82 F.3d 869
96 Cal. Daily Op. Serv. 3053, 96 Daily JournalD.A.R. 5105Timothy William HISER, Plaintiff-Appellant,v.Richard H. FRANKLIN;  Frank Sauser;  Al Terrault,Defendants-Appellees.
No. 94-35749.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted March 7, 1996.Decided May 2, 1996

Rymer, Circuit Judge, concurred in part, dissented in part, and filed opinion.
Steven L. Pevar, American Civil Liberties Union, Denver, Colorado, for plaintiff-appellant.
Michael J. Stark, Assistant Attorney General, briefed, Juneau, Alaska, John K. Bodick, Assistant Attorney General, argued, Anchorage, Alaska, for defendants-appellees.
Alvin J. Bronstein and Marjorie Rifkin, ACLU Nat. Prison Project, Washington, DC, for amicus Nat. Prison Project.
Appeal from the United States District Court for the District of Alaska;  James K. Singleton, District Judge, Presiding.
Before:  FLETCHER, NOONAN and RYMER, Circuit Judges.
FLETCHER, Circuit Judge:

1
Timothy Hiser, an inmate in the Alaska Department of Corrections' Fairbanks Correctional Center ("FCC"), appeals from the district court's grant of summary judgment in favor of defendant prison officials ("the State").  Hiser sought equitable relief and damages contending that defendants refused to photocopy his legal documents, thereby denying him access to the courts in violation of the Constitution.  The district court did not reach the merits of the claim, instead granting summary judgment on the grounds of res judicata.  The court reasoned that a class of all Alaska inmates, present and future, had entered into a comprehensive consent decree in state court in 1990 dealing with prison conditions, Cleary v. Smith, 3AN-1-81-5274 Civ.  (3d Jud.  Dist.Alaska);  the consent decree devoted approximately nine pages to various issues related to inmates' "Access to the Courts" (although it did not address photocopying);  and therefore Hiser's claim was or could have been litigated in the previous class action and is barred by res judicata.

2
We disagree.  Because the issue of photocopying was never adjudicated in the Cleary litigation, Hiser's claims are not barred by issue preclusion.  Neither are they barred by claim preclusion.  Hiser's damages and individual injunction relief claims could not have been brought in the Cleary litigation, as the injury Hiser alleges did not occur until 1992 when his request for photocopying was denied.  Although Hiser's class action challenge to the prison's photocopying policy could have been brought in the Cleary litigation, it nevertheless is not barred because it is based on a separate set of operative facts and because a change in the law since the Cleary settlement makes res judicata inapplicable.  We have jurisdiction under 28 U.S.C. § 1291 and reverse and remand.

I.

3
On August 3, 1993, after exhausting his administrative remedies, Hiser filed a section 1983 complaint in United States District Court for the District of Alaska contending that, from 1992 to the present, defendants violated his constitutional rights under Gluth v. Kangas, 951 F.2d 1504, 1510 (9th Cir.1991) by refusing to photocopy his legal documents.  He sought declaratory and injunctive relief and damages.  He asserted that defendants refused three requests by him to photocopy legal documents.  His complaint alleged that inmates at FCC were "routinely denied photocopies of needed legal materials," that he himself "has on several occasions been denied needed copies of legal materials," and that the failure to provide copies "has caused plaintiff to suffer difficulty and harm in pursuing his legal claims."1  To his complaint, Hiser attached, among other things, a grievance appeal response stating that "FCC will not make [copies] for you as you have no pending court case involved with this subject," and a response from defendant Franklin stating that "[w]e are under no obligation to photocopy anything, however, we do so if there is a valid reason.  The burden is on you to demonstrate this reason."2

4
The State moved for summary judgment on the grounds of res judicata, contending that Hiser's photocopying claim "was or could have been raised" in Cleary v. Smith, 3AN-81-5274 Civ.  (3d Jud.  Dist.Alaska).  Cleary was a state class action lawsuit brought on behalf of all present and future Alaska inmates.  It sought (only) declaratory and injunctive relief against the Alaska Department of Corrections to redress a variety of prison conditions.  It was filed in 1981.  The final settlement agreement was approved by the court on September 21, 1990.  The agreement is 88 pages, with approximately six pages devoted to topics related to access to the courts, such as materials in the law library and legal mail.  No mention of photocopying is made.  Even though the issue of photocopying was not addressed in the Cleary litigation, the magistrate judge recommended that summary judgment be granted on the grounds of res judicata.  He concluded that there is no independent constitutional right to photocopying and that any such right is a component of the right to access to the courts, which was comprehensively litigated.  The district judge agreed with the magistrate judge's reasoning and entered summary judgment in favor of the State.  Hiser timely appealed.

II.

5
The district court's grant of summary judgment on res judicata grounds is reviewed de novo.   International Union of Operating Engineers-Employers Const. Indus. Pension, Welfare & Training Trust Funds v. Karr, 994 F.2d 1426, 1429 (9th Cir.1993).

III.

6
The preclusive effects of former litigation are commonly referred to as "res judicata."  Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 n. 1, 104 S.Ct. 892, 894 n. 1, 79 L.Ed.2d 56 (1984).  "Res judicata is often analyzed further to consist of two preclusion concepts:  'issue preclusion' and 'claim preclusion.' "  Id.

7
Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided.  See Restatement, supra, § 27.  This effect also is referred to as direct or collateral estoppel.  Claim preclusion refers to the effect of a judgment in foreclosing relitigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit.  Claim preclusion therefore encompasses the law of merger and bar.  See id., Introductory Note before § 24.3

8
Id.

9
To determine the preclusive effect of the Cleary litigation on Hiser's photocopying claim, this court applies Alaska's res judicata law.  See id. at 81, 104 S.Ct. at 896 ("It is now settled that a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the state in which the judgment was rendered.").  Alaska generally follows the Restatement (Second) of Judgments.  See State v. Smith, 720 P.2d 40, 41 (Alaska 1986);  Tolstrup v. Miller, 726 P.2d 1304, 1306 (Alaska 1986).

