775 F.2d 1359
44 Fair Empl.Prac.Cas.  954,39 Empl. Prac. Dec. P 35,871Eduardo P. TRUJILLO, Plaintiff-Appellant,v.COUNTY OF SANTA CLARA, Defendant-Appellee.
No. 84-2281.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted March 14, 1985.Decided Nov. 5, 1985.

Appeal from the United States District Court for the Northern District of California.
John D. Fouts, True, Wetzel, Colton, Fouts & Ogulink, San Francisco, Cal., for plaintiff-appellant.
Steven Woodside, San Jose, Cal., for defendant-appellee.
Before WALLACE and POOLE, Circuit Judges, and STEPHENS,* District Judge.
WALLACE, Circuit Judge:

1
Trujillo appeals from the district court's dismissal of his employment discrimination claims on the ground that they are precluded by Trujillo's previous actions initiated under California's administrative procedures.  The district court had jurisdiction under 42 U.S.C. Secs. 1981, 1983, Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. Secs. 2000e to 2000e-17, and pursuant to 28 U.S.C. Secs. 1331, 1343.  We have jurisdiction under 28 U.S.C. Sec. 1291.  We affirm, in part on other grounds.

2
* In August 1974, the County of Santa Clara Sheriff's Department (the County) hired Trujillo to work on a federally-funded project (the project) to study the control, custody and care of jail inmates.  The County hired Trujillo for the position of Administrative Analyst II on a six-month provisional basis.

3
In order to advance to the status of permanent employee, Trujillo was required to pass a civil service examination.  He failed the examination and, as a result, the County terminated his employment in February 1975.  Had Trujillo passed this examination and a further oral examination, he would have continued in his position until the project's termination in August 1977.  After a successful probationary period, Trujillo would then have been eligible to transfer to another county position.

4
The examination in question was subsequently submitted for review to the Technical Advisory Committee (the Advisory Committee) of the California Fair Employment and Housing Commission (the Commission).  The Advisory Committee found that the test violated its testing guidelines because it had an adverse impact on persons of Mexican origin and was not shown to be job-related.

5
On August 22, 1975, Trujillo filed a complaint with the federal Equal Employment Opportunity Commission (EEOC) alleging discrimination on the basis of race and national origin in violation of Title VII.  As required by section 706(c) of Title VII, 42 U.S.C. Sec. 2000e-5(c), Trujillo also filed a state complaint with the Fair Employment Practice Commission, the Commission's predecessor,1 alleging violations of section 1420 of the California Fair Employment Practices Act, Cal.Lab.Code Secs. 1410-1433 (West 1971), which was superseded in 1980 by the California Fair Employment and Housing Act (FEHA), Cal.Gov't Code Secs. 12900-12996 (West 1980 & Supp.1985).2

6
Under the FEHA, an individual has a right to employment opportunities free from discrimination on numerous grounds, including race, Cal.Gov't Code Sec. 12921 (West 1980) (former section 1412), and such discrimination is against public policy, id. Sec. 12920 (West 1980) (former section 1411), and unlawful.  Id. Sec. 12940(a) (West Supp.1985) (former section 1420).  An individual claiming discrimination in employment must file a complaint with the Commission, id. Sec. 12960 (West Supp.1985) (former section 1422), the function of which is to investigate, conciliate and seek redress for aggrieved individuals.  See id. Sec. 12930 (West Supp.1985) (former section 1419).  After a complaint is filed, the Commission must investigate, id. Sec. 12963 (West 1980) (former section 1421), and if it finds the claim to be valid it must seek conciliation.  Id. Sec. 12963.7 (West 1980) (former section 1421).  If conciliation fails, it must issue an accusation to be heard by the Commission at an administrative hearing.  Id. Sec. 12965(a) (West Supp.1985) (former section 1423).  If an accusation is not issued within 150 days after the filing of a complaint, or if the case is otherwise closed by the Commission, the Commission must issue a right-to-sue letter to the complainant.  Id. Sec. 12965(b) (West Supp.1985) (former section 1422.2(b) ).3   Only upon receipt of a right-to-sue letter may an individual then file a civil action in a California Superior Court.  Id.  The EEOC deferred to the state agency according to Title VII's scheme.  See 42 U.S.C. Sec. 2000e-5(c).

7
The Commission decided to proceed to accusation against the County in June 1979.  An Administrative Law Judge (ALJ) held a hearing, with counsel for the Commission presenting the case for Trujillo, as directed by the statute, see Cal.Gov't Code Sec. 12969 (West 1980) (former section 1425).  Prior to the hearing, Trujillo had consulted an attorney to discuss the procedures for pursuing his claims.  At the hearing itself, however, he appeared without counsel.  Nevertheless, he was permitted to make a statement to the ALJ and to file two lengthy briefs by stipulation of the Commission and the County.

8
The ALJ subsequently found that the County had discriminated against Trujillo by terminating his employment on the basis of the examination.  In his proposed decision, the ALJ awarded Trujillo back pay from the date of his discharge (February 1975) through the date of the project's termination (August 1977).  In August 1980, the Commission adopted the ALJ's proposed order but extended the period of back pay up to the time of its decision, reasoning that but for the examination, the County would have hired Trujillo as a permanent employee.  The Commission, however, refused to order reinstatement.  Both parties then petitioned the Commission for reconsideration of its order, which was denied.

9
In January 1981, the County filed a petition for a writ of mandate under Cal.Civ.Proc.Code Sec. 1094.5 (West Supp.1985) in the Superior Court of Santa Clara County to set aside the Commission's decision.  The Commission's attorney and Trujillo's independent counsel opposed the County's petition.  Trujillo's attorney filed a memorandum in opposition both to the County's petition and to portions of the Commission's decision which failed to award Trujillo reinstatement.  He also requested attorneys' fees.

10
The trial court overturned the Commission's decision on the ground that there was no evidence of discrimination surrounding Trujillo's termination.  Trujillo did not appeal the trial court's adverse determination.    The Commission, however, appealed to the California Court of Appeal.  That court reversed the trial court, but modified the Commission's decision essentially to reinstate the ALJ's award to terminate the County's back pay liability as of the date of the project's completion.  The appellate court held that the assumption that Trujillo would continue to be employed by the County after the project had terminated was too speculative to support liability for further back pay or to require reinstatement.

11
In August 1982, before the conclusion of the state proceedings, Trujillo filed this action seeking reinstatement, full back pay and attorneys' fees.  His complaint alleges violations of both Title VII and 42 U.S.C. Secs. 1981, 1983.  The district court held that his claims were precluded.  We review the district court's dismissal on summary judgment de novo.   Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983).

II

12
Section 1738 provides that the "judicial proceedings of any court of any ... State ... shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State ... from which they are taken."    28 U.S.C. Sec. 1738.  Trujillo concedes that section 1738 applies to his claims under the civil rights statutes.  We agree.   See Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 898, 79 L.Ed.2d 56 (1984).  Trujillo argues, however, that because Title VII requires a plaintiff to bring a claim to the attention of a state agency before suing in federal court, see 42 U.S.C. Sec. 2000e-5(c), Congress did not intend section 1738 to apply to Title VII claims, at least not in the circumstances of this case.

13
The district court held that section 1738 applies to Trujillo's Title VII claim in light of Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982) (Kremer).    In Kremer, the Court held that section 1738 applies to a Title VII action after an employee appeals a state agency's decision regarding his employment discrimination claim to the state courts.  See id. at 473-78, 102 S.Ct. at 1893-95.  Although Trujillo concedes that Kremer 's language is broad enough to control this case, he argues that we should not apply Kremer because it was the County rather than the employee who initiated the state court proceedings.  He contends that to preclude a Title VII claim in a situation in which an employee was in state court only because he was forced to defend a state administrative decision "would have dire consequences for Title VII's scheme of deferral of employment discrimination claims to state agencies."

