                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-2705
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                   Tyjuan Cooper

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Arkansas - Fayetteville
                                 ____________

                             Submitted: March 6, 2017
                              Filed: March 16, 2017
                                  [Unpublished]
                                  ____________

Before RILEY, Chief Judge,1 GRUENDER and KELLY, Circuit Judges.
                              ____________

PER CURIAM.

      1
       The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
      Tyjuan Cooper appeals the district court’s2 application of a four-level
sentencing enhancement for possessing a firearm in connection with another felony
offense. Asserting clear error, he asks us to vacate his sentence and remand for
resentencing. We affirm for the reasons discussed below.

       In April 2015, the Springdale Police Department (“SPD”) opened an
investigation in response to multiple complaints of drug-related activity at an
apartment later determined to be leased to both Cooper and Tasondra Lee. After
obtaining a warrant, police conducted a search of the premises and found large
quantities of marijuana, two digital scales, and a commercial heat sealer.
Additionally, in Cooper’s bedroom, officers discovered a red backpack containing
738 grams of marijuana in variously sized plastic bags—ranging from more than a
pound to as little as twelve grams—and a Glock 9mm handgun, which had been
reported stolen from an SPD officer’s vehicle. Cooper, Lee, and three other
individuals were sleeping at the apartment at the time of the search, and all five were
taken into custody. Cooper was subsequently indicted for one count of being a felon
in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

      Prior to trial, the district court ordered a mental competency evaluation at
Cooper’s request. Based on the resulting psychological report and expert testimony,
the court found him fit to stand trial. Cooper then entered into a plea agreement,
acknowledging his status as a convicted felon and the fact that he was in constructive
possession of the 9mm pistol. The court accepted Cooper’s change of plea after
conducting the required hearing and proceeded to sentencing. Pursuant to United
States Sentencing Guideline (“U.S.S.G.”) § 2K2.1(a)(2), the Presentence
Investigation Report (“PSR”) set the base level offense at 24, and from there, it
recommended several adjustments: (1) a two-level enhancement for possessing a

      2
      The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.

                                         -2-
stolen firearm, (2) a four-level enhancement for possessing a firearm in connection
with another felony offense, and (3) a combined three-level reduction for acceptance
of responsibility. Consequently, Cooper’s total offense level was 27, and with a
criminal history category of IV, his advisory sentencing guideline range was 100 to
125 months’ imprisonment, capped at the statutory maximum of 120 months.

       Cooper raised three objections to the PSR tied to his purported neurocognitive
disorder. As a basis for these claims, he offered the testimony of clinical psychologist
Dr. Emily Fallis. First, Cooper denied involvement in the possession, distribution,
or trafficking of marijuana. Despite his constructive possession of large quantities
of marijuana packaged for distribution, defense counsel suggested that Cooper could
not have known about the drugs in the backpack because Dr. Fallis had determined
that he was incapable of telling a “complex lie”; that is, a statement “mix[ing] partly-
true statements with partly-false statements . . . with a goal of deceiving someone.”
Given that Cooper admitted to knowing about the gun, the argument goes, he could
not simultaneously deny knowledge of the drugs unless he really was unaware of their
presence. The court unsurprisingly rejected this theory, in part, because it assigned
less credibility to Dr. Fallis than to Dr. Randall Rattan, who conducted Cooper’s
competency evaluation. The court also overruled Cooper’s second objection that he
was entitled to a departure for diminished capacity under U.S.S.G. § 5K2.13.
However, seeing the need to account for Cooper’s intellectual deficiency, the court
granted him a variance and sentenced him to 84 months’ imprisonment. Cooper
timely appealed, challenging only the district court’s application of the four-level
enhancement for possessing a firearm in connection with another felony.

       U.S.S.G.§ 2K2.1(b)(6) provides for a four-level enhancement “[i]f the
defendant . . . [u]sed or possessed any firearm or ammunition in connection with
another felony offense.” In 2006, the Sentencing Commission decided to make a
distinction between cases in which the other felony offense was drug trafficking
rather than a simple drug-possession offense. See United States v. Mansfield, 560

                                          -3-
F.3d 885, 887-88 (8th Cir. 2009). This distinction was codified in Application Note
14(B), which provides for an enhancement “in the case of a drug trafficking offense
in which a firearm is found in close proximity to drugs, drug-manufacturing materials,
or drug paraphernalia.” U.S.S.G. § 2K2.1, cmt. n.14(B). Thus, unlike simple
possession, “an underlying drug trafficking offense requires an automatic four-level
enhancement.” Mansfield, 560 F.3d at 888. As both parties recognize, “[t]he district
court’s determination that a defendant possessed a firearm in connection with another
felony for purposes of § 2K2.1(b)(6) is a factual finding that we review for clear
error.” United States v. Bates, 614 F.3d 490, 493 (8th Cir. 2010) (citation omitted).

       On appeal, Cooper contends that the challenged enhancement “was improperly
applied because, while the evidence may have been sufficient to show that someone
was involved in drug trafficking, it was insufficient to show that Mr. Cooper was
involved in such activity.” Cooper renews his complex-lie theory as the primary basis
for finding clear error. However, this argument ignores the district court’s cogent and
persuasive explanation for crediting the opinion of Dr. Rattan over that of Dr. Fallis.
There is simply no basis for overriding this credibility determination. See Bates, 614
F.3d at 495 (“Like any other factfinder who assesses witness credibility, the
sentencing judge is free to believe all, some, or none of a witness’s testimony.”
(citation omitted)); see also United States v. Sanders, 341 F.3d 809, 821 (8th Cir.
2003) (“The law is well-settled that a district court’s assessment of witness credibility
is quintessentially a judgment call and virtually unassailable on appeal.” (citation
omitted)). Further, as the Government notes, the record itself undermines Dr. Fallis’s
assessment, given that Cooper seems to have told at least one complex lie to the SPD
related to a drugs-for-guns exchange with two Hispanic males. On a final note, to the
extent that Cooper suggests that the record was insufficient for the district court to
conclude by a preponderance of the evidence that he was involved in drug trafficking,
we disagree. The quantity and packaging of the marijuana found in the backpack
along with the gun alone likely are sufficient to justify this conclusion. See United
States v. Butler, 594 F.3d 955, 960, 966 (8th Cir. 2010). But the months-long reports

                                          -4-
of drug activity, the quantity of cash found on both Cooper and Lee, and the digital
scales and heat sealer, taken together, foreclose Cooper’s claim the district court
clearly erred in concluding that he was involved in drug trafficking.

      Accordingly, we affirm the application of the four-level enhancement.
                     ______________________________