A.

10
Hiser's claims are not barred by issue preclusion.  The Alaska Supreme Court has expressly said that "[t]he issue of photocopying was not raised in regard to the [final settlement agreement "FSA" in Cleary ] and is not properly raised as a challenge to the FSA."  Hertz v. Cleary, 835 P.2d 438, 440 (Alaska 1992).  Issue preclusion only bars the relitigation of issues explicitly litigated and necessary to the judgment.  Since the issue of photocopying was not adjudicated in the Cleary litigation, issue preclusion does not bar consideration of Hiser's photocopying claim.  The State essentially acknowledges this, explaining that it is relying on the "claim preclusion," rather than "issue preclusion," prong of res judicata.

B.

11
Neither are Hiser's claims barred by claim preclusion.  In  Hoffman Const. Co. v. Active Erectors & Installers, Inc., 969 F.2d 796 (9th Cir.1992), cert. denied, 507 U.S. 911, 113 S.Ct. 1258, 122 L.Ed.2d 656 (1993), this court noted that in Alaska, "res judicata covers 'relevant claims that could have been raised in the prior case,' but were not.  A mere change in the legal theory asserted cannot revive an already barred action."  Id. at 799 (quoting DeNardo v. State, 740 P.2d 453, 456 (Alaska 1987), cert. denied, 484 U.S. 919, 108 S.Ct. 277, 98 L.Ed.2d 239 (1987)).  The State asserts that Hiser's photocopying claim is barred because it "could have been raised in Cleary."

1.

12
Hiser's claims for damages and individual injunctive relief are clearly not barred by res judicata because they could not have been brought in the Cleary litigation.  Hiser was not even incarcerated at the time of the Cleary settlement agreement.  His claims did not accrue until 1992-two years after the settlement agreement-when he requested and was denied photocopying.  Therefore, Hiser's individual claims for damages and injunctive relief are not barred.  Accord 18 Wright, Miller & Cooper, Federal Practice and Procedure:  Jurisdiction § 4455 (1995 supp.)  ("Another obvious limitation on class action preclusion is that the judgment does not bar an individual claim based on events occurring after the judgment.").

13
Moreover, the general rule is that a class action suit seeking only declaratory and injunctive relief does not bar subsequent individual damage claims by class members, even if based on the same events.  In fact, "every federal court of appeals that has considered the question has held that a class action seeking only declaratory or injunctive relief does not bar subsequent individual suits for damages."  In re Jackson Lockdown/MCO Cases, 568 F.Supp. 869, 892 (E.D.Mich.1983);  see, e.g., Fortner v. Thomas, 983 F.2d 1024, 1030-32 (11th Cir.1993) ("It is clear that a prisoner's claim for monetary damages or other particularized relief is not barred if the class representative sought only declaratory and injunctive relief, even if the prisoner is a member of a pending class action.");   18 Wright, Miller, & Cooper, Federal Practice and Procedure:  Jurisdiction § 4455 (1981 and 1995 supp.)  (collecting cases).  In Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984), the Supreme Court held that the plaintiffs' Title VII damages suit against their employer was not barred by the res judicata effect of a previous Title VII class action-even though the plaintiffs had been class members and witnesses in the previous action and thus could have brought their damages claim in that case.  Finally, a leading treatise concludes that a member of a class generally should be free to bring an individual damages claim subsequent to a class action suit for declaratory or injunctive relief:

14
The basic effort to limit class adjudication as close as possible to matters common to members of the class frequently requires that nonparticipating members of the class remain free to pursue individual actions that would be merged or barred by claim preclusion had a prior individual action been brought for the relief demanded in the class action.  An individual who has suffered particular injury as a result of practices enjoined in a class action, for instance, should remain free to seek a damages remedy even though claim preclusion would defeat a second action had the first action been an individual suit for the same injunctive relief.

15
18 Wright, Miller & Cooper, Federal Practice and Procedure:  Jurisdiction § 4455 (1981).

16
The district court's dismissal of Hiser's damages claim is contrary to this authority.  Although these authorities do not specifically apply Alaska law, there is no Alaska case to the contrary and no reason to believe that Alaska's law would differ.  Alaska follows the Restatement;  in Cooper, the Supreme Court relied on the Restatement for its holding that the class members' subsequent individual damages claims were not barred by the previous class action lawsuit.  Also, Alaska courts have relied on Wright, Miller and Cooper's treatise for res judicata analysis.  See, e.g., State v. Smith, 720 P.2d at 42 n. 2. Finally, several of the cases holding that class members' subsequent damages claims are not barred have relied on notions of due process, which are applicable to state res judicata decisions as well.  In Wright v. Collins, 766 F.2d 841, 847-49 (4th Cir.1985), for instance, the court reasoned that before a member of a class can be barred from an individual claim for damages, the class members must be given clear warning that individual claims may be lost.  No such warning was given in the instant case.  The court observed that a broad-gauged class complaint "should not mean that all future litigation involving harm to individual prisoners will be precluded."  Id. at 848.   If every member of the class were compelled to intervene to protect his individual claims, serious questions would be raised as to the adequacy of the class representatives, and the class action would become unmanageable.  Id. at 849.

17
As amicus points out, prison class action litigation typically seeks only declaratory and injunctive relief.  The purpose of a class action is to concentrate on an issue or issues all class members have in common.  If every prisoner in the state of Alaska needed to join his or her own individual damage claim to the Cleary litigation or else lose it, the action would have been unmanageable.  As it is, the case took over twelve years to resolve and ended in an 88 page consent decree-without a single individual damage claim being involved.  The general rule that a class action for equitable relief does not bar subsequent individual damages suits recognizes and respects this reality.

18
For these reasons, Hiser's individual damages and injunctive relief claims are not barred by claim preclusion.

2.

19
a.

