Peter Michael Thomson, Asst. U.S. Atty. (argued), William P. Gibbens, New Orleans, LA, for U.S.
Robert F. Barnard, Asst. Fed. Pub. Def. (argued), Robin Elise Schulberg, Fed. Pub. Def., New Orleans, LA, for Smith.
Smith challenges his non-Guideline sentence of sixty months imprisonment. He argues that the district court's sentence based on his criminal history and parole status was unreasonable under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). For the reasons set forth below, we find that the court's sentence was reasonable.
On February 11, 2004, two officers of the New Orleans Police Department were on patrol at the Guste Housing Development in New Orleans, Louisiana. They observed Jamold Smith ("Smith") running toward them, holding what appeared to be a pistol. After realizing that there were two police officers, Smith tossed the pistol and tried to flee. The officers recovered the fully loaded firearm with its handle wrapped in tape.
On October 21, 2004, Smith was indicted on one count of illegal possession of a firearm as a convicted felon, in violation of 18 U.S.C. §§ 922(g) (1), 924(a) (2) (2000). On December 15, 2004, Smith pleaded guilty to the indictment. The district court, on March 16, 2005, sentenced him to sixty months imprisonment. The court found the presentence report ("PSR") to be "accurate and uncontested" and adopted the Guideline range of twenty-one to twenty-seven months of imprisonment.
Based on its finding that the applicable range did not adequately reflect Smith's criminal history or parole status at the time of the crime, the district court deviated1 from the Guidelines and sentenced Smith to sixty months imprisonment. Specifically, the court found that the Guideline range did not adequately take into account Smith's (1) release on parole less than one month before the offense, (2) three narcotics convictions, and (3) three juvenile convictions—theft at age nine, trespass at age twelve, and possession of crack cocaine at age fourteen. Smith objected to the sentence, claiming that it was unreasonable, and timely filed this appeal.
The district court's application of the Guidelines, even after Booker, is reviewed de novo. See United States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).2 This Court accepts findings of fact made in connection with sentencing unless clearly erroneous. United States v. Creech, 408 F.3d 264, 270 n. 2 (5th Cir. 2005); see United States v. Milton, 147 F.3d 414, 421 (5th Cir. 1998).
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. . . .
18 U.S.C. § 3553(a) (2000).
Our post-Booker case law has recognized three different types of sentences under the advisory Guidelines regime. First, a sentencing court may exercise its discretion to impose a sentence within a properly calculated Guidelines range. In such a situation, we will "infer that the judge has considered all the factors for a fair sentence. . ., and it will be rare for a reviewing court to say such a sentence is `unreasonable.'" United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). In United States v. Alonzo, this Court further clarified the deferential standard for reviewing sentences within a properly calculated Guideline range. 2006 WL 39119, at *2, 435 F.3d 551, 553-54 (5th Cir. 2005). Alonzo held that such a sentence is afforded a rebuttable presumption of reasonableness. Id. at *2, at 553-54.
Second, a sentencing court may impose a sentence that includes an upward or downward departure as allowed by the Guidelines. Because the court's authority to depart derives from the Guidelines themselves, a sentence supported by a departure is also a "Guideline sentence." Mares, 402 F.3d at 519 n. 7. In evaluating both a decision to depart and the extent of the departure, we review for "abuse of discretion." United States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005). In assessing the extent of a departure, we continue to look to our pre-Booker case law for guidance. See id. at 312; United States v. Simkanin, 420 F.3d 397, 419 (5th Cir. 2005); United States v. Smith, 417 F.3d 483, 492-93 (5th Cir. 2005).
The district court in the instant case elected a third option. After Booker, a court may impose a non-Guideline sentence—a sentence either higher or lower than the relevant Guideline sentence. Before imposing a non-Guideline sentence, however, the court must consider the Sentencing Guidelines. In light of this duty, "a district court is still required to calculate the guideline range and consider it advisory." United States v. Angeles-Mendoza, 407 F.3d 742, 746 (5th Cir. 2005) (emphasis in original). Consequently, if it decides to impose a non-Guideline sentence, the court should utilize the appropriate Guideline range as a "frame of reference." See United States v. Fagans, 406 F.3d 138, 141 (2d Cir. 2005); United States v. Jackson, 408 F.3d 301, 305 (6th Cir. 2005).
Additionally, the district court must more thoroughly articulate its reasons when it imposes a non-Guideline sentence than when it imposes a sentence under authority of the Sentencing Guidelines. Mares, 402 F.3d at 519. These reasons should be fact-specific and consistent with the sentencing factors enumerated in section 3553(a). Id. The farther a sentence varies from the applicable Guideline sentence, "the more compelling the justification based on factors in section 3553(a)" must be. United States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005); see Jackson, 408 F.3d at 305. The court, however, need not engage in "robotic incantations that each statutory factor has been considered." United States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir. 2005) (internal quotation marks omitted); see United States v. Simpson, 430 F.3d 1177, 1186-87 (D.C. Cir. 2005) (finding no requirement for the district court to "specifically refer to each [section 3553(a)] factor") (emphasis in original). Congress never intended sentencing "to become a hyper-technical exercise devoid of common sense." United States v. Gonzalez, 250 F.3d 923, 930 (5th Cir. 2001). Thus, a checklist recitation of the section 3553(a) factors is neither necessary nor sufficient for a sentence to be reasonable. See Dean, 414 F.3d at 729.
The purpose of the district court's statement of reasons is to enable the reviewing court to determine whether, as a matter of substance, the sentencing factors in section 3553(a) support the sentence. United States v. Long Soldier, 431 F.3d 1120, 1122-23 (8th Cir. 2005); see United States v. McBride, 434 F.3d 470, 474 (6th Cir. 2006) (holding that "a sentence should reflect the considerations listed in § 3553(a)"). We agree with the framework articulated by the Eighth Circuit in assessing the reasonableness of a court's statutory support. See United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005). A non-Guideline sentence unreasonably fails to reflect the statutory sentencing factors where it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors. See id.; Long Soldier, 431 F.3d at 1123-24 (applying the "Haack test for reasonableness" to a non-Guidelines sentence).
I've looked at your background. You have a 7th grade education, you're a convicted felon . . . . [T]he grip of the gun was wrapped with tape. . . . You have three narcotics convictions . . ., you're on parole but you're on for less than a month when this occurred. You have three juvenile convictions which were not counted with respect to your criminal history. Accordingly, pursuant to the Sentencing Reform Act of 1984, I take into consideration not only the guidelines but the need to afford adequate deterrence for criminal conduct and need to protect the public from further crimes of you, it's the judgment of this court that you . . . be imprisoned for a term of 60 months . . . . Again, I state for the record that I go above the 27 months [Guideline range for the previously articulated reasons].
Accordingly, the court properly followed the procedure for imposing a non-Guideline sentence.3 We turn now to whether the substance of the sentence reflects the section 3553(a) factors.
Smith makes three claims which fall under the second part of the Haack reasonableness test.4 He contends that the decision to deviate from the Guideline range and the degree of variance5 from that range is unreasonable because the selected sentence gave significant weight to improper factors.6 First, Smith argues that the court's reliance on his criminal history was improper. Specifically, he claims the court's statement that he had three narcotics-related convictions was misleading because Smith is a drug user, not a dealer. In addition, Smith contends that the court could not rely on these convictions to deviate from the Guideline range as they already were accounted for in his Guideline criminal history. Second, Smith argues that the court improperly cited his recent release on parole as a reason for deviation because the Guideline range adopted by the court accounted for his parole status. Third, relying on Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), Smith claims his "relatively mild transgressions between the age of 9 and 14" should not have been relied upon by the court.
The sentence as imposed does not take into account an improper or irrelevant factor. The court evaluated the "nature and circumstances of the offense and the history and characteristics of the defendant" and concluded that it would deviate "to afford adequate deterrence to criminal conduct" and "to protect the public from further crimes of the defendant." 18 U.S.C. § 3553(a) (1), (2) (B), (C). A defendant's criminal history is one of the factors that a court may consider in imposing a non-Guideline sentence. Mares, 402 F.3d at 519. Moreover, the sentence reflects juvenile adjudications not accounted for by the Guideline sentence. The court also considered Smith's release on parole less than one month before the commission of the instant crime. Although the PSR criminal history calculation recognized his status as a parolee at the time of the offense, the court relied on Smith not only having the status of a parolee but also having been released from prison "less than a month" beforehand—a temporal distinction of some significance to the court—which relates to the history and characteristics of Smith. 18 U.S.C. § 3553(a) (1). Furthermore, as the Government submitted, Roper is inapposite. While Roper may have found that youth reduces criminal culpability, 125 S. Ct. at 1195, it was a capital punishment case involving the Eighth and Fourteenth Amendments, not a Booker sentencing case. In sum, the sentence does not take into account an improper factor.