                                        -5-


102 F.2d 802 (1939)
HEDRICK et al.
v.
PERRY.
No. 1785.
Circuit Court of Appeals, Tenth Circuit.
March 3, 1939.
*803 Fred E. Wilson, of Albuquerque, N. M. (James F. Warden, of Albuquerque, N. M., on the brief), for appellants.
G. Dexter Blount, of Denver, Colo. (Harry S. Silverstein, of Denver, Colo., and H. Leslie Williams, of Albuquerque, N. M., on the brief), for appellee.
Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.
BRATTON, Circuit Judge.
This was a suit in equity to enjoin further breach of contract and for damages for past breach. Reference will be made to J. D. Perry, plaintiff below and appellee here, as Perry, and to Wasco T. Hedrick, Carl Penn, and Penn Trucking Company, Inc., defendants below and appellants here, as Hedrick, Penn, and Penn Company, respectively.
The court found that for several years Perry and Hedrick were competitors in the trucking business between Albuquerque, New Mexico, and Denver, Colorado, and intermediate points; that Hedrick developed a large number of regular customers in his business; that on April 14, 1937, Hedrick, with the knowledge of Penn and Penn Company, entered into an oral agreement with Perry in which it was agreed that for a cash consideration of $8500, then and there paid, he would and did sell, assign, and transfer to Perry his trucking business, the entire good will thereof, the three trucks with one refrigerator plant used in the operation of such business, and the regularly issued permits under which the trucks were operated; and that the trucks and refrigerator plant were of an aggregate value not to exceed $3000, as Perry, Hedrick, Penn, and Penn Company well knew. The court also found that the contract provided that Hedrick would immediately discontinue the trucking business between the points named, except between Albuquerque and Santa Fe, New Mexico, and would not further compete with Perry directly or indirectly; and that he would exert his best efforts to induce his customers to continue as customers of Perry. The court further found that immediately after the oral agreement was entered into the parties executed a written contract in which Hedrick bound himself to refrain for a period of ten years *804 from engaging directly or indirectly in the trucking business over the route in question, except between Albuquerque and Santa Fe. And the court further found that shortly before the date on which such contracts were entered into, Hedrick, Penn, and Penn Company formed a conspiracy to cheat and defraud Perry; that the substance of the conspiracy was that upon Hedrick inducing Perry to enter into the contract with him, Hedrick, Penn, and Penn Company would cause Penn Company to qualify through authorizing permits and become a competitor of Perry in the trucking business, and that Hedrick would then endeavor to cause to be transferred to Penn Company the customers, business, good will, and employees of Hedrick instead of causing them to be transferred to Perry; that pursuant to such conspiracy Penn Company became qualified and entered the trucking business in competition with Perry; that Hedrick thereby engaged and has continued to engage, directly or indirectly, or concern himself in carrying on or conducting the business of trucking in competition with Perry in violation of the contract; and that as a result of the conspiracy and the acts of Hedrick, Penn, and Penn Company in furtherance of it, Perry was cheated and defrauded, and suffered damages in the sum of $7500.
By decree, Hedrick was enjoined for a period of ten years from the date of the contracts from engaging directly or indirectly in the trucking business in competition with plaintiff, except between Albuquerque and Santa Fe; and damages in the sum of $7500 were awarded against Hedrick, Penn, and Penn Company.
It is contended that there was no evidence of a conspiracy, no evidence of actionable injury on the part of Perry for which Hedrick, Penn, and Penn Company are liable, and no competent evidence that Hedrick violated either the oral or the written contract. As we understand these several contentions, they merely challenge the sufficiency of the evidence to support the findings of the court in respect to the formation of the conspiracy, the breach of the contract, and the accrual of injury for which damages may be had. They are so interwoven that they may be considered together. There was evidence which tended to show these facts. Perry and Hedrick each had an established and efficiently managed trucking business. At the conclusion of negotiations which covered about two weeks in time, they entered into the oral contract on April 14, 1937, in which it was agreed that Hedrick would sell, assign, and transfer to plaintiff his business and good will, the three trucks and one refrigerator plant used in such business, and the permits  one issued by the Corporation Commission of New Mexico, and the other issued by the Public Utilities Commission of Colorado  for the agreed consideration of $8500. It was further agreed that Hedrick would discontinue the trucking business between the points named, except between Albuquerque and Santa Fe, would turn over to Perry his telephone numbers and docks, and would help Perry in any way he could to hold the business which Hedrick then had. It was also agreed that Hedrick would aid in making arrangements for his truck-drivers and other employees to continue in the employ of Perry. The consideration was paid and the property transferred. Immediately thereafter the written contract was prepared and executed. It adverted to the oral agreement and recited that the property was being sold and transferrred contemporaneously with the execution of the written contract; and it then provided that for a period of ten years from that date Hedrick should not engage directly or indirectly, or concern himself either as principal, agent, or servant, in carrying on or conducting the business of motor carrier of merchandise between the points named in competition with Perry.
Hedrick and Penn had known each other for about thirty years. They had grown up together. For some time prior to May 30, 1936, Penn was engaged in the trucking business between Trinidad, Colorado, and various points in New Mexico, but his operations did not reach Denver and he did not receive any business from that point. Penn Company was incorporated on May 30th for the purpose of taking over the business conducted by Penn. The entire authorized capital stock was issued to Penn except two qualifying shares. On the following day  May 31  Hedrick and an associate purchased at a sale in bankruptcy two permits authorizing the transportation by freight on the highway between Albuquerque and Denver. One, issued by the Corporation Commission of New Mexico, applied to that part of the highway in New Mexico; and the other, issued by the Public Utilities Commission of Colorado, had application to that part in Colorado. These are referred to as the *805 Eagle Permits. Hedrick and his associate transferred them to Penn Company in September, 1936, for an agreed consideration of $11,000, payable at the rate of $300 per month. Penn planned to extend the trucking line of Penn Company into Denver, and the monthly payments were to be made out of the earnings of the operations between Albuquerque and Denver. With that in mind, it was provided that the first payment should be made ninety days after operation of the extended line began. Perry knew at the time he purchased the business from Hedrick that the latter had purchased the Eagle Permits, but he did not know that they had been assigned to Penn Company. He had never heard of Penn, and he did not know that Penn Company existed. He understood that under a rule of the Interstate Commerce Commission permits were cancelled when not used, and he thought or assumed that the Eagle certificates had been cancelled for nonuse. Hedrick did not say anything to him in the course of their negotiations respecting these permits. In November, 1936, Penn Company submitted petitions for approval of the assignments of the permits to the respective commissions of the two states and to the Interstate Commerce Commission. The last approval was granted May 5, 1937. Penn Company began the operation of trucks between Albuquerque and Denver under such permits about April 21, 1937, and it has been in constant and regular competition with Perry ever since, but none of the monthly payments of $300 has been made to Hedrick.
Hedrick had six truck-drivers. When Perry took over the business he offered to continue them in the same work at the same wages, but three of them quit immediately and the other three followed within two or three weeks. Some of them left their trucks at various places  just called up and said they were quitting. Most of them started to work for Penn Company. Hedrick had four other employees. Three of them quit and became employees of Penn Company; and Penn offered to employ the fourth but she declined and remained with Perry. Penn Company acquired the office in Denver formerly occupied and used by Hedrick. Girard had been manager for Hedrick there; he continued in the employ of Perry for about a week during which time he had access to the office records showing the names of Perry's customers and the amount of work he was doing; and he then quit without notice and became manager for Penn Company in Denver. He authorized the telephone company to disconnect the telephone formerly used by Hedrick, asked for the refund due, and sought to obtain the number for Penn Company. Upon learning that the telephone had been disconnected, Perry appealed to Hedrick several times to have it re-connected and the number assigned to him. Hedrick replied that he was not interested and that it was Perry's lookout. The telephone was re-connected, remained so for about a day, and then was again disconnected. Perry then appealed to Girard. He said that he was not interested and would not do anything about it, and hung up the telephone. The manager of the telephone company called Hedrick and told him that both Perry and Penn were demanding the telephone. Hedrick replied that he had discontinued his business, that the telephone was cancelled, that he could not sell the number, and that so far as he was concerned he would not give it to anyone. After two or three days of conflict and confusion during a part of which time the telephone was out of use, Perry finally persuaded the company to let him have the number. For awhile Penn Company used some of the manifests of Hedrick, one name being strickened out and the other inserted. Hedrick furnished Perry a list of his customers. Perry failed to get any business from many of them. He and his representatives interviewed virtually all of them in an effort to hold their business. Inquiry was made as to what was wrong and why he was not getting their business. Some replied that they had been advised that Penn had taken over the Hedrick line, and others stated that without knowing Hedrick had sold to Perry they called the Hedrick number and in response Penn Company had been picking up their shipments. Pretending to be customers, Perry and his representatives called by telephone the Hedrick office in Albuquerque several times, and asked that freight for Denver be picked up. In some instances the reply was that Hedrick had discontinued operating to Denver and that Penn Company had taken over his business, and in other instances they were told to call a certain number which was that of Penn Company. Perry went to Hedrick several times. He asked why Hedrick was trying to divert the business to Penn. On the first occasion Hedrick said that he did not know anything about it. But on a subsequent *806 occasion when Perry asked if he would not fulfill his contract and try to get the business for Perry instead of throwing it to Penn Company, he replied that he naturally could not do so. Quoting from the testimony of Perry, "He said, if someone owed you $300.00 and if someone (was) supposed to pay you $300.00 per month, you would naturally try to convert the business over to them." In the course of further conversation he stated that Penn Company owed him $11,000. As manager for Penn Company, Girard solicited business from former customers of Hedrick in Denver and Pueblo. In doing so, he told some of them that Penn Company had bought one of the permits formerly owned by Hedrick. About ninety per cent of Hedrick's business originated at Denver, Albuquerque, and intermediate points, while the remaining ten per cent was inter-line business, meaning freight originating east of Denver and received from other carriers. Perry did not get any of the inter-line business. It disappeared entirely at the outset. The other business diminished sharply from month to month. It dwindled to the point that gross revenue during the first ten days in July was only $271.52. No separate record was kept after that date. There was evidence tending to prove other facts. Much of the evidence tending to establish the facts stated was sharply controverted. Hedrick and Penn denied that they formed a conspiracy or acted in concert to secure business for Penn Company. Hedrick denied that it was agreed as a part of the verbal contract that he would assist Perry in holding the business of his former customers; denied that he solicited any of such customers not to do business with Perry or to do business with Penn Company; and denied that he sought to prevent Perry from obtaining the telephone number. Penn denied that he interfered with the truck-drivers or other employees, or employed most of the truck-drivers after they quit Perry. But that and other evidence submitted merely formed conflicts for the court to determine.
Two well established principles should be brought into view as the criteria for determining the contentions respecting the sufficiency of the evidence. First, a conspiracy to cheat and defraud may be proved by circumstantial evidence. In the very nature of things, the existence of a conspiracy is generally a matter of inference deduced from acts and declarations of the parties. The existence of the joint assent of the parties need not be proved directly. Like any other ultimate fact, it may be found as an inference from facts proved. It is enough if the evidentiary facts and circumstances  pieced together and considered as a whole  convince the judicial mind that the parties united in an understanding way to accomplish the fraudulent scheme. Drake v. Stewart, 8 Cir., 76 F. 140; Calcutt v. Gerig, 6 Cir., 271 F. 220; Holbert v. Allred, 24 Ga.App. 727, 102 S.E. 192; Stoner v. Wilson, 140 Kan. 383, 36 P.2d 999; Addison v. Wilson, 238 Ky. 143, 37 S.W.2d 7. Next, while the findings of fact made in an equity case are not conclusive on appeal, they are presumptively correct and will not be disturbed unless serious mistake was made in the consideration of the evidence. Kretni Development Company v. Consolidated Oil Corporation, 10 Cir., 74 F.2d 497; Humphrey v. Bankers Mortgage Co., 10 Cir., 79 F.2d 345; Gaskins v. Bonfils, 10 Cir., 79 F.2d 352, 353; Freiberg v. Pierce, 10 Cir., 83 F.2d 961; Whitchurch v. Crawford, 10 Cir., 92 F.2d 249. Appropriate application of these principles leads to the conclusion that there was substantial evidence to support the findings of the court; that no serious mistake appears in the consideration of the evidence; and that the findings must stand.
The award of damages is challenged on the ground that the damage alleged was remote, speculative, and contingent; that there was no tangible basis on which to predicate any loss; and that there was no competent evidence from which the court could find or ascertain the amount of the damages. The cause of action pleaded in respect to damages was loss of profits on business which would have been earned and received except for the concert of action of Hedrick, Penn, and Penn Company in diverting the business from Perry to Penn Company. Anticipated profits from a business which is contemplated but not established are too remote and speculative to form the basis on which to recover damages for the reason that there are no facts from which the amount of such profits can be determined with the degree of certainty required by law. Howard v. Stillwell & Bierce Manufacturing Co., 139 U.S. 199, 11 S.Ct. 500, 35 L.Ed. 147; Ellerson v. Grove, 4 Cir., 44 F.2d 493; Milheim v. Baxter, 46 Colo. 155, 103 P. 376, 133 Am. St.Rep. 50; Kettering Mercantile Co. v. *807 Sheppard, 19 N.M. 330, 142 P. 1128; California Press Manufacturing Co. v. Stafford Packing Co., 192 Cal. 479, 221 P. 345, 32 A.L.R. 114; Blakiston v. Osgood Panel & Veneer Co., 173 Wash. 435, 23 P.2d 397. But the business in question here was not merely contemplated. It was established, had existed for several years, and was reasonably stable in volume. It could not be reasonably expected that Perry would hold all of it, but in view of his experience and efficiency in the trucking business it was not too much for the court to determine that he would have retained most of it if Hedrick had aided him and co-operated with him in the manner required by the contract.
The tendency of the early cases was to restrict the recovery of damages to matters which were susceptible of having attributed to them an exact pecuniary value. But that rigid rule has been relaxed in some measure. Recovery cannot be had where there is uncertainty whether a contract has been breached or a tort committed, but damages may be awarded where there is no uncertainty as to whether the rights of plaintiff have been invaded even though there may be some uncertainty in respect to the amount of the damages sustained. The amount need not be proved with absolute certainty. It is enough if the evidence adduced is sufficient to enable the court or jury to make a fair and reasonable approximation. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544; Hoffer Oil Corporation v. Carpenter, 10 Cir., 34 F.2d 589; Shannon v. Shaffer Oil & Refining Co., 10 Cir., 51 F.2d 878; Stanolind Oil & Gas Co. v. Kimmel, 10 Cir., 68 F.2d 520; Indian Territory Illuminating Oil Co. v. Townley, 10 Cir., 81 F.2d 159; Excelsior Motor Manufacturing & Supply Co. v. Sound Equipment Co., 7 Cir., 73 F.2d 725; Commonwealth Trust Co. v. Hachmeister Lind Co., 320 Pa. 233, 181 A. 787.
We inquire whether the proof was sufficient for that purpose. The gross receipts from Perry's business in 1936 were more than $67,000 and the net profit exceeded $8000; the gross receipts for January, February, March, and the first half of April, 1937, exceeded $4000, $4800, $6400, and $3300 respectively; and the gross receipts for the year 1937 (excluding to July 15 the business acquired from Hedrick) exceeded $88,000 while the net profit was more than $10,000. Hedrick's business was larger in volume than that of Perry. The profit from the trucking business of the kind they conducted was usually about twelve per cent of the gross receipts. These facts, established on the trial, afforded an adequate basis on which to make a fair and reasonably accurate finding of the damages sustained; and the amount fixed indicates that the court made a reasonable allowance for the loss of business which was reasonably to be expected had Hedrick fulfilled the contract as he was obligated to do.
The validity of the written contract is attacked on the ground that it was an agreement to refrain from competition in the business of a common carrier in interstate commerce for hire, and was in restraint of trade which affected the public interest; and the oral contract is attacked in like manner insofar as it involved an obligation not to compete. The two contracts related to the same subject matter, and the latter expressly made reference to the former. They should be considered together as constituting a single contract. Doherty Research Co. v. Vickers Petroleum Co., 10 Cir., 80 F.2d 809; Positype Corporation v. Mahin, 2 Cir., 32 F.2d 202. Thus construed, the contract was one for the sale of all the trucks and the refrigerator plant used in the conduct of the business, the permits under which the trucks were operated, and the good will of the business with provision that the vendor should not compete with the vendee. But the provision forbidding competition was not unlimited in respect to time and area. It was limited in both respects. It was for a period of ten years and it applied only to a single route. Three other established companies were engaged in the trucking business over that route. There is no suggestion that the purpose of the contract was to bring about inadequate trucking facilities or an increase in rates. No injury to the public in either respect was expressly or impliedly contemplated. While one purpose of the agreement admittedly was to eliminate a competitor, the provision against competition, reasonably limited in time and place, was subsidiary to the main purpose of the sale and purchase of an established business and was no broader than was reasonably necessary to protect the good will of such business. Contracts in total or substantially total restraint of trade are void, but a limited provision of this kind subsidiary to the main purpose of the contract and *808 not injurious to public interest does not objectionably stifle competition or impose an unreasonable restraint upon trade. McCluer v. Super Maid Cook-Ware Corp., 10 Cir., 62 F.2d 426; Lumbermen's Trust Co. v. Title Insurance & Investment Co., 9 Cir., 248 F. 212; Wahlgren v. Bausch & Lomb Optical Co., 7 Cir., 68 F.2d 660; Wawak Co. v. Kaiser, 7 Cir., 90 F.2d 694; In re Hale Desk Co., 2 Cir., 97 F.2d 372; Thomas v. Gavin, 15 N.M. 660, 110 P. 841; Gallup Electric Light Co. v. Pacific Improvement Co., 16 N.M. 86, 113 P. 848; Gross, Kelly & Co. v. Bibo, 19 N.M. 495, 145 P. 480; Swanson v. Kirby, 98 Ga. 586, 26 S.E. 71; Up River Ice Co. v. Denler, 114 Mich. 296, 72 N.W. 157, 68 Am.St. Rep. 480; Wakenight v. Spear & Rogers, 147 Ark. 342, 227 S.W. 419; Maddox v. Fuller, 233 Ala. 662, 173 So. 12; Economy Grocery Stores Corp. v. McMenamy, 290 Mass. 549, 195 N.E. 747; Koppers Products Co. v. Readio, R.I., 197 A. 441.
The remaining contention is that the court admitted certain hearsay testimony. There is no need to inquire whether the testimony was open to the objection now urged. It does not appear that the court gave it any weight in deciding the case. In the absence of an affirmative showing otherwise, it will be presumed on appeal that the court considered only competent evidence and disregarded that which was incompetent. Jonah v. Armstrong, 10 Cir., 52 F.2d 343; Elliott v. Gordon, 10 Cir., 70 F.2d 9; Wall v. United States, 10 Cir., 97 F.2d 672; Wade v. Blieden, 8 Cir., 86 F.2d 75; Erceg v. Fairbanks Exploration Co., 9 Cir., 95 F.2d 850.
The decree is affirmed.


