and how in the world do i bring that out in a motion to the judge and then i thought well who is my audience here it is the trial judge who read every pleading heard every argument made every ruling on the arguments sat through the three week trial ordered the trial transcript at words and reviewed the trial transcript  made one hundred sixty some odd notes from the trial i thought well it's not only unfeasible infeasible and not possible to put the whole thing in front of her again we can't reproduce every pleading and the trial transcript for her but that wasn't necessary oh well i do next well what i did is i thought to myself she really knows everything that happened in this case and i'm sure that if we prompt her recollection she'll remember much of the us so in the motion i brought forth a couple of examples from the most prominent playing that had been brought against my clients this was the alleged rise of the transfer of property which we call the vehicle rolled property and i put in the in the motion two examples of bad faith in that particular claim and then i directed the court to our post trial brief our post trial brief was two hundred pages long and on the virile ruled property we devoted thirty six pages to the bureau ruled property playing in that post trial brief we identified every line of testimony we referenced every exhibit that came into evidence we went through the entire claim and pinpointed every place where number one they had to produce evidence and there was absolutely no evidence there was no evidence on any part of the claim but in addition to how this was bad faith during the course of the trial since the plea the plaintiff mr gonzales didn't have any evidence he tried to exclude  evidence and we had a lot of documents that we wanted to introduce and which we had produced at the very beginning of the case before i even got into it i didn't get into the case until been going for about four or five years and but the documents have been produced well they brought a motion on the many to exclude the documents on the basis that they had never been produced timely they they brought that motion not once not twice but three times and then in the middle of the trial they again objected to the production of these dike to the production of these documents on the basis that they had never been produced well they not only had been produced they had admitted did and produced at the very beginning of the case and then they kept bringing this motion the first time they brought it this is crazy so we showed that they were produced they agreed we went on later they brought the same motion i'm seeing myself what is going on here we've already fought this this we won the judge will give us an order and he said there is no evidence what was the basis for that to a that's a great question they should never have proceeded for example on the viral road property they had to prove that mike that j and johnson but the property but put it in the name of randy and robin well mr peters came forward and said well jay made the down payment ok where is the evidence that jay made the down payment there is no evidence but we had lots of evidence that randy made the down payment then they said well they got the loans on the property that we said well where's the evidence that they got the loans there was no evidence but we produce lots of evidence that randy got the loans and he paid the loans and in those thirty six brief which we directed the the court's attention to it we went through every single one of those items where they supposedly said here's the evidence or they said this is the conclusion they didn't have any  and then we show there was no evidence and when we got through the judge agreed with us they had not produced any evidence there were like i think like twelve different cla in the complaint against my clients or two cases and they had to prove five or six elements for each of those claims now i don't know how many that is like fifty elements or something they didn't prove a single element of a single claim because they had no evidence all that happened is this the lapidus got up there who was the instigator of this whole thing and he lied he would say well jay made the down payment and we'd say where's your evidence because that was the allegation that mr peters was making mr lapidus would have said well i don't know but i know jay made the down payment well mr lee guns us mr bush said well i'm sorry you don't have a cla this case reminds me very much of the chambers case but it's like the mirror image of it in the chambers case the plaintiff brought a claim against the d the  defendants the defendant and as it turned out the plane of had a very good claim and there was no defense and they never offered anything a defense because they had no defense in this case it's just reverse gonzales brought a claim and there was absolutely no evidence for the claim and so at the end of the case we won well in the chambers case it cost the defendant or the the plaintiff a million dollars to go through his his case in which there was no defense and our case it cost my clients two million dollars to defend against a frivolous case which had absolutely no evidence now i realize there's a difference between me not being able to prove your case you know you fall short of your burden of proof bill real property because i discovered from the tax returns saying debbie's tax returns that they were taking the mortgage interest deduction on the property which would be an indication that they were the owners of the property not randy and robin while he testified to that in his trial declaration under penalty of perjury that he discovered that they were taking the mortgage interest deduction from looking at their tax returns well they had the tax returns from ninety six ninety seven ninety eight ninety nine and two thousand is a property was purchased in ninety five and they had those five years worth of tax returns and there was no taking of the mortgage interest deduction on the tax returns it wasn't there so how in the world could mr gonzalez testify i saw the tax returns i saw they took the mortgage interest deduction that let me to believe that they were lying about you know who own the property and so we file as the plain and makes my client go through all of the the trial to show that there is anything up the tax returns were produced and he had them at the very beginning during the me evidence the bad thing well the thing from the fact that you know i don't think the fact that you believe they had no case is no per se but i i understand and i fully agree with that wantonly made to be mean or cruel but they have to be some kind of oppressive reason like we're going to make this so unreasonable so expensive for you that you're going to capitulate to our demands and pass so you can get out of this all of those i think are demonstrated in their in their conduct for example with