20
Even though a broad challenge to the prison's photocopying policy could have been brought in the Cleary litigation, Hiser's class action challenge to the prison's photocopying policy is not precluded either.  Alaska res judicata law generally bars relevant claims that could have been brought in the earlier litigation.  Specifically, Alaska follows the Restatement (Second) of Judgments, which forecloses "litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit."  Migra, 465 U.S. at 77, 104 S.Ct. at 894 (citing Restatement (2d) § 24, Introductory Note) (emphasis added).  A matter should have been advanced in the earlier litigation if it is part of the same "transaction, or series of connected transactions, out of which the action arose."  Smith, 720 P.2d at 41 (quoting Restatement (2d) § 24).  "The expression 'transaction, or series of connected transactions,' is not capable of a mathematically precise definition;  it invokes a pragmatic standard to be applied with attention to the facts of the cases....  In general, the expression connotes a natural grouping or common nucleus of operative facts."   Restatement (2d) § 24 comment b.

21
The district court reasoned that Hiser's photocopying claim was merely a subset of an "access to the courts" claim, which had previously been brought in the Cleary litigation, and was therefore barred.  We do not believe that all facts related to court access are part of a "common nucleus of operative facts" and therefore create one transaction and a single claim.  The concern behind claim preclusion is that a plaintiff should not be able to relitigate the same facts under a different legal theory.  Id. § 24.  Although Hiser's photocopying challenge implicates the same right of "access to the courts" as was addressed in the Cleary litigation, it is based on a different set of operative facts and is not merely an alternative remedy or theory of recovery.4

22
Thus, under the Restatement's transactional approach, Hiser's challenge to the prison's photocopying policy is not barred by claim preclusion.  Especially taking into account that the first action was a class action for which Hiser was an unnamed, absent class member, his claim should not be precluded.  Cf. Ferguson v. Department of Corrections, 816 P.2d 134 (Alaska 1991) ("Out of concern that it is unfair to preclude a non-named class member from subsequent litigation, many courts modify the traditional res judicata tests when the initial litigation is a class action.").  Arguably, everything related to prison life could conceivably be deemed part of "a series of transactions" when a broad-based class action is brought, but if this is how claim preclusion is defined in the class action context, it would essentially make class actions obsolete.  After one prisoner class action had been filed, no "related" claims could ever be filed.  No responsible attorney would file a class action challenging a prison condition, because by doing so, all future claims by prisoners challenging an unconstitutional condition could be barred-even if the specific issue was never raised in the previous litigation.

23
The Alaska Supreme Court's decision in Ferguson v. Department of Corrections, 816 P.2d 134 (Alaska 1991) recognizes that res judicata must be applied carefully in the class action context.  In Ferguson, the plaintiff wished to challenge the Alaska Department of Corrections' drug testing policies.  The plaintiff was, like Hiser, "technically a party in the Cleary litigation," since the Cleary litigation included all future Alaska inmates.  Id. The State moved to dismiss, arguing that Cleary barred the plaintiff's claim on the grounds of res judicata.  The Department of Corrections' drug testing policies had been in fact been evaluated on cross motions for summary judgment in Cleary.  Id. at 138.   Accordingly, the superior court dismissed the complaint as barred by res judicata.

24
The Alaska Supreme Court reversed.  The court noted that a person cannot be bound by a judgment unless he has had the opportunity to be heard in opposition to the judgment.  The court concluded that Ferguson had not "been fully heard on the issue of the prison's drug testing policies."  Id. Even though the drug testing had been challenged in Cleary, it "constituted a relatively insignificant aspect of the litigation and negotiations."  Id. The court determined that "the Cleary plaintiffs did not adequately represent Ferguson's interests as to the reliability of the EMIT test;  consequently, the provisions in Cleary related to drug testing cannot be given res judicata effect."  Id. at 139.  "Although concerns as to [the test's] reliability were raised in Cleary, they were not given the careful consideration they deserve, and it would be unjust to block future consideration now."  Id.

25
Hiser's situation is even more compelling.  In Cleary, the drug testing policy was challenged-albeit in a cursory fashion.  Thus, not only was Ferguson's a related claim that could have been raised, it actually was raised.  Even so, the Alaska Supreme Court determined that res judicata did not bar the claim, since "Ferguson was not fully heard on the issue."   Hiser was not heard at all on the issue of photocopying, much less "fully heard on the issue."   Accordingly, just as Ferguson's interests in challenging the drug testing policy were not "adequately represent[ed]" in the Cleary litigation, Hiser's interests in challenging the photocopying policy were not "adequately represent[ed]."5

26
The State suggests that Ferguson is distinguishable because the Cleary plaintiffs' attorney at the time the drug testing issue was litigated was not very good, whereas the Cleary plaintiffs' attorney at the time of the consent decree, Mr. Volland, is excellent.  We think the distinction untenable.  The Alaska Supreme Court did not allow Ferguson's case to go forward because it concluded that the plaintiffs' attorney was incompetent.  Rather, the Court allowed Ferguson's case to go forward because the issue with which he was concerned, drug testing, had "not been given the careful consideration [it] deserve[d]" in the Cleary litigation;  thus, the Cleary plaintiffs had not adequately represented Ferguson's interests in challenging the drug testing.  Similarly, Mr. Volland may be an excellent attorney, but because the State's photocopying policy was given no consideration in the Cleary litigation, much less "careful consideration," the Cleary plaintiffs did not adequately represent Hiser's interests in challenging the policy.  Thus, under Ferguson, Hiser's class action challenge to the State's photocopying policy is not barred by res judicata.

27
b.

28
Finally, we conclude that res judicata is inapplicable for a separate and independent reason:  "[R]es judicata does not apply where supervening decisions of [state or federal courts] so change the legal atmosphere as to render the doctrine inapplicable," Ferguson, 816 P.2d at 138 n. 11 (internal quotation omitted), and supervening decisions have changed the legal atmosphere regarding the right of inmates to obtain photocopies of legal documents.