644 F.2d 885
Isblev.U. S.
80-5082
UNITED STATES COURT OF APPEALS Sixth Circuit
1/5/81

1
E.D.Tenn.

AFFIRMED


264 P.3d 127 (2011)
L.K.
v.
4TH JUDICIAL DIST.
No. OP 11-0100.
Supreme Court of Montana.
March 2, 2011.

DECISION WITHOUT PUBLISHED OPINION
Granted.


(2008)
Steven Robert CERNIGLIA, Plaintiff,
v.
COUNTY OF SACRAMENTO; Sheriff Lou Blanas; Deputy Mendoza; and Deputy Kremkin, Defendants.
No. 2:99-cv-01938-JKS-DAD.
United States District Court, E.D. California.
June 17, 2008.

MEMORANDUM DECISION AND ORDER
JAMES K. SINGLETON, JR., District Judge.

I. MOTION PRESENTED
Plaintiff Steven Robert Cerniglia was convicted of sexual abuse of a child and served a term of imprisonment. Upon his release he was committed for a two-year term as a Sexually Violent Predator ("SVP") under California's Sexually Violent Predator Act ("SVPA"), Cal. Welfare & Institutions Code §§ 6600, et seq. At the completion of that two-year term and at the expiration of each two-year increment thereafter, Cerniglia was recommitted. He is currently committed to the Coalinga State Hospital. Each commitment is' based in part on a finding that Cerniglia cannot control his behavior and as such presents a substantial risk of violence to others. In 1999, after completing his first two-year commitment as a SVP, and while awaiting proceedings to determine whether he should be recommitted, Cerniglia was housed in the Sacramento County jail in total separation ("T-Sep"). He brings this action seeking damages under 42 U.S.C. § 1983 arguing that the conditions of his confinement violated his constitutional rights because his confinement was more onerous than confinement suffered by other civil detainees and pretrial detainees, and the Defendants could not justify the difference by reference to non-punitive institutional needs. This Court granted Defendants summary judgment based upon qualified immunity. The Ninth Circuit agreed with Cerniglia, reversed and remanded the case for trial.
At Docket No. 156 Plaintiff Steven Robert Cerniglia has moved in limine for an order precluding the introduction of any evidence of his status as a "Sexually Violent Predator." At Docket 191 Defendants opposed the motion, to which Cerniglia replied at Docket No. 206. Unfortunately, in the meantime this court entered an order granting Cerniglia summary judgment on certain liability issues leaving only damages for trial. The briefing on the motion' in limine does not directly address damages. Upon review of the moving and opposing papers, the Court has determined that oral argument at this time would not assist the Court to reach a decision.