14
We must decide, therefore, whether Kremer applies when it is the employer rather than the employee who seeks judicial review of an adverse state administrative decision in the state courts.  In Kremer, the employee filed a complaint with the EEOC, which referred the complaint to the New York Division of Human Rights.  456 U.S. at 463-64, 102 S.Ct. at 1887-88.  That agency concluded that there was no probable cause to believe that the employer engaged in the alleged discriminatory practices.   Id. at 464, 102 S.Ct. at 1888.  The employee then unsuccessfully appealed the case in the Appellate Division of the New York Supreme Court.  Id.  The EEOC subsequently issued the employee a right-to-sue letter after ruling that reasonable cause did not exist to believe the discrimination charges.   Id. at 465, 102 S.Ct. at 1888.  The employee then brought a Title VII action in federal district court.  The district court dismissed the suit as barred by res judicata, and the Second Circuit affirmed.   Id. at 466, 102 S.Ct. at 1889.

15
The Supreme Court held that the Title VII action was precluded by the state court judgment.  In reaching this holding, the Court found that Title VII creates neither an express nor an implied partial repeal of section 1738 because it is not manifestly inconsistent with that section.  See id. at 468-76, 102 S.Ct. at 1890-94.  The Court further observed that nothing in Title VII's legislative history indicated "that Congress intended to override the historic respect that federal courts accord state court judgments."   Id. at 471-72, 102 S.Ct. at 1892 (footnote omitted).

16
In order to determine the merits of Trujillo's arguments, it is necessary to review the remedial framework of Title VII and related California discrimination law and procedure.  An individual claiming discrimination in employment practices must first file his federal claim with the EEOC.  See 42 U.S.C. Sec. 2000e-5(b).  If the state in which the claim arises provides additional remedies for discrimination plaintiffs, however, the aggrieved individual must pursue those state remedies for at least sixty days before filing his claim with the EEOC.  See id.  Sec.   2000e-5(c).  Once the state remedy has been adequately pursued, the EEOC conducts an investigation, id. Sec. 2000e-5(b).  The investigation culminates in one of two ways:  (1) the EEOC brings a civil enforcement action;  or (2) the EEOC issues a right-to-sue letter permitting the aggrieved employee to bring a civil action.  Id. Sec. 2000e-5(f)(1).  If the employee has been issued a right-to-sue letter, see 29 C.F.R. Sec. 1601.28 (1984), he may choose to sue in either state or federal court.  We point out, however, that we recently held that Title VII claims are within the exclusive jurisdiction of the federal courts.   See Valenzuela v. Kraft, Inc., 739 F.2d 434, 436 (9th Cir.1984).

17
Trujillo claims that if preclusive effect is given to the state appellate court determination, he will be denied his choice of forum contrary to the scheme of Title VII.  Thus, he argues, in this situation, unlike the situation in Kremer in which the employee pursued a state court remedy, Title VII and section 1738 cannot be read consistently.  Trujillo concludes that Title VII has therefore "effected an implied partial repeal of section 1738."    We disagree.

18
The Supreme Court in Kremer did not discuss whether the result in that case would have been different if it had been the employer who had invoked state court review.  It is significant, however, that the Court focused on the existence of the state court judgment and indicated that the finality of state court judgments should not "depend on which side prevailed in a given case."   Kremer, 456 U.S. at 470, 102 S.Ct. at 1892 (footnote omitted).  More recently, the Court has described Kremer in broad terms as holding that Title VII does not implicitly repeal section 1738.   See Marrese v. American Academy of Orthopaedic Surgeons, --- U.S. ----, 105 S.Ct. 1327, 1332, 84 L.Ed.2d 274 (1985) (Marrese ).

19
Marrese holds that the preclusive effect of a state court judgment is determined solely by reference to the applicable state law principles.  Id. 105 S.Ct. at 1331-32.  Even if the federal action lies within the exclusive jurisdiction of the federal courts, state law principles of preclusion must first be applied to determine whether the state would preclude a subsequent federal claim.   Id. at 1332.  Only if the federal claim would be precluded under state law must the district court then "determine if an exception to Sec. 1738 should apply."   Id. at 1335.  While observing that in the resolution of this issue "the primary consideration must be the intent of Congress," the Court cited Kremer as an example of a case in which the statute (Title VII) did not create an implied exception to section 1738.  Id.

20
Two circuits have already faced the issue before us, and in both instances have interpreted Kremer as precluding any subsequent federal action if state law would find the plaintiff's subsequent federal claim precluded by the initial state proceedings under the doctrines of res judicata or collateral estoppel.   See Hickman v. Electronic Keyboarding, Inc., 741 F.2d 230 (8th Cir.1984) (Hickman );  Gonsalves v. Alpine Country Club, 727 F.2d 27 (1st Cir.1984) (Gonsalves ).

21
Hickman presents a fact pattern identical to that presented by Trujillo.  The employee filed a complaint with the Missouri Commission on Human Rights, which subsequently held a hearing on his claim.  741 F.2d at 231.  The agency adopted the hearing officer's recommendation, which had found for the employee.   Id. at 232.  The employer appealed to the local Missouri trial court, which reversed.  Id.  The agency appealed to the Missouri Court of Appeals, but later withdrew its appeal.  Id.  The employee then filed suit in federal court.  Id.  Throughout the state proceedings, only the agency pursued the employee's complaint; the employee's independent counsel did not.   Id. at 232-33.  The Eighth Circuit held that the employee's attempt to distinguish Kremer lacked merit because "the preclusive effect federal courts must give state-court decisions under Sec. 1738 does not depend on whether the plaintiff or the defendant sought state court review," unless state res judicata principles themselves "dr[a]w such a distinction."    Id. at 232 n. 3.

22
In Gonsalves, two employees were forced to defend an administrative award in their favor when their employer appealed to a Rhode Island trial court.  727 F.2d at 27-28.  The court reversed the award, and although the Rhode Island Supreme Court initially granted the employees' writ of certiorari, that court later quashed the writ for lack of prosecution.   Id. at 28.  The employees then brought a Title VII action in federal district court, which held that the action was precluded.  Id.  The First Circuit affirmed, holding that the employees' attempt to distinguish Kremer was "a distinction without a difference."    Id.  The court stated that "a fair reading of Kremer shows that its rationale rests on neutral principles, not on the happenstance of which party--employer or employee--brings the state court action."    Id. at 29.

23
We find those cases persuasive, particularly in light of the Supreme Court's interpretation of Kremer in Marrese.    The cases on which Trujillo relies to support his position precede Kremer.  See Smouse v. General Electric Co., 626 F.2d 333, 335-36 (3d Cir.1980) (per curiam);  Gunther v. Iowa State Men's Reformatory, 612 F.2d 1079, 1083-84 (8th Cir.), cert. denied, 446 U.S. 966, 100 S.Ct. 2942, 64 L.Ed.2d 825 (1980).  Trujillo concedes, however, that the Third Circuit has discredited Smouse on the basis of Kremer.  See Davis v. United States Steel Supply, 688 F.2d 166, 178 (3d Cir.1982) (en banc) (Garth, J., concurring) ("all of those views are now 'water under the bridge' "), cert. denied, 460 U.S. 1014, 103 S.Ct. 1256, 75 L.Ed.2d 484 (1983) (Davis).    The First Circuit has also concluded that "Gunther can no longer be considered good law after Kremer."   Hickman, 741 F.2d at 232 n. 3.   See also Unger v. Consolidated Foods Corp., 693 F.2d 703, 710 n. 11 (7th Cir.1982) (questioning precedential value of Smouse and Gunther after Kremer because "it should be immaterial whether [the] plaintiff or defendant initiated the state court review"), cert. denied, 460 U.S. 1102, 103 S.Ct. 1801, 76 L.Ed.2d 366 (1983).  Moreover, the Supreme Court cited Smouse and Gunther as two of the cases holding contrary to the rule it adopted in Kremer.  Kremer, 456 U.S. at 466 n. 5, 102 S.Ct. at 1889 n. 5.  Thus, these cases fail to provide support for Trujillo's position.

