understand i'm going to begin with the the award and i think that the when you distill the problem to his essence the problem is that the trial court although it recognized the structural framework of an analysis that it was supposed to conduct it never conducted that analysis and that began in the findings of fact in conclusions of law where you have in a single sentence where you find it in the record third page thirty two the the coaches says without any analysis whatsoever that hubbard was the prevailing party and it says that despite the fact that throughout the litigation mr hubbard contended that he was entitled to all of the compensation for abided by the consulting agreement throughout the remaining term which was another thirty months and a total of two hundred fifty thousand dollars well ok that th attorney fees cost is on the consulting agreement right and there's also analysis under seven hundred seventeen but if you look at you contend that he's not the prevailing party because he only got what forty two thousand dollars out of the two hundred fifty thousand dollars that he was asking for correct that is only partially correct but it just you never you know you fought the consulting agreement the whole way and so after in that time period the forty two thousand i guess the court gave him five months at the eight thousand right i'm just just sort of rounding off figures and so originally had been three thousand something then he claims it went up to eight thousand but even there and then you claimed that there was no amendment your side did not pay him one cent during the five months whether it was the three whether it was eight and during trial contender first  ciro but then if you didn't know him ciro there was no amendment to the eight and then the court also said well i'm not giving you two hundred fifty thousand because you've got a job at sizzler where you made more money so what about that it seems like you won on everything it doesn't seem like you want to do anything there so what did you win on that do in your own on the last of the arguments that the court recognized we presented multiple theories there's nothing wrong with possessing multiple theories ok but what if you went on what was sweet one on the terminations issue we won on the issue that he was not invited to any compensation under the dissolving agreement after he effectively terminated now the with the reason for the he got less was because he got another job and therefore it cut off i guess what is it eighty three percent of the damages that he would otherwise arguably been entitled to i mean the bunny he won on the claim that he was entitled to a consulting fee from and that you would breach the contract by not paying and he lost one because he had the judge found that he had he had mitigated damages and he could not have possibly drawn one not that it was legally impossible but i guess as a practical matter he couldn't have done the job that he had gotten which mitigated his damages and continued in consulting in the meantime he did get what is it forty two thousand dollars for being a right and we don't have to argue over the change it doesn't matter there's a california case isn't there that suggested that a sixteen percent recovery ratio is not outside of trial courts discretionary it's basically suggesting that a low recovery of approximately twenty percent creates a question well on make a point is that there is no one side it's all there is a two step now under the two standard from the supreme court if you get total victory then you have an entitlement something less than total victory then this discretionary he comes in and that's what the don't prove a case was all about how the question is what is total victory mean if i understand your if i understand your theory and basically it goes like this he asked f the party asked for one hundred thousand dollars and we said that he's entitled to nothing and he was awarded fifty thousand dollars on there for where the prevailing party is not your logic no it's not the life or and you say that he is not the revealing party because he asked figure it out from the numbers themselves what you do under the suitcase and the deal of the case is you have to analyze the litigation objectives of the parties the extent to which they achieved the extent to which they were defeated and you look at all of the pleadings all of the arguments now let's let's focus on that so that the i agree that that's what it said but suppose he had just sued for the forty one thousand and change and gotten it over your claim that he was entitled to nothing that's a total victory but because he asked for more and there was a trial and your claim is that he was entitled to nothing so he defeated your argument that he was entitled to nothing but he got less damage is because he had mitigated but your argument doesn't it doesn't seem to make much sense to me that if he had just sued for the forty one thousand he would have been the prevailing party and had overcome your defense and he was not entitled to any you need to go down the next layer of analysis we don't need to do and you look at the contentions of the parties as i said look at what the court itself recognized were the contentions of mr hubbard as to why he uniformly said he was t wo hundred fifty there were two basic there's one was essentially an acceleration theory that he was entitled to one hundred percent of whatever the contract provided as soon as they stopped of were performing he lost on that and the reason he lost on that is because there's nothing in the documents or the record that even remotely suggest in a title meant to accelerate the second argument that he made was well it's not exclusive i an advisory opinion what really happened and what really happened was on march thirty first he made it impossible for him self before