relating to the district courts awards of costs i must say i'm rather puzzled by the lawyers fees and damages in as much as understanding is the great divide between english defamation law and american defamation law is just that you know under american law maybe you can find a case otherwise but under american law you pay your own  exception some kind of sanctions you pay your own legal fees if you lose in england you pay the loser pays for all and that's why  their legal fees if it's generally right my understanding is that i think english is considered more favor the plaintiff because it's easier to prove liability not because of the ok i'm chad can be won by them by the winner and where as in my understanding was it was one principle if there's one principle after all we're dealing with fifty different it's common on fifteen different maybe statutory law but fifty different law law sets of laws and it's virtually unanimous that you get it that there's no fee shift and you're saying there i california law and the law of the other forty nine states and we see there's no appellate case law directly on point in california we do cite a nevada supreme court case which held that attorneys fees are damages and we cited a number of district court decision including that decision by judge prescott the metropolitan opera case which started as a a survey of the law including new york focusing on new york including other states that says when you have to bring a suit in order to discover i would say those are fees as as fees and not fees damages and they wouldn't be able to cover you look even for where the initial legal fees with respect to the initial investigation you had to do no order to fill a complaint but not as to trial i think it's the case is easiest with respect to the initial investigation but i think ultimately it's a question of fact for the jury had to do to just do it just to find the statements that the jury ultimately found to be defamatory it wasn't simply wasn't soley pretty lost most of it was during a loss and in fact even after we filed suit they continued to deny that they had anything to private investigator outsell issue litigation can't be dispositive there's no principled basis to distinguish between it's as if you have to incur an expense in order to unmask an anonymous to fame or it should matter if the expenses paid to a lawyer expended as a result of the alleged libel he doesn't say except for attorney's fees and is going to carve out its word broadly and i just don't see any principle way to distinguish between paying a lawyer to do something versus paying any other sort of service provider rule of california law that you're asking us to embrace with respect to attorneys fees been limited to insurance bad faith cases you know it has not your honor but why am i reading from a supreme a california california supreme court cases i and why is it that there are all these california appellate court cases that seem to well in fact not just suggest but say that the the rule that you're asking us to embrace is limited to the facts of br those cases i don't think they say it's limited to the facts of brands they say brand should be read as allowing you to recover fees as fees any time you have to bring a suit if you know there's a certainly they have some intermediate appellate cases with good language for them would you like us to certify to the california supreme court if your honour's thought that was appropriate i certainly wouldn't object i just my preference would be to win but i certainly would rather i was standing all these data points to seem to undermine the position that you were asking us to adopt we have a lot of data points in our favor to some approximately causes damages there's the there's the oakley decision which is a california district court case there's number of cases involving malicious prosecution or false imprisonment where you get fees damages so i certainly acknowledge there some good language for that but we have been lying which i don't think is anything that is actually controlling from the california supreme court before you sit down let me just ask you about one thing the cost the expert deposition poss amar right just as a matter of fact that what happened was that the expert dr magnum was deposition and that's what he's been paid and it's really your you're asking to to be paid for paying him and i think that's exactly what rules twenty six contemplation the person who takes the expert deposition has to pay the correction showing actual economic damage suffered as a result of the alleged defamatory statement allowing attorney's fees to constitute special damages in defamation actions essential it would automatically satisfy the special damages definition rendering the prospering in its brief places heavy reliance on the branch case which the cosine court characterized as only in limited circumstances providing that an insured may recover as an element of damages the attorney's fees incurred in litigating importantly the breach of contract issue up to the value of the policy but not fees attributable to bring the bad faith tort action against the insurer itself fence costs in connection with a breach of contract correct your honor that's that's pursued here by broad spring attorneys fees would be recoverable in debt as damages in every defamation case because every tort proximately causes the litigation that follows it simply is not supported by brandt or any other california case rather we submit that the exclusion of attorney's fees from defamation special damages is supported by the california supreme court's holding in martin vs zendo decided in two thousand and four in that case the court the california supreme court confirms the on availability of attorneys fees in defamation actions generally in that case after securing dismissal of a slander suit the defendants sought recovery of fees pursuant to california civil code provisions section ten twenty one point seven which allowed a discretionary award of attorney's fees in actions against police officers but it included on its face broader language that seemingly allowed recovery of