The district court properly calculated the applicable Guideline range and carefully articulated permissible reasons for its variance. Therefore, the court committed no legal error in the sentencing procedure. Accordingly, the sentence must be given great deference. Additionally, the court's findings in support of the upward variance sufficiently demonstrate that the substance of the sentence is reasonable under § 3553(a).
Following the post-Booker reasonableness standard, the district court did not err in sentencing Smith to sixty months imprisonment. The court's reliance on Smith's criminal history and recent status as a parolee was not erroneous. Accordingly, the district court's judgment is AFFIRMED.
I agree with the majority's adoption of the Eighth Circuit's United States v. Haack, 403 F.3d 997 (8th Cir. 2005), standard for reviewing non-Guidelines sentences. I disagree, however, with the majority's conclusion that the district court adequately considered 18 U.S.C. § 3553(a) (6), "the need to avoid unwarranted sentencing disparity." The Haack standard requires us to vacate a sentence and remand when the district court did not consider a factor that should have received significant weight. Id. at 1004. I would hold that where the district court imposes a sentence that is more than twice the top of the applicable Guidelines range, sentencing disparity is a factor that should receive significant weight. Although the district court need not, in most cases, explicitly discuss each of the § 3553(a) factors, a sentence so far outside the Guidelines range is not reasonable without consideration of the resulting disparity.
I concur in the judgment, however, because Smith has waived any argument based on sentencing disparity by failing to adequately brief it. Fed. R. App. P. 28(a) (9) (A); Salazar-Regino v. Trominski, 415 F.3d 436, 452 (5th Cir. 2005) (argument that consisted solely of a single citation to a case is waived); L & A Contracting Co. v. S. Concrete Servs., 17 F.3d 106, 113 (5th Cir. 1994) (holding that argument that was one-page in length was waived where appellant cited no authority). The total of Smith's argument on point consists of the conclusory assertion that his sentence conflicts with the need to avoid unwarranted sentencing disparity. The remainder of Smith's brief argues that a non-Guidelines sentence is unreasonable when the Guidelines already take into consideration the reasons given by the district court. Accordingly, I would hold that Smith has waived the argument and affirm the sentence on that basis.
We use the terms "deviate" and "deviation" to describe a non-Guideline sentence, which is not the result of a Guidelines-authorized upward or downward departure. In United States v. Mares, we adopted the phrase "non-Guideline sentence" to express this distinction. 402 F.3d 511, 519 n. 7 (5th Cir. 2005).
Although the district court ultimately decided to impose a non-Guideline sentence in this case, it was still required to determine the Guideline range See p. 707, infra. Villegas's holding that we review Guideline interpretations de novo must apply here. Without a properly-calculated Guideline range, we cannot ensure that the disparity between Smith's sentence and the Guideline range is warranted.
"While the mere fact that a . . . sentence exceeds by several times the guideline maximum is of no independent consequence in determining whether the sentence is reasonable, it may indicate the unreasonableness of the departure [or deviation] viewed against the court's justification for that departure [or deviation]."United States v. Campbell, 878 F.2d 164, 166 (5th Cir. 1989) (internal citation omitted); see also Simkanin, 420 F.3d at 397 (" [T]he mere fact that the upward departure nearly doubled the Guidelines range does not render it unreasonable"); Saldana, 427 F.3d at 298, 312 (noting that although the "district court quadrupled the maximum sentence allowable for [the defendant] under the Guidelines," the sentence was reasonable); Smith, 417 F.3d at 495-93 (finding that a sentence almost three times the top of the Guideline range was not unreasonable).
The concurring opinion faults the district court for not explicitly addressing the need to avoid unwarranted sentencing disparity. We hold that the court gave fact-specific justifications for its sentence sufficient to permit us to review for reasonableness. Thus, the level of articulation required under Mares is satisfied. 402 F.3d at 519. Furthermore, the sentence in this case, at twice the Guideline range, is reasonably supported by the statutory sentencing factors such that we will not disturb the district court's sentencing decision.
Additionally, Smith did not waive any argument based on sentencing disparity. The cases cited by the concurrence in support of waiver are inapposite. See, e.g., Salazar-Regino v. Trominski, 415 F.3d 436, 452 (5th Cir. 2005) (holding argument was waived because the petitioners cited only one case, failed "to explain how the cited opinion should apply to the instant case," and also failed "to mention that the opinion is not even good law"). Here, Smith cites to valid statutory authority and explains how the statute supports his argument. Smith's contention, though ultimately rejected herein, satisfies the requirements of Federal Rule of Appellate Procedure 28(a) (9) (A) and therefore was not waived.


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Class actions require a specialized set of skills. Jones Bell’s lawyers have honed the required skills over decades, successfully defending and prosecuting class actions of all kinds—unfair competition, false advertising, employment, business torts, etc. Jones Bell’s class action experience includes Kwikset Corp. v. Superior Court (Benson), 51 Cal. 4th 310 (2011) and Colgan v. Leatherman, 135 Cal. App. 4th 663 (2006), two of the leading cases with respect to California’s Unfair Competition Law (the “UCL”), Consumers Legal Remedies Act, False Advertising Law, and “Made in USA” law.
Unlike most other class action lawyers, Jones Bell’s lawyers have actually defended and prosecuted cases through trial. For example: Jones Bell defended Kwikset Corporation in Kwikset and The Leatherman Tool Group in Colgan through trial; and Jones Bell prosecuted through trial a fraud and breach of contract class action on behalf of more than 150 senior citizen citizens, obtaining for them monetary relief and specific performance with a value of $12 million. In both prosecuting and defending class actions, Jones Bell is tenacious and persistent. On the nearly five-years-long road to delivering $12 million in relief to the 150 plus seniors, Jones Bell overcame an interim ruling denying class certification—Marler v. E.M. Johansing, LLC, 199 Cal. App. 4th 1450 (2011)—and it litigated for nearly a year after the entry of judgment to force the defendants to comply with the judgment.
Jones Bell’s other class actions and representative actions include: Bernstein v. Suncrest Solar, Inc., O.C.S.C. Case No. 30-2016-00879806 (employment); Sanchez v. Pierre Landscape, Inc., L.A.S.C. Case No. BC613747 (employment); Dall v. Post Alarm Systems, L.A.S.C. Case No. BC598528(employment); Semprini v. Wedbush Securities Inc., O.C.S.C. Case No. 30-2015-00776114 (employment); Holzer v. Wedbush Securities Inc., L.A.S.C. Case No. BC550462 (employment); Veera v. Banana Republic, LLC, L.A.S.C. Case No. BC541146 (unfair competition and false advertising); Etman v. The Gap, Inc., L.A.S.C. Case No. BC547161 (unfair competition and false advertising); Fitzwilliam v. Wedbush Morgan Securities, Inc., L.A.S.C. Case No. BC 435311 (unfair competition); Coleman v. Platinum Group of Companies, Inc., L.A.S.C. Case No. BC 521783 (employment); Loftus v. Ferguson Enterprises, Inc., L.A.S.C. Case No. BC 403691 (employment); Sankey v. Aeropostale West, Inc., L.A.S.C. Case No. BC457468 (employment); Lee v. A.T. & T. Wireless, L.A.S.C. Case No. BC 326118 (unfair competition and false advertising); Boyd v. A.T. & T. Wireless, L.A.S.C. Case No. BC374057 (unlawful tax levied up on a service); Pyne v. Enterprise Rent-A-Car Company, L.A.S.C. Case No. BC264636 (unfair competition); CAD/CAM Publishing, Inc. v. Archer, S.D.S.C. Case No. GIC 756904 (securities); Anderson v. Tropicana Products, Inc., U.S.D.C. Case No. SA CV99-352 GLT (EEx) (mass action price discrimination case involving sale of juice beverages); Securities Investor Protection Corp. v. Vigman, U.S.D.C. Case No. CV 83-4742-AWT (represented SIPC in multiple class actions, handled post liquidation disputes by creditors, as well as fraud litigation against parties that forced broker into liquidation); and Anderson v. Selectivend, Inc., L.A.S.C. Case No. BC267262 (finance lender laws and misrepresentation of interest rates).

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Norman B. Blumenthal is a class action lawyer/attorney for Blumenthal Nordrehaug Bhowmik De Blouw LLP. He has been defending employees for over 30 years.
Norman was born in Washington D.C. He received his BA degree from the University of Wisconsin in 1970 and his J.D. degree from Loyola University of Chicago in 1973. He was admitted to the bar in Illinois in 1973 and in California in 1976.