and by the way except in employment at scissors that made it practically impossible us but the thing is if you're not getting paid anything it's kind of impossible to live if you don't get another job and i realize that this this claim is tied to the forty two thousand but if you really what you're saying you want us to look more you want to take the deeper dive really your side didn't win anything because they said that he was and they valued it which isn't here they valued his amount which that he didn't want to pay him and then he got the eighty one thousand dollars on the taxes right which is not really part of this but you fought every your side fought everything tooth and nail and didn't really went on any of those issues but let me correct you on that i would like that in pro nalysis says that you look at got the greater relief on the contract claim relief is the word that's consistently used in the case used in the statute relief what a major payday and he is me he got a fraction of that our defense was to minimize what he got in other words to cut off that entitle me to the best we could because otherwise the court would have given him the two hundred fifty thousand feet just not gotten another job and as the district court pointed out he had a duty to mitigate but one which what you would have are going to be had and if you hadn't taken a job you said look you didn't medicaid is damages if you think yeah but let me pose pose to you something different that that i think is being overlooked in order for him to mitigate it was not necessary for him to take a job that made it impossible to perform under the agreement with phil he could know the guy was a you know physicist but now he can go and sell tickets and movie theater well let me let me ask you a broader question i mean i take your point that you prevailed on some of your theories as an appellate court we looked and if examining what the district court did in the exercise of discretion we have to catch a cut the district court a fair amount of slack we're not we're not we're not seeing this in the first instance the district court is live with this case what was really so wrong that we could say you know well we this is so wrong we have to reverse it on this record right now to get right to the what is really so wrong is that the district court paid lip service to the type of analysis that needs to be made but never conducted look at the findings it talks about oh yes we can't just count numbers i agree that's what the that's what the case law says you can't just tally up numbers then it goes in the next phrase and says we have to see who would paint a greater relief in light of equitable considerations that's what it says that's what the law is so what were the equable considerations that the court considered how did it it knows the framework for the analysis but it never made the analysis the democrats the case is an excellent example of what the law expects you to do if you're going to go beyond the numbers and look at something equitable it is not just a universal license to do what you think is good if there is still the requirement to apply equal principles within recognized legal standards and here is the democrats a case is very interesting because i just summarize the facts because they're important landlord s four hundred three thousand dollars of of back rent and for possession of the commercial premises defendant counters you defrauded me by not telling me about the burdick comes back up the landlord is awarded only seventy thousand dollars why because there was so much damage the crown court rejected the fraud theory it says in its entirety but in doing the equitable analysis that calculus one of the very important things that the court considered was the fact that the day before the matter was set for trial the defendant abandoned the premises thereby moving the position issue and when you look at the objectives of the litigation said equitably we have to consider that the title into possession was a major litigation objective that was achieved because of the tendency of  litigation objective was money and you didn't want to pay it and he wanted that and he got he got forty one thousand dollars i mean it strikes me from this of this whole case is that i may be unfair what i'm about to say fees or a contract claim that was recovered only forty two thousand dollars that's ok i making what i think would be his best argument it would have been his best argument if you'd want to challenge the amount of fees on appeal they did not challenge the amount of fees on appeal we know it's substantial however the trial court was in the position to judge the record and this was as the panel just stated this this was tooth and nail litigation by phil's barbecue they did not want to pay a penny and we listed eleven different issues that they raised just to avoid paying a single penny to my client on the consulting agreement a loan that there was no modification the modification in writing stretch anticipatory breach to a no damages the list goes on they fought every issue and we this was actually a bench trial so not just was a district court judge presiding over the shootings before that seeing the nature summary judgment the nation nature of motions dismissed everything else but then he presided over the bench trial and saw all of these arguments being deployed by the defense so the particular amount is the judge stated it was high for the for claim and we don't speak that but it was necessitated by the fact that we had defendants who determined not to pay a single cent to my client in the year under california law or could be than argument be made that to the extent that you were not successful whe successful on the claims that he wasn't successful so there cannot believe going to be votes arguments again that's waved on appeal by the no i'm