obviously here obviously here to answer any questions the court may have but i would like to affirmatively address the two more six most significant points in our brief st the trial court the district courts  factual error in assessing plaintiffs success because it assumed in the nd field order that they had not won their false arrest claim when in fact they did it also assumed that they had not recover damages for their false arrests claim when they actually did so right there the decision was based on a very important and faulty factual premise and should be reversed similarly the court's decision was based on speculation and i believe again a mis remembrance about what happened that somehow plaintiff's counsel had not adequately emphasized the damages to mr or from being detained in jail for eleven hours when in fact going back through the closing arguments and testimony that fact was discussed extensively by miss share when in closing they even showed a video in the closing of mr or in jail and so the jury was well aware of that and presumably and i think there's no other rational explanation they did include damages for those for that conduct in their award so is it is it is it your position then that the district court should not have made any reduction at all for limited think it's our position that if it didn't make one it could have perhaps made a to ten percent haircut that's referred to in the moran ok's but we think this case for achieved excellent results and that if you applied the proper standards no the strong presumption that the load stars are reasonable and that the limitation on limited success reductions to rare and exceptional cases no there i it's our position that there is no there are no grounds here for a limited success reduction there are no rare or exceptional circumstances when the district court elaborates that summary judgment certain claims  related and so under the ybor heem case it seems to me there should be a presumption that plaintiffs are allowed to bring related claims that's the nature of lawyers and if they can't do that they can't represent their clients adequately and all the claims on which they lost were related claims in addition they took out three hundred and thirty eight hours that they had spent exclusively on brame and the final point  or one of the final points is that oh when you look at what those related claims were  the the the decision again against plaintiffs on officer brame the damages in the case would not have been any different had officer brame been found liable for false arrest  and excessive force the damages were what happened to mr or and he was compensated for that so the failure to succeed against brame didn't really costs the court or the or the parties any significant amount of time the same goes the same goes with the other claims they all were based on the same injury and that's the whole purpose of the related claims doctrine it to come up with a fifty percent reduction a forty five percent reduction in the time council spent when the relief would not be any greater had those other claims not been made and in fact with officer brame almost all the work that was done with officer brame would have had to be do done anyway with him as a witness even if he had not been named and how does this rise to the level of abuse of discretion now mr or did not recover for false arrest and in fact he did that's the jury's verdict yes and the jury verdict said it was affirmative for both excessive force and false arrest and in fact throughout the case mr officer or tried to argue that he shouldn't be liable for the false arrest because he was didn't participate in certain parts of it but that's not the law the court found he was at the scene when the arrest for resisting arrest occurred and he subsequently liable for all the conduct that took place after that that flowed from that which includes the time in the jail here's a only to the question as to whether or not the district court heard in relying on professor swartz laura who article with respect to lack of deterrence and said please reconsider they warn of attorneys fees in the light of our telling you you can't consider a lack of deterrence based upon a law review article the memorandum just isn't didn't talk about anything that you're talking about although obviously that was then in the case as it is as you want to tell all the prior decision was vacated so there was no prior decision when we went back the nd time you know i'm trying to figure out what effect if any our prior memorandum disposition got that was not vacated there's no so want to go back down to the district court what were we telling the district court that it had to redo as i read it if we were to narrowly the only thing it does is say to the district court get rid of that lack a deterrence factor otherwise you're fine because it doesn't say anything about anything else while the trial court did more than that though the the district court came up with other justifications that had not been before this court in in the in or what in the st appeal this whole notion that mr or would have recovered way higher damages if brain had been included in the in the in the  different fact and so i get there it was way way way we're not limited to that one right the other point i'd like to make is that the whole notion of limited success the whole notion that courts have unlimited discretion once a plaintiff has not recovered everything they sought or a defendant has been dismissed has unlimited discretion to reduce  the lodestar by any amount they think is appropriate is very troubling and has been a serious problem particularly in the eastern district most courts do not give credence to the notion that there is a strong presumption that the lodestar is reasonable and the court here did not most courts do not feel they have to find the rare and exceptional circumstances to make a lodestar reduction most courts ignore the language in in bluhm which followed handily by a year and said normally courts should award the lodestar should be the reasonable fee normally instead they hit they have taken this limited success this totally subjective criteria and applied it based on some percentage that they believe is appropriate and in this case a fifty percent reduction as we've shown does not come anywhere close to the prior lodestar reductions that have been approved by this court based on limited success defendants argue that's not dispositive i agree but it seems to show that this is that got to the birth and yes it did offer it offered an explanation in this case an invalid water but the explanation for example though the whole speculation about what might have happened if mr had dad had argued the case differently that was something new that came up in the nd time around never never briefed to the parties and yet that was a major justification for renewing the limited success reduction on the other side of the equation the