i'm your honor here we're here today based on the lower courts and turning a summary judgment motion and applying rescue to carter there are two main issues that we're arguing  are in error it's one the application of the summary judgment itself and to the size of the punitive damages awarded  is about the financial death of the debtor when i look at the cases with sundquist for example or bank of america was issued a forty five million dollars judgment for violating the automatic stay i ability of mr mugabe loads to prosecute the appeal of the jury finding these and that's that's to the interesting and significant issue in the case and the only issue whether that maps and we believe that that's the prime target of the basis because for the jumper summary judgment to apply all the inferences or if there are any material issues then you should not issue a summary judgment i'm sorry what's the issue what's that life the underlying state court complaint included a series about if there were twelve causes of actions we don't know what the jury base their decision for finding the fraud and what the p damages were based on unfortunately i didn't represent the debtor in the state court so i didn't participate i didn't i wasn't involved i came into this case to assist there with a fresh start in the public policies afforded debtor's within one of the six element that's not addressed is the public policy of whether the bankruptcy court should have applied rescue the product it's an additional element and we don't see that here it's not i mean they shoot a car which as i learned it i'm confused by the question but i understand you're you're limiting the issue we look at as a big bigger picture as to the fraud your honor when i argued the good mashie case we talked about a in this particular case the dinner was a contractor fourteen years he's a simple person he's not an attorney he was approached by the debtor to rebuild a home in santa monica he didn't prepare the underlying contracts he didn't prepare any of the documentation he didn't prepare the quicklime deeds an attorney that was disbarred was the person that handled those things my client to this day had been ready willing and able to we resulted in the judgment of fraud yes your honor and the question is whether or not that judgment of fraud should be applied in the bankruptcy court with truck inappropriate ruling or what do you have to say about whether the the fact is the trust she chose not to appeal  will with respect to that exact point the pretty argument and the inability to prosecute the appeal because of the bankruptcy is exactly the issue that we're dealing with the position of the trustee and we point out in our brief opening brief the interest of the trustee in a bankruptcy are seldom aligned with the debtors and or the creditors so they're not in privity with each other the trustee has no interest in incurring fees and costs in prosecuting this appeal determined on a summary judgment standard and those influences rather than reviewing the record in the light most favorable to the nonmoving party the bankruptcy court who also point out however it is true as the debtor points out that the debtor was not party to the appeal at the time at the time the appellate court ruled on the appeal that's part of the excerpts volume one on page forty nine for the court reference and again i want to point out the debtor and timothy mcginty entered into a contract to develop the property mcginty had his own financial issues there were judgments against the property the attorney structured the transfer of the property and the development of the property so that mr bigelow could develop the property of paying the financing and they could both benefit from that transaction which is common but you are still still arguing what was decided in the state trial or i understand that i really do think that you need to concentrate on the question of whether the fact that the devil himself could not have control over the appeal even so as you point out the trustee had somewhat conflicting interests with regard to whether to appeal the trustee had no incentive when we approached the trustee and said you need to abandon it we filed our motion to compel the advantage man it was the plaintiffs that went to the trustee and said you know what we'll buy those rights they're valuable you can now make money from it ok so we continued it for thirty dollars days and said ok we know what's going on where's the offer let's get to the sale you how you made an offer right sure they typically in the course of a bankruptcy you'll get a sale motion and you'll be subject to over bids that are could have  so you know what i really want to go forward with those appeal rights but that never happened here the abandonment motion was denied without prejudice after donovan sat on it for about three thousand and thirty five dollars days meanwhile the case gets closed the abandon yes your honor and that's that hudson versus davidson case that we point out with respect to the trustees interest being divergent we also looked at your honor  i know in the last couple months you had looked into the wrangle case where you said were rescued a kata should not apply in a settlement class action case because the debtor or the responding party was on  object to that settlement and then a couple months before that in the ruiz case your honor also looked at the rescued a card effect and said you know what when there are multiple issues for the bankruptcy but in terms of california issue preclusion laws the fact is that the person who was ultimately going to have to pay the amount of money was not in control of the  o and in it whether that you call that a privy problem or something like it does seem like a peculiar circumstances in which the reasons for applying issue it doesn't run from the trial court judge when it runs from the end of the litigation i e after all the appeals are done and if the appeals are precluded for some reason that is external to the litigation why settled that a dismissal are just discontinuance of a former action at any time before the trial of a subsequent action or even before the conclusion of such a trial completely removes the objection that a former action is still assuming for the moment the california law is what i said which is that the issue preclusion rights from the end of the obligation and not from the trial judgment much we have the fact that they dismiss the appeal was dismissed and the the question is because that dismissal of the appeal rendered the judgment final whether or not there's room under california law to say that there should be some exception to the the rule that the judgment which was there by runner final shouldn't apply in this particular case the california court of appeal in september of two thousand and sixteen issued an order to show cause why this shouldn't be dismissed it that that court did not dismiss the appeal until three months later at the end of december it decided to in the interim rendering the judgment final i don't disagree with that as your understanding of the twenty five million dollars and the what but the what was the other judgment for eight million dollars our kid militaire heard say oh i think the same oh they're there they're separated and for whatever reason the state court proceedings did not impose the twenty five million dollars on mr bush sagal so it's thirty three million dollars fifteen or fifteen you know  if you're at the end of the day it was eight million against those ago and it was approximately fifteen million against the corporate entity but he's an alter ego that is actually  right i want to wrap up i suppose with the in this notion that there was interference and there and so there was no interference with any of his property rights second to the extent that things have been mischaracterized as interference or manipulation what's been referred to is community to communicative acts from attorneys and from trustees regarding live litigation activity those things aren't interference those things are absolutely privileged as an under litigation privilege and so as a matter of evidence there was no cause for this bankruptcy court to find any of the material facts that we submitted to be controverted thank you thank you very much again your owners again i think that's an excellent point and i want to clarify there was a one million three hundred thousand dollars judgment as to the corporation and eight hundred thousand dollars judgment as to mr b there was an eight million dollars a ten times award for punitive damages as to mr boogaloo and then a thirteen million dollars ten cents times award on that and when i get some those together it's a total of twenty five million dollars even though they referred to him as an alter ego they were not a joint inseparable judgment they were separate judgments and the court the court of appeal dismissed mr bill's uglow for having the opportunity the issue was yes there was this three month window in order to show cause but mr blue had done what he could have done because he didn't own the appeal rights he was not improve the was not able to prosecute it and the trustee had no judicata should not be a hypertechnical in our cake approach of one thousand century pleading books but considered with real ism and rationality quoting the supreme court sure versus swenson this is not a firm and a fixed policy th you let me understand what is it that you are actually asking for are you asking for a real litigation of the underlying action in bankruptcy court your hon need to go there then yes it should be remanded for a trial so that he can at least say what the transaction involved what the damages war were not because the testimony was in opposition a summary judgment he was ready to perform and had  cause of action under fifty two thousand three hundred and eighty two but i have to point out we don't mean that he separated from everything else the state court had twelve different causes of action that's why it was an extended trial proceeding the bankruptcy issues are very we can entirely reverse this case your honor because the punitive damages were excessive they killed the debtor it wasn't to punish the debtor and under state law even an award of seventy thousand dollars that leaves a debtor into bankruptcy is grounds to have those damages reversed this is an eight million dollars award against an individual who just wanted to comply with a contract he's a business person he's a contractor he said let's go are you asking the they chose they elected their remedy and said you know what we don't want eight hundred thousand dollars they said you know what we'll take the house and what they did with the houses they ended up cashing out a one million dollars instead of getting the check for the five hundred thousand dollars so again no damages