attorney's fees  libel and slander his actions generally in affirming the trial court's denial of such fees the supreme court of california held that this unique statute did not authorize an award of attorney's fees to all parties and defamation actions because quote that would create a significant and here to for unrecognized exception to the general rule that all parties to litigation must pay their own attorney's fees and the california supreme court went on to observe that the legislature may adopt exceptions to this general rule and the court even observed that the rule that plaintiff proposes would presumably serve the hypothetical policy goal of deterring and meritorious lawsuits for libel and slander nevertheless the california supreme court squarely held that nothing in the legislative history suggested a broader intend to make attorneys fees available for libel and slander actions generally and here in the district court correctly noted that although martin was decided in the  context that case is indicative of california's general policy in favor of each party paying its own litigation expenses now prospering also relied as mr katz noted this morning on sumner hill a homeowners association you're out of slander of title yes and the analytical distinction there your honor it is litigation is necessary to clear title here while broad spring opted to bring litigation as was its right it was not necessary for any legal status or to clear title for  hold that and precisely because their title was involved let me ask you about costs yes your honor and in particular the expert cos because i'm having a little trouble understanding given the why he the party that puts up provides expert isn't entitled to reimburse me for those fees your honor i think that the district court here reasons that the the sole testimony that was statue of the rules it anywhere you play in it is not your honor and in fact we have found no authority that speaks to the question the most i can say your agree that that might be here we can see in your honor that maybe or i would that i would say your honor is the manifest u or the the cost arguments essentially quibble with the district court's apportionment and award of trial costs which are determinations reviewed for abuse of discretion brought spring lost half of its case when the jury squarely rejected its lanham act claim and the district court appropriately exercised its discretion in holding that to reflect that partial success spring was entitled to recover half of its taxable costs such in a portion of costs has been approved by numerous courts including this court including the supreme court those cases are set out in our brief in pages forty to forty one and the district court was well within its discretion to make that allocation indeed the district court would have been within its discretion to deny costs to broad spring altogether because it did not prevail in fol and that is supported by this court's decision for example in a r p films vs marvel entertainment group set forth in our brief it necessarily follows that the district court did not abuse its discretion and partially allocating costs if it could have denied them altogether with regard to the transcript fees that were awarded in the case again of the yes to kind of two kinds your honor yes so let me speak first to the daily trial transcripts and the case law is clear that the district court was with well within its discretion to determine that those daily transcript costs were necessarily obtained for use in the case and were therefore recoverable there are many cases in which district courts of awarded such costs set forth in our brief at page forty four and with regard to the deposition transcripts that were used at trial the district court noted that even if the depositions took place before trial the transcripts were necessary for trial and therefore were taxable under section one thousand and twenty two on several factors many of the transcripts were admitted by designation because deponents were outside of the district of of the offer of judgment i think the logic of the district court was those became taxable costs once they were necessarily used at trial and in light of the offer of judgment that's why they were awarded to us the court also noted that as a prevailing party and at least half the case that was another rationale by which such toss could be a little direct your honor i've already addressed the the expert point and so i think that takes me to the end of the arguments that i wanted to put forth and costs so much there are as of other questions all that you should thank you mr katz and on the you have a serious saying is that there was an alternative to what appears to be an alternative holding resting on will fifty four i don't think it's possible to read that footnote as an alternative her holding when all the district court said is they could have arguably been only half of prevailing party and they're also only half or you get to that issue right what i'm saying which i'm saying is it applies to the notion that they could have gotten the deposition cost as a polling party if we only have prevailed then it has to be but they over but the rationale is  they can only get what they incurred before the offer if they're being awarded under rule fifty four under the under the district court's logic that we only prevailed on one attitude which by the way wasn't correct they were kind of i suppose i suppose we might use but maybe december twenty third of the fourteen on it was this for for this cause and so on that would that was not something they put their moving papers and in fact i disputed of the district or didn't i don't i think had the transcripts before him when he dropped that that footnote but if you had you can see that the trend the transcripts relate a lot to the defamation claims and to the counter claims that were dismissed on summary judgment in fact one of the depositions was it was a third party subpoenaed by the defendants and the whole point subpoenaing him was because it had to do with their counter and i know you're not allowed to talk anymore but what w