24
Trujillo relies primarily on language in Kremer to the effect that "[n]o provision of Title VII requires claimants to pursue in state court an unfavorable state administrative action."    456 U.S. at 469, 102 S.Ct. at 1891.  We conclude that a narrow reading of Kremer on the basis of the distinction Trujillo suggests would be unreasonable, particularly in light of Marrese.    Here, there is no question that the County would be foreclosed from challenging the issue of discrimination in the federal suit under principles of collateral estoppel.  Indeed, Trujillo takes this very position in his brief.  No different result should come about with regard to Trujillo's claims simply because he did not initiate the state court proceedings in the same dispute.  More importantly, as Judge Garth observed in his concurrence in Davis, see 688 F.2d at 178, the Court in Kremer must have been aware that a situation such as that facing Trujillo might arise, in light of the concerns expressed by Justice Blackmun in his dissent, see Kremer, 456 U.S. at 504 n. 18, 102 S.Ct. at 1909 n. 18 (Blackmun, J., dissenting), and the Court's citation of Smouse and Gunther, 456 U.S. at 466 n. 5, 102 S.Ct. at 1889 n. 5.

25
Trujillo's argument that he has an absolute right to his choice of judicial forum once he has abided by the state administrative procedures was rejected by the Court in Kremer:  "Nothing in the legislative history of [Title VII] suggests that Congress considered it necessary or desirable to provide an absolute right to relitigate in federal court an issue resolved by a state court."    456 U.S. at 473, 102 S.Ct. at 1893.  Thus, the mere presence of a federal cause of action in Title VII does not necessarily entitle a plaintiff to a trial de novo in federal court.  See id. at 472 n. 10, 102 S.Ct. at 1892 n. 10.

26
Unless the state court's decision is final, there would be little "incentive for States to work towards effective and meaningful antidiscrimination systems."   Id. at 478, 102 S.Ct. at 1896.  Title VII was enacted not to preempt state discrimination law, but rather to supplement it if state law was inadequate.  See id. at 470-73, 102 S.Ct. at 1891-93.   Accord New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 65, 100 S.Ct. 2024, 2031, 64 L.Ed.2d 723 (1980) (Carey).    Indeed, the whole scheme of Title VII is "directed toward administrative cooperation" between state and federal systems, with "no evidence of congressional intent to compromise or circumscribe the validity of state judicial proceedings."   Kremer, 456 U.S. at 470 n. 8, 102 S.Ct. at 1892 n. 8 (emphasis in original).

III

27
Having concluded that state principles of preclusion govern the outcome of this case, we now must determine, as directed by Marrese, whether California law would accord preclusive effect to the California Court of Appeal's decision.  We first examine whether Trujillo's claims are precluded by res judicata.  We must address Trujillo's Title VII claim separately from his claims under 42 U.S.C. Secs. 1981 and 1983.

28
The Title VII issue is easily disposed of.  We have held that California courts will not apply res judicata to claims not raised in prior proceedings unless the court rendering the prior judgment had jurisdiction to hear such claims.   See Eichman v. Fotomat Corp., 759 F.2d 1434, 1437 (9th Cir.1985).  In Valenzuela, we held that Title VII claims are within the exclusive jurisdiction of the federal courts.  739 F.2d at 436.  Thus, Trujillo's Title VII claim is not precluded by res judicata.   See Hirst v. State of California, 770 F.2d 776, 777 (9th Cir.1985).

29
Trujillo's claims under 42 U.S.C. Secs. 1981 and 1983, however, survive this threshold jurisdictional issue, since both claims could have been brought in state court.  We must, therefore, address the res judicata issue.

30
In California, res judicata precludes a plaintiff from litigating a claim if:  the claim relates to the same "primary right" as a claim in a prior action, the prior judgment was final and on the merits, and the plaintiff was a party or in privity with a party in the prior action.   See Slater v. Blackwood, 15 Cal.3d 791, 795, 543 P.2d 593, 594, 126 Cal.Rptr. 225, 226 (1975);  Busick v. Workmen's Compensation Appeals Board, 7 Cal.3d 967, 974, 500 P.2d 1386, 1391-92, 104 Cal.Rptr. 42, 47-48 (1972);  see also Cal.Civ.Proc.Code Sec. 1908 (West 1983).

31
Trujillo's sections 1981 and 1983 claims both relate to the same "primary right"--the right to be free from employment discrimination based on race or national origin--as his state-adjudicated claim under the FEHA.   See Johnson v. American Airlines, Inc., 157 Cal.App.3d 427, 431-33, 203 Cal.Rptr. 638, 640-41 (1984).  Furthermore, a decision on a petition for writ of mandate seeking review of an administrative order is considered a final decision on the merits for res judicata purposes under California law.   See Hollywood Circle, Inc. v. Department of Alcoholic Beverage Control, 55 Cal.2d 728, 733, 361 P.2d 712, 715, 13 Cal.Rptr. 104, 107 (1961);  People v. Western Air Lines, Inc., 42 Cal.2d 621, 630, 268 P.2d 723, 728, appeal dismissed, 348 U.S. 859, 75 S.Ct. 87, 99 L.Ed. 677 (1954).

32
Trujillo essentially offers three arguments against the application of res judicata to his sections 1981 and 1983 claims:  (A) he argues that he should not be bound by the California judgment because he was neither a party nor in privity with a party to that litigation;  (B) he contends that his due process rights would be violated if the present action is precluded because his interests were insufficiently represented by the Commission and because he exercised no control over the administrative hearing or the state court proceedings;  and (C) he argues that preclusion would violate due process because he was deprived of a full opportunity to present his claim.  The district court ruled against him and we review the district court's determination of state law de novo.   In re McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc).

A.

33
Hearings under the FEHA are conducted according to the procedures outlined in the California Government Code, Cal.Gov't Code Secs. 11500-11528 (West 1980 & Supp.1985).  See id. Sec. 12972 (West 1980).  Under section 11500(b), the word " 'Party' includes the agency, the respondent [the County] and any person ... who has been allowed to appear or participate in the proceeding."    Id. Sec. 11500(b) (West 1980).  Although Trujillo was permitted to make a statement at the hearing and to present briefs, the record reflects that neither the Commission, the County nor the ALJ considered Trujillo a full party of record at the administrative hearing.   See Crumpler v. Board of Administration, 32 Cal.App.3d 567, 575, 108 Cal.Rptr. 293, 299 (1973) (person may intervene with the approval of the agency and become a proper party).

34
Privity, however, exists when "a person [is] so identified in interest with another that he represents the same legal right."   Zaragosa v. Craven, 33 Cal.2d 315, 318, 202 P.2d 73, 75 (1949), quoting 30 Am.Jur. Sec. 225, at 957.  Moreover, when statutory authority to sue has been given specifically to a public entity, a judgment in such a suit is res judicata as to all those "for whose benefit it is prosecuted."   Coachella Valley County Water District v. Stevens, 206 Cal. 400, 410-11, 274 P. 538, 542 (1929);  see Rynsburger v. Dairymen's Fertilizer Cooperative, Inc., 266 Cal.App.2d 269, 277, 72 Cal.Rptr. 102, 107 (1968) (Rynsburger).

35
The focus of the inquiry is whether the party in the later action was "sufficiently close" to the party in the first action "so as to justify application" of preclusion principles.   Clemmer v. Hartford Insurance Co., 22 Cal.3d 865, 875, 151 Cal.Rptr. 285, 289, 587 P.2d 1098, 1102 (1978) (Clemmer ).  The circumstances must be "such that the party to be [precluded] should reasonably have expected to be bound by the prior adjudication."    Id.  This requires a contextual approach based on the need to avoid repetitive litigation, see id., rather than an approach based on mere formalities with regard to the parties.   See Rynsburger, 266 Cal.App.2d at 278, 72 Cal.Rptr. at 107-08;  Perkins v. Benguet Consolidated Mining Co., 55 Cal.App.2d 720, 739, 132 P.2d 70, 83 (1942) ("Where a situation arises which so obviously calls for application of the doctrine of res judicata ... definitions of 'privies' and 'privity' drawn from other situations do not constitute an obstacle to reaching a sound result."), cert. denied, 319 U.S. 774, 63 S.Ct. 1435, 87 L.Ed. 1721 (1943).