factors that we think are significant were totally ignored for example the court totally ignored the notion the fact that the defendant said never offered a single dime in settlement they totally ignored the fact that the defendant had told the jury that event his attorney told the jury that the maximum damages they could award was five thousand dollars and yet the jury awarded one hundred and twenty five thousand dollars  you know you're done about three minutes do you want the other side are you going and then say that time for a bottle ok i can i say one thing about the hourly rates sure and that is that that we believe we submitted a recent decision from this court roberts versus city of honolulu that involves precisely the facts that occurred here at the district court totally ignored all the evidence we presented particularly the nd time around including a case that in which the attorney general's office was rates were found reasonable  may please court than ask about on behalf of officer plan what this fees order comes down to your honor's is substantial recovery vs limited success and these are factors that are made by the district judge who was in a position to observe the litigation as a whole and determine whether we have a case of truly substantial recovery or of limited  we there is substantial recovery as the supreme court said in hensley we still look at whether it was limited compare as to what was being sought i wanted to just briefly address one issue that opposing counsel raised regarding the factual errors there were no factual errors and judge shabbes analysis as to why he found that this is a limited success case he keeps referring to that judge says that there was no recovery on the false arrest claim that is a misrepresentation of the record there were four false arrest claims presented to the jury during trial false arrest against officer bain and brain and officer plum arising from the initial stop and arrest for driving under the influence and then there were the other two false arrest claims for resisting an officer initiating and arrest the jury did not find against any of the officers on the false arrest case arising from driving under the influence the jury found officer plazas was the special verdict written in that way yes your honor and it's in the record all the sixteen claims presented to the jury were outlined per individual so let me understand if there was a false arrest claim arising out of a stop yes for a drive it was he was arrested for also driving under the influence and that's what precipitated all the other events that occurred right but the but the occurred factually as judge tried to explain our was aware of given that he was the judge that oversaw the trial and the entire litigation the year prior to trial or trial was mr or failed the field sobriety test after and then he explained that he had a stroke that he was disabled which was evident from his license plate said it had the disabled sign on it and he explained that he had a stroke that limits his ability to balance him self nevertheless he was still arrested and that was a claim that plaintiffs brought here when they arrested him until cam to that the  was based on this driving under the influence when was it with the arrested before the punch or after the punch well that was that was the pint the arrest after the punch gave rise to the claims for false arrest for resisting or false arrest unlawful arrest for resisting arrest of those th amendment claims so there were four false arrest claims that were presented to the jury  when you see four correct so two that led to the arrest for driving under the influence two for resisting arrest so those are the false arrest claims that and judge shabbes order focuses on the fact as all the other factors that officer brain was the focus of this whole litigation it wasn't officer plumb in the sense that he was the primary target or bases of the cl that mr or was driving kinder radically and that's what precipitated the stop you know again as i know as judge shub explains that the video shows that it wasn't as the officers had described the conduct that led to the arrest that he was driving five miles under the speed limit well that he had swerved just barely into the next lane around marconi curve which is known to be a pretty pretty steep her and that that was not the same manner in which the officers had described it to justify the stop so we're not talking about and this court also recognized that in its in its remained order that the facts were such that this was not a serious threat to the officers you're talking about an elderly disabled man who did they have to punch him well that's why officer plum was found liable your honor because the jury found that his use of force was on reasonable and came back with one hundred and twenty why hasn't why didn't you settle this case i mean the amount of litigation over the punch is just amazing i would agree with you you're o the extent that if this case were just about the punch that i would be asking the same question but this case wasn't just about the punch the punch was secondary to everything else and this is why i judge found well you know this was a limited success he got one hundred and twenty five thousand dollars right correct but your honor this lawsuit was filed with over twenty claims against three defendants six judge chubs and all those claims were related correct but just because they are related that does not end the inquiry as the supreme court in hensley stated we emphasize that the inquir with a finding that the plaintive obtained significant relief a reduced feel ward is appropriate if the relief however significant is limited in comparison to the scope of the litigation as a whole and that's the situation we have here sixteen claims went to trial on which mr or only prevailed on five all those five claims the excessive force battery the bane act and the false the rat and the violation of for unlawful arrest the rising from his resisting arrest all were premised on the s act which was the punch there's this is your position he didn't get a significant recovery or whether he whether you view the one hundred and twenty five million one hundred and twenty five thousand as significant or not as hensley says that's not the end of the or recovered one hundred and twenty five thousand compared to the one million seven hundred and fifty thousand dollars that he requested at trial that sixteen claims were presented to the jury of which he only recovered three that this case wasn't the claims on which he recovered were not complex in the sense that it does not take a lot of consideration by a jury or deliberation to find an officer liable for punching an elderly disabled man who's putting up nor very little resistance and is not a threat on the fact that they did not recover any punitive damages on a case where the conduct was so egregious he a seventy six year old man in the stomach that