II. NATURE OF THE ACTION/BACKGROUND
Cerniglia, initially proceeding pro se, brought this civil rights action against the County of Sacramento, its sheriff and several deputy Sheriffs pursuant to 42 U.S.C. § 1983. He challenges the conditions of his confinement, alleging that he was placed in T-Sep during the entire time he was awaiting court proceedings related to his re-commitment as a SVP.[1] As a result he further alleges he lacked socialization with the other prisoners, access to television and telephone in the dayroom, had limited outdoor exercise, and had cold food when he returned from court because all food was prepared and distributed at 3:00 p.m. and Cerniglia did not return from court until after 4:00 p.m. In addition, he was required to shower in a dirty shower stall and subjected to strip searches when returning to the institution from court. Also, as a result of being in T-Sep, Cerniglia was not permitted to attend religious services with the other inmates.
Cerniglia was convicted of child sexual abuse on two separate occasions involving different children. See Cal. Pen.Code § 288(a). Cerniglia was sentenced to probation for the first conviction, which was revoked due to a probation violation and resulted in an additional sentence of six years of imprisonment. For the second conviction he was sentenced to 11 years of imprisonment Once Cerniglia served his terms of imprisonment, he was placed on parole and released into the community. Shortly thereafter, he was arrested in connection with the State's contention that he is a SVP. As relevant to this action, Cerniglia has been committed twice, each time for the two-year period specified in the Sexually Violent Predators Act (SVPA). See Cal. Welf. & Inst.Code §§ 6600, et seq.[2] His first commitment occurred June 16, 1997, after a jury trial in the state superior court. His re-commitment occurred on June 16, 1999. In this action, Cerniglia challenges the conditions of his confinement during the period May 6, 1999, to July 27, 1999, when, pursuant to statute, he was housed in the Sacramento County Jail while awaiting a determination at his re-commitment hearing.
On November 30, 2004, this Court granted Defendant's motion for summary judgment on the basis that the Defendants were entitled to qualified immunity and entered final judgment in their favor. Docket Nos. 90, 91. Cerniglia appealed to the Ninth Circuit, which resulted in reversal and remand for further proceedings in light of Jones v. Blanas, 393 F.3d 918 (9th Cir.2004), and Hydrick v. Hunter, 466 F.3d 676 (9th Cir.2006).[3] Docket No. 98. The Court appointed pro bono counsel for Cerniglia, reopened discovery on a limited basis and granted leave to both parties to file motions for summary judgment addressing liability. The parties, in compliance with that order, filed cross-motions for summary judgment. Cerniglia also filed the instant motion in limine.
On April 18, 2008, this Court entered its order denying summary judgment to defendants, finding that, based upon the evidence in the record, the placement of Cerniglia in T-Sep did not promote a legitimate penological goal. Docket 210. In that same order, the Court granted, in part, Cerniglia's motion for summary judgment. The Court entered summary judgment in favor of Cerniglia, reserving for trial thereon the issue of damages, on the following causes of action: (1) First Cause of Action (Violation of First Amendment Rights), as against Defendants Sheriff Lou Blanas and the County of Sacramento; (2) Second Cause of Action (Fourth Amendment Rights), as against Defendants Deputy Mendoza, Deputy Kremkin, Sheriff Lou Blanas, and the County of Sacramento; (3) Sixth Cause of Action (Procedural Due Process) as against Defendants Deputy Mendoza, Deputy Kremkin, Sheriff Lou Blanas, and the County of Sacramento; and (4) Seventh Cause of Action (Substantive Due Process) as against Defendants Sheriff Lou Blanas and the County of Sacramento. Those causes of action were dismissed as to all other defendants. The Court also dismissed the Tenth Cause of Action (Invasion of Privacy) in its entirety.

III. ISSUE PRESENTED
Is the fact that Cerniglia is a "Sexually Violent Predator" sufficiently prejudicial to outweigh its probative value, if any, to the issues to be presented to the jury at trial?[4]

IV. FACTS
The facts are well known to the parties and are set forth in detail in the Court's April 18, 2008, Memorandum Decision at Docket No. 210 and, in the interests of brevity, are not repeated here.

V. APPLICABLE STANDARD
The motion brings into play Federal Rules of Evidence 401, 402, and 403.
Rule 401. Definition of "Relevant Evidence"
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
"A district court is accorded a wide discretion in determining the admissibility of evidence under the Federal Rules. Assessing the probative value of [the proffered evidence], and weighing any factors counseling against admissibility is a matter first for the district court's sound judgment under Rules 401 and 403. . . ." United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984).

VI. DISCUSSION
Applying Rule 403 in the context of this case requires a three-step analysis. First, it must be determined if the proffered evidence tends to make the existence of some fact of consequence in the case more probable or less probable. Fed. R.Evid. 401. If it is relevant, unless otherwise excluded, it is admissible, but if not relevant it is inadmissible in any event and there is no need to proceed further. Fed. R.Evid. 402. The second step is to determine whether admission of the proffered evidence has a prejudicial effect. If it does not, Rule 403 is not triggered and the Court need proceed no further. If it does, the Court must proceed to the third step: weighing and balancing its probative value against its prejudicial effect to determine whether its probative value is substantially outweighed by its prejudicial effect. While the need for the evidencethat is the availability of other evidence to prove the same fact in issueshould be weighed along with its probative value to determine whether it should be admitted under Rule 403, the need for the evidence does not make the evidence more likely to prove that which it is offered to prove. There may be no evidence which proves the point the person proffering the challenged evidence wishes to prove. Probative value and need for the evidence are separate considerations that weigh in favor of admission under the Rule 403 balancing test. See Fed.R.Evid. 403 advisory committee's note (stating that the rule involves "balancing the probative value of and need for the evidence against the harm likely to result from its admission") (emphasis added).
Taking the first step: How does Cerniglia's status as a SVP have "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence"? Defendants contend that the evidence is relevant with respect to two issues. First, "plaintiffs status as a `Sexually Violent Predator' is essential to determination of whether the conditions of Cerniglia's confinement were reasonably related to legitimate, non-punitive governmental interests such as security concerns." Second, "plaintiffs status as a `Sexually Violent Predator' is crucial to a determination of whether defendants are entitled to qualified immunity." The Court addresses these in seriatim.
In its Memorandum Decision and Order [Docket Nos. 139 and 144] entered April 18, 2008, at Docket No. 210, the Court rejected Defendant's contention that retaining Cerniglia in T-Sep was related to a legitimate, non-punitive governmental interest.[5] Thus, further consideration of that issue is foreclosed and any evidence proffered to prove or disprove its existence is of no further consequence to the determination of the action. Consequently, Cerniglia's status as a SVP is not admissible under Rules 401 and 402 with respect to that fact. Consideration of Rule 403 is unnecessary and the Court need not proceed any further in its analysis.[6]
On November 30, 2004, this Court granted Defendants' motion for summary judgment on the basis that the Defendants were entitled to qualified immunity and entered final judgment in their favor. On appeal, the Ninth Circuit reversed and remanded the matter for further proceedings in light of Jones and Hydrick. The issue of qualified immunity was not before the Ninth Circuit in Jones, consequently it did not address the issue. Qualified immunity was, however, before the Court in Hydrick. In this case the Ninth Circuit concluded that Hydrick precluded a finding of qualified immunity. That decision is the law of the case and controls further proceedings in this case.
In their opposition, relying on and quoting in part the Findings and Recommendations of the magistrate judge in Meyers v. Pope, 2006 WL 1867656, *9-10 (E.D.Cal., July 5, 2006), adopted by the district court, 2006 WL 2839843 (E.D.Cal., Sept. 29, 2006),[7] Defendants argue that "they are entitled to qualified immunity based on the fact that the law regarding sexually violent predators, their placements in county jail and conditions of confinement were not clearly established at the time of plaintiffs detention at the Sacramento County Main Jail." Defendants point out that Jones was not decided until two years after the events in Meyers and four years after the events in this case. Meyers does not discuss the impact of Hydrick, which is understandable as Hydrick was initially decided only the day before the Findings and Recommendations of the magistrate judge were adopted, and two and half months after the magistrate judge made his Findings and Recommendations.
Hydrick undermines the central holding underpinning Meyers, i.e., that the law was not clearly established at the time Meyers was detained. In analyzing qualified immunity with respect to the substantive due process claim and holding that it was clearly established that the substantive due process protections of the Fourteenth Amendment apply to SVPs, 500 F.3d at 997, the Hydrick panel noted, 500 F.3d at 998, n. 16 (emphasis added):[8]
While Jones, Neer [Andrews v. Neer, 253 F.3d 1052 (8th Cir.2001)], and Seling [Seling v. Young, 531 U.S. 250, 121 S.Ct. 727, 148 L.Ed.2d 734 (2001)] are more recent cases, they do little more than restate the contours of law clearly established in Youngberg [Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982)], a 1982 case, and Bell [Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)], a 1979 case. Seling essentially restates the Youngberg test, and Jones does little more than connect the line between Youngberg and SVPs based on California's argument that the statute should be construed as a civil confinement statute. We believe a reasonable official reading Youngberg would have sufficient notice that they would be held to Youngberg's standards of due process.[9]
Given the fact that the Ninth Circuit reversed the earlier decision of this Court, which was decided solely on the basis of qualified immunity, and its express citation to Hydrick, the Court must conclude that the law of the case is that Defendants are not entitled to qualified immunity. Furthermore, the Memorandum Decision and Order entered April 18, 2008, at Docket No. 210, expressly entered judgment in favor of Cerniglia on the First, Second, Sixth, and Seventh Causes of Action. In opposing Cerniglia's motion for summary judgment, Defendants did not raise as a defense the issue of qualified immunity, perhaps recognizing that the issue was foreclosed by the Ninth Circuit decision in this case. Having failed to raise the defense of qualified immunity in opposition to Cerniglia's motion for summary judgment, Defendants have waived it. See Image Technical Service Inc. v. Eastman Kodak Co., 903 F.2d 612, 615 n. 1 (9th Cir.1990), af'd sub nom., Eastman Kodak Co. v. Image Technical Services, 504 U.S. 451, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (holding that plaintiffs failure to raise an issue in opposition to a defendant's motion for summary judgment waived the issue).
The sole remaining issue to be submitted to the jury at trial is for damages.[10] Although Cerniglia's status as a SVP is relevant to the fact as to why he was placed in T-Sep, which is no longer an issue of consequence in this case, it is of questionable relevance to the question of damages under the facts and law of this case as established by the Ninth Circuit. Presumably, Cerniglia's measure of damages will stem from the fact that, under the law as it existed at the time of his detention, Cerniglia should have been housed and treated as a civil detainee. The undisputed facts presented to the Court in connection with the cross-motions for summary judgment established that inmates housed in the Sacramento Main Jail were divided into five segments: general population, protective custody, administrative segregation, total separation ("T-Sep"), and civil. Each classification carried different conditions of confinement, including the degree of isolation and availability of other amenities, e.g., out-of-cell time, restrictions on visitation, dayroom usage. State law at the time, however, precluded SVPs, as civil detainees, from being housed with the general population.[11] It is also undisputed that Cerniglia was housed as a civil detainee without incident at the time of his initial commitment proceedings and Defendants admit that since that time, SVPs have been housed as civil detainees. Defendants have presented no argument that any classification, other than T-Sep or as a civil detainee was considered or, for that matter, available.[12] Cerniglia's damages are the monetary value of the difference between the conditions he would have been subjected to if detained and housed as a civil detainee and the conditions under which he was actually detained and housed in T-Sep.[13] Thus, the trial will consist of a comparison of those two housing situations during the time Cerniglia was in T-Sep.
Why Cerniglia was in T-Sep has, at best, marginal or tangential relevance to the measure of damages. On the other hand, the potential prejudicial effect on a lay jury if it is made known to them that Cerniglia had been adjudged a Sexually Violent Predator is incalculable. To the lay person the very words give rise to fear and loathing, if not revulsion. In short, introduction of evidence of Cerniglia's status as a SVP creates a serious risk of inflaming the jury and prejudicing it against Cerniglia. It is possible this could be alleviated in part by carefully crafted instructions explaining that adjudication as a SVP is based upon a clinically diagnosable mental disorder and that the SVPA has a dual purpose: treatment as well as secure non-punitive confinement to protect the public. See Hubbart v. Superior Court, 19 Cal.4th 1138, 81 Cal.Rptr.2d 492, 969 P.2d 584, 601-03 (1999) (explaining the intent, operation, and effect of the SVPA). The remedy may, however, tend to confuse the issues contrary to the dictates of Rule 403.