36
Here, the Commission was clearly authorized to proceed against the County on Trujillo's behalf under Cal.Gov't Code Sec. 12969 (West 1980).  Cf. Cal.Civ.Proc.Code Sec. 369 (West 1973) (permitting civil action by "a person expressly authorized by statute" on behalf of the real party in interest).  Indeed, the Commission initiated its proceedings only at Trujillo's request.  Trujillo unquestionably had an interest in the outcome of the administrative proceedings, an interest that was "sufficiently close" to the interest of the Commission in pursuing his claim to permit the invocation of res judicata.

37
More importantly, Trujillo was a party to the proceedings in the California Superior Court.  Although he now contends that he was erroneously identified as a respondent to the County's petition for a writ of mandate, he nevertheless responded to the County's petition as the real party in interest and filed a memorandum in support of his objections to both the County's petition and the Commission's decision.  Thus, we find no error in the district court's finding that Trujillo had a sufficient nexus with the Commission to preclude this suit.B.

38
A person in privity with a party to a prior action is only bound by the earlier action if his interests were adequately represented.   E.g., Clemmer, 22 Cal.3d at 875, 151 Cal.Rptr. at 289, 587 P.2d at 1102.  Trujillo argues that his interest in reinstatement significantly diverged from the interests of the Commission, which were centered on establishing the invalidity of the County's examination.  He relies on language in Carey suggesting that attorneys employed by state agencies to handle employment discrimination complaints represent the state's interest rather than those of the aggrieved employee.  See 447 U.S. at 68-70, 100 S.Ct. at 2033-2034.    Carey, however, was concerned solely with awarding attorneys' fees to a plaintiff who had employed independent counsel.  We decline to interpret Carey as a broad holding regarding the relationship between state agency attorneys and aggrieved employees in the context of an attempt to invoke res judicata principles.

39
California courts have characterized the state agency's role in FEHA proceedings as representing the interests of the alleged victim of discrimination.  E.g., Commodore, 32 Cal.3d at 218, 185 Cal.Rptr. at 274, 649 P.2d at 916 (the Commission "acts on the victim's behalf and absorbs the cost of pursuing his claim");  Kerrigan v. Fair Employment Practice Commission, 91 Cal.App.3d 43, 47, 154 Cal.Rptr. 29, 32 ("An FEPC attorney represented [the claimant]."), cert. denied, 444 U.S. 930, 100 S.Ct. 273, 62 L.Ed.2d 187 (1979) (Kerrigan).    When the Commission filed its accusation, it sought the same remedies on Trujillo's behalf as he now seeks.  Trujillo's only claim of diverging interests centers on the County's appeal of the Commission's award.  He claims the Commission was no longer interested in his reinstatement, but only in upholding its invalidation of the County's examination.  At this point in the proceedings, however, Trujillo was represented by independent counsel who advanced his objections to the award.  Throughout the administrative process, when only the Commission represented Trujillo, he was provided with adequate representation.  The fact that the Commission went on to appeal the Superior Court's decision adverse to Trujillo, even when Trujillo himself failed to take any appeal, is sufficient evidence that the Commission's representation was on behalf of Trujillo's interests.  Otherwise, the issue of discrimination would have been settled in the County's favor for purposes of collateral estoppel.

C.

40
Finally, Trujillo contends that he was deprived of a full opportunity to present his claim for reinstatement because the Commission refused to offer certain evidence he believed relevant at the hearing.  Under Cal.Gov't Code Sec. 11513(b) (West 1980), only parties are permitted to introduce evidence.   E.g., Crumpler, 32 Cal.App.3d at 574-75, 108 Cal.Rptr. at 299.  The record does not reflect, however, either that Trujillo made any formal attempt to intervene in the proceedings to introduce his evidence or that he gave any indication to the ALJ that he wished to introduce such evidence.

41
Regardless of whether Trujillo was actually prevented from presenting evidence before the ALJ, he had a full opportunity to present his claims in the Superior Court.  Although he states that a respondent to a petition for a writ of mandate cannot ask for affirmative relief in his response, he concedes that nothing prevented him from filing his own petition for a writ of mandate after the County filed its petition.  Rather, as he puts it, "he chose to pursue [reinstatement] in federal court rather than state court."

42
As a person with a beneficial interest in the Commission's award, Trujillo was entitled to seek his own writ of mandate to counter the County's petition.  See Cal.Civ.Proc.Code Secs. 1086, 1094.5 (West 1980 & Supp.1985);  Ault v. Council of City of San Rafael, 17 Cal.2d 415, 417, 110 P.2d 379, 380 (1941);  e.g., Kerrigan, 91 Cal.App.3d at 48-49, 154 Cal.Rptr. at 33.  Because employment is considered a fundamental right in California, review of the award would be subject to a limited trial de novo in the Superior Court under the independent judgment test, see id. at 51, 154 Cal.Rptr. at 35.  Trujillo could then have sought to introduce his evidence on the ground that it had been improperly excluded from the administrative hearing, in order to supplement the administrative record before the trial court.  See Cal.Civ.Proc.Code Sec. 1094.5(e) (West Supp.1985);  Bixby v. Pierno, 4 Cal.3d 130, 143 & n. 10, 93 Cal.Rptr. 234, 243 & n. 10, 481 P.2d 242, 251 & n. 10 (1971).  Thus, we cannot say that he was deprived of a full opportunity to present his claim.

IV

43
Although Trujillo's Title VII claim is not precluded by res judicata, collateral estoppel nevertheless may preclude full litigation of the claim.  In California, a party will be estopped from relitigating an issue if:  the issue raised in the present action is identical to that decided previously, the prior judgment was final and on the merits, and the person against whom estoppel is asserted was a party or in privity with a party to the prior action.   Clemmer, 22 Cal.3d at 874, 587 P.2d at 1101-02, 151 Cal.Rptr. at 288-89;  see also Cal.Civ.Proc.Code Sec. 1908 (West 1983).  Of course, collateral estoppel may be invoked only if the party against whom it is being asserted received a full and fair opportunity to litigate his claim in the first proceeding.   See Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980).

44
The state appellate court determined that Trujillo's employment would not have continued beyond the date of the project's completion.  We hold that Trujillo is collaterally estopped form relitigating this issue in his Title VII action.  As we ruled above, the prior judgment was both final and on the merits.  Similarly, we incorporate by reference our above discussion (part III.  A., B., and C.) to reject Trujillo's contentions that he was neither a party nor in privity with a party to the state litigation, that his interests were insufficiently represented, and that he was deprived of a full opportunity to present his claim.

45
Because Trujillo is estopped from relitigating the state court's determination that his employment would not have continued beyond the date of the project's completion, he is precluded from seeking both back pay beyond this period and reinstatement.

V

46
We now consider whether Title VII entitles Trujillo to seek his remaining remedies--back pay to the date of the project's completion and attorneys' fees--in federal court.    Carey provides our primary guidance in considering when a claimant in state administrative and judicial proceedings may seek "supplemental relief" in federal court.  In Carey, an employee prevailed on her discrimination claim after pursuing an administrative remedy.  447 U.S. at 57-59, 100 S.Ct. at 2027-29.  At the same time, she had been pursuing a federal action under Title VII.   Id. at 58-59, 100 S.Ct. at 2028-29.  When the New York Court of Appeals denied the employer's motion for leave to appeal, the parties agreed that the federal suit could be dismissed except for the employee's prayer for attorneys' fees, id., which were not recoverable under state law.   Id. at 67 n. 7, 100 S.Ct. at 2032 n. 7.  The Court stated that, under Title VII, proceedings in federal court were "supplements to available state remedies for employment discrimination.  Initial resort to state and local remedies is mandated, and recourse to the federal forums is appropriate only when the State does not provide prompt or complete relief."   Id. at 65, 100 S.Ct. at 2031.  Since an award of attorneys' fees was not authorized under state law, the Court held that Title VII permitted the employee to " 'supplement' the state remedy" in federal court.   Id. at 68, 100 S.Ct. at 2033.

