Chris Kohler v. PRESIDIO INTERNATIONAL, INC ., DBA Armani Exchange 215

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
C HRIS KOHLER ,
Plaintiff-Appellant,
v.
P RESIDIO INTERNATIONAL, INC .,
DBA Armani Exchange #215,
Defendant,
EDDIE BAUER , A Delaware LLC,
DBA Eddie Bauer Outlet #R162,
Defendant-Appellee.
No. 13-55808
D.C. No.
2:10-cv-04680-
PSG-PJW
C HRIS KOHLER ,
Plaintiff-Appellee,
v.
P RESIDIO INTERNATIONAL, INC.,
DBA Armani Exchange #215,
Defendant,
EDDIE BAUER , A Delaware LLC,
DBA Eddie Bauer Outlet #R162,
Defendant-Appellant.
No. 13-56217
D.C. No.
2:10-cv-04680-
PSG-PJW
OPINION

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2 KOHLER V. EDDIE BAUER
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted
February 3, 2015—Pasadena, California
Filed March 20, 2015
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 in part and vacated in part the district
court’s judgment after a bench trial in an action under the
Americans with Disabilities Act and California state law.
Vacating the district court’s judgment regarding an
alleged violation of an ADA requirement that a store
* The Honorable J. Frederick Motz, Senior United States District Judge
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.

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KOHLER V. EDDIE BAUER 3
checkout counter be at most thirty-six inches high, the panel
held that under Strong v. Valdez Fine Foods, 724 F.3d 1042
(9th Cir. 2013), the plaintiff was not required to present
expert evidence of the counter height. The panel held that
the store’s provision of a clipboard was not an “equivalent
facilitation” making the counter “accessible” under
California law.
Following Kohler v. Flava Enters., Inc., 2015 WL
968232 (9th Cir. Mar. 6, 2015), the panel held that a dressing
room bench that was sixty inches long, rather than forty-
eight inches, as required by the 1991 ADA Accessibility
Guidelines, qualified as an equivalent facilitation because
the plaintiff was able to make a parallel transfer onto it from
a wheelchair.
The panel affirmed the district court’s ruling that a claim
of blocked aisles did not constitute an ADA violation.
The panel affirmed the district court’s denial of the
defendant’s motion for attorneys’ fees under section 55 of
the California Disabled Persons Act. The panel held that
under Hubbard v. SoBreck, LLC, 554 F.3d 742 (9th Cir.
2009), section 55 was preempted by the ADA’s provision of
fees for prevailing defendants only in rare circumstances.

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4 KOHLER V. EDDIE BAUER
COUNSEL
Scottlyn J. Hubbard IV (argued), Law Offices of Lynn
Hubbard, Chico, California, for Plaintiff-Appellant/Cross-
Appellee.
Jon D. Meer (argued), Myra B. Villamor, and Andrew C.
Crane, Seyfarth Shaw LLP, Los Angeles, California, for
Defendant-Appellee/Cross-Appellant.
OPINION
MOTZ, Senior District Judge:
Chris Kohler appeals the district court’s rulings in favor
of defendant Eddie Bauer following a bench trial on
Kohler’s claims under the “Americans with Disabilities Act”
(“ADA”). Eddie Bauer cross-appeals the district court’s
denial of its motion for attorneys’ fees. We vacate and
remand in part and affirm in part.
I.
Kohler is disabled and uses a wheelchair. In June 2010,
Kohler visited an Eddie Bauer Outlet store in Cabazon,
California and purchased a shirt. Kohler alleges that while
shopping he encountered a series of obstacles that prevented
his full use and enjoyment of the store. The three obstacles
that are relevant to this appeal were: (1) checkout counters
that exceeded a permissible height, (2) a bench in the
dressing room that exceeded the length required by the
ADA, and (3) blocked aisles that prevented his free
movement throughout the store.