Norman grew up in the Washington D.C. area and graduated from Bethesda Chevy-Chase High School in 1966. While living in the Washington area he workeddelivering the Washington Post until leaving in 1966 for Madison, Wisconsin. While in Madison he took part in the Vietnam war protests. He went to Chicago in 1970 and attended law school first at night while working during the day as a substitute teacher in the Chicago Public School system, and on the weekends as a librarian at the law school. During the summer of 1971 he did volunteer work for the Harvard Voluntary Defenders in Cambridge, Massachusetts, and was hired by the Legal Defense Fund that summer to help write the appendix to the brief to be submitted to the United States Supreme Court in Furman v. Georgia supporting the proposition that there is no deterrent effect by reason of the death penalty as evidenced by the homicide rate in foreign countries that do not have the death penalty.
After graduation from law school in 1973, Norman went to work as a law clerk for Illinois Supreme Court Chief Justice Thomas J. Moran while serving on the Illinois Court of Appeals. In 1975, after completing his two year clerkship with Justice Moran and spending three months in Europe and Israel with his wife, Diane, they moved to La Jolla, California. After passing the California bar in 1976, Norman spent the next 12 years as Chief Operating Officer and General Counsel to an Oil & Gas Exploration Company and taught Oil & Gas law at the University of San Diego School of Law and California Western School of Law.
In 1988, Norman went into private practice. Between 1988 and the present Norman’s practice has focused on the protection of employees, consumers, and securities buyers from unfair, illegal and deceptive business practices through the filing of consumer, employment and securities class action and individual cases. He has obtained over $1.3 billion in settlements for his clients. He still lives in La Jolla with his wife, Diane, where his two sons and three grandsons also reside. He has also provided pro bono legal services for local civic, educational and religious organizations from time to time while in private practice.
Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425, (9th Cir. 2015); Securitas Security Services USA, Inc. v. Superior Court, 234 Cal. App. 4th 1109,(Cal. Feb. 27, 2015); Sussex v. United States Dist. Court for the Dist. of Nev., 781 F.3d 1065 (9thCir. 2015); In re Tobacco Cases II, 41 Cal. 4th 1257 (2007); Washington Mutual Bank v. Superior Court, 24 Cal. 4th 906 (2001); Rocker v. KPMG LLP, 148 P.3d 703; 122 Nev. 1185 (2006); PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP, 150 Cal. App. 4th 384 (2007); Hall v. County of Los Angeles, 148 Cal. App. 4th 318 (2007); Coshow v. City of Escondido, 132 Cal. App. 4th 687 (2005);Daniels v. Philip Morris, 18 F.Supp 2d 1110 (S.D. Cal.1998); Gibson v. World Savings & Loan Asso., 103 Cal. App. 4th 1291 (2003); Jordan v. Department of Motor Vehicles, 75 Cal. App. 4th 445 (1999); Jordan v. Department of Motor Vehicles, 100 Cal.App. 4th 431 (2002); Norwest Mortgage, Inc. v. Superior Court, 72 Cal.App.4th 214 (1999); Hildago v. Diversified Transp. Sya, 1998 U.S. App. LEXIS 3207 (9th Cir. 1998); Kensington Capital Mgal. v. Oakley, Inc., 1999 U.S. Dist LEXIS 385; Fed.Sec.L.Rep. (CCH) P90, 411 (1999 C.D. Cal.); Lister v. Oakley, Inc., 1999 U.S. Dist. LEXIS 384; Fed. Sec. L. Rep. (CCH) P90,409 (C.D Cal. 1999); Olszewski v. Scripps Health, 30 Cal. 4th 798 (2003); Steroid Hormone Product Cases, 181 Cal. App. 4th 145 (2010); Owen v. Macy's, Inc., 175 Cal. App. 4th 462 (2009); Taiheiyo Cement Corp. v. Superior Court, 117 Cal. App. 4th 380 (2004); Taiheiyo Cement Corp. v. Superior Court, 105 Cal.App. 4th 398 (2003); McMeans v. Scripps Health, Inc., 100 Cal. App. 4th 507 (2002); Ramos v. Countrywide Home Loans, 82 Cal.App. 4th 615 (2000); Tevssier v. City of San Diego, 81 Cal.App. 4th 685 (2000);Washington Mutual Bank v. Superior Court, 70 Cal. App. 4th 299 (1999); Silvas v. E*Trade Mortg. Corp., 514 F.3d 1001 (9th Cir. 2008); Silvas v. E*Trade Mortg. Corp., 421 F. Supp. 2d 1315 (S.D. Cal. 2006); McPhail v. First Command Fin. Planning, Inc., 2009 U.S. Dist. LEXIS 26544 (S.D. Cal. 2009); McPhail v. First Command Fin. Planning, Inc., 251 F.R.D. 514 (S.D. Cal. 2008); McPhail v. First Command Fin. Planning, Inc., 247 F.R.D. 598 (S.D. Cal. 2007); Barcia v. Contain-A-Way, Inc., 2009 U.S. Dist. LEXIS 17118 (S.D. Cal. 2009); Barcia v. Contain-A-Way, Inc., 2008 U.S. Dist. LEXIS 27365 (S.D. Cal. 2008); Wise v. Cubic Def. Applications, Inc., 2009 U.S. Dist. LEXIS 11225 (S.D. Cal. 2009); Gabisan v. Pelican Prods., 2009 U.S. Dist. LEXIS 1391 (S.D. Cal. 2009); La Jolla Friends of the Seals v. Nat'l Oceanic & Atmospheric Admin. Nat'l Marine Fisheries Serv., 630 F. Supp. 2d 1222 (S.D. Cal. 2009); La Jolla Friends of the Seals v. Nat'l Oceanic & Atmospheric Admin. Nat'l Marine Fisheries Serv., 2008 U.S. Dist. LEXIS 102380 (S.D. Cal. 2008); Louie v. Kaiser Found. Health Plan, Inc., 2008 U.S. Dist. LEXIS 78314 (S.D. Cal. 2008); Weltman v. Ortho Mattress, Inc., 2010 U.S. Dist. LEXIS 20521 (S.D. Cal. 2010); Weltman v. Ortho Mattress, Inc., 2008 U.S. Dist. LEXIS 60344 (S.D. Cal. 2008); Curry v. CTB McGraw-Hill, LLC, 2006 U.S. Dist. LEXIS 5920; 97 A.F.T.R.2d (RIA) 1888; 37 Employee Benefits Cas. (BNA) 2390 (N.D. Cal. 2006); Reynov v. ADP Claims Servs. Group, 2006 U.S. Dist. LEXIS 94332 (N.D. Cal. 2006); Kennedy v. Natural Balance Pet Foods, Inc., 2010 U.S. App. LEXIS 248 (9th Cir. 2010); Kennedy v. Natural Balance Pet Foods, Inc., 2008 U.S. Dist. LEXIS 38889 (S.D. Cal. 2008); Kennedy v. Natural Balance Pet Foods, Inc., 2007 U.S. Dist. LEXIS 57766 (S.D. Cal. 2007); Sussex v. Turnberry/MGM Grand Towers, LLC, 2009 U.S. Dist. LEXIS 29503 (D. Nev. 2009); Picus v. Wal-Mart Stores, Inc., 256 F.R.D. 651 (D. Nev. 2009); Tull v. Stewart Title of Cal., Inc., 2009 U.S. Dist. LEXIS 14171 (S.D. Cal. 2009); Keshishzadeh v. Gallagher, 2010 U.S. Dist. LEXIS 46805 (S.D. Cal. 2010); Keshishzadeh v. Arthur J. Gallagher Serv. Co., 2010 U.S. Dist. Lexis 116380 (S.D. Cal. 2010); In re Pet Food Prods. Liab. Litig., MDL Docket No. 1850 (All Cases), 2008 U.S. Dist. LEXIS 94603 (D.N.J. 2008); In re Pet Food Prods. Liab. Litig., 629 F.3d 333 (3rd. Cir. 2010); Puentes v. Wells Fargo Home Mortgage, Inc., 160 Cal. App. 4th 638 (2008); Rezec v. Sony Pictures Entertainment, Inc., 116 Cal. App. 4th 135 (2004); Badillo v. Am. Tobacco Co., 202 F.R.D. 261 (D. Nev. 2001); La Jolla Friends of the Seals v. Nat’l Oceanic & Atmospheric Admin., 2010 U.S. App. Lexis 23025 (9th Cir. 2010); Dirienzo v. Dunbar Armored, Inc., 2011 U.S. Dist. Lexis 36650 (S.D. Cal. 2011); Rix v. Lockheed Martin Corp., 2011 U.S. Dist Lexis 25422 (S.D. Cal. 2011); Weitzke v. Costar Realty Info., Inc., 2011 U.S. Dist Lexis 20605 (S.D. Cal. 2011); Goodman v. Platinum Condo. Dev., LLC, 2011 U.S. Dist. LEXIS 36044 (D. Nev. 2011); Sussex v. Turnberry/MGM Grand Towers, LLC, 2011 U.S. Dist. LEXIS 14502 (D. Nev 2011);Smith v. Kaiser Foundation Hospitals, Inc., 2010 U.S. Dist. Lexis 117869 (S.D. Cal. 2010).