47
Carey does not assist Trujillo.  An award of back pay is not only authorized under California law, but Trujillo has received such an award.  Since state law authorized an award of back pay, we hold, pursuant to Carey, that Title VII does not allow Trujillo to seek a back pay remedy in federal court.

48
Similarly, state law authorized an award of attorneys' fees in the state proceeding to which Trujillo resorted.  See Cal.Gov't Code Sec. 12970(a) (West 1980 & Supp.1985);  State Personnel Board v. Fair Employment and Housing Commission, 39 Cal.3d 422, 433-34, 703 P.2d 354, 361, 217 Cal.Rptr. 16, 23 (1985) (interpreting section 12970(a) to authorize award of attorneys' fees).  Trujillo clearly sought an award of attorneys' fees before the California Superior Court, but he failed to appeal its decision in favor of the County.  He thus waived his right to any fee award under state law.  His waiver does not entitle him to seek attorneys' fees in federal court under Carey.    On the contrary, since state law authorized an award of attorneys' fees, Title VII does not permit Trujillo to seek the remedy in federal court.

VI

49
Res judicata precludes Trujillo from pursuing his claims under 42 U.S.C. Secs. 1981 and 1983.  Collateral estoppel and Carey together prevent Trujillo from obtaining further relief in federal court on his Title VII claim.  We therefore affirm the district court's dismissal of Trujillo's action.

50
AFFIRMED.

*
 Honorable Albert Lee Stephens, Jr., United States District Judge, Central District of California, sitting by designation

1
 Because the functions of the new Fair Employment and Housing Commission with regard to employment discrimination claims are essentially the same as those of the old Fair Employment Practice Commission, we will refer to both throughout the opinion as "the Commission."

2
 Although Trujillo's claim is governed by former Cal.Lab.Code Sec. 1420, the procedures for processing that claim after 1980 were governed by the new FEHA.  We will therefore cite the appropriate sections of the new FEHA unless a particular section of the former Labor Code is relevant

3
 When Trujillo first filed his complaint with the Commission, there was no explicit statutory right enabling him to bring suit in Superior Court if the Commission failed to redress his grievance.  However, California courts implied a private cause of action after the complainant exhausted his administrative remedies.   See Hollon v. Pierce, 257 Cal.App.2d 468, 476, 64 Cal.Rptr. 808, 813 (1967).  In 1977, before the Commission held its hearing in this case, the legislature added a private cause of action in Labor Code section 1422.2(b).  See Act of Sept. 30, 1977, ch. 1188, Sec. 34, 1977 Cal.Stat. 3895, 3911.  Thus, Trujillo had a statutory right to demand a right-to-sue letter before the Commission proceeded to the hearing stage


49 So.3d 250 (2010)
STONE
v.
STATE.
No. 2D10-3013.
District Court of Appeal of Florida, Second District.
October 20, 2010.

DECISION WITHOUT PUBLISHED OPINION
Affirmed.


540 F.3d 1133 (2008)
The JOHN ALLAN COMPANY, Plaintiff-Appellant,
v.
The CRAIG ALLEN COMPANY L.L.C.; Craig Allen Tatro; Erik David Leschuk, Defendants-Appellees.
No. 07-3193.
United States Court of Appeals, Tenth Circuit.
August 28, 2008.
*1136 Kenneth L. Bressler, Blank Rome LLP, New York, N.Y. (Charles E. Millsap and Lyndon W. Vix, Fleeson, Gooing, Coulson & Kitch, L.L.C., Wichita, KS, with him on the briefs), for Plaintiff-Appellant.
Todd N. Tedesco, (James M. Armstrong with him on the brief), Wichita, KS, for Defendants-Appellees.
Before MURPHY, HOLLOWAY, and O'BRIEN, Circuit Judges.
MURPHY, Circuit Judge.

I. Introduction
The John Allan Company initiated a trademark infringement lawsuit against The Craig Allen Company pursuant to the Lanham Act, 15 U.S.C. § § 1114 and 1125(a). The case was tried before the district court. It concluded the use of the name "Craig Allen's" for a grooming salon in Wichita, Kansas did not infringe on the mark "John Allan's." Exercising jurisdiction pursuant to 28 U.S.C. § 1291 we reverse and remand for further proceedings.

II. Background
In 1988, John Allan Meing opened a men's grooming salon near Wall Street in New York City. The salon, John Allan's, was designed to provide salon services for men in a club-like environment. Since that time, the company has grown. At the time of the bench trial, The John Allan Company operated two club locations and two smaller non-clubs in New York City. The salons are furnished with leather chairs at styling stations as well as antique barber chairs where patrons sit while receiving a hot towel treatment and shoe shine. The salons are equipped with a pool table, bar, and, until recently, a cigar room. Patrons wear black smoking jackets while at John Allan's, and the employees wear black smocks, decorated with the salon's logo. In addition to its salons, The John Allan Company markets its grooming products nationwide. In 1996, it registered the mark "John Allan's & JA Circle Design" for "men's and women's haircutting services, namely haircutting, manicures, facials, and massage services; retail counter in the field of hair and skin products" (the "J.A. Circle Design").[1]
The Craig Allen Company opened a men's salon, "Craig Allen's," in Wichita, Kansas after its owners visited John Allan's in New York. The owners of The Craig Allen Company, Craig Allen Tatro and Erik Leschuk,[2] settled on the name "Craig Allen's" after learning about John Allan's. The duo hired a designer to create a logo for Craig Allen's and provided the designer with materials created by The *1137 John Allan Company. Although the designer expressed concerns about copying another mark, Tatro and Leschuk suggested they were working with John Allan's, and thus had permission to use a similar design. The result was a logo, nearly identical to the trademarked J.A. Circle Design:

Further, Craig Allen's shared many of the features of John Allan's clubs, including outside windows with frosted glass embossed with the Craig Allen Circle Design logo ("C.A. Circle Design") and the phrase "A Return to A Simpler Time," which also appeared on the frosted windows of John Allan's clubs. Craig Allen's also provided black smoking jackets for its patrons to wear and was furnished with leather chairs, antique barber chairs for hot towel treatments, a bar, and a pool table.
In 2005, attorneys representing The John Allan Company contacted The Craig Allen Company concerning the alleged trademark infringement. Tatro and Leschuck ultimately removed the C.A. Circle Design from everything in Craig Allen's as well as the protected slogans from the windows. They also created a new logo:

The interior design and furnishings, however, were not changed. Nor did Craig Allen's change its name.
The John Allan Company sought injunctive relief for, inter alia, the defendant's use of the name "Craig Allen's," including the name "The Craig Allen Company, LLC" and the original C.A. Circle Design. The district court concluded the C.A. Circle Design infringed on The John Allan Company's J.A. Circle Design. It declined, however, to enjoin Craig Allen's use of the C.A. Circle Design, finding it was unnecessary as the defendants had expended more than $20,000 to change to its new logo. Unlike the logo, the court concluded the use of the name "Craig Allen's" did not infringe on the unregistered mark "John Allan's."
On appeal, The John Allan Company argues the district court erred in (1) finding the Craig Allen's mark does not infringe on the John Allan's mark; and (2) failing to apply the "safe distance rule" to enjoin the use of the Craig Allen's mark based on the conclusion that the Craig Allen's Circle Design infringed John Allan's Circle Design.