29
In Gluth v. Kangas, 951 F.2d 1504, 1510 (9th Cir.1991), decided after the Cleary settlement, this court upheld a district court injunction which, among other things, required the department of corrections to provide inmates with photocopying of legal documents.  951 F.2d at 1510.   The court reasoned, "Litigation necessarily requires some means of accurate duplication because the court and the parties need to refer to the same documents.  Photocopying is a reasonable means of providing the necessary copies."  Id. Hiser argues that Gluth changed existing law by declaring that inmates have a constitutional right to photocopying legal documents as part of their access to the courts.  The State disputes Hiser's reading of Gluth.   It contends that Gluth was fact-specific and merely dealt with nonconstitutional remedies.  It asserts that "the law in the Ninth Circuit continues to be consistent with other federal jurisdictions, i.e., there is no constitutional right to photocopying."Regardless of the merits of the State's reading of Gluth at the time, it is now clear that there is a constitutional right to photocopying under certain circumstances.  In Allen v. Sakai, 48 F.3d 1082 (9th Cir.), cert. denied, 514 U.S. 1065, 115 S.Ct. 1695, 131 L.Ed.2d 559 (1995), we held that an inmate has a clearly established right to reasonable photocopying of legal documents as an essential component of an inmate's right of access to the courts.  Id. at 1089-91.   Thus, subsequent to the final settlement agreement in Cleary, the Ninth Circuit has for the first time stated that prisoners have a constitutional right to photocopying.  Because this development in the law makes res judicata inapplicable, Hiser's photocopying claims must be evaluated on the merits.6

IV.

30
Hiser's photocopying claims are not barred by res judicata.  We reverse and remand for further proceedings not inconsistent with this opinion.

31
RYMER, Circuit Judge, concurring in part, dissenting in part:

32
I agree that Hiser may pursue his claim for damages, as he was not incarcerated in Alaska when Cleary was decided and the actions about which he complains did not occur until almost a year later.  Under these circumstances, the Cleary judgment cannot be dispositive of his individual claim, and I concur in the majority's conclusion in this respect.

33
However, I do not agree that Hiser's claims for declaratory and injunctive relief survive.  Hiser complains about the right to photocopy.  While photocopying was not an issue in Cleary, copying was.  Alaska's policy regarding photocopying of legal and other materials for inmates has remained unchanged since at least 1983.  It therefore could have been raised as part of the class challenge that inmates were denied access to the courts in part on account of the policy on copying.  Particularly in light of the extensive nature of the Cleary litigation and the comprehensive settlement reached so recently in that case (including, as it did, a specific provision on access to copying facilities), it is not inappropriate to expect a claimant seeking systemic relief with respect to copying to return to the Cleary court.

34
I cannot agree with the majority that Ferguson v. Dep't of Corrections, 816 P.2d 134 (Alaska 1991), stands for the broad proposition that we must disregard the principles of res judicata whenever a non-named class member wishes to start anew.  Rather, Ferguson simply tells us that "there must have been a full and fair opportunity to litigate the issue before res judicata can be applied," and that such an opportunity has been provided where, as here, "the class representatives are found to have made a competent attempt to protect the interests of the individual who now seeks to litigate the issue."  Id. at 138.

35
Regardless, since the majority's opinion does hold that Hiser's suit is permissible under Alaska law, there is no need for it to reach the question whether the Constitution requires the district court to hear Hiser's photocopying claim.  Thus, the discussion of Gluth and Allen is unnecessary.  In any event, I do not believe Hiser is exempt from res judicata on the ground that the law has changed.  Gluth v. Kangas, 951 F.2d 1504 (9th Cir.1991), holds only that an injunction which required that photocopying be available was within the district court's discretion;  it does not say that providing photocopies is constitutionally required, or the only reasonable means of providing necessary copies to assure meaningful access to the courts.  Id. at 1501.   Nor do I read Allen v. Sakai, 48 F.3d 1082 (9th Cir.1994), as so holding.  It simply acknowledges that "a plaintiff's access to the courts could be hindered seriously by an inability to make multiple, accurate copies of legal documents."  Id. at 1089.   Thus, neither Gluth nor Allen is a supervening decision that changes the legal landscape upon which Cleary wrote.  Neither holds that the Constitution requires photocopying.  That being the case, Hiser is precluded from relitigation of a request for equitable relief arising out of an access claim based on copying.  I would, therefore, affirm the district court on this issue.

1
 Although Hiser did not use the phrase "as applied," he clearly argued that his personal rights were violated by defendants' refusal of his request for photocopying.  Thus, we reject the State's contention that Hiser only facially attacked the prison's photocopying policy

2
 The State submitted an affidavit from FCC compliance officer Judy Coleman declaring that the State's policy provides for "free photocopying for legal materials for indigent inmates when they can demonstrate a need for such materials in connection with pending or proposed litigation, and for five free copies per week when they cannot make such a showing."   No written memorialization of the policy was submitted.  Hiser contends in his amended complaint that "[n]umerous inmates have been denied copies of legal materials because they have been unable to justify their need for such materials to defendants' satisfaction."

3
 The term "res judicata" is sometimes used to refer specifically to "claim preclusion" and sometimes used to encompass both "claim preclusion" and "issue preclusion."  Migra, 465 U.S. at 77 n. 1, 104 S.Ct. at 894 n. 1

4
 We note that the Cleary consent decree requires the State to provide typewriters and carbon paper to inmates.  Allen v. Sakai, 48 F.3d 1082 (9th Cir.), cert. denied, 514 U.S. 1065, 115 S.Ct. 1695, 131 L.Ed.2d 559 (1995) holds that there is a constitutional right to photocopying under certain circumstances.  Carbon paper would not appear to be an adequate substitute.  For example, an inmate might need to copy something he didn't write himself, for which carbon paper would be useless.  In any event, the issue at this juncture is only whether res judicata bars consideration of the merits of Hiser's claim.  That carbon paper was addressed in the consent decree should not mean that the State's photocopying policy and practices may never be challenged.  Cf. Crowe v. Leeke, 550 F.2d 184 (4th Cir.1977) (holding that prior class action challenging prison's mail regulations in general did not bar subsequent class action challenge to prison's procedure allowing mail from attorneys to be opened and inspected outside the presence of the inmate-addressee)