respect to the trying to exclude our documents from evidence there is why would they bring this same motion him three times and at the time of the trial try to exclude those documents when the judge had already issued an order that they were miserable and make us go through it wasn't as one document as a whole bunch of documents and make us go through all that if they didn't want to just harass us just make it so expensive for us that we were finding say uncle we give up we quit well how could the court dismiss the voluntary petition for bankruptcy right yes so property as well as another business i mean he had a his report was four hundred pages and three thousand exhibits and we went through it on nine days of cross examination and he couldn't prove one single days businesses they should be included in the in the schedules and so that was the basis for the claim that mr gonzales bought was to prove that those transfers were fr i read the excerpts of record it looked to me like the bankruptcy judge here was struggling with she found that you had that the non discharge ability issue but she says  and what you said at the outset about how she detailed all of the work that she done are we under a standard of curly erroneous here when we lose the court of appeals have to say the judge was clearly erroneous when she found bad yes ok so here's what she says in the excerpts of record she explained that she had to explore whether that translates into bad faith and ultimately concluded that she could not make that leap i excerpts of record thirty eight i just didn't have the dots connected from you know judgment in favor of the defendants to well this case should never have been brought doesn't she clearly say that it's not a good case but i can't get there to faith borders on intent doesn't two points in response to that first first of all she really was saying in her rulin you didn't give me the evidence so i couldn't look at it well if we didn't give her the evidence and she didn't look at it can't make that conclusion second in making the conclusion it doesn't make sense for example on this trying to exclude the document it is illogical for for the court to conclude that there was no bad faith in bringing this motion two and three times that is illogical it's senseless it's devoid of any kind of logic it is implausible it's not worthy of belief that that is not in bad faith it provokes a disbelief actually especially when there are no inferences that can be drawn from the facts in the record to suggest that the action was taken in good faith what really should have happened here and would what we tried to get was an evidentiary hearing in which we could get mr gonzales or mr hinds on the stand and this is what i absolutely believe is mandated and should have happened again months data say you first claim that these documents are not being produced timely you then admitted that they were and i ordered that they could come into trial then you brought another motion to exclude in the same basis and we denied that motion then you brought another motion same thing why didn't you do that what is the explanation the only conclusion i think that can come from that is that they did it to harass us to make it expensive for us it was that had bad faith they had they had no no no hope of ever having the judge say oh i'm going to exclude the documents after they had admitted that they were produced timing i mean that doesn't make sense and if and we have dozens scores and scores of instances of things just like that throughout this trial which we could not just oh well if the court wanted us to do a supplemental brief and put all that in there we could do it but it would be horrendous and besides she's got to remember some of these things i know what she said but it doesn't make sense to me number one she says well you didn't give me enough evidence so i good morning i listened to mr mccullough speak here for the last fifteen minutes and i was amazed by the fact that he was arguing what appeared to be an appeal from the result of the trial not the motion that was brought to judge smith seeking attorneys fees i think today we have to start with that motion because the local rules require that when you file a motion in the central district you provide the court with all the evidence pinpoint references to what it is you want and what you want the court to rule on in deciding the motion if you look at the excerpts of record and look at mr mccullough as motion it is vague it is general it fails to indicate the things he was just talking about there are no references the road no references to documents that may have been produced or not produced all those things were done as part of the trial or part of the pretrial but his motion was based on allegations of bad faith and it was supported by only his declaration and no pinpoint citations to the record so he left judge smith with an empty box without any of the materials necessary to make the findings were hard by the ninth circuit under section one hundred five a of bad faith conduct on the part of the trustee  trustees counsel so i say the motion was properly denied because as you pointed out judge smith said on the record she reviewed her one hundred sixty one pages of personal notes from the trial she said on the record she had reviewed the world transcript turned into a written transcript from the three weeks of trial and she could not connect the dots because the itself on its face was deficient to reach the ninth circuit requirement of bad faith now a feed a zone or whatever the standard is now i understand that mr mccullough wants to argue a motion that was not brought up he wants to argue things that may have been in his post trial brief but none of those things were properly before judge smith which heard this motion it  business ten years of litigation exactly she did and she was very much the lawyer with the conduct of all counsel in the trustee during the entire ten plus years of the life of this case and during the life of this case at no point at no point did she find that the trustee in trustees council had ever ever acted in bad faith she ruled on motions for summary judgment she ruled on motions in limine and at no point in time did she decide say or infer that the trustee and trustees counseled acted in bad faith so i think you're right she looked at and lived through the record and a she said during the hearing i cannot connect the dots based on what you've put before me and the motion was properly to nothing now if m opponents wanted to have a hearing where evidence would be presented and as i looked at his briefs this week he refers alternatively to bad faith conduct and malicious prosecution in order to get to the malicious prosecution he would have had to file an adversary proceeding or complaint he didn't do that he simply filed a simple motion if he wanted to have an evidentiary hearing he could have issued an order to