intentionally and maliciously deprived their employees of the prevailing wages that they had earned on ten public works projects the court also found that mr wong and his colleague had fraudulent lee concealed the wage theft and then fraudulent lee transferred company assets to avoid paying the employees wage claims mr wong was a principal in a series of plumbing contracting businesses those businesses perform public works projects most of them under the name big bear as construction the secret to big bears and mr wong success on public work was that they paid their plumbers a tiny fraction of the wages that were required by the california prevailing wage law they paid the plumbers eleven dollars to eighteen dollars an hour when the law required from sixty nine dollars to eighty eight dollars per hour depending on the county big bears used false certified payroll records to conceal the wage under payments in order to make its paychecks appear legitimate big beers intentionally reported fewer hours than the employees had actually work and that made it look like the hourly wage rates were higher than what was actually paid council  the disappearing court judge didn't specify but if you if you read the amended judgment that starts at the excerpt of record page ninety one i believe you'll see that that his findings flow straight from the intentional and malicious finding into his his finding that the that the the vales of the various big bears and of these the corporations and the partnerships the limited liability company should be pierced to colleagues personally liable so how is it related to the alter ego determination well it satisfies the nd element of the alter ego determination which is that it would be unjust i mean after after finding that there was no separate corporate identity the nd element of the california test for corporate veil piercing is that it is a finding that it would be an equitable or unjust to give respect to the corporate and so i mean i mean do it this way my perspective in reading the record is what happened is that mr wong didn't show up and the court kind of gave you i don't know you personally are whether  counsel gave trial counsel the opportunity to prepare the judgment and whoever did it put in whatever he or she thought was the right thing to do to help the client but the court probably really didn't give much consideration to there wasn't  contested issue affectively so then we get to the bankruptcy part and we have to go back to sit it determine how much how much does this mean realistically in order to satisfy requirements of the bankruptcy code to get a just discharge and i'm frankly struggling with that i really have some difficulty seeing how the district court was wrong on this or am i missing something here well you're on to the superior court held a trial we had a full day trial got that tom lawson the the the representative from tri co pipes who ran had investigated the the big bears case he testified the trial in early october an initial judgment was rendered a couple of weeks later and then the amended judgment after we had moved for attorney's fees so that the trial judge had plenty of time and devoted plenty of thought and mr wong didn't appear right he did not appear but he had the opportunity to i get that but i mean he did not appear and so and in fact the plaintiff's counsel had there in effect the car i'm sorry no doubt he he had had spent his career as as a prosecutor prosecuting difficult frankly murder cases and he took a great interest when when he moved over to the civil side with his one of his early assignments he took a great deal of interest in understanding the nuts and bolts of the prevailing wage law and these violations and understanding what happened he was not somebody who just signed off mechanically on what was put in front of him he asked lots of questions and his views were what we put into the final judgement we did draft the judgement that's the practice in california  you also asked whether it was necessary to the judge and california law of collateral estoppel is very very clear that where there are alternative grounds for holding a person liable then each of those grounds that's the best argument for willful and malicious injury but he also found that the debt had been incurred through fraud mr wong and his colleagues had concealed their their prevailing one to wage under payments with had payroll records they were to enjoy where in the judgment is the if you will the responsibility of mr wong personally distinguished from the overall judgment in terms of the amount at that age if you're going to be going to nail him for something you've got to show the amount involved at the total you're not unless he's responsible as proven for the total amount well that the judge did the judgment was sufficient mr one had that opportunity and that's what the lawyer for tim is opportunity that he had he had to answer the complaint he answered the amended complaint he appeared for his deposition he participated in this case he chose not to come to trial and he denied course like most people would in that situation he denied it the court and believe beam found there was liability but as to him personally he's the person we're talking about here now as far as i recall there was no specific determination that out of the total mr wong has personally committed these various acts that would make the debt non dischargeable in the amount of x that correct that's correct and under the under this court's decision and nuclear versus banning isn't necessary nuclear versus binning makes very very clear that that there's no need to connect the amount of harm piercing finding yes your honor but if you look at the at the immediately preceding paragraph paragraph five you see where the judge said the defendant failure to prevail but failure to pay prevailing wages and the act of concealment of this conduct was intentional and was the willfulness and maliciousness and then quotes necessary finding on the part of the courts in order to make the alter ego finding under california collateral estoppel law as long as it's one of the alternate grounds for finding him liable and the judge wasn't wasn't explicitly clear whether that whether he thought that there were multiple grounds for finding this of one liable but as long as it's one of the alternate grounds it's entitle t adopted at after trial its findings on summary judgment now interestingly the bankruptcy court had ruled for us on summary judgment and found that the judgment that the debt the that on the basis of fraud lot of sense but certainly under mueller we don't have to prove we don't have to tie particular assets or particular dollars to the fraud as long as there is a judgment for fraud the debt is not