5
 Because Ferguson's concerns were not sufficiently addressed in Cleary, Ferguson was entitled to bring an independent action challenging the prison's drug testing policy.  He was not relegated to reopening the Cleary litigation.  So, too, Hiser may bring an independent action challenging the prison's photocopying policy.  Although a court may, in appropriate cases, transfer or consolidate a plaintiff's individual claim with an existing class action, the court may not simply dismiss the claim as barred by res judicata.  See, e.g., Fortner, 983 F.2d at 1030-32

6
 By our ruling, we intimate no view of the merits of Hiser's claim.  Although res judicata does not bar Hiser's claim, Hiser must still establish a denial of his right to photocopying and demonstrate an "actual injury" from the denial in order to prevail.  See Allen, 48 F.3d at 1090


97 Cal.App.2d 50 (1950)
217 P.2d 78
HELEN LOUISE HOPKINS, Plaintiff and Appellant,
v.
LAWRENCE E. DETRICK, Defendant and Appellant; MARIE ALDEN HOPKINS, Respondent.
Docket No. 17346.
Court of Appeals of California, Second District, Division Two.
April 19, 1950.
*52 Frank M. Gunter for Defendant and Appellant.
Gang, Kopp & Tyre and Hermione K. Brown for Plaintiff and Appellant and Respondent.
MOORE, P.J.
Two appeals are involved. Two separate causes were consolidated for trial, namely, an action for divorce, and a suit to quiet title to the property involved in the complaint for divorce. Two separate judgments were entered based upon two separate decisions. Despite the title of the case, the parties are husband and wife. To avoid confusion they will be referred to as "husband" and "wife." The latter's sister, Marie Alden Hopkins, is an incidental party, husband having sued her to quiet title to a certain real property. Her fortunes go with those of Helen Louise.
Husband and wife were married at Rochester, New York, in 1927. Wife had taken a degree in medicine and was then an interne in an eastern hospital. Husband was a student of medicine, but did not graduate from medical school. He specialized in biochemistry and received his Ph.D. They moved to California where they lived with wife's parents for six years. In 1932 she abandoned the name of her husband and by legal proceeding at Los Angeles was restored to her maiden name. She opened her office for the practice of medicine. In the years that followed a rift that had developed in their romance widened until finally she sued him for divorce. *53 After the trial the court made findings that husband "has been guilty of extreme cruelty to plaintiff and has treated plaintiff in a cruel and inhuman manner, and has caused plaintiff grievous mental and physical suffering without fault on plaintiff's part"; that there is no community property; that all the property in the possession of wife is her own separate estate and all in husband's possession is his separate property.

THERE WAS EXTREME CRUELTY
[1] Husband challenges the findings and the evidence as insufficient to support the judgment. There is nothing wanting in the evidence. He upbraided her at home and outside and bruised her arms and back, broke her lamp, tore pages from her Bible, treated her parents with contempt, would not eat breakfast at their table, grievously hurt and distressed her by his lack of affection; remained away from home once for a week and often late at night without acquainting wife of his whereabouts; took away her automobile which she was using as an employee of the city health department; during the long illness of her father husband made such hideous noises at night with his car, the garage door and his entrance into the dwelling that he so aroused the feeble and aged man that the latter could not that night sleep again, to the discomfort and pain of wife. He refused to go with her to visit her sister; disliked all of wife's family, to her emotional distress; he departed merrily from home to join the Army without an expression of regret and did not write his wife for a month. All his letters being impersonal caused her extreme mental anguish. On his return to Los Angeles he first visited with a woman friend before coming home and then did not kiss wife on their meeting. Not only did he cast off all display of gallantry and kindness but he left wife to her own battle for subsistence and success. His income was evidently meager and throughout the years he contributed practically nothing to the maintenance of the home and the household expense. The court found not only the foregoing facts but that husband's putting the entire financial responsibility upon wife caused her grievous mental and physical strain and suffering; that his practice of remaining in bed in the morning and his refusal to join the family at breakfast caused wife unhappiness and embarrassment before her parents; that his failure for many years to bestow upon wife any affection grievously hurt and distressed her  all these things caused her great *54 emotional distress. The foregoing and other findings read in connection with the quoted, all-embracing finding of grievous mental suffering, complete the factual decision of husband's extreme cruelty. (Ungemach v. Ungemach, 61 Cal. App.2d 29, 40 [142 P.2d 99]; Carlin v. Carlin, 114 Cal. App. 186, 190 [299 P. 543].)
Whether from the evidence a court can be reasonably convinced that a wife has suffered extreme cruelty is to be determined from all the facts including the judicial inspection of the parties, their intelligence, refinement, delicacy of sentiment, and the determination will not be disturbed on appeal. (LaMar v. LaMar, 30 Cal.2d 898, 900 [186 P.2d 678]; Keener v. Keener, 18 Cal.2d 445, 447 [116 P.2d 1]; Tompkins v. Tompkins, 83 Cal. App.2d 71, 74 [187 P.2d 840].) Conduct that would cause grievous mental suffering sufficient to constitute extreme cruelty depends upon the circumstances of the case under review. The findings here are sufficient to support a judgment of divorce for extreme cruelty. Conceding that there is evidence tending to show cruelty on the part of wife, the finding that her acts were justified is conclusive in view of substantial evidence in support thereof. (Martin v. Martin, 79 Cal. App.2d 409, 412 [179 P.2d 655]; Norris v. Norris, 50 Cal. App.2d 726, 730 [123 P.2d 847].) Husband is unfortunate in his insistence that he established the defense of recrimination and that he was entitled to a divorce based on wife's mental cruelty for the reason that the court found that her acts did not constitute cruelty. Whether the conduct of wife was such as to warrant a finding of extreme cruelty or whether it was sufficiently culpable to necessitate the denial of the relief sought by her is a question of fact addressed to the trial court. (Farmer v. Farmer, 79 Cal. App.2d 536, 538 [180 P.2d 55]; Witaschek v. Witaschek, 56 Cal. App.2d 277, 279 [132 P.2d 600].)