III. Alleged Infringement of "John Allan's" Mark
The Lanham Act prohibits, in connection with any good or service, the unauthorized use or misleading representation of "any word, term, name, symbol, *1138 or device" in a way that "is likely to cause confusion, or to cause mistake, or to deceive." 15 U.S.C. § 1125(a)(1)(A).[3] "Confusion occurs when consumers make an incorrect mental association between the involved commercial products or their producers." Jordache Enter. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1484 (10th Cir. 1987) (quotation omitted). Further, confusion results when a mark is likely to deceive purchasers or users as to the source, endorsement, affiliation, or sponsorship of a product. 15 U.S.C. § 1125(a)(1)(A); see also Amoco Oil Co. v. Rainbow Snow, 748 F.2d 556, 559 (10th Cir.1984). Whether the use of a mark will result in a likelihood of confusion, and thus violate the Lanham Act, is a question of fact we review for clear error. Heartsprings, Inc. v. Heartspring, Inc., 143 F.3d 550, 553 (10th Cir.1998). In an appeal from a bench trial, we review the district court's legal conclusions de novo. Keys Youth Servs., Inc. v. City of Olathe, 248 F.3d 1267, 1274 (10th Cir.2001).
To determine whether a likelihood of confusion exists, this court examines six, non-exhaustive, factors:
(1) the degree of similarity between the marks; (2) the intent of the alleged infringer in adopting the mark; (3) evidence of actual confusion; (4) similarity of products and manner of marketing; (5) the degree of care likely to be exercised by purchasers; and (6) the strength or weakness of the marks.
Sally Beauty Co. v. Beautyco, Inc., 304 F.3d 964, 972 (10th Cir.2002). No one factor is dispositive. Id. Nevertheless, "the final determination of likelihood of confusion must be based on consideration of all relevant factors." Heartsprings, Inc., 143 F.3d at 554. "The party alleging infringement has the burden of proving likelihood of confusion." Utah Lighthouse Ministry, 527 F.3d at 1055.
The John Allan Company argues the district court committed clear error in light of evidence that actual confusion existed and of Craig Allen's intent to copy its marks. Specifically, it contends the district court committed clear error (1) by failing to apply a rebuttable presumption based on evidence that the defendants intended to confuse customers and (2) refusing to find a likelihood of confusion based on evidence that consumers were confused. Although the district court need not apply a rebuttable presumption based on a finding of intent to copy, it did err by failing to consider evidence that consumers were confused by the two names of the salons. The district court's opinion also contains internal inconsistencies complicating several of its findings and requiring a remand.

A. The District Court's Internally Inconsistent Findings
In its assessment of the six factors, the district court found three factors weighed in the favor of The John Allan Company: the similarity of the marks, albeit only slightly weighing in the plaintiff's favor; the intent to copy; and the strength of the mark. It found two factors were neutral, weighing in favor of neither the plaintiff nor the defendants: the similarity of products and manner of marketing; and the degree of care exercised by consumers. Finally, it found The John Allan Company had not presented any evidence of actual confusion, and that weighed in favor of the *1139 defendants, The Craig Allen Company. It then concluded, however:
After reviewing all of the applicable factors, the court finds that a likelihood of confusion does not exist between the mark John Allan's and Craig Allen's. While there is some similarity and John Allan's does have a protectable mark, the other factors are neutral or weigh in favor of the defendants. The court is reluctant to find that the use of Tatro's middle name, and a common one at that, violates the plaintiff's mark without a stronger showing by plaintiff. See Sardi's Rest. Corp. v. Sardie, 755 F.2d 719, 725 (9th Cir.1985); Brennan's, Inc. [v. Brennan's Restaurant, L.L.C.], 360 F.3d [125], 131-32 [ (2d Cir.2004) ].
This conclusion is inconsistent with the court's previous findings that three factors weighed in favor of The John Allan Company, while only one factor, the absence of actual confusion, weighed in favor of The Craig Allen Company.
Initially, the court found that the defendants "purposefully used the mark Craig Allen's to take advantage of plaintiff's goodwill" and therefore concluded that The Craig Allen Company intended to copy the mark "John Allan's." It stated, "[t]he fact that Craig Allen's was named after one of the partners, Craig Allen Tatro, seems too coincidental given defendants' purposeful copying of plaintiff's registered marks and other features of plaintiff's salons." The district court then proceeded to ignore this finding in resolving that Tatro's use of his own name, without more, was insufficient to establish a trademark violation. "Evidence that the alleged infringer chose a mark with the intent to copy, rather than randomly or by accident, typically supports an inference of likelihood of confusion." Utah Lighthouse Ministry, 527 F.3d at 1055. The focus is on whether the defendant sought "to derive benefit from the reputation or goodwill of the plaintiff." Universal Money Ctrs., Inc. v. AT & T, 22 F.3d 1527, 1532 (10th Cir.1994) (quotation omitted). In refusing to enjoin the use of the name Craig Allen's, the district court wholly ignored its prior finding that The Craig Allen company sought to benefit from the reputation and goodwill of John Allan's.[4]
Although this court will not set aside findings of fact unless clearly erroneous, internally inconsistent findings constitute clear error. See Mendiola v. United States, 994 F.2d 409, 410 (7th Cir.1993) ("Findings are clearly erroneous if the trial court's interpretation of the facts is implausible, illogical, internally inconsistent, or contradicted by documentary or other extrinsic evidence."). Thus, further proceedings in the district court are necessary. Mor-Cor Packaging Prods., Inc. v. Innovative Packaging Corp., 328 F.3d 331, *1140 336 (7th Cir.2003) (remanding on basis of internally inconsistent findings in the district court).
The district court appears to have given substantial weight to the fact "Allen" is Craig Tatro's middle name. Courts are generally reluctant to enjoin an individual from using their own name. See E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1288 (9th Cir.1992). This reluctance, however, "does not extend to cases where there has been an attempt to confuse the public." Id. (upholding injunction on use of mark "Gallo" on retail cheese packages where defendant intended to capitalize on reputation and selling power of Gallo Winery). Because the district court found The Craig Allen Company chose the name Craig Allen's "to take advantage of plaintiff's goodwill," its reluctance was misplaced. As the Second Circuit explained:
[I]f an individual enters a particular line of trade for no apparent reason other than to use a conveniently confusing surname to his advantage, the injunction is likely to be unlimited.
If, however, the second comer owns the company himself and evinces a genuine interest in establishing an enterprise in which his own skill or knowledge can be made known to the public, that argues in favor of allowing him to use his own name in some restricted fashion.
Taylor Wine Co. v. Bully Hill Vineyards, Inc., 569 F.2d 731, 735 (2d Cir.1978) (citations and footnote omitted). Notably, the two cases upon which the district court relied were factually inapposite: both cases included findings that the junior user acted in good faith and had not attempted to appropriate the name to take advantage of the senior user's reputation or goodwill. See Brennan's Inc., 360 F.3d at 130; Sardi's Rest. Corp., 755 F.2d at 722.[5]
The Craig Allen Company fails to cite to any precedent where a junior user was permitted to use his given name in spite of an intent to benefit from the reputation and goodwill of the senior user. On remand, the district court must properly weigh the use of Tatro's first and middle name, with its finding that The Craig Allen Company's adoption of the name "Allen" "seems too coincidental given defendants' purposeful copying of plaintiff's registered marks and other features of plaintiff's salons." Part of this process will require consideration of Tatro's historical failure to use the name "Allen" in a personal or professional capacity. Cf. Brennan's Inc., 360 F.3d at 131-32.