Norman is a California class action pioneer. For over two decades, he has been representing employees and consumers in California in class action lawsuits for the purpose of handling the next great case to champion justice in a world where business at the extremes takes unfair advantage of employees and consumers. In total, Norman has obtained over $1.3 Billion on behalf of employees and consumers. More importantly, he has ushered in good public policy for the benefit of all Californians everywhere.
As a result of Jordan v. Cal. DMV, on June 8, 2000, the California Governor signed two bills passed by the Legislature, which found and declared that approximately 1,700,000 vehicle owners paid a an unconstitutional smog impact fee imposed by California on out of state vehicles. This amounted to a $500 million in unconstitutional smog impact fees imposed on drivers. After interest, Norman helped settle this case for over $650 million dollars. Norman enabled over 1.7 million people get refunds for a smog impact fee that was unconstitutional.

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D.C. Law Library - § 47–2005. Exemptions.
(5)(A) Sales of personal property purchased by a utility or a public-service company for use or consumption in furnishing a service or commodity, if the charges from furnishing the service or commodity are subject to a gross receipts tax or a mileage tax in force in the District for the period of time covered by a return required to be filed by the provisions of this chapter. If the personal property purchased is used both to produce receipts or charges subject to a gross receipts tax or a mileage tax and receipts or charges not subject to a gross receipts tax or a mileage tax, then this sales tax exemption shall be allocated in accordance with rules issued by the Mayor.
(B) Beginning on October 1, 1994, sales of personal property purchased by a toll telecommunication company, as defined in § 47-3901(10) [now § 47-3901(14)], irrespective of whether the property is used or consumed in furnishing a service, the charges from which are subject to the gross receipts tax imposed by § 47-2501(b), or Chapter 39 of this title. For the purposes of this subsection, the term “personal property” shall not include office equipment or office furniture.
(11A)(A) Sales of natural or artificial gas, oil, electricity, solid fuel, or steam, directly used in a restaurant.
(B) For the purposes of this paragraph, the term “restaurant” means a retail establishment that is licensed by the District of Columbia, a separately metered or sub-metered facility, and in the principal business of preparing and serving food to the public. The term “restaurant” shall include a pizzeria, delicatessen, ice cream parlor, cafeteria, take-out counter, and caterer, and banquet and food-processing areas in hotels. The term “restaurant” does not include beverage counters, including coffee shops and juice bars.
(B) Sales of residential local exchange service or exchange access as defined in § 47-3901(14) [see Editor’s note].
(33) Sales of material or equipment used in the construction, and of materials used in the repair or alteration, of real property; provided, that the materials are temporarily stored, for no longer than 90 days, in the District for the purpose of subsequently transporting the property outside the District for use solely outside the District.
(34)(A) Sales of tangible personal property to be incorporated in or consumed in the course of the initial development, construction, equipping, and furnishing of the Mandarin Hotel Project until the Development Sponsor sells the Mandarin Oriental Hotel Project, as evidenced by the recordation of a deed conveying title to Square 299, Lot 831, at which time such amounts shall be due and payable without penalty or interest.
(B) The amount of all taxes, fees, and deposits deferred under this paragraph, section 2(b) of the Mandarin Oriental Hotel Tax Deferral Act of 2002, passed on 2nd reading on September 17, 2002 (Enrolled version of Bill 14-466) [D.C Code § 2-1217.32(b)], and §§ 42-1102(25), 47-902(19), and 47-1002(27), shall not exceed, in the aggregate, $4 million.
(B) For the purposes of this paragraph, the term "feminine hygiene product" means a sanitary napkin, sanitary towel, tampon, menstrual cup, or sanitary pad.
(40) Any sales concomitant to the transfer of real and personal property between the electric company and the District pursuant to [§ 34-1313.11(c)].
This section is referenced in § 2-1217.31, § 2-1217.32, § 42-1102, § 47-902, § 47-1002, § 47-2006, § 47-2007, § 47-2010, § 47-2321, § 47-2322, and § 47-3802.
D.C. Law 13-49, amending par. (24) struck the phrase “telephone company,” and inserting the phrase “telephone company, sales of residential heating oil or related services by any person,” in its place.
D.C. Law 13-75 added par. (5)(D).
“Sales of residential public utility services and commodities by a gas, electric lighting, telephone company, sales of residential heating oil by any person, or sales of residential natural or artificial gas by any person;”.
D.C. Law 13-166, added par. (28).
D.C. Law 13-172 added par. (29).
D.C. Law 13-241 added par. (30).
D.C. Law 13-256 added par. (31).
Law 13-305, in par. 3(C), deleted “, carries on its activities to a substantial extent within the District, and such activities result in substantial benefits to citizens of the District” following “within the District”; and rewrote par. (24).
D.C. Law 13-306 added par. (32).
D.C. Law 13-313, in par. (29), substituted “May 1, 1997” for “April 30, 1998”.
D.C. Law 14-42 validated previously made technical corrections in pars. (28), (29), (30), and (31).
D.C. Law 14-157 added par. (33).
D.C. Law 14-232 substituted a semicolon for “; and” at the end of par. (31); substituted “; and” for a period at the end of par. (32); and added par. (33) (34) .
D.C. Law 15-105 validated previously made technical corrections; and repealed par. (32).
D.C. Law 15-205 added par. (32A).
D.C. Law 15-277, in par. (7), designated subpar. (A) and added subpar. (B).
D.C. Law 16-305, in par. (15)(B), substituted “or people with disabilities” for “or disabled”; in par. (18), substituted “disability” for “handicap”; and in par. (19), substituted “blind or have another disability” for “blind, disabled, or handicapped”.
D.C. Law 18-48 added par. (11A).
D.C. Law 18-55 added par. (36).
D.C. Law 18-111 repealed par. (32A).
“(i) ‘Hotel’ means an establishment where food and lodging are regularly furnished to transients and which has at least 30 guest rooms and a dining room in the same or connected buildings.
“(ii) ‘Restaurant’ means a retail establishment licensed by the District of Columbia in the principal business of preparing and serving food to the public. The term ‘restaurant’ shall include pizzerias, delicatessens, ice cream parlors, cafeterias, take-out counters, caterers, and separately-metered hotel and motel food service facilities. The term ”restaurant“ shall not include beverage counters, including coffee shops and juice bars; ”.
The 2013 amendment by D.C. Law 20-61 rewrote (11A).
The 2014 amendment by D.C. Law 20-117 substituted “refining of tangible personal property for sale or resale” for “refining” in (11).
The 2015 amendment by D.C. Law 20-223 added (37) and made related changes.
Motor fuel tax, rules and regulations by Mayor, see § 47-2321.
Motor fuel tax, severability, savings clauses, see § 47-2322.
Section 7022 of D.C. Law 22-168 repealed section 3 of D.C. Law 21-201 amending the applicability restriction impacting this section. Therefore the amendments of this section by D.C. Law 21-201 have been implemented, except for paragraph (39).
Applicability of D.C. Law 21-201: § 3 of D.C. Law 21-201 provided that the change made to this section by § 2 of D.C. Law 21-201 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.
For temporary (90 days) amendment of this section, see § 7051 of Fiscal Year 2018 Budget Support Congressional Review Emergency Act of 2017 (D.C. Act 22-167, Oct. 24, 2017, 64 DCR 10802).
For temporary (90 days) amendment of this section, see § 7051 of Fiscal Year 2018 Budget Support Emergency Act of 2017 (D.C. Act 22-104, July 20, 2017, 64 DCR 7032).
For temporary (90 days) amendment of this section, see § 3(c) of Electric Company Infrastructure Improvement Financing Emergency Amendment Act of 2017 (D.C. Act 22-56, May 17, 2017, 64 DCR 4909).
For temporary (90 days) amendment of this section, see § 2 of the Processing Sales Tax Clarifying CRE of 2013 (D.C. Act 20-6, January 31, 2013, 60 DCR 2807, 20 DCSTAT 455).
For temporary (90 days) amendment of this section, see § 5 of the Fiscal Year 2014 Budget Support Technical Clarification Emergency Amendment Act of 2013 (D.C. Act 20-180, October 4, 2013, 60 DCR 14949).
For temporary (90 days) amendment of this section, see §§ 7362 and 7363 of the Fiscal Year 2014 Budget Support Emergency Act of 2013 (D.C. Act 20-130, July 30, 2013, 60 DCR 11384, 20 DCSTAT 1827).
