confusing do you have a final judgment disposing of all claims and all parties know your honor we do not believe we do in the sense that i was afraid of that the fourth district re man has issued its judgment disposing of all claims and all parties the united states district court i believe has i believe the district court two things happened there were two plaintiffs both timothy mcleod and then joe mcveigh and the three orders that we appealed to dismiss that action in its entirety ok that's what i needed reassurance and thanks for the other point i was making parlays into i think a substantive part of the argument that i'd like the court to consider as judge carter pointed out in his ruling where he talked about the myriad of cases this one is the ruling on denying the rule fifty nine motion for reconsideration that's the january twenty first  yes ok he makes the comments this is not over and he pointed out under his view at the time that trinity had a myriad of cases appeared to be almost vexatious in the number of cases where what was not over was the eastern district of new york bankruptcy case and i wrote a letter to my co counsel opposing found advise me that we would be likely filing an emergency motion to stay these proceedings because in that case that just finalized in part on october thirtieth mr kolker who was an attorney working with mr macleod and mr mcveigh we alleged in the malicious prosecution case as the real party behind the scenes and seated and entire judgment and reason i have not is that after the bankruptcy court entered the findings of fraud on the court and fabrication of evidence with detailed findings of recorded conversations that were firm proving the investment mr sixty b motion to try to set aside his full consent he was actually bordighera that trial well let me just ask you this is not the none of this is in front of us now this is in front of you and i'm so so don't go there ok all right i'm less you've got some kind of final order judgment that would suggest that these proceedings should now be state you know filed a motion to that effect right i have not this is all i've got i contacted m co counsel tim we're going to be following emergency motion did not file it for today simply because there is a final judgment but the party just followed a rule sixty b motion about two weeks ago we did some research and thought we should bring it to this panel's attention after that is ro my only interest is do we have jurisdiction over this if you don't you certainly do have jurisdiction so i segue into that because i wanted to bring it up and let you know that's coming what i think is relevant here that needs to be focused on is statute we meet the one you're statute because well two things happened underneath the in the underlying action one is that we were in the position of there was not a final judgment and dismissal doesn't trigger the commencement that's the legal issue presented to this panel those no other decision and california in the ninth circuit that suggest that a dismissal in the anti slapp posture when there's still a full hearing on who is the prevailing party it's premature to have a malicious prosecution case in and i find roster until there's a reaching that there has been a prevailing party was so then why wasn't it appropriately dismissed because we found it within one years of the determination we were the prevailing party but we couldn't if we couldn't afford it when the dismissal so is which which act which judicial act are you saying is favorable terminations on the merits of the ruling by the superior court judge from out in this matter that we were party what they that they was ultimately in his minute order and then confirmed in the judgment that was reversed one proton because it had wording that was void though you're saying the seven twenty five twelve minute order is a favorable later so i guess i'm not understanding your argument well procedurally the argument has to be consistent with all the other men it orders that are issued across the state of california and state cases when the minute order requires there to be a final order entered and directed the minute order did say you're the prevailing party and then directed the prevailing party to prepare the final order which we did which is the fourth district ok that that order was vacated so you're saying that the july twenty fifth twenty twelve judicial act was the favorable terminations on the merits in which case the statute has run so i'm not sure i'm not sure how you can argue that this the district court hear because i i'm not doing a an adequate job for my client or to get what the point of my politics it is absolutely correct that the decision that we were the prevailing party was entered in the minute order but that was not the final event of hasn't been yet so so then you can't prove malicious prosecution because there is no favorable terminations taking it just the exact opposite view respectfully is that we have still an open statute we are in the position to where the sapir your court hasn't entered that judgment because it wasn't remand it wasn't vacated with no instructions to read enter it you have no claim though i'm more confused than i was before and i want your argument against the limitations bar is that your claim is an even right ye they are going to guess the limitations bar is that the claim would not be right if it's not right then why are we entertaining an appeal about it well because you have a district court who disagreed and found that the act of dismissal vs the entry of the dismiss so that we could we would affirm that just record in a different at different places that that could be an analysis that i think if the court went through that process that would be affirmed on the basis that the dismissal was not the commencement date the dismissal was not the date the one your comments as a matter of law that's never been held and that's not the law it's when there is a judgment because there's not one now this matters not right for the dismissals affirmed obviously we would then have the ability to then get that judgment entered which we thought would be by now by the superior court fairly they've not yet we've checked the docket this morning and when they enter it then we have one year from that date i think it's an impressive rest of the side but the question is agree that the district court can be affirmed although maybe not on the ground that was argued below but that there is no predicate from malicious prosecution case and therefore no claim they did slightly different value i think about how to slightly differently i think academically this is an important decision you're hopefully going to publish this there is no precedent for commencing it with the dismissal so  you'd have to address that we briefed that you have to make a decision on say that did commence that however what would commence it but didn't happen here yet so therefore this isn't right what would commence it is the final judgement following the superior court order that you're the prevailing party and because of the nuance that that judgment was vacated in deemed void leaving all of that and it's now gap it's dismissed and affirmed but on the grounds that there's because i can't change that that's all you're asking for at this point if i hadn't understanding it correctly i think in my position that's all i can ask for because it has a point and you have any authority for saying that when the the  cases that we cited for the proposition that there's no phenolics until the final judgment or final order i think it's academic whether or not the order that follows the minute order is called an order or judgment but this was  order to prepare an order so the prevailing party determination was if we were going to prevail and you were to enter your to prepare an order the supreme court standard as i understand it is when the court has given its final word on the subject that's sufficiently final and there's no requirement to have a piece of paper file this is not necessary necessary that's what i understand the supreme court standard to be not not in the the court has to review the wording of the final order and this is a perfect illustration of when the final orders converted