posed no threat to him that all the claims from the beginning of the start of the litigation to through trial the focus was on officer brain  conduct that the that mr officer brain was the heart of that litigation and then the fact that had he not presented all these unsuccessful cla resulted in a very lengthy and drawn out trial that otherwise would not have resulted but most important your honor it was the fact that plaintiff's counsel igs expended more is no numerical formula and terms of do we say one to fifty one to three you know that the court has rejected a numerical formula but it is proportional i'm apologize that way mispronounce that were where it states that although the supreme court has disfavored a test of strict proportionality it also suggested that a comparison of damages awarded to damages sought is required and he in the mccowan court goes on to explain that the supreme court has clarified that in judging the plaintiff's level of success and reasonableness of hours spent achieving that success a district court should give primary consideration to the amount of damages awarded as compared to the amount sought so the courts have said the supreme court said that while we don't have a strict formula for proportionality we are going to give the most weight to the difference between what you ask for and what you recover and this is why this is a limited success case despite whether one views the one hundred and twenty five thousand as substantial relief or not plaintiff's counsel igs expended a lot of time and energy on the six unsuccessful clay claims that were the primary focus of the litigation since the beginning i also just want to briefly touch upon your honour's question regarding what was remanded and in this case  it was for the court to justify or reconsider the lodestar reduction and it was not unreasonable for judge to read this court's instructions in that limited let me ask you this on the st appeal did they raise in their appellate briefs these issues about the rates and whatnot yes your honor they did and and if you read the if you read our men dispose or the memorandum does it resolve those issues yes and no and i know that sounds like a contradiction but it isn't known in that the court room usually when we resolve you know a sub issue you know the number of recalculation and that's why i said no and it's as and then it says on remain on the district court should reconsider or otherwise justify its load starred reduction in light of this memorandum disposition so vacated and we were wound up to answer your honor's question i said no in that the order of the memorandum was silent as to any of these other issues concerning hourly rate and reasonable hour but i said they will raise going to appeal correct and but i'm just saying that the memorandum itself was silent as to whether in that those issues were not specifically addressed in the memorandum but i say yes in the sense that in order for that and this court to have reached the lodestar reduction it in the analysis of attorney's fees one dollar determines the lodestar rate st so if the court had found some error in the manner in which judge shub logic follows that the court would have pointed that out as opposed to jumping straight to one of the other factors further down the consider that again and opposing counsel's comment that judge should completely disregarded that's incorrect he had in front of him the two declarations that mr orr's attorneys submitted stated why he found them useless because none of them a drastic what they would have charged in this type of case such that judge hub shop had no information in front of him as to what the reasonable rate was for that time period and he need properly looked at other cases especially that of john burris who is a very well known civil litigation attorney here in the bay area that does these types of police cases quite frequently that his hourly rate during that time period was four hundred dollars such that there was factual basis for the rate that he provided and again your honor in this case is about limited success regardless of how we look at the recovery actually obtained as the court mentioned in hensley thank you thank you you seemed a little time trying to run through these points fairly quickly st of all in terms of judge shabbes rationale for his reduction he says expressly on remand that he's not taking giving high consideration to the difference in damages instead he's giving most consideration to the way to a his mis misremember instant mr or did not recover for false arrest for resisting arrest and the way counsel conducted the trial he expressly says he's not giving significant get consideration to the difference nd the notion that this is all about brain doesn't comport with the record the jury found plum libel not brame libel for false arrest libel for excessive force and for all the damages that occurred after it mr plum tried to make the argument that it was braman not him in his role fifty motion which judge rejected and then again in or one in before this court e notion that this was just a simple case simply does not comport with the record and again i submit was probably misremembered any look at this record shows that the defendant fought this case tooth and nail to justify the punch they brought in experts they brought they had they brought in all their standards they did not concede that the punch was wrong they fought tooth and nail and they fought it again on appeal so this was not a simple case  t maybe should have been maybe it should have been but but plaintiff's counsel had no choice they have to fight it if the defendant wants to put up this kind of defense they have to put up the time to rebut it  the court also found that all of counsel's hours were reasonable all of ours claimed were reasonable and which should have and were part of the lodestar that it didn't find they were unreasonable in reducing the lodestar it found that they just of what two thousand and eighteen rates were in sacramento which the judge completely ignored and finally and i know this i don't want to sound presumptuous but if the court should find for us and reverse we would ask the court to send this matter to the public commissioner rather than back to judge for another what might turn out to be another appeal judge the commissioner has our appellate fee motion from that's for fees on fees  this ok this deals with you know the work of the district court and yet has to go back to this let me ask it there's just one question i eluded to the fact that the case hadn't settled is there any is there any possibility that and i mean it should be some attempt to sit down and see if the matter could be resolved we would be more mediators and they're fantastic yes we've had good experiences and they're fantastic but as i said in this kid in this conference we'll come back out and talk to you in the meantime you'll get much more interesting talk from our l