For temporary (90 days) amendment of this section, see §§ 7362 and 7363 of the Fiscal Year 2014 Budget Support Congressional Review Emergency Act of 2013 (D.C. Act 20-204, October 17, 2013, 60 DCR 15341, 20 DCSTAT 2311).
For temporary (225 day) amendment of section, see § 4(c) of Mandarin Oriental Hotel Project Tax Deferral Temporary Act of 2002 (D.C. Law 14-143, May 21, 2002, law notification 49 DCR 5060).
For temporary (225 day) amendment of section, see § 12(yy) of Tax Clarity and Recorder of Deeds Temporary Act of 2002 (D.C. Law 14-191, October 5, 2002, law notification 49 DCR 9549).
For temporary (225 day) amendment of section, see § 12(yy) of Tax Clarity and Related Amendments Temporary Act of 2003 (D.C. Law 14-228, March 23, 2003, law notification 50 DCR 2741).
For temporary (225 day) amendment of section, see § 2(c) of CareFirst Economic Assistance Temporary Act of 2002 (D.C. Law 14-246, March 25, 2003, law notification 50 DCR 2759).
For temporary (225 day) amendment of section, see § 2 of Back-to-School Sales Tax Holiday Temporary Amendment Act of 2002 (D.C. Law 14-209, October 19, 2002, law notification 49 DCR 10465).
For temporary (225 day) amendment of section, see § 2 of Charity Auction Sales Tax Exemption Temporary Act of 2003 (D.C. Law 15-85, March 10, 2004, law notification 51 DCR 9223).
For temporary (225 day) amendment of section, see § 2(d) of Lot 878, Square 456 Tax Exemption Clarification Temporary Amendment Act of 2004 (D.C. Law 15-181, September 8, 2004, law notification 51 DCR 9223).
Section 2 of D.C. Law 19-2 amended section 3 of D.C. Law 18-324 to read as follows: “Sec. 3. Applicability. This act shall apply as of January 1, 2010; provided, that its fiscal effect is included in an approved budget and financial plan.”.
Section 4(b) of D.C. Law 19-2 provided that the act shall expire after 225 days of its having taken effect.
Section 2 of D.C. Law 19-98 amended section 3 of D.C. Law 18-324 to read as follows: “Sec. 3. Applicability. This act shall apply as of January 1, 2010; provided, that its fiscal effect is included in an approved budget and financial plan.”.
Section 4(a) of D.C. Law 19-98 provided that the act shall expire after 225 days of its having taken effect.
Section 4(b) of D.C. Law 19-218 provided that the act shall expire after 225 days of its having taken effect.
For temporary (225 days) amendment of section, see § 5 of the Fiscal Year 2014 Budget Support Technical Clarification Temporary Amendment Act of 2013 (D.C. Law 20-56, December 13, 2013, 60 DCR 15165).
Short title of subtitle Q of title I of Law 15-205: Section 1181 of D.C. Law 15-205 provided that subtitle Q of title I of the act may be cited as Sales Tax Holiday Act of 2004.
Short title: Section 7040 of D.C. Law 18-111 provided that subtitle B of title VII of the act may be cited as the ‘Sale Tax Applicability Act of 2009‘.
Section 7361 of D.C. Law 20-61 provided that Subtitle II of Title VII of the act may be cited as the “Sales Tax on Restaurant Utilities Clarification Act of 2013”.
Section 2(b) of the Mandarin Oriental Hotel Tax Deferral Act of 2002, passed on 2nd reading on September 17, 2002 (Enrolled version of Bill 14-466), referred to in par. (34)(B), is D.C. Law 14-232, § 2(b), set out as a note under § 42-1102.
Title III of the District of Columbia Revenue Act of 1949, referred to in paragraph (13) of this section, 63 Stat. 128, ch. 146, approved May 27, 1949.
Section 3(b) of D.C. Law 4-133 provided that revised § 47-2005(15) shall take effect on the first day of the first month which begins more than 30 days after August 14, 1982.
The Budget Director of the Council of the District of Columbia has determined, as of February 15, 2012, that the fiscal effect of Law 18-324 has not been included in an approved budget and financial plan. Therefore, the provisions of this section, enacted by Law 18-324, are not in effect.
Section 3 of D.C. Law 18-324 provided: ‘Sec. 3. Applicability. This act shall apply as of January 1, 2010.‘ The Budget Director of the Council of the District of Columbia has determined, as of February 15, 2012, that the fiscal effect of Law 18-324 has not been included in an approved budget and financial plan. Therefore, the provisions of this section, enacted by Law 18-324, are not in effect.
Applicability of D.C. Law 20-61: Section 7363 of D.C. Law 20-61 provided that § 7362 of the act shall apply as of August 1, 2013.
Applicability of D.C. Law 20-117: Section 15(b) of D.C. Law 20-117 provided that § 15(a) of the act, which amended (11), shall apply as of August 1, 2013.
Section 18 of D.C. Law 20-61 provided that the act shall apply as of October 1, 2013.
New implementing regulations: The “District of Columbia Boat Titling Act of 1983” (D.C. Law 5-58, Mar. 14, 1984, 30 DCR 6293) provided that the tax imposed by § 4-b(2) of Article 29 of the Police Regulations of the District of Columbia is in lieu of collecting any tax which may have been due under § 47-2001 et seq. as result of a sale.


82 Wn.2d 754, MORRIS J. LOVELESS et at., Respondents, v. GEORGE F. YANTIS, JR., et at., Appellants.
MORRIS J. LOVELESS et at., Respondents, v. GEORGE F.
YANTIS, JR., et at., Appellants.
 Parties - Intervention - Interest in Subject Matter - Appeal From Administrative Decision. A party has an interest in the subject of a judicial review of administrative action, for purposes of CR 24(a) permitting intervention as a matter of right, when he would have had the right to seek judicial review himself if the administrative action had been adverse to him.
 Parties - Intervention - Interest in Subject Matter - Organization. An organization whose members could be aggrieved by the results of a judicial proceeding has sufficient interest in the subject of the action to intervene on behalf of the members.
 Zoning - Enforcement - Interests of Affected Owners - Representation. The interests of particular property owners in sustaining a county's zoning decision is not necessarily represented by the position of the county itself which must consider the interests of the county as a whole.
 Parties - Intervention - As a Matter of Right - Interpretation of Rule. CR 24(a), which permits intervention as a matter of right, should be interpreted to allow intervention of right unless it would work a hardship on one of the original parties.
 Civil Procedure - Notice - Motions - Noncompliance. The requirement of CR 6(d) that motions be served 5 days before the hearing thereon is not jurisdictional. Failure to comply with the time requirement will not be fatal to the motion when other parties have actual notice and sufficient time to prepare for the issues to be considered at the hearing.
 Zoning - Preliminary Plat - Approval - Matters Considered. Although the requirements of a preliminary plat are normally limited by zoning enactments to general design and layout, any infirmity appearing on the plat which would preclude any possible approval, whether relating to design and layout or otherwise, will result in rejection of the plat.
 Zoning - Planned Unit Development - Density Restrictions. A planned unit development, as opposed to a planned area development, must apply applicable zoning density rules individually to each structure in the development.
 Zoning - Judicial Review - Administrative Record - Necessity. The courts cannot determine the legality of action by a planning commission or zoning authority unless there is a complete and accurate transcript of the records and proceedings before such bodies.
action," for purposes of the State Environmental Policy Act of 1971 which requires an impact statement whenever major governmental action significantly affects the environment, exists whenever there is a discretionary, nonduplicative stage of governmental approval of a private construction activity. There is discretion whenever choice exists however narrow or limited the statutory criteria may be, and the action is nonduplicative if all environmental issues have not previously been considered or new information or developments have intervened since the last prior major action.
 Zoning - Environment - SEPA - Preliminary Plat - Environmental Impact. The fact that a preliminary plat of a development is tentative and does not represent the complete plan does not eliminate the need for an environmental impact statement if major action significantly affecting the environment occurs with regard to such plat. All environmental issues raised by the preliminary plat, even if it shows no more than the general street layout, should be studied and evaluated at the time of its submission.
Appeal from a judgment of the Superior Court for Thurston County, Nos. 42706, 42738, Warner Poyhonen, J., entered January 25, 1973. Reversed.
Action to review a zoning decision of a county commission. Defendants appeal from a judgment in favor of the plaintiffs.
Smith Troy, Prosecuting Attorney, and Jane Dowdle Smith, Deputy, for appellants Yantis et al.
John S. Robinson and Gordon, Thomas, Honeywell, Malanca, Peterson, O'Hern & Johnson, by James A. Furber, for appellants Cooper Point Association et al.
