                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CHRIS KOHLER,                            No. 13-55808
                  Plaintiff-Appellant,
                                            D.C. No.
                 v.                      2:10-cv-04680-
                                            PSG-PJW
PRESIDIO INTERNATIONAL, INC.,
DBA Armani Exchange #215,
                       Defendant,

EDDIE BAUER, A Delaware LLC,
DBA Eddie Bauer Outlet #R162,
              Defendant-Appellee.



CHRIS KOHLER,                            No. 13-56217
                   Plaintiff-Appellee,
                                            D.C. No.
                 v.                      2:10-cv-08952-
                                            PSG-PJW
PRESIDIO INTERNATIONAL, INC.,
DBA Armani Exchange #215,
                       Defendant,          OPINION

EDDIE BAUER, A Delaware LLC,
DBA Eddie Bauer Outlet #R162,

                Defendant-Appellant.
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.



 *
   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.
                 KOHLER V. EDDIE BAUER                      3


    Vacating the district court’s judgment regarding an
alleged violation of an ADA requirement that a store
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.
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.
                 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.
6                 KOHLER V. EDDIE BAUER

Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 837
(9th Cir. 2007).

                             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
                  KOHLER V. EDDIE BAUER                      7

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 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
8                    KOHLER V. EDDIE BAUER

as presented. We only vacate given his reliance on a
decision that has been overturned. 1

                                  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




    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) 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).
                    KOHLER V. EDDIE BAUER                            9

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, 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.


 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).
10                KOHLER V. EDDIE BAUER

                              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
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 V. EDDIE BAUER                         11

Kohler’s testimony, its determination did not run afoul of
Strong. For this reason, we affirm. 3

                               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).




 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 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.
12                  KOHLER V. EDDIE BAUER

    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 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



 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.
                KOHLER V. EDDIE BAUER                   13

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.