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KOHLER V. EDDIE BAUER 5
Six days after his visit, Kohler brought suit against Eddie
Bauer for violations of the ADA, the California Disabled
Persons Act (“CDPA”), the California Unruh Act, and the
California Health and Safety Code. After denying Eddie
Bauer’s motion for summary judgment, the district court
held a two-day bench trial. The district court then issued an
opinion holding that Kohler had not proven a violation of the
ADA or California law stemming from the three barriers.
Kohler v. Presidio Int’l, Inc., CV. 10-4680 PSG PJWX, 2013
WL 1246801 (C.D. Cal. Mar. 25, 2013). Kohler appeals
each ruling.
Following the district court’s ruling, Eddie Bauer filed a
motion for attorneys’ fees under the CDPA, section 55. The
district judge denied the motion on the grounds that the
California law was preempted by the ADA’s fee shifting
provision. See Hubbard v. SoBreck, LLC, 554 F.3d 742 (9th
Cir. 2009) (“SoBreck”). Eddie Bauer asks this panel to
reconsider that holding in light of Jankey v. Song Koo Lee,
55 Cal. 4th 1038, 290 P.3d 187 (2012) (“Jankey”).
II.
“Following a bench trial, the judge’s findings of facts are
reviewed for clear error.” Lentini v. Cal. Ctr. for the Arts,
Escondido, 370 F.3d 837, 843 (9th Cir. 2004). Under this
“significantly deferential” standard, “we will accept the
lower court’s findings of fact unless we are left with the
definite and firm conviction that a mistake has been
committed.” Id. (quoting N. Queen Inc. v. Kinnear,
298 F.3d 1090, 1095 (9th Cir. 2002)). The lower court’s
conclusions of law are reviewed de novo. Love v. Associated
Newspapers, Ltd., 611 F.3d 601, 614 (9th Cir. 2010). 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).

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6 KOHLER V. EDDIE BAUER
III.
The ADA requires that counters be thirty-six inches
high. 28 C.F.R. Pt. 36, App. D § 7.2(1). Kohler alleged that
the checkout counter at Eddie Bauer was higher than this
requirement. The district judge concluded that Kohler had
not offered sufficient evidence to prove a violation. On
appeal, Kohler challenges the judge’s ruling in light of this
court’s decision in Strong v. Valdez Fine Foods, 724 F.3d
1042 (9th Cir. 2013).
Kohler attempted to admit photographic evidence
exhibiting the height of the counter, but he failed to disclose
the photographs thirty days prior to trial and they were
excluded. This ruling is not challenged on appeal. To prove
a violation then, Kohler offered his own opinion at trial. He
testified that he “believe[d]” the counter was thirty-nine
inches high. Kohler, 2013 WL 1246801, at *2. He reached
this conclusion by approximating that his lap is roughly
twenty-seven inches high and that the counter was higher
than a foot above his lap. Id. Kohler also testified that he
was able to purchase a shirt from the store on his visit—the
cashier took the shirt off his lap and he paid with cash. Id.
In its defense, Sarah Miluso, a store manager, testified to
the policies of Eddie Bauer’s stores. She stated “that it is the
Store’s policy to try and approach customers as they are
heading towards the checkout stations and take the articles
of clothing from their hands.” Id.
The district court found that Kohler had not met his
burden. In so holding, the court noted that “courts generally
require measurements to demonstrate ADA violations.” Id.
at *8. The court also cited the district court opinion in
Strong, suggesting that even if the plaintiff had provided
additional detail, “it would be insufficient to demonstrate the

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KOHLER V. EDDIE BAUER 7
existence of actionable barriers because Plaintiff does not
assert he is an ADA expert or is otherwise qualified to opine
whether certain conditions constitute barriers within the
meaning of the Act.” Id. (quoting Strong v. Valdez Fine
Food, 09-CV-01278 MMA, 2011 WL 455285, at *7–8 (S.D.
Cal. 2011).
This district court opinion in Strong was reversed by this
court. See Strong, 724 F.3d 1042. The opinion makes clear
that an ADA plaintiff is not required to provide “specialized
or technical knowledge” through an expert witness to prove
a violation. Id. at 1046. The court also noted that “[i]t’s
commonly understood that lay witnesses may estimate size,
weight, distance, speed and time even when those qualities
could be measured precisely” and that disabled persons, who
“daily navigate[] the world in a wheelchair” were
particularly qualified to opine on the accessibility of
facilities they visit. Id. at 1046. Although Strong itself
involved a motion for summary judgment, the opinion did
not limit its holding to that posture. Id. at 1046–47 (“a jury
is perfectly capable of understanding . . . [listing ADA
violations]”).
We vacate and remand with instructions for the district
court to reconsider in light of Strong. We do not opine on
the sufficiency of Kohler’s testimony—it is the trial judge
who must weigh the credibility and weight of the evidence
as presented. We only vacate given his reliance on a
decision that has been overturned.1
1 At oral argument, counsel for Eddie Bauer argued that the counters
contained a “cut out” that made them compliant with the ADA. In a 28(j)