CONCLUSION
There is a great deal of semantic confusion in the case law addressing the conditions under which SVP detainees may be housed. The Ninth Circuit is convinced that the Constitution requires that SVPs must be treated better than those convicted of crimes. Recognizing that such people have served their sentences, the courts have attempted to draw a distinction between punishment and secure confinement on the theory that criminals are sent to prison to be punished and SVPs are detained to be treated and secured during the treatment. Thus, SVPs must be protected from any measure that is punitive. There is the confusion. There may have been a time when men and women were sentenced to prison to be punished and while there were flogged and subjected to the rack, the thumbscrew and other fiendish instruments of torture in order to terrify them in the hopes that they would be deterred from future criminality by fear of returning to prison. This time has passed. It appears that modern penology views men and women being sent to prison as punishment rather than to be punished. The punishment consists in the separation from friends and family and being subjected to regimentation to maintain institutional discipline. Prison systems have different prison facilities to house different classes of prisoners based upon assumptions about how that prisoner will respond or has responded to prison. Those whose history suggests a risk of escape or the likelihood of violence within the institution will be subjected to closer security than those whose history is free of violence and whose institutional history has been free of problems. In contrast, those whose history is free of violence and who cooperate and obey orders tend to end up in less secure facilities. Thus the actual treatment a prisoner experiences will depend upon predictions about him based upon his known history and the correctional officer's experience with him in the institutional setting.
Thus, if the only real punishment to which the general prison population is exposed consists in separation from families and friends and being subjected to regimented living and the only additional "punishment" is imposed on those whose behavior warrants institutional discipline, it is difficult to see how one can distinguish between punitive and non-punitive treatment in evaluating the treatment of SVPs. SVPs like thieves and robbers who accept their placement, and conform to the rules of the institution, will probably do easy time while those who are disruptive and create problems will do hard time.[14]
Within the class of civil detainees there are probably large numbers of people who have no history of violence. Witnesses in protective custody as a class are probably not likely to be discipline problems in jail. Many men and women who are mentally ill and a dangerous to themselves may be suicidal and unable to meet their subsistence needs but pose no risk to others. Those who have minor histories of assaultive behavior might easily be controlled by medication and supervision. In contrast, SVPs are defined as a class of the highly dangerous. In a secure setting, they pose the risk that they will prey on others. Thus, this Court in its initial approach to this and related cases looked at SVPs as a class and not as individuals and concluded that as a class the jail officials acted reasonably in subjecting them to strict supervision and minimal access to others. It appears that all of the other district courts considering the issues reached the same conclusions. The Ninth Circuit has taken a different view. Prison officials, the Ninth Circuit is convinced, were on notice that SVPs as a class had to be treated better than convicted criminals as a class. Since the treatment of convicted criminals in prison turns on their history for violence and their institutional behavior, this is a difficult standard to apply since SVPs have probably the worst individual history as a class. The bottom line seems to be that SVPs should be (and should have been) treated as individuals and their institutional classification should have been based on reasonable expectations regarding their behavior within the institution. Thus, if civil detainees have the least restrictions, SVPs should be treated exactly as civil detainees unless the correctional officials can point to specific evidence in the SVP's history and institutional behavior that warrant specific limitations. Defendants have access to a great deal of evidence regarding Cerniglia's history and his institutional behavior. He served a long prison sentence. He had completed one two-year period as an SVP detainee at the time the issues in this case arose. It is undisputed that the conditions he experienced at Atascadero were not as onerous as those in T-Sep. It is undisputed that conditions in T-Sep were more onerous than those to which pre-trial detainees and others in the general population were subjected. Defendants have presented no evidence which would permit an inference that housing Cerniglia as a civil detainee subject to the same privileges and restrictions would not have been feasible.[15] Therefore, this case devolves to a comparison of the treatment afforded Cerniglia and the treatment afforded civil detainees. Of course if, within the class of civil detainees, certain restrictions are imposed on persons similarly situated to Cerniglia without taking them out of the category of civil detainees, then those restrictions will need to be factored into the comparison. The current record does not permit further consideration of differences in the treatment of subclasses of civil detainees.[16] In sum, given the expected emotional reaction of lay jurors to SVPs, prejudice is clear and, given the likely issues at trial, SVP status would appear to have little probative value.

VII. ORDER
Based upon the foregoing, IT IS ORDERED THAT:
1. Cerniglia's Motion in Limine to Exclude Information Identifying Cerniglia as a "Sexually Violent Predator" and Related to His Underlying Convictions at Docket 156 is GRANTED; and
2. Defendants are prohibited and barred from introducing into evidence any document or testimony relating to, or making reference to, Cerniglia's status as a Sexually Violent Predator, or in making any reference to Cerniglia's status as a Sexually Violent Predator in front of the jury, including, but not limited to, any reference to the underlying criminal convictions for child sexual abuse.
NOTES
[1]  "`Sexually violent predator' means a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." Cal. Welf. & Inst.Code § 6600(a)(1).
[2]  California Penal Code § 288(a) is one of the predicate criminal acts triggering the operation of the SVPA. Cal. Welf. & Inst.Code § 6600(b).
[3]  At t the time the Ninth Circuit rendered its decision in this case, a petition for rehearing was pending in Hydrick. Since that time a rehearing was granted and a superceding opinion entered. 500 F.3d 978 (9th Cir. 2007), cert. pending.
[4]  Defendants do not appear to dispute that evidence of the underlying convictions is not admissible for impeachment purposes under Federal Rule of Evidence 609 and, therefore, concede that point.
[5]  The Court notes that briefing on this motion was completed prior to the entry of the Memorandum Decision and Order at Docket No. 210. The record may not, therefore, be sufficiently developed to permit a complete evaluation of the motion in limine.
[6]  In the Joint Pretrial Conference Statement filed at Docket No. 212, Defendants implicitly acknowledge this is no longer at issue. Defendants' position is that, other than damages, the only issue remaining to be resolved at trial is whether or not the remaining Defendants are entitled to qualified immunity.
[7]  Presently on appeal to the Ninth Circuit.
[8]  The Court notes that the superceding decision did not in any manner alter its earlier decision on this point, which contained the same footnote and accompanying text. See 466 F.3d at 699.
[9]  Prior to Hydrick no district court dealing with California law concluded that the law was clearly established that SVP's should be treated as civil detainees. Nevertheless, the Ninth Circuit decision in this case forecloses further discussion of this issue in this case.
[10]  See Joint Pretrial Conference Statement. Docket No. 212. Cerniglia pleaded five Causes of Action in his Amended Complaint that are not otherwise referred to herein: Third: Ex post Facto; Fourth: Double Jeopardy; Fifth: Eighth Amendment cruel and unusual punishment; Eighth: Equal Protection; and Ninth: Sixth Amendment. Cerniglia's Third, Fourth, and Fifth Causes of Action were dismissed on September 23, 2002. Docket No. 42. No appeal was taken from that order and it remains the law of the case. Thus, the Third, Fourth, and Fifth Causes of Action are no longer before the Court. Cerniglia has to date taken no action to prosecute his Eighth and Ninth Causes of Action and the evidence introduced to date would not support judgment in his favor on those two causes of action. In the Joint Pretrial Conference Statement, Cerniglia has stated that there are no issues to be tried other than damages. Accordingly, the Court assumes that Cerniglia has abandoned the Eighth and Ninth Causes of Action and they are no longer at issue in this case.
[11]  Cal. Pen.Code § 4002 (1982). ("Persons committed on criminal process and detained for trial, persons convicted and under sentence, and persons committed upon civil process, shall not be kept or put in the same room. . . ."). In 1999 § 4002 did not differentiate between SVPs and other civil detainees. In 2001, § 4002 was amended with former § 4002 re-designated as § 4002(a) with minor amendments, and a new subsection (b) added that specifically addresses SVPs:

