Kohler v. Presidio International, Inc.
782 F.3d 1064
| 9th Cir. | 2015Background
- Plaintiff Chris Kohler, a wheelchair user, visited an Eddie Bauer Outlet in June 2010 and alleged three accessibility barriers: checkout counters above the ADA limit, a dressing-room bench longer than ADAAG specification, and blocked aisles.
- Kohler sued under the ADA, California Disabled Persons Act (CDPA), Unruh Act, and Health & Safety Code; after denying summary judgment, the district court conducted a two-day bench trial and ruled for Eddie Bauer on the three barriers.
- Kohler appealed the district court’s findings on each barrier; Eddie Bauer cross-appealed the denial of attorneys’ fees under CDPA § 55.
- The Ninth Circuit reviewed factual findings for clear error and legal conclusions de novo; it vacated and remanded the counter/Title 24 rulings, affirmed the bench and aisle rulings, and affirmed the denial of fees.
- Key practical points: (1) plaintiff’s excluded photos left only lay testimony about counter height; (2) the court applied Strong v. Valdez Fine Foods on lay testimony; (3) DOJ guidance and California law influence whether clipboards are an acceptable temporary accommodation; and (4) Ninth Circuit precedent (SoBreck) governs preemption of § 55 fee-shifting by the ADA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are checkout counters higher than the ADA (36") and does Kohler’s lay testimony suffice? | Kohler: his lay estimate showed counter exceeded 36"; lay testimony can establish violations. | Eddie Bauer: lacked measurements; photos were excluded; plaintiff not an expert so evidence insufficient. | Vacated and remanded — district court relied on pre-Strong authority; court instructed reconsideration under Strong (lay testimony can suffice). |
| Under California Title 24, are clipboards an "equivalent facilitation" for counter accessibility? | Kohler: clipboard is not an adequate substitute for an accessible counter under Title 24/DOJ guidance. | Eddie Bauer: store policy provides clipboards, making counter accessible under Title 24. | Reversed and remanded — clipboard is only a temporary measure per DOJ guidance; Title 24 requires at least the ADAAG standard or equivalent not satisfied by permanent reliance on clipboards. |
| Is a 60" dressing-room bench (vs. 48" in ADAAG) a violation? | Kohler: bench exceeds ADAAG and thus violates ADA. | Eddie Bauer: bench functions as an "equivalent facilitation" because plaintiff could parallel-transfer. | Affirmed — 60" bench was an acceptable equivalent facilitation where plaintiff could transfer (followed related Ninth Circuit reasoning). |
| Do blocked aisles during Kohler’s visit violate the ADA? | Kohler: testimony that merchandise blocked aisles showed impediment to maneuvering; Strong requires courts to credit lay testimony. | Eddie Bauer: testimony showed policy maintaining 48" aisles and cleared merchandise; plaintiff’s single, vague visit testimony insufficient to show significant loss of access. | Affirmed — district court considered Kohler’s testimony but found it too vague and not corroborated by photos or repeated visits; no ADA violation shown. |
| Is CDPA § 55 fee-shifting (mandatory fees) preempted by the ADA? | Eddie Bauer: Jankey supports that § 55 is not preempted; fees should be available. | Kohler: Ninth Circuit precedent (SoBreck) holds § 55’s mandatory mutual fees are preempted by ADA’s limited fee provision. | Affirmed — panel declined to overrule SoBreck; § 55 provision for mandatory fees is preempted by ADA; attorneys’ fees denied. |
Key Cases Cited
- Strong v. Valdez Fine Foods, 724 F.3d 1042 (9th Cir. 2013) (lay witnesses, especially disabled visitors, may testify about measurable ADA conditions without expert testimony)
- Hubbard v. SoBreck, LLC, 554 F.3d 742 (9th Cir. 2009) (CDPA § 55’s mandatory mutual-fee provision is preempted by ADA’s fee regime)
- Miller v. Cal. Speedway Corp., 536 F.3d 1020 (9th Cir. 2008) (DOJ manuals interpreting ADAAG are entitled to substantial deference)
- Jankey v. Song Koo Lee, 55 Cal.4th 1038 (Cal. 2012) (California Supreme Court holding regarding interplay of CDPA § 55 and ADA; relied on by defendant but not adopted by Ninth Circuit)