Ernest L. Meyer, for respondents.
Charles B. Roe, Jr., amicus curiae.
This is an appeal from a superior court judgment which granted preliminary approval to a plat filed by Morris J. Loveless, affecting property on Cooper Point in Thurston County. The court declared the Thurston County commissioners' refusal to grant approval arbitrary and capricious.
intervenor-appellants«1» are entitled as a matter of right to intervene; (2) whether the offered plat on its face violates the county zoning ordinances; (3) whether the incomplete record of the county proceedings on this matter brought before the court was inadequate to support the court's judgment; and (4) whether an environmental impact statement pursuant to RCW 43.21 is a necessary prerequisite for preliminary approval of the plat.
Each issue is answered in the affirmative and we reverse the trial court.
The property in question is on a glacially-formed peninsula at the southern extremity of Puget Sound, known as Cooper Point. The point is approximately 4 miles wide at its base, narrows to less than a mile at its northern tip, and extends 7-1/2 miles into the salt water. There is extensive marine life and a wide assortment of vegetation and wildlife. The peninsula rises steeply from the coastal beaches and its interior is primarily a rolling terrace.
Recently a new state college has located toward the point's base. The respondent-Loveless' project, called "By the Sea", is proposed for the narrow tip of the point and would consist of multi-family condominiums.
«1» The intervenors are the Cooper Point Association, composed of Cooper Point area owners and residents who seek to insure the orderly development of the point so that the area's unique amenities will not suffer; the Cooper's Point Water Company, Inc., composed of landowners sharing in a common well and water system on the point; and Katherine Partlow Draham, who owns and operates a farm adjacent to a portion of the platted property here at issue.
agreement returned it to the planning commission for further consideration and with instruction to state specific reasons if the plat was again rejected.
A subcommittee of the planning commission recommended preliminary approval; however, the planning commission referred the matter back to committee for preparation of an environmental impact statement. At this point in the planning commission's review, respondent asked the county commissioners to reconsider the matter, arguing that no environmental impact statement was required. A public and an order denying the application for the preliminary approval of the plat was entered on August 14, 1972.
Respondent appealed this order to superior court. The Cooper Point Association and Cooper's Point Water Company, Inc. appeared at an October 9, 1972 hearing requesting permission to intervene. They were denied intervention but permitted to submit briefs and argue the merits of the case as amici curiae. Court then recessed, and before reconvening, Mrs. Katherine Partlow Draham filed a separate motion to intervene. On December 6, 1972, all motions to intervene were again denied, but all were permitted to argue as amici curiae. The court then found the failure of the commissioners to provide any reason for refusing to grant preliminary approval to the plat constituted an arbitrary and capricious decision and granted the preliminary approval sought.
Appellant-commissioners began an appeal to the Court of Appeals, while the intervenor-appellants petitioned the Supreme Court for a writ of certiorari authorizing them to intervene. By order of the Chief Justice the petition was granted, those seeking to intervene were permitted to appear on appeal, and the two appeal processes were consolidated into this review.
question is controlled by Civil Rule for Superior Court 24(a).«2»The trial court found those seeking to intervene were not timely, had no claim as a matter of right, and were not necessary or proper parties to the cause. We find it necessary to rule only on the issue of intervention as a matter of right.
CR 24(a) requires an intervenor to show that he claims an interest relating to the property that is the subject of the action; that disposition of the action may impair his ability to protect that interest; that his interest is not being adequately represented by existing parties; and that his appeal is timely.
 Each of the intervenors has the necessary interest in the property. The interest of the Cooper's Point Water Association and Katherine Partlow Draham is direct as property owners "who feel themselves aggrieved" and who would have had a right to appeal the ruling of the commission had it been adverse to them. They could, in addition, have shown special damages by way of diminution in value of their property resulting from the action of defendants. Park v. Stolzheise, 24 Wn.2d 781, 167 P.2d 412 (1946).
 The Cooper Point Association, likewise, has an interest in the property. An organization whose members are injured may represent those members in proceedings for judicial review. NAACP v. Button, 371 U.S. 415, 428, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963). With the members of the association here all residents of the area affected, the association has a direct enough interest to challenge the administrative action. Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972).
«2» CR 24(a). "Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to Protect that interest, unless the applicant's interest is adequately represented by existing parties."
disposition of the action may impair their ability to protect their interests. Our ruling regarding the nature of a preliminary plat establishes that it is not merely an insignificant stage of the proceedings without real consequence. The failure to litigate environmental and zoning issues at this stage could result in decisions being reached by the county that have a binding impact on intervenors without their consent or participation.
 Intervenor-appellants are not per se adequately represented by the fact that the county is appealing. Actual proof in this case of that fact is shown by the county's failure to urge any of the grounds upon which we base our ruling.«3» In addition, the county must consider the interests of all the residents of the county, where the affected property owners represent a more sharply focused and sometimes antagonistic viewpoint to that of the county as a whole. Herzog v. Pocatello, 82 Ida. 505, 356 P.2d 54 (1960); Bredberg v. Wheaton, 24 Ill. 2d 612, 182 N.E.2d 742 (1962).
 The motions to intervene were also timely. CR 24(a) should be interpreted to allow an intervention of right unless it would work a hardship on one of the original parties. Wolpe D. Poretsky, 144 F.2d 505 (D.C. App. 1944), cert. denied, 323 U.S. 777, 89 L. Ed. 621, 65 S. Ct. 190 (1944); Esso Standard Oil Co. v. Taylor, 399 Pa. 324, 159 A.2d 692 (1960).
«3» The county solely contended that the commissioners' decision was not arbitrary and capricious and that if so, the trial court must remand the matter back to the commissioners rather than itself granting the preliminary approval. Moreover, on the issue of whether a zoning violation exists in this case, the county and intervenors are at odds on whether the plat even raises a zoning question.
589 (5th Cir. 1958); 4 Wright & Miller, Federal Practice &Procedure § 1169, at 644 n.30 (1969).
There was ample notice and time to prepare here. The appearance of intervenors as amici curiae gave respondent adequate opportunity to know the issues raised and be prepared to meet them. The motion to intervene is granted in this appeal and as a matter of right should have been granted in the trial.
Respondent's submitted plat, on its face, violates the existing Thurston County zoning ordinance (No. 3744) in two respects. First, the proposal contemplates structures which are not permitted in a suburban-agriculture use district like northern Cooper Point, and it contemplates a "Planned Area Development" which is also not permitted.
A preliminary plat is defined by Thurston County ordinance No. 3829, section 2, as A neat and approximate drawing of the proposed layout of streets, blocks, lots and other elements of a plat or subdivision which shall furnish the basis for the Planning Commission's approval or disapproval of the general layout of the plat or subdivision. (Italics ours.) This is similar to RCW 58.17.020(4). The documents filed by respondent show not only the proposed streets but the height and location of the structures to be served by these streets. The plat layout, therefore, related elements of the proposed subdivision, apparently in an effort to submit a "Planned Area Development."
Some of the proposed structures in the plat were 40, 50, and 110 feet high. Given this detail, the administrative body reviewing the plat was on notice that possible violations of the zoning prohibition that "No building or structure shall exceed two (2) stories or thirty-five (35) feet in height, whichever is less" in a suburban-agriculture zone existed. Respondent contends any height violations are immaterial at the preliminary approval stage of a plat, since a preliminary plat is only an approximate drawing of streets, blocks and lots with the question of zoning compliance deferred to a later stage. We disagree.
Where this two-step procedure is in effect, consideration of the preliminary plat must result either in its approval as submitted, or a statement that it will be approved if it is modified in the manner specified by the planning board, or in its disapproval where conditions or infirmities appear or exist that would preclude any possibility of approval.
Therefore, since any approval or modification by the reviewers of a preliminary plat is binding where infirmities appear that would preclude any possible approval (such cs clear zoning violations), it is incumbent upon the planning body to reject the plat. The planning commission is directed when considering preliminary plats of proposed subdivisions to assure conformance of the proposed subdivision to the general purposes of the comprehensive plan and to planning standards and specifications as adopted by the . . . county. RCW 58.17.100.
Here, the plat's layout was more than just a drawing of streets and lot lines, and the indicated height of the proposed structures, violative of the height regulations, may not be approved.
It appears that respondent proceeded under section 11A of county platting ordinance No. 3829 which sets forth procedures for those seeking a "Planned Area Development" (P.A.D.). The pertinent county zoning ordinance (No.
3744) provides no authority for a P.A.D. in a suburbanagriculture use district.