(b) Inmates who are held pending civil process under the sexually violent predator laws shall be held in administrative segregation. For purposes of this subdivision, administrative segregation means separate and secure housing that does not involve any deprivation of privileges other than what is necessary to protect the inmates and staff. Consistent with Section 1610, to the extent possible, the person shall continue in his or her course of treatment, if any. An alleged sexually violent predator held pending civil process may waive placement in secure housing by petitioning the court for a waiver. In order to grant the waiver, the court must find that the waiver is voluntary and intelligent, and that granting the waiver would not interfere with any treatment programming for the person requesting the waiver. A person granted a waiver shall be placed with inmates charged with similar offenses or with similar criminal histories, based on the objective criteria set forth in subdivision (a).
[12]  This Court is aware that child molesters are pariahs within prison population and must be segregated for their own protection. Defendants have not offered any evidence that SVPs are at risk if housed with civil detainees. The court also recognizes that California and other states having SVP laws consider such people more dangerous than the typical violent criminal and more likely to prey on weaker people housed with them. There is no evidence, however, that Cerniglia ever preyed on anyone during the substantial time he was housed in a secure setting.
[13]  In Jones the court considered various classes of detainees and eventually concluded that SVPs have a constitutional right to be accorded treatment at least as good as pre-trial detainees and those civilly committed. The court did not further differentiate between the treatment to which pre-trial detainees and the civilly committed were entitled to receive. For comparative purposes the Court is presuming that when this case goes to trial the jury will be asked to compare the conditions governing T-Sep and those governing civil detainees and base its award of damages on that comparison. The Court recognizes that there is some ambiguity in the Ninth Circuit's cases but has reached this conclusion based upon the Jones discussion that SVPs are entitled to the least restrictive environment and conditions feasible in light of legitimate institutional goals and responsibilities. In Cerniglia's case this would seem to limit the state to treating him as a civil detainee since he had been treated as a civil detainee during the first interval between commitments apparently without incident. The court is aware that Federal Rule of Evidence 407 precludes evidence of subsequent remedial measures to prove culpability. An exception to the rule exists where feasibility of corrective measures is at issue. Here a major issue was whether it was feasible to treat Cerniglia as a civil detainee during the interval between his SVP commitments. Thus, the fact that Sacramento County currently houses SVPs between commitments as civil detainees coupled with Cerniglia's own prior treatment as a civil detainee, plus current California law that proscribes deprivation of privileges other than what is necessary to protect the inmates and staff, serves to establish feasibility. If civil detainees are housed in the least restrictive environment, then Cerniglia was entitled to that environment in the absence of good institutional reasons. Such reasons would have to go to prove that somehow such treatment would not be feasible. Thus, the feasibility of treating Cerniglia as a civil detainee was the crucial liability question. Since the defendants came forward with no evidence that Cerniglia as an individual or SVPs as a class could not be treated as civil detainees, even if such treatment required a new classification, summary judgment was entered in Cerniglia's favor on liability. The extent to which different subclasses of civil detainees may be treated differently, or the extent to which civil detainees must be treated more favorably than convicted or pretrial detainees, has not been clearly established in the Constitutional context. See, e.g., Odom v. Kolender, 259 Fed.Appx. 41, 2007 WL 4357675 (9th Cir. Dec. 10, 2007) (unpublished) (holding in a case in which the SVP detainee was housed with the general population that the law regarding placement of civil detainees within the jail was not clearly established at the time of the alleged violation, citing Motley v. Parks, 432 F.3d 1072, 1077 (9th Cir.2005) (en banc) and Jones, but without reference to Hydrick).
[14]  In order to eliminate the confusion we must recognize that the Ninth Circuit is using the term "punitive" as a term of art to mean "improper and, therefore, actionable." Thus, where an SVP shows that he was subjected to one or more restrictions more onerous than those imposed upon civil detainees, the restriction or restrictions are actionable unless defendants go forward with the evidence to show that such restrictions are appropriate for a civil or pre-trial detainee similarly situated.
[15]  The Court recognizes that almost 10 years after the incident at issue in this case Cerniglia remains committed as a SVP. Presumably there is evidence supporting that result in this case; however, Defendants have never relied on such evidence to explain, much less justify, the restrictions about which Cerniglia complains. Defendants have sought to justify T-Sep and the restrictions it placed on Cerniglia solely on his membership in the class as a SVP. This, the Ninth Circuit says, cannot be done. As a class SVPs must be treated as civil detainees. Any restrictions imposed upon them must be consistent with restrictions placed upon other civil detainees (or pre-trial detainees) with similar backgrounds and history, including criminal history.
[16]  Should additional evidence be introduced that changes the posture of the damage calculation, i.e., the base level of treatment Cerniglia should have been afforded, it may be appropriate for the Court to reconsider its conclusion and order.


198 Cal.App.3d 1438 (1988)
244 Cal. Rptr. 435
GEORGIA HEYWOOD, Plaintiff and Respondent,
v.
THE MUNICIPAL COURT FOR THE NORTH COUNTY JUDICIAL DISTRICT OF SAN DIEGO COUNTY, Defendant and Respondent; SUE KENNEY URQUHART, as Executor, etc., Real Party in Interest and Appellant.
Docket No. D005677.
Court of Appeals of California, Fourth District, Division One.
February 26, 1988.
*1440 COUNSEL
Lonnie G. McGee for Real Party in Interest and Appellant.
Stephen V. Lopardo and Sachse, James, Croswell & Lopardo for Plaintiff and Respondent.
No appearance for Defendant and Respondent.
*1441 OPINION
THAXTON, J.[*]
Sue Urquhart, as executrix of the will of Russell S. Urquhart, deceased (Executrix), appeals an order of the superior court granting a writ of mandamus ordering the municipal court to issue a writ of execution in favor of respondent Georgia Heywood (Heywood) against the Urquhart Family Trust (Trust) as judgment debtor.

FACTUAL AND PROCEDURAL BACKGROUND
Russell S. Urquhart (Decedent) filed a complaint in the North San Diego County Municipal Court against Heywood for restitution and rescission of a contract to sell a horse. Heywood cross-complained for payment of board and feed bills and for attorney's fees under the contract. After trial, the municipal court ruled Urquhart was not entitled to restitution or rescission, that Heywood recover nothing on her cross-complaint, and the parties would bear their own attorney's fees.
Urquhart appealed the decision of the municipal court. Heywood cross-appealed. The appeals were still pending on September 20, 1983, when Urquhart died.
Upon motion of the attorney for Decedent, the superior court by its order dated January 25, 1984, substituted the Executrix of the estate of Russell S. Urquhart as plaintiff, appellant and cross-respondent, in place of Russell Urquhart in the municipal court action and appeal.
The appellate department of the superior court by its order filed March 8, 1984, partially affirmed and reversed the judgment of the municipal court and remanded the case to the trial court with instructions to enter judgment in favor of Heywood for $540 for board and feed bills and for reasonable attorney's fees and costs incurred by her in an amount to be determined after a further hearing in the trial court.
Heywood moved for attorney's fees and costs. The municipal court determined the amount of attorney's fees and costs payable to her was $6,959.33 and entered an amended judgment for her in that sum, plus board and feed bills in the sum of $540.
At a judgment debtor examination of Executrix, Heywood confirmed that Decedent, before his death, transferred virtually all his assets into the Trust, a revocable inter vivos trust, and that he and Executrix were trustees *1442 of the Trust. The original assets of the Trust were the community property of Decedent and Executrix. Decedent retained a general power of appointment presently exercisable at the time of his death over the assets transferred to the Trust by him.[1]
The parties here concede the assets in Decedent's probate estate are insufficient to satisfy the judgment.
Heywood moved in the municipal court for an order issuing a writ of execution on the judgment, against the Trust. The motion was denied. Heywood petitioned the superior court for a writ of mandamus or prohibition ordering the municipal court to issue a writ of execution against one or more assets of the Trust. Executrix appeals the order directing the municipal court to issue a writ of execution against the Trust.