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8 KOHLER V. EDDIE BAUER
IV.
Title 24 of the California Regulatory Code does not
provide a precise height for checkout counters, only that they
be “accessible.” Cal. Reg. Code tit. 24, § 1110B.1.2. The
district court interpreted this to require either compliance
with the ADA’s thirty-six inch height requirement or that the
store provides “clipboards consistently available to
customers with disabilities to ensure accessibility.” Kohler,
2013 WL 1246801, at *10 (citing Lieber v. Macy’s W., Inc.,
80 F. Supp. 2d 1065, 1075 (N.D. Cal. 1999). An Eddie
Bauer store manager testified that it was the store’s policy to
have clipboards available to customers. Id. at *3. As a
result, the district court found the store in compliance with
Title 24.
We do not agree. A technical assistance manual
promulgated by the Department of Justice to interpret the
ADA Accessibility Guidelines (“ADAAG”) states that the
use of a clipboard in lieu of lowered counters is permitted
only as a temporary measure, “until more permanent
changes can be made.” U.S. Dep't of Justice, ADA Update:
a Primer for Small Business.
We have repeatedly held that manuals promulgated by
the Department of Justice to interpret the ADAAG, are
“entitled to substantial deference” and “will be disregarded
only if plainly erroneous or inconsistent with the regulation.”
Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1028 (9th
Cir. 2008) (internal quotation omitted). Furthermore,
letter to the court, Eddie Bauer argues that the counter had a shelf
attached to its side measuring thirty-four inches in height. Neither
argument was adjudicated in the district court’s opinion or mentioned in
the briefs before this court. Thus, they are waived on this appeal. See
Cruz v. Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir. 2012).

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KOHLER V. EDDIE BAUER 9
section 4450 of the California Government Code, which
implements Title 24, explicitly states:
In no case shall the State Architect’s
regulations and building standards prescribe
a lesser standard of accessibility or usability
than provided by the Accessibility Guidelines
prepared by the federal Access Board as
adopted by the United States Department of
Justice to implement the Americans with
Disabilities Act of 1990 (Public Law 101-
336).
Cal. Gov’t Code § 4450. Accordingly, we must hold
accommodations to a greater or equal standard than the
ADAAG requires.2 Of course, if on remand the district court
finds that Eddie Bauer’s counter was thirty-six inches high
(or lower), than the counter would be accessible under Title
24 and a consideration of the clipboards as an “equivalent
facilitation” would not be necessary.
V.
Kohler also challenges the district court’s ruling that the
bench in Eddie Bauer’s accessible dressing room, which is
sixty inches long, does not violate the ADA. The district
court held that although the 1991 ADAAG provide that a
dressing room bench “shall be” forty-eight inches, the sixty
inch bench qualified as an “equivalent facilitation” because
Kohler was able to make a parallel transfer onto it. This
court affirms that holding and relies upon the reasoning
2 This holding follows the reasoning of another district court in this
Circuit. See Johnson v. Wayside Prop., Inc., __ F. Supp. 2d__, 2014 WL
4276164, at *5 (E.D. Cal. Aug. 29, 2014).