 A "Planned Unit Development" (P.U.D.), which is significantly different from the requested P.A.D., is permitted by the zoning ordinance. A P.U.D. has been defined as a self-contained community built within a zoning district, with the rules of density controlling not only the relation of private dwellings to open space, but also the relation of homes to commercial quasi-commercial uses such as schools and churches. Cheney v. Village 2 at New Hope, Inc., 429 Pa. 626, 630, 241 A.2d 81 (1968). A P.A.D., on the other hand, permits a group of structures to be built together in a more pleasing and practical manner than might be permitted under the restrictions of a subdivision and platting ordinance. Such an ordinance does not allow structures unauthorized by zoning regulations. The lack of enabling regulations for a P.U.D. is also fatal to the preliminary plat in this case.
We therefore conclude the plat cannot be granted preliminary approval since on its face it violates the controlling zoning ordinances.
The essence of the trial court's ruling was that the commissioners' decision was arbitrary and capricious. We find it impossible to intelligently review the commissioners' decision because of an incomplete and inadequate record.
 Courts reviewing the proceedings of planning commissions and county commissioners in zoning cases are normally restricted to a consideration of the record made before those groups. Bishop v. Houghton, 69 Wn.2d 786, 420 P.2d 368 (1966); RCW 58.17.100. Incomplete records make appellate review impossible and where a "full and complete transcript of the records and proceedings had in said cause" is ordered by the superior court and cannot be furnished, the actions of those boards have been vacated. Beach v. Board of Adjustment, 73 Wn.2d 343, 438 P.2d 617 (1968). Such is the case here.
be accurately reproduced as the tapes made were unclear. The tapings of the county commissioners' hearings were also too unclear to permit a complete, accurate reproduction. We are thus presented with a conspicuously incomplete record to review. See Nesqually Mitt Co. v. Taylor, 1 Wash. Terr. 1 (1854).
The problem is similar to that noted in Battaglia v. O'Brien, 59 N.J. Super. 154, 173, 157 A.2d 508 (1960), where the court noted: in view of the unavailability of the basic records, we are in no position to determine whether there has been "strict conformity with the procedural and substantive terms of the statute," nor are we able to determine whether the municipal action was arbitrary, capricious or a manifest abuse of discretionary authority. In an identical quandary, the court in Russo v. Stevens, 10 Misc. 2d 530, 532, 173 N.Y.S.2d 344 (1958), stated: no adequate or intelligent judicial review is possible unless all the essential evidentiary material upon which the administrative agency predicates a quasi-judicial determination is in the record and before the court. There is thus no legal basis by which the trial court below or we on appellate review can determine whether the commissioners' rejection of the respondent's plat was unlawful.
The trial court concluded an environmental impact statement was unnecessary for the preliminary approval of respondent's plat. Although our resolution of the preceding issues does not require us to necessarily reach this question, we do so for the guidance of the parties in light of the possible revision and resubmission of the plat.
487-98, 513 P.2d 36 (1973); Stempel v. Department of Water Resources, 82 Wn.2d 109, 508 P.2d 166 (1973).
In Eastlake and Stempel we recognized the vigorous mandate the legislature directed at governmental bodies to evaluate environmental and ecological factors in their major actions. The case now before us reveals the ideal factual setting for early, and thereby meaningful, environmental review.
No party to this appeal asserts that the project will not significantly affect the environment. Nor is there any question but that the preliminary approval of a plat involves discretion and in this case is nonduplicative. Therefore, the issuance of a preliminary approval to the respondent's plat constitutes a "major action" significantly affecting the environment so as to require an environmental impact statement.
In Eastlake, at pages 490-92, we set forth the elements necessary to establish a "major action." We therein indicated that if the governmental action "involved a discretionary nonduplicative stage" of the government's approval, SEPA would apply where the considered project significantly affects the environment. The preliminary approval of the plat is a discretionary act not mandatory under the Thurston County ordinance, since this governmental action could have resulted in a denial of the plat.
Where choice exists there is discretion and the fact that previous to SEPA the choice could be solely based on narrow or limited evaluative points set forth in an ordinance or statute is immaterial. "It is no answer to this finding of discretion in the renewal process that the department is bound and limited in its considerations to the permit renewal provisions of the Seattle code. Such a claim was raised and rejected in Stempel . . ." 82 Wn.2d at 492.
have intervened since the last "major action", a new or revised impact statement is not necessary. SEPA does not mandate bureaucratic redundancy but only that the heretofore ignored environmental considerations become part of normal decision making on major actions.
[I]t is no answer to the application of SEPA, to claim the renewal of a building permit is a modest exercise in a long process. Governmental action in approving a longterm project may occur at various intervals during the life of the project with various degrees of significance. It is unquestionable that numerous, modest and common governmental actions may be as damaging to the environment as a single, vigorous and critical action. We further emphasized, at page 489: "There may exist several phases or stages of decision making for any one project and each stage, if `major', requires an environmental impact statement."
Each stage of governmental action may focus on distinct environmental concerns, thus providing for a more narrow evaluation. In this case, it will be of benefit to the public and the developer that an environmental review can be made on the "design" matters revealed in preliminary plats. Choices exist and crisis decision making and catastrophic environmental damage can be avoided by early deliberation here. Also, given this early stage, the application of SEPA would result in minimizing investment costs if the decision is abandonment or alteration.
determine this question, they must have before them, in major actions, an environmental review of the project. As previously indicated, it may well be that at the preliminary stage of plat submission, all environmental impacts and ramifications cannot be known or answered. Yet, the environmental concerns raised by the plat must be reviewed. If only the street layout is indicated, its impact should be studied. In this case, enough details of the broad project can be readily gleaned from the submitted plat to provide a broader environmental review on the overall project itself.
We recognized in Eastlake that SEPA is designed to avoid crisis decision making by requiring meaningful early evaluations of environmental matters. This state policy recognizes that the threat today to the environment is not its sudden destruction but its progressive degradation. Environmental deliberation, not default, is mandated by SEPA and such deliberation is required here.


text:
for pre-moistened disposable towelettes, [FN1] use since December 26, 1985 being asserted.
Registration has been opposed by Presta Products, Inc., which asserts, in essence, prior use of the mark "KID STUFF" for premoistened disposable towelettes; ownership of registrations of the mark "KID STUFF" for moist tissues [FN2] and for towelettes moistened with a mild cleansing solution containing lanolin; [FN3] and a likelihood of confusion.
Applicant, in answering the notice of opposition, has admitted that the goods for which applicant seeks to register its mark are identical to, are in the same general class, and are sold in the same channels of commerce as opposer's goods; but has denied opposer's remaining salient allegations, including opposer's allegation of likelihood of confusion.
This case now comes up on applicant's motion for summary judgment and opposer's cross-motion for summary judgment. Each party has supported its motion with extensive evidence submitted pursuant to Rule 56 of the Federal Rules of Civil Procedure.
The summary judgment procedure is a pretrial device to dispose of cases in which there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. See: Buffett v. Chi-Chi's, Inc., 226 USPQ 428 (TTAB 1985); Block Drug Co. v. Morton-Norwich Products, Inc., 202 USPQ 157 (TTAB 1979); and cases cited therein.
In the present case, the evidence submitted by the parties is sufficient to convince us that there is no genuine issue as to the facts described immediately hereafter. The parties use their involved marks on identical goods, namely, pre-moistened disposable towelettes, which are sold through the same types of retail outlets (such as drug stores and discount stores) to the same classes of purchasers (primarily, mothers of young children). [FN4] These goods, commonly referred to as "wipes," are relatively inexpensive in nature, retailing for a few dollars. Opposer's mark "KID STUFF" was first used and registered for moist tissues by opposer's predecessor. In 1981, opposer purchased that registration "to launch this brand" and also filed a new application to register the mark for towelettes moistened with a mild cleansing solution; that application matured into opposer's second pleaded registration in 1983. Both registrations are in full force and effect. Opposer has promoted its "KID STUFF" moist towelettes on a significant scale, utilizing such media as shelf displays, point-of-purchase materials, promotional fliers, advertisements in trade publications and in publications of general circulation, brochures, coupon and premium offers to consumers, and trade shows.
*2 Applicant first used the mark "KIDWIPES" in connection with its pre-moistened disposable towelettes on December 26, 1985. Applicant's sales and promotional activities under the mark have been very limited. No one other than opposer and applicant sells moist towelettes under a mark containing the term "KID." In the summer of 1985, when applicant tentatively selected its mark, applicant was aware of opposer's prior use and registration of the mark "KID STUFF" for moist towelettes. Moreover, applicant did not know of anyone else who was using a mark containing the term "KID" for moist towelettes. The officials of applicant who selected the mark "KIDWIPES" have indicated, in essence, that their knowledge of opposer's mark "KID STUFF" had no real bearing on their decision to adopt the mark "KIDWIPES," because they believed that there was no likelihood of confusion between the marks. When applicant filed its application to register the mark "KIDWIPES", the Examining Attorney passed the application for publication without citing opposer's registrations as references. Neither party is aware of any instances of actual confusion in the marketplace resulting from the contemporaneous use of their respective marks.