DISCUSSION
Although an appeal and cross-appeal had been taken from the decision of the municipal court at the time of Decedent's death, the action against him was still pending at the date of his death. (See Code Civ. Proc., § 1049.)
Probate Code section 709 provides in part: "If an action is pending against the decedent at the time of his or her death, the plaintiff shall in like manner file his or her claim with the clerk or present it to the executor or administrator for allowance or rejection, authenticated as required in other cases. No recovery shall be allowed against decedent's estate in the action unless proof is made of the filing or presentation...."
Sue Urquhart petitioned the court for appointment as the Executrix of the will of Decedent and published the notice of death and of petition to administer estate. She was appointed Executrix of Decedent's will by the probate court, and letters testamentary were issued to her on December 30, 1983.
Due publication of the notice of death and of petition to administer estate "shall also constitute notice to the creditors of the decedent, requiring all persons having claims against the decedent to file them in the office of the clerk of the court from which the letters issued, or present them to the executor or administrator within four months of the first issuance of letters" to the personal representative. (Prob. Code, § 700.)
*1443 Probate Code section 707, with exceptions not here applicable, provides in part that all claims arising upon contract, whether they are due, not due, or contingent shall be filed or presented within the time limited in the notice and any claim not so filed or presented is barred forever.
Within the time prescribed by Probate Code section 707 for filing claims in the probate estate of decedent, the notice of remittitur from the appellate department of the superior court and a copy of a declaration of Heywood's attorney in support of the motion in the municipal court for determination of attorney's fees and costs were mailed to the litigation counsel representing Executrix in the municipal court action. No contention is made that a copy of the declaration or remittitur was mailed to the attorneys representing Executrix in the probate proceedings. The declaration of Heywood's attorney set forth in detail the legal services rendered by him and the total value of attorney's fees and court costs as $7,668.55.
(1a) Heywood contends the notice of remittitur and the copy of the declaration of her attorney in support of the motion for determination of attorney's fees constituted a sufficient notice of claim to substantially comply with the Probate Code claim statutes. Heywood's contention was properly rejected by the probate court when it denied her motion for order allowing amendment of probate claim.
"Mere notice to the estate, in the sense of imparting knowledge of the underlying debt to the representative, does not constitute a sufficient claim or demand which can be the basis of an amendment." (Nathanson v. Superior Court (1974) 12 Cal.3d 355, 369 [115 Cal. Rptr. 783, 525 P.2d 687].)
"The Probate Code does not provide a definition of `claim' as used in section 700 and following sections. (2) Essentially the word connotes a demand [citation] for the payment of a debt or of damages ... made against the representative." (Id. at p. 366.)
A timely claim is "a demand against the estate for payment which has its own independent existence as a `proceeding' before the probate court and does not have to be gleaned from some other proceeding involving either the decedent in his lifetime or the administration of his estate so as to provide the construct of a claim as incidental thereto." (Ibid.)
(1b) The clear purpose of the declaration of Heywood's attorney in support of the motion for determination of attorney fees and costs was to present evidence relevant to the determination of attorney's fees and costs by the municipal court. There was no demand contained in the declaration, *1444 and the declaration had no significance independent of the municipal court action in which it was filed.
(3) (See fn. 2.), (1c) The declaration was not filed in the office of the clerk of the superior court, and a copy of the declaration was mailed to litigation counsel of Executrix in the municipal court action, rather than to Executrix or the attorneys representing Executrix in the probate proceedings.[2]
The declaration of Heywood's attorney and the remittitur did not constitute a creditor's claim against the estate of Decedent. (4a) However, the defense that no valid creditor's claim was filed or presented was not asserted by the Executrix in the appeal proceedings before the appellate department of the superior court or at any time before the expiration of the period within which a creditor's claim could have been filed.
The municipal court hearing for determination of attorney's fees and costs, required by the decision of the appellate department of the superior court, was initially set for April 27, 1984, a date within the statutory period for filing creditor's claims in the estate. On motion of the Executrix the hearing was continued and on May 2, 1984, after the period for filing creditor's claims had expired, the Executrix raised for the first time in the action the defense that no creditor's claim had been timely filed.
The Executrix failed to request a rehearing in the appellate department of the superior court, and did not seek appellate review of the decision of the appellate department or the amended judgment of the municipal court.
The issue thereby raised is whether the order of the appellate department of the superior court and the amended judgment of the municipal court are void because a valid creditor's claim was not filed or presented as required by the Probate Code.
The two courts clearly had jurisdiction of the parties. It is also clear that the courts had subject matter jurisdiction, and were empowered to hear and determine the cause. "Any jurisdictional concept that may be involved in the cases holding the [courts are] without power to grant a judgment against an estate when a creditor's claim has not been filed is not lack of jurisdiction of the cause but excess of jurisdiction. [Citations.]
*1445 "When, as here, the [courts have] jurisdiction of the subject, a party who by his conduct consents to or permits action which may be in excess of the [courts'] power may be estopped to complain of the ensuing action in excess of jurisdiction. [Citations.]
"Whether a party shall be estopped from claiming an excess of jurisdiction depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy. [Citations.]" (Rogers v. Hirschi (1983) 141 Cal. App.3d 847, 851-852 [190 Cal. Rptr. 575].)
(5) The doctrine of finality of judgments is premised upon the important public policy that there must be an end to litigation. (Jorgensen v. Jorgensen (1948) 32 Cal.2d 13, 18 [193 P.2d 728].)
(4b) We conclude the courts did not lack jurisdiction but at most acted in excess of jurisdiction in awarding judgment against the Executrix. For the reasons stated, the Executrix is estopped to assert any such excess of jurisdiction. The order of the superior court granting a writ of mandamus ordering the municipal court to issue a writ of execution is affirmed.[3]
(6) Although the issue of the levy of the writ of execution against the assets of the Trust is not properly before us, we will consider the issue in the interest of judicial economy.
Here, Decedent was both donor and donee of the property contributed by him to the Trust, and the estate of Decedent is inadequate to satisfy the claims of creditors of the estate and expenses of administration of the estate. Decedent retained a general power of appointment presently exercisable at the time of his death over the assets transferred by him to the revocable inter vivos trust.
Civil Code section 1390.3, subdivision (b)[4] provides, under these circumstances, the property subject to the general power of appointment that was presently exercisable at the time of death is subject to claims of creditors to *1446 the same extent it would be subject to creditors' claims if the property had been owned by the donee.
Civil Code section 1390.4[5] provides, under these circumstances, the property subject to the general power of appointment is subject to the claims of creditors of the estate.
Probate Code section 18201[6] provides, under these circumstances, the property of the Trust which at the death of the settlor was subject to his power of revocation is subject to the claims of creditors of the estate.
A writ of execution may therefore be properly levied upon the assets of the Trust which were subject to the general power of appointment of Decedent at the time of his death and upon the assets of the Trust that were subject to Decedent's power of revocation at the time of his death.

DISPOSITION
The order is affirmed. The court is directed to modify its order to provide the writ of execution should issue against the Trustee or Trustees of the Urquhart Family Trust.
Wiener, Acting P.J., and Work, J., concurred.
Appellant's petition for review by the Supreme Court was denied May 18, 1988.
NOTES
[*]   Assigned by the Chairperson of the Judicial Council.
[1]  After the establishment of the Trust, the marriage of Decedent and Executrix was terminated by judgment of dissolution. The property of the parties in the dissolution action was not divided by the court.
[2]  The statutory requirement of presentation of a claim is not satisfied by service of summons and complaint (on the personal representative) in a lawsuit, although the pleadings do in their way provide an announcement of the amount and nature of the claim. (Wood v. Brown (1974) 39 Cal. App.3d 232, 237 [114 Cal. Rptr. 63]; Satterfield v. Garmire (1967) 65 Cal.2d 638 [56 Cal. Rptr. 102, 422 P.2d 990]; compare Estate of Schweitzer (1986) 182 Cal. App.3d 330 [227 Cal. Rptr. 11].)
[3]  That portion of the order of the trial court directing the respondent municipal court to issue a writ of execution against the Trust as judgment debtor is in error. The writ of execution should properly issue against the trustee or trustees of the Trust.
[4]  Civil Code section 1390.3, subdivision (b) provides: "Upon the death of the donee, to the extent that his estate is inadequate to satisfy the claims of creditors of the estate and the expenses of administration of the estate, property subject to a general testamentary power of appointment or to a general power of appointment that was presently exercisable at the time of his death is subject to such claims and expenses to the same extent that it would be subject to the claims and expenses if the property had been owned by the donee." (Italics added.)
[5]  Civil Code section 1390.4 provides: "Property subject to an unexercised general power of appointment created by the donor in favor of himself, whether or not presently exercisable, is subject to the claims of creditors of the donor or of his estate and to the expenses of the administration of his estate."
[6]  Probate Code section 18201 provides: "Upon the death of a settlor who had retained the power to revoke the trust in whole or in part, the property that was subject to the power of revocation at the time of the settlor's death is subject to the claims of creditors of the decedent settlor's estate and to the expenses of administration of the estate to the extent that the decedent settlor's estate is inadequate to satisfy those claims and expenses."


                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                             No. 01-6211

DONALD J. STRABLE,

                                              Plaintiff - Appellant,

          versus

COUNTY OF ABBEVILLE, SOUTH CAROLINA,

                                              Defendant - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Anderson. William M. Catoe, Jr., Magistrate
Judge. (CA-00-3935-8-13AK)

Submitted:   July 12, 2001                 Decided:   July 19, 2001

Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Donald J. Strable, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

        Donald J. Strable appeals the district court’s order dismiss-

ing his 42 U.S.C.A. § 1983 (West Supp. 2000) complaint.    Strable’s

case was referred to a magistrate judge pursuant to 28 U.S.C.

§ 636(b)(1)(B) (1994).     The magistrate judge recommended that re-

lief be denied and advised Strable that failure to file timely and

specific objections to this recommendation could waive appellate

review of a district court order based upon the recommendation.

Despite this warning, Strable failed to file specific objections to

the magistrate judge’s recommendation.

        The timely filing of objections to a magistrate judge’s

recommendation is necessary to preserve appellate review of the

substance of that recommendation when the parties have been warned

that failure to object will waive appellate review.     Fed. R. Civ.

P. 72(b); Wright v. Collins, 766 F.2d 841, 845-47 (4th Cir. 1985);

see also Thomas v. Arn, 474 U.S. 140, 155 (1985).    Failure to file

specific and written objections shall constitute a waiver of a

party’s appellate review if the recommendation is accepted by a

district judge.     Schronce v. United States, 727 F.2d 91, 94 & n.4

(4th Cir. 1985); Wright, 766 F.2d at 845-47 & nn.1-3.    Strable has

waived appellate review by failing to file specific objections to

the magistrate judge’s recommendation after receiving proper no-

tice.     Accordingly, we affirm the judgment of the district court.

We dispense with oral argument because the facts and legal conten-

                                   2
tions are adequately presented in the materials before the court

and argument would not aid the decisional process.

                                                        AFFIRMED

                                3


126 P.3d 832 (2006)
131 Wash.App. 310
Carla OTTESEN, as Personal Representative of the Estate of Bernard Ottesen, deceased, Respondent,
v.
FOOD SERVICES OF AMERICA, INC., a Washington corporation and Darrell Corgatelli and "Jane Doe" Corgatelli, husband and wife, Appellants.
No. 32740-6-II.
Court of Appeals of Washington, Division 2.
January 24, 2006.
Phillip C. Raymond, Jessica B. Jensen, Attorneys at Law, Seattle, WA, for Petitioners.
Stephen Louis Bulzomi, Messina/Bulzomi, University Place, WA, for Respondent.
PENOYAR, J.
¶ 1 Food Services of America (FSA) and Darrell Corgatelli appeal the grant of summary judgment in favor of Carla Ottesen, widow of deceased Bernard Ottesen, asserting that her claims are barred by the exclusive remedy provision of Washington's Industrial Insurance Act (IIA). Ottesen contends that her suit falls within the "parking area" exception of the IIA because the staging yard where Ottesen was injured was a "mixed-use" area, Ottesen was not performing work-related duties, and, as to him, the yard was a parking lot. Because the uncontradicted evidence was that there were both job activities and employee parking in the staging yard, we affirm and hold that the staging yard was a "mixed-use" area as a matter of law. We remand on the issue of damages only.