B. Actual Confusion
The district court also erred in its findings related to actual confusion. It found that The John Allan Company "failed to establish actual confusion as to the John Allan's Mark." The appellant argues that the district court ignored evidence of actual confusion and this finding is therefore clear error. "Actual confusion in the marketplace is often considered the best of evidence of likelihood of confusion." Universal Money Ctrs., 22 F.3d at 1534. A plaintiff, however, "need not set forth evidence of actual confusion to prevail in a trademark infringement action." King of the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1092 (10th Cir.1999). A court may disregard as de minimis isolated instances of actual confusion. Id.
The John Allan Company presented evidence from two witnesses who testified about the confusion between the salons' names. Although one witness, Steve Alvarez, appears to have been primarily confused by the logo, he also testified the *1141 name Allan's/Allen's was a source of his confusion:
Q: What role in that mental process of formulating those associations did the fact that both businesses were using the second name Allan's/Allen's in their business play in you arriving at [the conclusion that Craig Allen's was associated with or a franchise of The John Allan Company]?
A: After the logo, it was the second indicator that they were connected.
Q: How did the fact that both of these businesses decided to use the name Allan's/Allen's as the second name of their business affect you when you first saw a written depiction of this new Wichita business?
A: I was excited that something as neat as in New York was coming to Wichita; that it was a great opportunity.
A second witness, Chad Green, testified he was confused by the similarity of the name Allan's/Allen's. He testified:
Q: Did you have any impression of John Allan's when you went in the first time to have your full service?
A: I thought it was very similar to Craig Allen's as far as the look and feel inside.
It looked classy; leather chairs, the same as Craig Allen's; a bar, the same as Craig Allen's; a pool table, the same as Crag Allen's; et cetera.
Q: Did you speak to anybody at John Allan's about Craig Allen's?
A: Yes.
Q: Do you recall that conversation?
A: It was a very short conversation. It was with my stylist.
Q: Do you recall what you said to her?
. . . .
A: I said, "This place is a lot like Craig Allen's. Is it owned by the same person?" She said, "No."
. . . .
Q: When you asked the stylist whether John Allan's and Craig Allen's were owned by the same people, what led you to believe that they were owned by the same people?
A: The name was the first thing that came to mind. I thought maybe it was a chain, maybe they were brothers, something like that.
Here, the district court limited its inquiry and did not consider the potential for confusion created by an appearance that the two salons had a common sponsorship or affiliation. Amoco Oil Co., 748 F.2d at 559; see also First Sav. Bank F.S.B. v. First Bank Sys., Inc., 101 F.3d 645, 652 (10th Cir.1996) (explaining "the ultimate question is whether" the use of a mark is "likely to cause consumers to believe there is an affiliation" between the parties). The district court misapplied federal law by solely focusing its analysis on whether the evidence established "that the companies were the same." Green's testimony clearly established he was confused as to affiliation, which is probative of actual confusion under our precedent. Alvarez's testimony also indicated the use of the name Allan's/Allen's confused him as to whether the two salons had a common sponsorship or affiliation. Although this evidence may be de minimis, we leave this determination for the district court to make in the first instance, on remand. Likelihood of confusion is a question of fact and it is therefore within the district court's province to determine how this evidence factors into its findings. See Heartsprings, Inc., 143 F.3d at 553.

IV. Injunctive Relief
The John Allan Company also challenges the district court's refusal to *1142 enjoin The Craig Allen Company's use of the mark "Craig Allen's" based on its findings that Craig Allen's Circle Design infringed on John Allan's Circle Design. We review a district court's decision to issue or deny a permanent injunction for an abuse of discretion. Harolds Stores, Inc. v. Dillard Dept. Stores, Inc., 82 F.3d 1533, 1555 (10th Cir.1996). "A district court abuses its discretion when it issues an arbitrary, capricious, whimsical, or manifestly unreasonable judgment." Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 822 (10th Cir.2007) (quotation omitted). Pursuant to the Lanham Act, the district court has the "power to grant injunctions, according to the principles of equity and upon such terms as the court may deem reasonable, to prevent ... a violation [of the Act]." 15 U.S.C. § 1116(a).
The John Allan Company invokes the "safe distance rule," which was created to protect against defendants, found to have infringed upon a trademark from
preserv[ing] ... good will acquired through fraud. The due protection of [trademark] and similar rights requires that a competitive business, once convicted of unfair competition in a given particular, should thereafter be required to keep a safe distance away from the margin line  even if that requirement involves a handicap as compared with those who have not disqualified themselves.
Taubman Co. v. Webfeats, 319 F.3d 770, 779 (6th Cir.2003) (quotation omitted). Like the original infringement itself, the safe distance rule is "founded on a likelihood of confusion standard." Id. Where confusion lingers, the infringer must "not only [ ] secure a new non-infringing name (or other infringing characteristic) for his product, but [choose] one so far removed from any characteristic of the plaintiff so as to put the public on notice that the two are not related." Id.
In this case, the district court concluded The Craig Allen Company infringed on three of John Allan's protected marks: the J.A. Circle Design (both the logo by itself and the logo with John Allan's name) and the mark "A Return to A Simpler Time." The district court declined to enjoin The Craig Allen Company from using these marks, however, because it found "[d]efendants ceased using these marks approximately two years ago and expended more than $20,000 to effect the changes." It therefore concluded it was "highly unlikely... defendants will return to using the plaintiffs marks." The John Allan Company does not appeal this determination. Nor does it argue The Craig Allen Company is continuing to use these offending marks with only minor modifications. Instead, it suggests the district court had a legal obligation to apply the safe distance rule to enjoin the defendant's use of the name "Craig Allen's" even if it found there was no likelihood of confusion with respect to the name.
The John Allan Company misperceives the safe distance rule. Even if the rule is applicable, it does not create a legal duty under which The Craig Allen Company is obligated to act. See Badger Meter, Inc. v. Grinnell Corp., 13 F.3d 1145, 1155-56 (7th Cir.1994) (explaining the safe distance rule "addresses the evidentiary issues of how carefully a district court must scrutinize new trade dress of a prior infringer, not ... the issue of the infringer's legal duty to the first user"). Although a district court may require a prior infringer to choose a mark that avoids all possibilities of confusion, it is "not required as a matter of law to do so." Id. at 1156. The district court was well within its discretion to deny The Craig Allen Company injunctive relief on these grounds. On remand, however, should the district court determine the mark "Craig Allen's" creates a *1143 likelihood of confusion with "John Allan's," the court should revisit the issue of whether injunctive relief is necessary.

V. Conclusion
For the foregoing reasons, this court reverses the judgment of the district court and remands for further proceedings consistent with this opinion.
NOTES
[1]  The John Allan Company owns a total of four federally registered service marks, including the J.A. Circle Design and the mark "A Return to A Simpler Time." In addition to the J.A. Circle Design, The John Allan Company also used an unregistered trademark consisting of the circular design, without the name of the salon. Craig Allen's also used a similar mark. The district court concluded John Allan's had a protectable mark and the defendants infringed on the mark. In this opinion we refer to any mark including the circle design as the J.A. Circle Design.
[2]  On appeal, the defendants, at times, spell Leschuk's first name "Erick." The district court and the Notice of Appeal, however, refer to Defendant Leschuk by the name "Erik" and we therefore use this spelling.
[3]  Here, the mark "John Allan's" is unregistered, and thus The John Allan Company was required to show the mark is protectable. Utah Lighthouse Ministry v. Found. for Apologetic Info. & Research, 527 F.3d 1045, 1050 (10th Cir.2008). The district court found "John Allan's" had acquired a secondary meaning and was therefore a protectable mark. The Craig Allen Company does not challenge this finding on appeal nor do we find any error in the district court's conclusion.
[4]  Evidence of intent to copy does not create a rebuttable presumption of likelihood of confusion, thereby shifting the burden to the defendant, as The John Allan Company argues. Instead, the intent of the alleged infringer remains but one factor in our analysis. A finding that the infringer intended to copy may lead to an inference of confusion, even a strong inference, but the inference is a permissive one. See Sally Beauty Co. v. Beautyco, Inc., 304 F.3d 964, 973 (10th Cir.2002) ("Proof that a defendant chose a mark with the intent of copying the plaintiff's mark may, standing alone, justify an inference of likelihood of confusion." (emphasis added)); Jordache Enter. Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1485 (10th Cir.1987) ("A conscious choice of a mark similar to a mark already in the marketplace usually supports a finding of likelihood of confusion ...." (emphasis added)); Beer Nuts, Inc. v. Clover Club Foods Co., 805 F.2d 920, 927 (10th Cir.1986) (explaining "deliberate adoption of a similar mark may lead to an inference of intent to pass off goods as those of another which in turn supports a finding of likelihood of confusion" (emphasis added)).
[5]  The Craig Allen Company admits Tatro "had no previous experience in the men's grooming industry" and does not suggest it is entitled to use the name "Allen" based on Tatro's reputation.