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10 KOHLER V. EDDIE BAUER
provided in a related case from this sitting that addresses the
same issue. See Kohler v. Flava Enters., Inc., __ F.3d __,
2015 WL 968232 (9th Cir. Mar. 6, 2015).
VI.
Kohler appeals the district court’s ruling that his claim
of blocked aisles did not constitute an ADA violation.
Kohler argues that the district court violated Strong by
refusing to consider Kohler’s testimony and that the store
“cannot rely upon the hoped-for existence of a kindly store
clerk” to excuse ADA violations.
The district judge did consider Kohler’s testimony. The
district court found that Kohler testified that “there was too
much clothing on the floor” during his June 16, 2010 visit to
the store which made it difficult for him to maneuver.
Kohler, 2013 WL 1246801, at *4, 13. The district court also
found that on a subsequent visit to the store, Kohler was able
to maneuver. Id. The court determined that this “vague”
testimony, together with the store manager’s testimony that
the store has a policy of maintaining forty-eight inch aisles
and clearing any merchandise from the floor, was not
sufficient to show a “significant loss of selling or serving
space” as required by the ADA. Id. at *13. Given that the
court did not completely exclude Kohler’s testimony, its
determination did not run afoul of Strong. For this reason,
we affirm.3
3 This ruling is in accordance with this court’s recent decision in
Chapman v. Pier 1 Imports (U.S.) Inc., __ F.3d__ , 2015 WL 925586
(9th Cir. Mar. 5, 2015). In Chapman, this court affirmed a district court’s
finding that Pier 1’s aisles violated the ADA. The plaintiff presented

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KOHLER V. EDDIE BAUER 11
VII.
Eddie Bauer cross-appeals the district court’s denial of
its motion for attorneys’ fees under CDPA section 55. The
district court relied upon this court’s 2009 opinion in
SoBreck, which held that the section 55’s provision
providing for mandatory fees for both parties was preempted
by the ADA’s provision providing for fees for prevailing
defendants only in rare circumstances. See SoBreck, 554
F.3d at 744–45. Eddie Bauer asks us to reconsider and
overrule that holding in light of Jankey, which held to the
contrary. We decline to do so.
First, the principles of stare decisis caution against such
a departure. We will not overrule the decision of a prior
panel of our court absent an en banc proceeding, or a
demonstrable change in the underlying law. See In re Watts,
298 F.3d 1077, 1083–84 (9th Cir. 2002) (O’Scannlain, J.,
concurring).
Second, Eddie Bauer’s argument that SoBreck is no
longer binding given a change in the California statute is not
persuasive. Eddie Bauer highlights the 2009 amendments to
the CDPA, which require plaintiffs seeking monetary
damages to prove that he or she “experience difficulty,
discomfort, or embarrassment because of the violation.”
Cal. Civ. Code § 55.56(c). What it fails to note, however, is
that this amendment explicitly applies only to “grounds for
awards for statutory damages” and references distinct
evidence that on eleven separate visits to the store, he encountered
several obstructed and blocked aisles. He also submitted photographs
and an expert report to this effect. Here, Kohler only offered vague
testimony that on one visit to the store there was merchandise in the
aisles and he did not provide an expert report or photographs indicating
that the aisles were blocked.

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12 KOHLER V. EDDIE BAUER
portions of the CDPA (sections 52 and 54.3) that provide
causes of action for monetary damages. See Cal. Civ. Code
§ 55.56. Section 55, in contrast, is “part of the Disabled
Person Act, but . . . an independent basis for relief” that only
provides for injunctive relief. Jankey, 290 P.3d at 191. It
was therefore not affected by the 2009 amendments to the
CDPA. The conflict identified by this court in SoBreck still
exists. As a result, we affirm the district court’s finding that
section 55’s provision for mandatory attorneys’ fees is
preempted by the ADA, and that attorneys’ fees are therefore
unavailable in this case.4
VIII.
We vacate and remand the district court’s ruling with
respect to the counters under the ADA, and reverse and
remand the ruling under Title 24. We affirm the district
court’s rulings on the bench, the blocked aisles, and the
attorneys’ fees.
AFFIRMED IN PART, VACATED AND
REMANDED IN PART.
The parties shall bear their own costs on appeal.
4 Notably, the court in Jankey did not rely upon the 2009 amendments
to the CDPA in holding that section 55 was not preempted by the ADA.
The court instead drew on the ADA’s construction clause and the fact
that plaintiffs were not required to bring claims under both the ADA and
section 55. See Jankey, 290 P.3d at 193–95. This court declines to adopt
these arguments.

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