dischargeable and crystal clear on that as is i think the th circuit case that the that the men let me say one more thing your honor which is that these holdings were not only legally erroneous but they were contrary to public policy the public policy is to have workers paid for their labor employers who engage in willful malicious fraudulent conduct should not be able to to use the bankruptcy court to escape responsibility just because there's an alternate basis for having held them personally liable the night circuit so if i peer to be nervous i i am and i ask you to bear with me the i think one thing that's very interesting to note and your hon referred to it in the bankruptcy court itself there was no live testimony and the appellants had ample opportunity to present the case present the facts in front of the court in front of the bankruptcy court just lumens shell and they chose not to so why didn't he appear in the state court action i'm happy to address sad and it's it goes way back to the relationship or non relationship between mr wang and mr and so mr wong really didn't understand the seriousness of this intel he had a judgment and they were going to garnish his wages and he had to come to me  that's that that's what he's done for for many many years the entities that brought him into this and the evidence what there is of it shows that he  really had virtually no involvement and that's one of the reason said in my brief i put a recitation of the facts that shows a great pattern of activity by mr wang who is not part of this proceeding and virtually no active er entity well i can partially address they were going after him on an order for examination and they already had the judgment and they had notified his employer that the city and county of san francisco that his wages would have been garnish which is you know the course of words a twenty five percent hit  he his wages have not been affected at this point let me ask you this if you if i understand you correctly you indicated that he did not appear at the state action because he was upset with mr wang was also charged and he didn't think there was going to be anything we could go wrong i was going to get well i'm not sure it's not that he was upset with mr wang he trusted mr wang to take care of wang attended the trial i mean attended so when you got to the bankruptcy court where you were involved you said there was no testimony taken given the fact that there was an earlier action in the court didn't you feel was important for mr wang to appear and say as you've indicated while i didn't do anything and be able to make whatever his story was well he certainly understands now i understand it let  he's a plumbing contractor he's he's not legally sophisticated i didn't know him at the time so i'm not sure i can speak to that i think if i recall correctly he actually lied on mr wang or someone else  that may well have been the purpose if i might note on the language the findings were intentional and malicious whereas quiet versus geiger geiger and it's very specific to either willful willfully intend the wrong or knowing that it would be substantially certain that  t conduct would result in a wrong tense you know satisfy the st prong of that intentional i don't i don't i don't believe so you are and again there was no underlying factual basis to determine what mr wong did not only that but in terms of transferring assets or so nothing that establishes one that he didn't transfer assets and if so how much and that's one thing that judge woman so relied on separate tests there but let me ask you this then as you know opposing counsel take the position that given what the state trial court concluded that all the magic language was that was necessary to avoid discharge ability was there and that under the principles of collateral estoppel your client should have been unable to discharge this what is your best argument that he's wrong wel normally a court would look would take the evidence in bankruptcy court make a determination based on who is in front of her or him and that didn't happen here there simply is no evidence other than a judgement for eight out or who was sense of his skated and didn't show up at the creditors have a right at the bankruptcy hearing to put in evidence to show some difference between then and  state court judgement yeah absolutely the objecting push absolutely that they could have called i mean they had depositions but they couldn't in fact this is the only have so proceeding i've ever seen where the defendant honesty i have to point out that that much of my opponent's factual representations are outside the record there is no evidence in the record that mr wang told mr wong i'll take care of it result of this case is to kind of undermine the purpose of the bankruptcy court so i'm i'm kind of disturbed by this case but that when the other thing i'm kind of disturbed about was you rely exclusively on transfers i think one of the purposes of collateral estoppel your honor is judicial efficiency we have proved it once and as i understand collateral estoppel is to avoid the need to have repetitive and potentially inconsistent adjudications of the same thing over and over again you know in terms of of mr wong his responsibility i think is helpful to bear in mind that he was to the floor of the contractor's license qualifier for big business for each of these companies and he was required by law and in applying for those licenses he said i will take responsibility i will actively manage these companies and i will make sure that their their conduct complies with the law in and for the license qualifier to say later on i didn't know anything about what was going on i shouldn't have to be responsible for it is exactly contradictory to what the business of professions code the contractor's license law requires because it is precisely to assure compliance with with legal requirements that there has to be for a corporation or a labor limited liability company or partnership there has to be someone who takes personal responsibility who has the experience and hopefully the integrity to make sure that that contractor complies with the law and that's in the business of mr mr by and my opponent says that mr wang prepared in the answer for mr wong there's no evidence of that in the record the name and address on the upper left hand corner of the st page is one want the signature at the very end is one more we don't know who prepared perhaps mr wanted himself but as my opponent pointed out he's a he's a san francisco plumbing inspector he's a member of the plumbers union himself and yet he purports to have no knowledge of what's going on no knowledge of what's required and that's just that's just not acceptable under any under any concept of legal