In the spring of 1984 and again in the fall of 1985, applicant entered into (unsuccessful) negotiations with The Coca-Cola Company, opposer's parent company at the time, to purchase opposer. However, during the course of those negotiations, The Coca-Cola Company never gave applicant any information about opposer's brand name operation, its sales by particular product line, the identity of its trademarks, or the sales figures for any product sold under a trademark of opposer. Specifically, The Coca-Cola Company never gave applicant any information about opposer's "KID STUFF" moist towelettes. Finally, there is no genuine issue as to the fact that applicant's purchasing agent, in initially ordering labels for applicant's "KIDWIPES" product on November 8, 1985, used opposer's mark "KID STUFF," rather than applicant's mark "KIDWIPES," on the purchase order. The evidence submitted by the parties in connection with their motions for summary judgment contains no explanation as to why the purchasing agent used the wrong mark.
*3 Turning to the issues, there is no question as to opposer's priority or as to the identity, for purposes herein, of the goods, trade channels, and class of purchasers. Thus, the principal issue remaining to be determined is whether the contemporaneous use by the parties of their respective marks in connection with these goods is likely to cause confusion.
Applicant argues, inter alia, that the marks "KIDWIPES" (in stylized design form) and "KID STUFF" do not look or sound alike; that the only feature common to the two marks is the term "KID", which, as applied to pre-moistened disposable towelettes for a children's market, is highly suggestive or descriptive and not susceptible of protection in and of itself; that the mere inclusion of this term in each of these two marks is an insufficient basis upon which to predicate a finding of likelihood of confusion; that the term "WIPES" is perhaps evocative of a small cleaning towel, whereas "STUFF" may be equated with any miscellaneous product, from modeling clay to a "stuffed" toy, but certainly not a towelette or "wipe;" and that the marks as wholes thus present completely different meanings.
We cannot agree. Although there are differences in appearance between the marks, there are also similarities between them in that both start with the term "KID" (a matter of some importance since it is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered) and have the same number of letters and syllables. Moreover, Section 2(d) of the Trademark Act prohibits the registration of a mark which "so resembles a mark registered in the Patent and Trademark Office or a mark or trade name previously used in the United States by another and not abandoned, as to be likely, when applied to the goods of the applicant, to cause confusion, or to cause mistake, or to deceive" (emphasis added). It is obvious therefrom that the significance of a mark must be determined not in the abstract, but rather in relation to the goods or services to which it is applied, and the context in which it is used, because that is how the mark is encountered by purchasers. See: Morton-Norwich Products, Inc. v. S.C. Johnson & Son, Inc., 531 F.2d 561, 189 USPQ 413 (CCPA 1976); In re P. Ferrero & C.S.P.A., 479 F.2d 1395, 178 USPQ 167 (CCPA 1973); and Northwestern Gulf Co. v. Acushnet Co., 226 USPQ 240 (TTAB 1985). Cf. In re Abcor Development Corp., 616 F.2d 525, 200 USPQ 215 (CCPA 1978). When so considered, opposer's mark "KID STUFF" conveys the impression that opposer's towelettes, or wipes, are things for kids. [FN6] Applicant's mark, "KIDWIPES" in stylized form, likewise signifies that applicant's wipes are intended for kids. The marks thus convey very similar meanings. [FN7] In view thereof, and considering that prior to applicant's first use of "KIDWIPES", opposer was the only party using the term "KID" as part of a mark for moist towelettes, or wipes; that applicant and opposer are the only parties which now use such a mark; and that applicant uses the term "KID" at the beginning of its mark, as does opposer, and has added thereto only the generic term "WIPES", we are of the opinion that the marks, when considered in their entireties, are so similar as to be likely to cause confusion, mistake, or deception, in that purchasers are likely to confuse one mark with the other, or to think, because of the similarities in the marks, that they identify two lines of moist towelettes emanating from a single source.
*4 Applicant argues, in response to opposer's cross-motion for summary judgment, that there is a genuine issue of material fact as to the strength of opposer's mark. There is no genuine issue, however as to the facts that opposer owns two Principal Register registrations of its mark for the goods in question; that opposer itself has used the mark since 1981 and is entitled to rely upon use by its predecessor since February 23, 1979, the date of the predecessor's filing of the application which matured into the first registration; that opposer has had exclusivity in its use of a mark containing the term "KID" for moist towelettes, except for applicant's subsequently adopted mark; or that opposer's use of its mark had been of such nature and extent that applicant was familiar with the mark in the summer of 1985, before applicant had a trademark search done. Moreover, although opposer is unable to break down its promotional expenditures on a product-by-product basis, the affidavit and exhibit evidence offered by opposer is sufficient, in our opinion, to show prima facie that there is no genuine issue as to the fact that opposer's promotional efforts for its "KID STUFF" moist towelettes have been on a significant scale; applicant has offered no evidence to rebut this showing. These factors, when combined with the similarities between the marks, considered in their entireties; the identity of the goods, trade channels, and classes of purchasers; and the relatively inexpensive, off-the-shelf, nature of the goods is more than sufficient to support a finding of likelihood of confusion. Further evidence of the strength of opposer's mark is simply unnecessary.
We have not overlooked applicant's argument that the lack of evidence of actual confusion indicates that there is no likelihood of confusion. However, we do not believe that the lack of evidence of actual confusion is a very significant factor in this case in view of applicant's very limited sales and promotion of its "KIDWIPES" wipes.
For the foregoing reasons, opposer's motion to strike is granted to the extent indicated above; applicant's motion for summary judgment is denied; opposer's cross-motion for summary judgment is granted; the opposition is sustained; and registration to applicant is refused.
FN1. Serial No. 594,024, filed April 17, 1986.
FN2. Registration No. 1,136,795, issued June 10, 1980, based on an application filed February 23, 1979; affidavit Sec. 8 accepted; affidavit Sec. 15 received.
FN3. Registration No. 1,224,797, issued January 25, 1983, based on an application filed November 30, 1981.
FN4. Applicant makes the argument that the products sold under the respective marks of the parties here involved are directed to different markets, with opposer's being intended for the infant's towelette market, and applicant's being aimed at the "post-baby wipe market, for the child over 2 1/2 years old and up to about the early teen-age years." As applicant elsewhere concedes, however, no such distinction can be drawn for purposes herein since neither applicant's nor opposer's identification of goods contains any such restriction. The argument is also unpersuasive for some of the additional reasons which are discussed at length by opposer, but which we need not detail here.
FN5. In support of its motion for summary judgment, as evidence of good faith adoption, applicant submitted the affidavit testimony of its officials as to the advice given to them by applicant's trademark counsel (based on a trademark search) after they thought of the mark "KIDWIPES" but before they actually used the mark. Opposer moved to strike the testimony on the ground that applicant, claiming attorney-client privilege, refused to produce the underlying opinion of its attorney when opposer requested it during discovery. Opposer contends that the testimony of applicant's officials on the matter is hearsay, and that applicant cannot now rely on evidence which it refused to provide in response to opposer's discovery request therefor. Applicant responded to the motion by, inter alia, producing a copy of the opinion in question. While the Board has held that the opinion of an attorney relating to a trademark search is protected by the attorney-client privilege and therefore need not be produced in response to a discovery request therefor, it is also true that a party who has refused (even rightfully) to produce information sought in a discovery request may not thereafter rely on the information as evidence in its behalf. See: Refreshment Machinery Inc. v. Reed Industries, Inc., 196 USPQ 840 (TTAB 1977), and Autac Inc. v. Walco Systems, Inc., 195 USPQ 11 (TTAB 1977). Accordingly, opposer's motion to strike this evidence is granted. The striking of the testimony is of no particular moment, however, since, as indicated above, our determination of the issue of likelihood of confusion would be the same regardless of whether applicant adopted its mark in good faith. Indeed, we have not, in determining this case, drawn any inference of bad faith on applicant's part. Opposer's motion to strike certain other portions of applicant's affidavit testimony is denied.
FN6. In Webster's New World Dictionary (Second College Edition, 1986), the noun "stuff" is defined as, inter alia, "1. the material or substance out of which anything is or can be made; raw material 2. constituent elements or basic nature; essence; character [a man made of stern stuff] 3. matter or substance of an unspecified or generalized kind 4. cloth, esp. woolen cloth 5. a) household goods b) personal belongings c) things in general; objects d) things grouped together or viewed in a certain way...."
FN7. While we agree that the term "KID" is highly suggestive, if not descriptive, as applied to the goods here involved, the similarities between the marks of the parties, as detailed above, extend beyond the mere inclusion in each of that term.

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