THERE WAS NO COMMUNITY PROPERTY
[2] The property found to belong to the wife separately consisted of real property and automobiles registered in her name; furniture, moneys in the bank, insurance and annuity contracts; her accounts receivable; her office furniture and equipment. There is an abundance of evidence to support such findings, and the evidence is substantial to support the findings that the personal property in the possession of the husband is his own estate.
The wife testified that at the time of establishing her medical *55 offices and her bank account in her own name she told the husband of her intention and plan to start out in the right way and that she was putting everything in her own name; that she intended by this to establish her own property as separate; that husband made no objections; that for 10 years every act of the parties in relation to the earnings of the wife showed that they mutually understood and acted upon the oral agreement. The husband retained no control over her bank account; never drew a check upon it; made no deposits in it; never had use of her safety deposit box; never owned her automobiles, but instead the titles to all her possessions were in her own name. Not only did she take title to her home which she purchased with her own funds but she transacted all the business, signed all the papers, made all the payments out of her own earnings. The husband did not even inquire what she did with her moneys, where she kept them or how she used them. The wife recorded a current account with the husband showing that both of them treated her property as her own, his belongings as his own. When husband borrowed from wife, he paid back the sums in exactly the same amounts that were loaned to him. When she purchased a new car, she sold her old one to him for cash. Wife's testimony indicates substantial support for the finding that husband relinquished all claim to her earnings at the commencement of her business career in 1932. Such evidence is sufficient. It is the law of California that the husband may relinquish to the wife the right to her earnings during her coverture without any consideration other than their mutual consent, whereupon her earnings become her separate estate. Evidence of the husband's conduct indicating his attitude that her earnings were her separate possessions is sufficient proof. (Pacific Mutual Life Ins. Co. v. Cleverdon, 16 Cal.2d 788, 791 [108 P.2d 405]; Dee v. San Francisco etc. System, 80 Cal. App.2d 590, 591 [182 P.2d 601].) Therefore, from the evidence, the finding made was the only reasonable determination.

WIFE'S EXPLANATION OF HER WRITINGS
[3] Husband contends that since there was no express agreement that her earnings should be separate, there is no proof to support the finding that he relinquished all interest in her earnings except the inference drawn from his silence on being advised of her purpose. Such inference he contends must yield to the direct unequivocal evidence of her writing in the joint income tax returns she made in the four years *56 commencing with 1942 in which she reported her earnings as community property. In support thereof he cites Blank v. Coffin, 20 Cal.2d 457, 460 [126 P.2d 868]; Engstrom v. Auburn Auto. Sales Corp., 11 Cal.2d 64, 70 [77 P.2d 1059]; Roberts v. Brae, 5 Cal.2d 356, 359 [54 P.2d 698]; Maupin v. Solomon, 41 Cal. App. 323, 324 [183 P. 198].) The rule announced by cited cases is that for the inference to be dispelled the contrary evidence needs only to be clear, positive and uncontradicted. Wife's testimony was that by reporting her earnings as community receipts she did not intend to change their character but acted upon the suggestion of a tax accountant and that she did not understand the meaning of so reporting until 1947 when she consulted a lawyer concerning her domestic infelicities. Her testimony was not only direct but persuasive. If she had acted upon the advice of a person who she thought could wisely advise her, the court was privileged to accept her explanation of her writing.

OTHER CONTENTIONS OF HUSBAND
[4] Husband insists that his contention is supported by the principle that earnings of a wife are community property, citing Bekins v. Dieterle, 5 Cal. App. 690 [91 P. 173]; Stice v. Stice, 81 Cal. App.2d 792, 797 [185 P.2d 402]; Heck v. Heck, 63 Cal. App.2d 470, 474 [147 P.2d 110].) These authorities involve the problem of determining whether property acquired prior to marriage was community. It was held that the tax returns were sufficient to establish that the assets were community property. But in every such case[*] the fact finder had to determine from all the evidence before him whether the property in question was community or separate. Such finding is binding upon the court of review in the absence of error. (Nichols v. Mitchell, 32 Cal.2d 598 [197 P.2d 550].) Since the evidence herein upon which the court based its finding of the husband's relinquishment of claim of ownership of a share in the wife's earnings is reasonable and credible the reviewing court cannot say that the trier of fact abused his discretion in making his determination. (Balkema v. Deiches, 90 Cal. App.2d 427, 430 [202 P.2d 1068].)
Husband contends that aside from the doctrine that inference is overcome by written evidence, the wife's recital in her income tax returns is conclusive proof that her earnings *57 were community property, citing Estate of Watkins, 16 Cal.2d 793, 797 [108 P.2d 417, 109 P.2d 1]. The cited case is not authority for husband's claim. There the spouses had executed a joint and mutual will, a single document that was the equivalent of a contract, whereas herein the wife's returns were separate documents, addressed not to the husband but to the government.
Husband contends that in making the tax returns wife was acting as his agent and that having made affirmative written representations that the earnings were community property, she is estopped in her action against her principal to contend otherwise, citing Wood v. Blaney, 107 Cal. 291, 294-5-6 [40 P. 428].) The cited case is not authority. There the agent executed a contract of sale on behalf of his principal reciting the receipt of $500 as deposit although he had received a worthless note. The agent was estopped to contradict the recitals in the contract. In the instant case wife made no statements for the purpose of deceiving her husband; nor did she make any with culpable negligence. The husband had knowledge of the true state of the title of the earnings; he did not rely upon her statements as inducements to do some act to his detriment; he will not be criminally liable since the returns were not fraudulently made or falsely filed. In no sense was his relationship to the wife's earnings altered. While it is true that husband by approving of the returns subjected himself to a possible liability for a deficiency tax, he is not injured thereby since the wife agreed to pay all the unpaid tax on his income for the five years reported on the community basis as well as any due on her own.