just curious we're different an argument to been made on the california law as i understand it you can make a lo the vast majority of time was getting through these eleven different defenses that were being presented to avoid paying a single penny to my client so i think that there was a good reason why the district court having presided over this and we put in detail declarations on our defendants argued that it should be reduced to make this argument that the that the two hundred five thousand was too high or is it all or nothing and if they attempted to make that argument below the district your honor is yours is a case that falls within the abuse of discretion standard is as counsel stated that there's no bright line in these mixed verdict cases and that's what the suitcase state some page eight seventy six that's what the berk lower case that they say states from page one hundred twenty there when you have these mixed decisions we didn't get one hundred percent they didn't get the zero percent they wanted then you have an abuse of discretion and i don't think your honor that the been put forth any facts showing an abuse of discretion here where district court presided over the bench trial had seen the summary judgment proceedings we had had to defeat so many issues and we're thinking about this i want to point to put for the scott case scott the blunt that we had cited out a couple in supreme court there's a there's a sort of solution for defendants in the situation in federal court they can make a rule sixty eight offer of say forty thousand or forty five thousand in state court it's  c c p nine nine eight offered same idea but if they want to switch the attorney fee risk they want to say look we don't think we owe you anything but well offer the forty five thousand just in case you might prevail they could have made that if they had made that offer it would have switched work after the date of that offer but they didn't make that offer they never committed to this supposed fallback position position they never really argued for until after they had already lost and everything but that's that's the solution for defendants is that you make  limit the discretion of the board of directors this is to suggest that such an express allowance is required for sure however agreements and other types of corporations to do so i don't think actually your honor that that that negative implication is is necessarily suggested i mean what would be suggesting is that by passing a law saying they're close corporations can have these agreements somehow with them and then take that is the legislature also passing a law saying that other corporations cannot have such agreements i think if the legislature had wanted to pass such a law which would have changed existing california law we had cited longstanding california supreme court cases they could of course corporations is a develop is a concept has been regulated by statute but so have normal corporations for well over a century in california and the legislature has never seen fit to pass such a law more you argue in the alternative that hubbard's entitled to payment for the taxes he paid under a barry but because the taxes on and ask or pass through the shareholders harbored had to pay the taxes regardless of whether there was any provision requiring the corporation to pa actually was carried out he continues to pay those taxes now he's paying those taxes because phillips is being permitted to say it's an escort because if it was can't say it's an escort of course it would have to pay the taxes directly because those are instead hubbard is paying his percentage share of the of the taxes which is a benefit right there to the corporation but as it turns out of course there was a buyout in two thousand and twelve that's retroactive future thousand nine so now three years paying taxes that he received no benefit from he got no benefit from the company by chance actually did very well during that time you get no benefit from that and all these pay taxes on those profits so that's a benefit that was conveyed to phil's and that's the  although i think it's clear under the cases cited in the in the lack of access to a prohibition on such a contract that there is a binding contract here a binding shareholder agreement even if not  unquestionably there has been a benefit conveyed that would it would justify the quantum merit in any case refresh me was there evidence on the record about the two thousand and twelve valuation or the value of the company as of two thousand and twelve there was not because what happens under the section two thousand buyout is that the appraisers are instructed to value the company as of two thousand and nine there was a bit of evidence that came in at some point about the durbin future because it was future expansion but the trial court in this is in the first phase ruled that you know the appraisers need to focus on what was the situation as of april two thousand and nine when mr hubbard triggered the buyout provision so when you said there is a benefit because the use of two thousand and nine of al you asian we really don't know what the difference is between a valuation between two thousand and two thousand twelve on this record what we do know though your honor is and isn't the record is the point is that there was profits because there's profits pay tax on so even whatever those profits would do to even for company perform the same and so on mr hubbard was never going to pay taxes no profits in the company obviously he would not have been paying taxes so we do know what the benefit was to the company in the sense of this is how much taxes they had a page here and this is the amount of taxes that mr hubbard then had to cover so we do have record i guess the last point in this goes the equitable nature of it is simply that if we were to reach an