*833 FACTS
¶ 2 Bernard Ottesen was employed in the "high-pick area" at FSA. Clerk's Papers (CP) at 144. His job consisted of driving a fork lift inside the warehouse to put away and receive products. Ottesen did not work outside of the warehouse; he worked only inside.
¶ 3 Darrell Corgatelli was employed as a "hostler" at FSA. CP at 42. His job consisted of driving a "yard goat"[1] in the staging yard/trailer yard adjacent to the warehouse. He did not work in the warehouse.
¶ 4 The staging yard/trailer yard at FSA extended from the west side of the warehouse. It was used for storing trailers and for loading and unloading at FSA's warehouse loading dock, also located on the west side of the warehouse. The designated employee parking lot was located in the northwest corner of the yard and a yellow crosswalk extended across the yard to the warehouse entry. A mechanic shop was also in the yard. Mechanics parked personal vehicles on the south end of the shop, in the staging yard. Also, employees occasionally parked personal motorcycles in the yard near the shop. Additionally, employees parked personal vehicles next to the warehouse entry, in the staging yard. The only factual dispute is whether the parking area next to the warehouse was used for parking during employees' entire shifts or just for temporary parking.
¶ 5 Ottesen arrived at work on May 8, 2003, and parked his car in the parking lot. He was walking toward the warehouse in the crosswalk when a yard goat driven by Corgatelli fatally injured him. Corgatelli was driving a yard goat, moving trailers around the yard when he hit Ottesen. The trailer brakes of the yard goat were inoperable, and Corgatelli was not able to stop the vehicle to avoid hitting Ottesen.
¶ 6 Ottesen's personal representative sued FSA and Corgatelli for personal injuries and damages in tort. FSA moved for summary judgment, arguing that the decedent was covered by Washington's IIA, RCW 51.32.010, and therefore limited to workers' compensation benefits. Ottesen filed a cross-motion for partial summary judgment, arguing that (1) Ottesen's suit fell within the "parking area" exception of the IIA, and (2) FSA was liable for Ottesen's death as a matter of law.
¶ 7 The trial court granted summary judgment to Ottesen because the area where Ottesen was injured was a "mixed-use" area, and because FSA and Corgatelli were liable as a matter of law for Ottesen's injuries. RAP at 32. FSA filed an interlocutory appeal of the summary judgment order, only assigning error to the trial court's conclusion that the area where Ottesen was injured was a "mixed-use" area. It did not appeal the ruling on liability as a matter of law.

ANALYSIS

I. STANDARD OF REVIEW
¶ 8 On review of an order for summary judgment, this court performs the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wash.2d 853, 860, 93 P.3d 108 (2004). The standard of review is de novo and all facts are considered in the light most favorable to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wash.2d 16, 26, 109 P.3d 805 (2005).

II. THE INDUSTRIAL INSURANCE ACT (IIA) AND THE "PARKING AREA" EXCEPTION
¶ 9 Washington's Industrial Insurance Act (IIA) provides the exclusive remedy for workers injured "in the course of his or her employment" and immunizes employers from civil tort actions for workplace injuries. RCW 51.32.010. See also Judy v. Hanford Envtl. Health Found., 106 Wash.App. 26, 31, 22 P.3d 810, review denied, 144 Wash.2d 1020, 32 P.3d 284 (2001). "Acting in the course of employment" is defined in the statute:
"Acting in the course of employment" means the worker acting at his or her employer's direction or in the furtherance of his or her employer's business which shall include time spent going to and *834 from work on the jobsite, as defined in RCW 51.32.015 and 51.36.040, insofar as such time is immediate to the actual time that the worker is engaged in the work process in areas controlled by his or her employer, except parking area.

RCW 51.08.013(1) (emphasis added).
¶ 10 The "parking area" exception to workers' compensation benefits under the IIA is not an absolute bar to coverage. Puget Sound Energy, Inc. v. Adamo, 113 Wash.App. 166, 169, 52 P.3d 560 (2002). Usually, when employees are in parking areas, they are only parking their cars, not performing work-related duties. However, some employees do perform work-related activities in parking areas and should be covered by the IIA. Therefore, the initial question in "parking area" cases is: "What is the primary use of the area where the accident occurred?" This is a factual inquiry. From this initial factual inquiry, different categories of cases emerge  "pure" parking area cases, "jobsite" area cases, and "mixed-use" area cases. If the primary use of an area is only for employee parking, it is a "pure" parking area and the IIA does not apply. If the primary use of an area is only for job-related activities, it is a "jobsite" and the IIA does apply. If there are parking and job activities in the area, it is a "mixed-use" area. In a "mixed-use" area, the IIA may apply.

III. "PURE" PARKING AREA CASES
¶ 11 In "pure" parking area exception cases, the question is whether an area meets the statutory definition of parking area. If so, then the IIA never applies. See Boeing Co. v. Rooney, 102 Wash.App. 414, 10 P.3d 423 (2000) (a grassy area adjacent to a parking lot was not a "parking area"); Madera v. J.R. Simplot Co., 104 Wash.App. 93, 15 P.3d 649, 36 P.3d 1072 (a drive-through lane that was used only by off-duty employees to temporarily park while they picked up paychecks was not a "parking area"), review denied, 144 Wash.2d 1002, 29 P.3d 717 (2001); Univ. of Wash. v. Marengo, 122 Wash.App. 798, 95 P.3d 787 (2004) (a stairwell where employee slipped and fell was a means of getting to and leaving the parking area and not a "parking area").
¶ 12 This is not a "pure" parking area case as in Madera and Marengo. FSA admits that employees occasionally park near the shipping warehouse and at the south end of the staging yard/trailer yard near the mechanic shop. Even though the parking by the warehouse entrance might only be temporary, there is also parking scattered throughout the entire yard. If a box is drawn around the entire staging yard, there are facts in the record that lead an ordinary person to conclude that the area was both a "parking area," and a "jobsite." There is evidence of parking in FSA's staging yard/truck yard, and it is undisputed that job activities also occurred there. Therefore, this area is not purely a parking area. The parties do not dispute either that Ottesen was not performing work duties when he was hit and fatally injured or that Corgatelli was performing work duties when he hit and fatally injured Ottesen. Under this set of facts, the truck yard/staging area is a "mixed-use" area as a matter of law.

IV. "MIXED-USE" AREA CASES
¶ 13 In "mixed-use" cases, the Olson test applies, and the IIA covers employees performing job-related activities; it does not cover employees not performing job-related activities. See Olson v. Stern, 65 Wash.2d 871, 877, 400 P.2d 305 (1965). In Olson, an accident occurred in the parking area of an industrial plant between an off-shift employee on his way home after work and an on-shift employee performing his work duties. The court held that the IIA did not bar the off-shift employee's civil suit because the IIA did not apply. Olson, 65 Wash.2d at 877, 400 P.2d 305. The court granted him a trial on the merits. Olson, 65 Wash.2d at 877, 400 P.2d 305. The situs of the accident was a jobsite "as to" the on-shift employee because he was performing job duties (and the IIA applied) but not "as to" the off-shift employee because he was not performing work duties. Olson, 65 Wash.2d at 877, 400 P.2d 305. "[T]he place assigned to [the off-shift employee] for parking his car could not be said to constitute a jobsite . . . but rather it was, as the legislature described it, a parking area and, therefore, exempt from the *835 workmen's compensation statutes." Olson, 65 Wash.2d at 877, 400 P.2d 305.
¶ 14 In Bolden v. Department of Transportation., 95 Wash.App. 218, 974 P.2d 909 (1999), review denied, 139 Wash.2d 1023, 994 P.2d 847 (2000), an off-shift employee approached his vehicle after work and was struck by an employee driving a Department of Transportation (DOT) vehicle. The accident occurred in an area where personal and DOT vehicles were parked and where the DOT vehicles were prepared for their duties. The court held that since the injured employee was not using the parking lot as his jobsite, or in furtherance of his employer's business purpose, the parking lot exclusion applied and he was not covered by workers' compensation. Bolden, 95 Wash.App. at 223, 974 P.2d 909. In Adamo, the court explained Bolden:
The [IIA] expressly excludes parking areas from the Act and disassociates them from the legislative definition of what constitutes a jobsite. Olson v. Stern, 65 Wash.2d 871, 876, 400 P.2d 305 (1965).
The parking area exception is not, however, an absolute bar to industrial insurance coverage. The appropriate inquiry is whether the injury occurred while the employee was acting in the course of his employment. If so, the situs of the accident is, as to him, immaterial. Olson, 65 Wash.2d at 877, 400 P.2d 305. In Olson, the worker was held to be covered, though in a parking area, because he was on shift and driving a motor scooter loaded with tools. But where an injury occurred in a mixed-use area that was used both for parking and to prepare vehicles for work duties, the injured employee was held not to be covered because when the injury occurred he was not performing work-related duties. As to him, the location where the injury occurred was a parking area. Bolden v. Dep't of Transp., 95 Wash.App. 218, 223, 974 P.2d 909 (1999).
Adamo, 113 Wash.App. at 169, 52 P.3d 560.
¶ 15 Ottesen was merely walking to work at the warehouse at the time of the accident. Under Olson, as to Ottesen, the "mixed-use" situs of the accident was a "parking area" because he was not performing work duties. But Corgatelli was driving a yard goat in performance of his work duties at the time of the accident. As to Corgatelli, the situs of the accident was a "jobsite" and the IIA would apply to any injury Corgatelli suffered. Viewing the evidence in a light most favorably to FSA, the "parking area" exception of the IIA applies to Ottesen, precluding coverage and allowing Ottesen's civil tort suit.

V. THE POLICY OF THE IIA AND WORKERS' COMPENSATION
¶ 16 "Washington's IIA was the product of a grand compromise in 1911. Injured workers were given a swift, no-fault compensation system for injuries on the job. Employers were given immunity from civil suits by workers." Birklid v. Boeing, 127 Wash.2d 853, 859, 904 P.2d 278 (1995) (citing Stertz v. Indus. Ins. Comm'n, 91 Wash. 588, 590-91, 158 P. 256 (1916)). Under the IIA, employees may receive less than full tort damages in exchange for avoiding the expense and uncertainty of litigation. Minton v. Ralston Purina Co., 146 Wash.2d 385, 390, 47 P.3d 556 (2002).
¶ 17 Here, the IIA does not apply because Ottesen was injured and died from a risk that was not part of his job at FSA. Ottesen worked inside the warehouse and was not exposed to the risks of the staging yard/trailer yard. If his death had been caused from an accident inside the warehousefrom an object that fell off a high shelfthis case would fall within the "grand compromise" of the IIA and workers' compensation. Birklid, 127 Wash.2d at 859, 904 P.2d 278. Here, the accident occurred outside of Ottensen's work area from a hazard not part of his work duties. The grand compromise is not offended if Ottesen is allowed to proceed with his negligence action.
¶ 18 We affirm the trial court's judgment and remand the case for further proceedings.
We concur: VAN DEREN, A.C.J., and HUNT, J.
NOTES
[1]  A "yard goat" is a type of truck tractor used to move trailers.