HUSBAND NOT ENTITLED TO REFUNDS
[5] Finally, husband complains that injustice is done by the judgment in awarding wife any refunds on her taxes paid during the five years she reported on the community basis; that the decree does not require her to file amended returns and compels him to become a party to a fraud on the government. To concede such demand would be unfair. Wife paid all the taxes during the same five years. Why should any portion of a refund go to him who did not make the slightest contribution to the payment? It was the duty of the court to dispose of all issues with respect to the property claims of the parties. (Mergenthaler v. Merganthaler, 69 Cal. App.2d 525, 528 [160 P.2d 121].) It would have been improper for *58 the court to order the wife to file amended tax returns (Hansen v. Bear Film Co., 28 Cal.2d 154, 176 [168 P.2d 946].)

ORDER FOR WIFE TO PAY HUSBAND'S ATTORNEY NOT ABUSE OF DISCRETION
[6] While the wife approves of the judgment insofar as it entitles her to a divorce and determines that the property is not community, she is displeased with the court's order which directs her to pay $1,500 to husband's attorney in addition to the $500 which the court had previously required wife to pay "on account of attorney's fees ... and court costs in the sum of $100." She contends that the court is without authority to make such an award out of a wife's separate estate in favor of a husband; that the power to award suit money is a creature of statute and was not available at common law, citing Eisenring v. Superior Court, 34 Cal. App. 749, 750 [168 P. 1062.] But notwithstanding the apparent absence of statutory provision for the enforcement of the order, section 137 of the Civil Code clearly provides that the court may in its discretion require the wife to pay "any money necessary to enable ... the husband to ... defend the action." In the enactment of such statute the Legislature did not intend that it should not be enforced. It is true that section 141, Civil Code, makes provision for the court to resort first to the community property and then to the separate property of the husband and from this the wife argues that the court is precluded from awarding suit money to the husband payable out of the wife's separate estate. But section 141 is embalmed in the same language in which it was written in 1872 whereas the Legislature having concluded that section 137 of the Civil Code was antiquated and deeming its amendment essential to the needs of society, so amended it in 1927 as to authorize the courts to award suit money to the husband in a divorce action when necessary to enable him to make a defense. The omission to include the separate property of the wife in section 141 at the time of the 1927 amendment to section 137 is obviously an oversight which should not deprive a litigant of rights definitely established by section 137. Where a statute adopts by reference the provisions of another statute, such provisions so adopted are incorporated in the form in which they existed at the time of the reference and not as subsequently modified. (Palermo v. Stockton Theatres, Inc., 32 Cal.2d 53, 58 [195 P.2d 1].) In problems of statutory construction it must be assumed that the Legislature intended its *59 acts to have effective operation and that subsequent amendments or failure to amend a conflicting statute will not be construed as depriving the adopting statute of all the effect intended for it by the Legislature. (See Ramish v. Hartwell, 126 Cal. 443, 447 [58 P. 920].)
It is the general rule that statutes are to be given a reasonable interpretation to the end that the object and purpose of the law will be effectuated and also "affirmative expressions in a statute introducing a new rule imply a negative of all not within their purview." (Johnston v. Baker, 167 Cal. 260, 264 [139 P. 86].) Since one of the purposes of section 137, Civil Code, is to assure a needy spouse of funds to defend an action (Mudd v. Mudd, 98 Cal. 320 [33 P. 114]) the only rational disposition to be made of a divorce controversy is to require payment by the wife out of her separate property when the financial condition of the husband requires it to be done in the interest of justice.
[7] The wife further contends that there is no finding or evidence of need on the part of the husband and that the contrary is shown by the finding that he was earning in excess of $5,000 per year and was able-bodied and in good health, citing Loeb v. Loeb, 84 Cal. App.2d 141 [190 P.2d 246]. Sufficient need on the part of the husband was established by affidavits filed by him on his application for his order to show cause. He was then earning $284 per month while his expenses were $351.50. His salary was increased, but his expenses and taxes likewise increased. Here was a fairly sizable estate under investigation by the trial court and it was not an easy matter for decision as demonstrated by the exemplary briefs. The trial court might with reason have made different findings, so acute was the controversy. The case cited by the wife (Loeb v. Loeb, supra) is authority for the rule that the allowance of suit money rests with the sound discretion of the trial court.
The judgment is affirmed.
McComb, J., and Wilson, J., concurred.
A petition for a rehearing was denied May 2, 1950, and defendant and appellant's petition for a hearing by the Supreme Court was denied June 12, 1950.
NOTES
[*]   Including Estate of Raphael, 91 Cal. App.2d 931, 939 [206 P.2d 391]; Kelley v. State Board, 82 Cal. App.2d 627, 633 [186 P.2d 429]; Estate of Allan, 28 Cal. App.2d 181, 187 [82 P.2d 190].