                                     Cite as 2014 Ark. 44

                  SUPREME COURT OF ARKANSAS
                                        No.   CR-08-1019

ROBERT BURTON                                      Opinion Delivered January   30, 2014
                               PETITIONER
                                                   PRO SE PETITION TO REINVEST
V.                                                 JURISDICTION IN THE CIRCUIT
                                                   COURT TO CONSIDER A PETITION
                                                   FOR WRIT OF ERROR CORAM NOBIS
STATE OF ARKANSAS                                  [GARLAND COUNTY CIRCUIT
                             RESPONDENT            COURT, NO. 26CR-07-144]

                                                   PETITION DENIED.

                                       PER CURIAM

       In 2008, a jury found petitioner Robert Burton guilty of aggravated robbery and burglary.

According to the trial record, Tamara Herrera, her son Anthony Newell, and his girlfriend,

Rachael Cummings, as well as several children, were asleep in their residence when petitioner,

Michael Canady, and Mary Crow entered the home and stated that they needed all the money.

The evidence at trial included the pretrial and in-court identification of petitioner by Cummings

as well as the in-court identification of petitioner by Newell. Both Cummings and Newell

testified that petitioner held a gun on the family while the woman (Crow) took $1000 from a pair

of Newell’s jeans. According to the trial record, Herrera identified Canady based on his voice,

and she made a pretrial identification of Crow; however, Herrera testified that she did not see

the third individual that was in the home. Petitioner was sentenced to serve a total of 360

months’ imprisonment. In a motion for new trial, petitioner argued that he was entitled to a new

trial based on newly discovered evidence consisting of (1) evidence of Herrera’s attempt to

extort money from Canady in exchange for the charges against him being dismissed; (2)
                                      Cite as 2014 Ark. 44

testimony in the Canady trial that Herrera was unsure as to whether Canady was one of the

participants in the charged crimes; and (3) a tape recording of Herrera in which she made

admissions contrary to her testimony and statements to the Hot Springs Police Department. At

the motion hearing, the trial court heard arguments of counsel with regard to the bases for the

motion, and a copy of relevant portions of the trial transcript of the Canady trial was introduced.

The partial trial transcript reflects that all the evidence referenced by petitioner in the motion

was addressed or introduced in the Canady trial. In its order denying the motion for new trial,

the trial court found that (1) the identification of petitioner as a perpetrator of the crime with

which he was charged did not depend on the testimony of Herrera, and (2) the petitioner had

not demonstrated that the testimony elicited in the Canady trial would have been admissible in

his trial, and the court did not view it as admissible in this case. The Arkansas Court of Appeals

affirmed the judgment-and-commitment order. Burton v. State, 2009 Ark. App. 328.

       Subsequently, petitioner filed in the trial court a timely petition for postconviction relief

pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009). The petition was denied, and we

affirmed. Burton v. State, 2011 Ark. 351 (per curiam). Petitioner has now filed in this court a

petition requesting that this court reinvest jurisdiction in the trial court in order that he may

proceed with a petition for writ of error coram nobis. We deny the petition because petitioner

fails to show that the claims he would raise in his proposed attack on the judgment are

meritorious.

       A petition for leave to proceed in the trial court is necessary because the trial court can

entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal

                                                2
                                        Cite as 2014 Ark. 44

only after we grant permission. Cromeans v. State, 2013 Ark. 273 (per curiam); Burks v. State, 2013

Ark. 188 (per curiam).

       As grounds for the writ, petitioner, in an apparent claim of ineffective assistance of

counsel, first contends that if trial counsel had conducted a pretrial investigation, he could have

shown that the pretrial and in-court identifications of him were “grossly incorrect” as well as

“fabricated” or “distorted.” Petitioner next claims that a writ is warranted based on newly

discovered evidence that questions the credibility of the State’s witnesses, primarily Herrera. As

in his motion for new trial, petitioner claims that the newly discovered evidence consists of

evidence of attempted extortion of Canady by Herrera, testimony in the Canady trial that

Herrera was unsure of her identification of Canady, and a tape recording of Herrera in which

she contradicted her testimony and statements to the Hot Springs Police Department. Petitioner

also argues that the recording of Herrera was withheld by the prosecuting attorney’s office in

violation of his constitutional rights, as recognized in Brady v. Maryland, 373 U.S. 83 (1963).

Finally, petitioner contends that a writ is warranted because the initial investigation into his

involvement in the charged crimes was a result of hearsay—Canady’s mother telling Herrera that

if Canady was involved in the crime, then petitioner was also involved—that questions the

credibility of the State’s witnesses.

       Petitioner seems to urge this court to accept a new standard for determining when a writ

of error coram nobis is warranted. We decline to do so. A writ of error coram nobis is an

extraordinarily rare remedy, more known for its denial than its approval. Cromeans, 2013 Ark.

273; Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The writ is allowed only under compelling

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circumstances to achieve justice and to address errors of the most fundamental nature.

McDaniels v. State, 2012 Ark. 465 (per curiam). We have held that a writ of error coram nobis

is available to address certain errors that are found in one of four categories: insanity at the time

of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party

confession to the crime during the time between conviction and appeal. Cromeans, 2013 Ark.

273; Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam). The function of the writ

is to secure relief from a judgment rendered while there existed some fact that would have

prevented its rendition if it had been known to the circuit court and which, through no

negligence or fault of the defendant, was not brought forward before rendition of judgment.

McFerrin v. State, 2012 Ark. 305 (per curiam); Cloird v. State, 2011 Ark. 303 (per curiam). The

petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record.

Williams v. State, 2011 Ark. 541 (per curiam). Coram-nobis proceedings are attended by a strong

presumption that the judgment of conviction is valid. Roberts v. State, 2013 Ark. 56, __ S.W.3d

__; Carter v. State, 2012 Ark. 186 (per curiam); Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984)

(citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975)).

       As to petitioner’s claim that he is entitled to a writ based on trial counsel’s failure to

conduct an adequate pretrial investigation, such allegation is not a basis for the writ. This court

has consistently held that claims of ineffective assistance of counsel are outside the purview of

a coram-nobis proceeding. Hall v. State, 2013 Ark. 404 (per curiam); Cromeans, 2013 Ark. 273.

       As to petitioner’s claim based on newly discovered evidence that mirrors his argument

previously raised and addressed in a motion for new trial, a writ is not warranted on such basis.

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Likewise, petitioner’s claim regarding a “hearsay” statement that led to an investigation of his

involvement in the charged crimes does not warrant issuance of a writ. Testimony regarding this

statement was included in the partial transcript of the Canady trial that was introduced into

evidence at the hearing on petitioner’s motion for new trial. It is clear from the direct-appeal

record that all of this evidence was brought forward in the trial court and was not extrinsic to

the record as necessary to warrant issuance of the writ. The evidence was presented at the

hearing on petitioner’s motion for new trial; thus, the evidence was known to the trial court at

the time that it denied petitioner’s motion. Accordingly, petitioner’s claims are not cognizable

in a coram-nobis proceeding. See McCullough v. State, 2009 Ark. 211 (per curiam) (A coram nobis

proceeding does not provide a means to address issues raised by petitioner in a motion for new

trial.)

          Finally, petitioner’s argument that the recording, in which she made admissions contrary

to other statements, was withheld by the prosecuting attorney’s office in violation of his

constitutional rights, as recognized in Brady v. Maryland, 373 U.S. 83 (1963), is without merit.

The three elements of a Brady violation are that: (1) the evidence at issue must be favorable to

the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must

have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have

ensued. Without addressing the first and third criteria, we recognize that the second criterion

cannot be met. Petitioner was aware of the recording at the time that he filed his motion for

new trial and referred to it as a basis for his motion.

          Petition denied.
          Robert Burton, pro se petitioner.
          Dustin McDaniel, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for respondent.
                                                  5


748 F.2d 688
U.S.v.Rivera-Gomez**
NO. 84-5083
United States Court of Appeals,Eleventh Circuit.
NOV 13, 1984

1
Appeal From:  S.D.Fla.

2
AFFIRMED.

**
 Local Rule:  25 case