enforce-
ment of the statute.

  Accordingly, I dissent in part and concur in part.