794 N.E.2d 1004 (2003)
342 Ill. App.3d 203
276 Ill.Dec. 754
The PEOPLE of the State of Illinois, Plaintiff-Appellant,
v.
Stewart ROSE, Defendant-Appellee.
No. 2-02-0420.
Appellate Court of Illinois, Second District.
July 29, 2003.
*1005 Joseph E. Birkett, Du Page County State's Attorney, Wheaton, Martin P. Moltz, Deputy Director, Gregory L. Slovacek, State's Attorneys Appellate Prosecutor, Elgin, for the People.
John F. Donahue, Law Offices of Donahue, Sowa, Bugos & Brown, Lisle, for Stewart Rose.
Justice BOWMAN delivered the opinion of the court:
The State appeals the circuit court's order dismissing an indictment against defendant, Stewart Rose, because the State refused to reveal its confidential informant. The State contends that it did not have to reveal the informant's identity because defendant never demonstrated that this information was necessary to prepare his defense. We agree and therefore reverse and remand.
Defendant was indicted on two counts of possession with intent to manufacture a controlled substance (720 ILCS 570/401(a)(6.6)(B) (West 2000)) and controlled substance trafficking (720 ILCS 570/401.1(a) (West 2000)). During discovery, defendant asked the State to supply the name of its confidential informant. In its response, the State argued that disclosure was not required. It contended that the informant merely supplied the investigating agent with defendant's pager number and was not further involved in the transactions that led to defendant's arrest. The informant was not present when defendant was arrested.
Defendant renewed his request at a hearing on January 10, 2002. Defense counsel stated that he was concerned because *1006 defendant "was talking to several non-police officers, and I don't want to have a situation where one of them incited him, precipitated him to commit criminal activity at a time when they were actually working for law enforcement." The defense proposed that it would give the court a factual narrative including the people defendant was living with and another person defendant befriended. The court could review the information in camera, along with the State's disclosures, and decide whether to disclose the informant's identity.
The court stated that defendant's proposal "made sense." The court stated that if one of the names defendant supplied matched that of the informant, the court would order disclosure.
The prosecutor initially agreed to this procedure. However, when the parties returned to court on January 29, 2002, the prosecutor asked the court to give him time to file a motion to reconsider the court's ruling. In doing so, he argued that defendant had not made a sufficiently specific factual showing to require disclosure of the informant. The State argued that because defendant was saying that the informant could have been one of a number of people and little more, defendant's request was merely a "fishing expedition" that did not warrant the State giving up the privilege against disclosing the informant's identity. At a later hearing, defendant again argued that he had "dealings" with several people and, if one of them happened to be the informant, the "bell has rung."
When the State continued to balk at disclosing the informant's identity, defendant moved to dismiss the indictment. The trial court granted the motion, and the State timely appealed.
On appeal, the State argues that the trial court erred by dismissing the indictment. The State contends that an informant's identity is presumptively privileged unless a defendant can establish that he is unable to prepare his defense without the informant. The State argues that defendant's vague reference to an entrapment defense is not enough to overcome the privilege.
A trial court has the inherent authority to dismiss an indictment when the failure to do so would result in a deprivation of due process or a miscarriage of justice. People v. Newberry, 166 Ill.2d 310, 313-14, 209 Ill.Dec. 748, 652 N.E.2d 288 (1995). Where, as here, there is no dispute about the facts and the issues are purely legal, our review is de novo. People v. Coleman, 307 Ill.App.3d 930, 934, 241 Ill.Dec. 220, 718 N.E.2d 1074 (1999).
Supreme Court Rule 412(j)(ii) governs when the State must disclose a confidential informant's identity. The rule provides as follows:
"Disclosure of an informant's identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused. Disclosure shall not be denied hereunder of the identity of witnesses to be produced at a hearing or trial." 188 Ill.2d R. 412(j)(ii).
Defendant has the burden to show that disclosure of the informant's identity is necessary to prepare his defense. People v. Herron, 218 Ill.App.3d 561, 574, 161 Ill.Dec. 664, 578 N.E.2d 1310 (1991). Deciding whether to require disclosure of this information involves balancing the public interest in protecting informants against a defendant's right to prepare a defense. Roviaro v. United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628-29, 1 L.Ed.2d 639, 646 (1957); People v. Woods, 139 Ill.2d 369, 378, 152 Ill.Dec. 110, 565 N.E.2d 643 (1990). When an *1007 informant is alleged to have participated in, witnessed, or helped to arrange the crime and disclosure will not jeopardize the informant's safety, the privilege will generally give way to a defendant's right to prepare his defense. Woods, 139 Ill.2d at 378, 152 Ill.Dec. 110, 565 N.E.2d 643. On the other hand, where the informant neither participated in nor witnessed the offense, the informant is not a crucial witness and his identity may be withheld. Herron, 218 Ill.App.3d at 572, 161 Ill.Dec. 664, 578 N.E.2d 1310.
Here, the prosecutor repeatedly asserted that the informant was merely a tipster who had no further involvement in the criminal transactions. Defendant never offered anything to rebut this except vague speculation. Defense counsel stated only that defendant "was talking to several non-police officers" and was concerned that one of these acquaintances might have been the informant. Later, defense counsel explained that defendant had had "dealings" with several people, one or more of whom might have been working for the police.
Under Herron, defendant's burden encompassed something more than vague allegations that defendant had been "talking" or "dealing" with several people, one of whom might have been the informant. Defendant never offered any details showing how any of the people he dealt with induced him to commit the offenses. If anyone unfairly coerced defendant into committing a crime, defendant would know this and would have been able to provide his lawyer with more details. Instead, it appears that the defense went on a fishing expedition, hoping that learning the informant's name would allow it to develop some kind of defense. However, defendant had to do more. A vague assertion that defendant had possibly spoken to or dealt with the informant would require disclosure of the informant's identity in virtually every case, because presumably the informant and the person he or she informs on will have had some type of prior relationship.
We are not persuaded by defendant's contention that a more liberal disclosure standard should apply because the initial disclosure was to be made to the court in camera. Rule 412(j)(ii) does not differentiate between in camera disclosures and those in open court. If defendant did not meet his burden, disclosure was simply not required, regardless of the forum. Moreover, the trial court indicated by its remarks that if it found a "match"if the informant's name appeared on the list defendant was to submitit would order disclosure without a further showing.
The judgment of the circuit court of Du Page County is reversed, and the cause is remanded.
Reversed and remanded.
CALLUM and GROMETER, JJ., concur.


988 F.2d 1064
61 USLW 2643, 125 Lab.Cas.  P 35,797,1 Wage & Hour Cas.2d (BNA) 505
Lynn MARTIN, Secretary of Labor, United States Department ofLabor, Plaintiff-Appellant,v.PARKER FIRE PROTECTION DISTRICT, a Division of Parker citygovernment, Defendant-Appellee.
No. 91-1425.
United States Court of Appeals, Tenth Circuit.
March 22, 1993.

1
SEE 992 F2d. 1023 on denial of rehearing for opinion.


542 U.S. 924
KIDDv.HOOKS, WARDEN, ET AL.
No. 03-10024.
Supreme Court of United States.
June 21, 2004.

1
C. A. 11th Cir. Certiorari denied.