into a judgment that goes beyond the finding that is still not final and so to say every time a minute orders issued to basically say what you interpret california law is that when a minute orders issued in this context and entice law posture that orders a party to prepare a final order which is subject to dispute illustrated in fact here because there was a dispute on this wording and it's voided now leaving it back to the superior court to word the correct order to say well that was an academic exercise the fourth district should never even have looked at this final judgment because it's a purpose everything stopped when the minute order was issued they should have found that as a matter of law instead look we don't care what anyone does after a minute or they converted however they want everything stopped when judge furman in this case issued his minute order ordering you to client timothy in the cloud has left california he doesn't practice law in california anymore because of this case he's moved to massachusetts this means that for himself in terms of academics this is reality for my client effect well a minute order from a court certainly does have effect it's a court order that has to be abided by so under california law that does that start the sense of what is the cause of action for violati al because as we brief the court loses jurisdiction to make any judgment on the merits once the case is dismissed the only jurisdiction the court has is to make an attorney's order a right but that's only to determine the attorney's fees it's not to determine whether one party prevailed on the merits i didn't understand something you just said did you say the cause of action accrued on the voluntary dismissal yes you the cause of action accrued one of the elements of the cause of action is a favorable terminations on the merits in a voluntary dismissal is not what you're correct your honor our ultimate position would be there was no favorable terminations so there there you don't have the statute of limitations bar where you have this failure to state a claim upon which relief can be granted or i think they still call it a demurrer in california yes your honor i mean in some ways you agree with him that the case should be dismissed because there's no final adverse judgment on the merits is that right certainly or now that the court of appeal has vacated that void judgment that was entered and so you heard the discussion that we had with the other counsel and my question to him is it you agree that what should happen here you agree with that i do that's a ground what i would caution though your honor as helpful as mentioned there's no judgment in the state court the state courts not going to enter a judgment on its own accord a party would have to come in and say hey look the court vacated the whole judgment we'd like in the judgment so if you the dismissal in the district court is affirmed on the ground of your honors mentioning i presume help is going to go run in the state court and submit predicate for the malicious prosecution claim and again i don't think you can go in and get a judgment on the merits at this point the only thing how can you give anything i mean but the most usual voluntary dismissal is when parties have settled the case they voluntary voluntarily dismiss that ends the am trial court's jurisdiction over the case except for ancillary matters such as costs an attorney's fees if there is i suppose the district court with you know was looking at it from a step back and not you know it would be the state court trial judge's determination of whether the dismissal was on the merits or you never you never get a judgment in a case is an attorney fees order correct so i'm not you know obviously counsel has rule eleven and other issues to consider on any refiling and so from your client's standpoint if the order is a far on the ground that there is no final judgment because there is and there's no foundation for them which is prosecution claim argument if i'm understanding it right is that it was not that the voluntary dismissal was not a favorable germination on the merits is that correct so we would have to find that the district was wrong and  because after a deposition or some other significant event in a case a party realizes they're likely to lose or they're likely to sink more money into the case than it's worth and they agree to dismiss it how it reflects their view that there's a lack of merit in the case so in a way it reflects a favorable terminations on the merits for the other side but just because it reflects it doesn't mean it is one because the court has never made a favorable determination for one side or the other the parties themselves have and i just don't headed facets in multiple courts that your client is going to be still at risk no matter what happens so are you saying that that that's not applicable here i mean i believe mcveigh and mr mcveigh have the affidavit saying no i i just voluntarily dismissed on the grounds of i didn't  scorched earth and i didn't strategic reasons and not on the merits but the district court didn't credit that and there are cases saying that just the court doesn't have to grant at that sort of affidavit if there are other thousand overflight to the merits or rather lack thereof the mcveigh action it would be highly unusual for this court to reverse that finding counsel suggestion of the firm and on the other grounds which is the slap background is another important issue that i think you should publish on the suggestion by the district court is that even when you have a voluntary dismissal which just kleinfeld those can your questioning how does that create a favorable question how do you receive attorney's fees when an anti slapp motion is pending and the party dismisses voluntarily and the answer lies within the same statute california legislature has said this is to be extremely  construed extremely broad very liberally because the policies are on both sides if you're going to run with your tail between your legs to use the culture a new analysis right when the guillotine is falling they say that's not going to do you need to go that far on the federal side as opposed to california slap law under the dismissal federal rule of civil procedure forty one as i recall and if the case is voluntarily dismissed before either an answer or a motion to dismiss is filed there are no attorney's fees and if it is filed wouldn't this just be analogous to the attorney's fees do not reflect the merits they just reflect that one side is put the other side to a lot of trouble and expense in a case they did not pursue i like that just an excellent analysis the this circuit has made the point several times other opinions that you have to construe the federal rules in harmony even though the and i slap statutes of california statute in the federal district judges do apply it it has to be in harmony and that's a good example we don't have to go that far because of the federal rules you'd never get your attorney's fees and this posture so the district court fell into the argument or was requested to go into the argument that you follow these anti slapp versus the slap back statute mean it's i think right now we do not agree that action is over i know counsel thinks they won't be served everything it's and that action in the superior court is going to go to mr macleod the district court of appeals has made it clear there are real parties in interest affected it would be a violation of our professional rules of ethics for my firm not to include them but as we discussed in the opening argument and i know my time is up we do not agree that it's over it's in the limbo land you can't use the minute order that's not what the law says you use the judgment i was addressing the underlying fees the district i go to work here understand on that issue but on the other one it is this dilemma i think it's an important issue for the bar to sort this out because if california and federal system clash and we have this nuance and it's created an interesting problem from both sides mr macleod wants it over we want it over worse than he wants it over but he's seeking attorneys fees and we've course now have a new development in new york that i can't control