show cause to joe smith seeking sanctions on the one hundred five he didn't do that he didn't follow the tools the pathways that would have gotten him to the evidentiary hearing they now says he so richly deserved and requested at the hearing he simply filed a motion a very simple deficient motion and judge smith gave him an hour and a half even taking the lead taking leave from the courtroom to go back and look at the chambers proceedings that weren't even mentioned in the motion itself that brought only three oral argument she left the bench tried to find the chambers briefs underlying procedures and br deficient so i don't think we need to run down the rabbit hole all of the things that mr mcauliffe says were in his post trial brief because his post trial brief was not in front of judge smith it had not been pinpoint sided attached as an exhibit in giving to the court and said if you look at pages twenty through thirty you'll see all of these examples he didn't do that and without that he didn't give the judge the tools to build the this judge had lived with the case for it looked to me like for fifteen years and started in one and we're talking about a twenty sixteen ruling wouldn't she have known bad faith oppressive conduct just as a matter of course or not i mean when you see misconduct as a judge i think most of us at least have some sense about what that is i agree with you and that is that because you live with this case through the motions for several judgment a failed settlement which she had originally approved and then on and did she found it no point in time any bad faith on the part of the trustee trustees counsel i just don't see how we get to the one hundred five mal a few days intent that is required by the ninth circuit case law to find in favor of the well the good judge myth indicated all that say as part of the record at the hearing that mr mccullough had failed to pinpoint cite her to the evidence necessary to make the findings she did say that and then she did leave the bench to look at the chambers motion were deficient that she didn't agree with the motion on the basis of her and understanding of the record correct she found the record was not supportive as it was presented to her and of local rules to make the fi made the appropriate motion under california law under seven hundred seventeen the judge would have the discretion to award fees or not there's two problems the appellant's there were made that motion in one nine hundred twenty  six when judge smith and did her approval of the settlement statue of limitations on that is clearly done in the court did say sue a sponsor a that that claim was barred by latches because it had la because it hadn't been brought between two thousand and sixteen and twenty two thousand six hundred twenty sixteen so while that may have been true that motion was never brought appropriately so the judge could rule later she did the settlement so that all happened between two thousand and four two thousand and six the issue you raise is if there was a right to attorneys fees for undoing the settlement that cause of action would  existed in two thousand and six but lapsed because it wasn't brought in time and the judge on her own said well you waited so long there's latches what did the judge say that you know it's it's in the record your honor and i might be able to cite you to that actual language yeah i'd like to see the judge said that because my understanding is it may be that pendency of the bankruptcy proceedings would toll the time in which to bring that motion such that be at the end and the proceedings is one big proceeding night it is one big proceeding but it has broken up parts we've been to the ninth circuit at least twice during the course of this case on the various issues while the insistence of the johnsons but the point is if they had wanted to bring that motion for attorney's fees they should have brought it in a timely fashion and they failed to do it they still haven't brought that motion as of today motion that was brought when you look at the motion that was brought by the appellants before judge smith it seems to have two vague components there is reference to the undoing of the settlement potential seven hundred seventeen claims but mccullough argues that's because there were two thousand one thousand nine hundred ninety nine agreements between mr lapidus and the johnsons these are all things that were prior to the bankruptcy issues between the johnson the peterson has nothing to do with the trustee judge smith ruled that the only party appropriately part of the trustee of the attorneys fees motion was the trustee in the trustees actions so as to the hundred seventeen arguments for all those prior look pietists jobson agreements that was not appropriate properly before her so the only issue is the settlement agreement and the judge did indicate that on her own latches just very briefly your honor with respect to the two thousand and five settlement agreement that has an attorney fees were vision they brought a motion to enforce that contract the court granted it on motion reconsideration when i came into the case the court reversed herself and said no we brought at the end of the trial we brought a motion for fees with respect to that motion alone separate hundred forty eight thousand dollars of the seas just simply to defending against that motion and prevailing so they brought the motion it was granted it was reversed we and it was brought in the bankruptcy case and the bankruptcy case is still open and sold there is no statute of limitations issue there really is no latches issue because we don't we didn't have to bring only did we could still be bringing that but we brought the motion and the judge so we finally said well you have waited ten years that's whack as well number one it's an affirmative defense they never brought up that as a and number two the judge never found any made any findings that would have supported latches so that alone has got to be reversed so that the judge can go back and say ok they brought the motion and you same did recall everything that went on and he never thought that there was bad faith and so forth and at the end she says well i don't think i find any bad faith here if that's the case either abused  discretion or she is simply wrong and this court can reverse that you cannot say mr gonzales you testified that you found the tax returns  there was a mortgage interest deduction taken when in fact the tax returns don't show that and you said another penalty of perjury you can't make that mistake you've got to get explain that to the judge how she can say i don't find that to be bad faith i don't find her last right that's correct yes that seems to have been the case so what's your response to watch you i think she exercised her discretion appropriately and that's how the case should be disposed all right thank you counsel i'm going silence verses johnson will