Chris Kohler v. Csk Auto, Inc. , 644 F. App'x 750 ( 2016 )

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NOT FOR PUBLICATION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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