opposite conclusion here we're going to have a really understood to a sion in a lot of these buyout cases because the buyout in our case it took three years sometimes maybe don't takes a year but the buyout is always necessarily after and the structure of having shareholders whether it's an escort or other you know l c s or other structures we have with shareholders pay the taxes of the corporation it's quite common and so there's going to be a problem with these buyouts situations unless we could really credit people for the fact that they start to pay those taxes the i r s looks at you know the date that the shares a transfer they're ignoring the fact that the buyout was done in early a level so an earlier year in terms of value so i just think you are is a basic principle of equity as well as the fact it was contracted to the outcome here by the district co mean it was very reasonable to the court of any further question what about the argument that thirteen point six violates public policy well your honor first it doesn't because there is no such prohibited ssion on the shareholder contracts is the provision about close corporations and shareholder contracts but there's no no expressed prohibition and second of all the usual public policy concern with dividends is you don't want companies issuing dividends if they're insolvent but the nature of this particular provision is that you're only issuing dividends for in situations where there's a profit and therefore taxes are being paid so there's no concern about insolvency and that's something it's talked about a bit in the cases that enforce these kind of provisions there's no risk third we're not in forcing this provision as against creditors again that goes insolvency risk forcing this as between the shareholders in the company so any of those again this policy concerns about dividends are just not being triggered leslie is the contract itself is not not allowed then under the husk in some case or m brown case that we cited from the california supreme court you want to contract itself is technically illegal under california law you can choke on a mirror and that's what happened in that case there was no appropriate client consent to a particular fear in german but because the actual services and benefit was still conveyed they still get a quantum error a word in here the award corresponds with the amount of taxes actually paid by mr hubbard so even if you can have a contract you certainly have the grounds where you've conveyed a benefit you paid for the corporation's taxes for three years you've got no benefit from paying for those taxes for three years and now all you're doing is asking that you be reimbursed for those taxes because when you're bought out and your shares with a buyout effective as a back in two thousand  which was five minutes on the clock  to address the sheer shareholder image issue first because thank you and i want to i want to respond to your question about public policy because i think it's an important one and the answer you got from counsel m construes the public policy at issue he talks about public policy about dividends being paid and those are embodied in section five hundred five or one of the corporations code and certainly they are public policy but california law recognizes that every expression of the legislature is an expression of public policy we're not looking at five hundred sections public policy we're looking at section three hundred because it's very simple matter as well as mr hubbard's and they acted as i understand it because it was they they treated themselves as a subject or asked corporation and the only close corporation and subchapter s corporation the only difference and it is a specific exception and it makes it valid for a close corporation to do that but this is well it's not what they want as a practical matter was the difference between this company and a close corporation where only three shareholders and  n it didn't contain the words and the charter and supposed to mean that said we are close corporation is that it will this very important distinction because the closer why would why would a california court think that that was so contrary to public policy that it wouldn't force an agreement among the directors to pay them says to pay the shareholders meaning themselves a an amount sufficient to cover their tax liability i'll tell you why because it is  prospective and the district court says this is not directed to a language it's a mandate so you're making a mandate for future times that deprives the board of course deprive the board of discretion that it has when you're not a statutory close cooperation effectively for two years until nine hundred seventy seven it introduced a variety of unique concepts so that when you are in your client's got there ten percent dividend they were acting contrary to to california law what ten percent is my clients never got ten percent and they got whatever it is they got to pay their taxes or nobody got to actually the record doesn't show that they ever really complied with that agreement that was in the record that it was there in the shareholder agreement along with a lot of other things but the record doesn't show that the parties ever actually complied with that now honestly list silent we don't know one way or the other i'm sorry we don't know one way or the other  that they they they didn't they didn't pay themselves the well they were getting they were getting the significant souring that was coming to so it was a nice vacation they tell you why and why it's argument and the reason it's a loser is profit is an accounting concept it does not necessarily have any relationship to cash flow good example in the record record shows seven hundred fifty thousand dollars was  loaned by mr pace and mr lewis to this corporation that means that when that loan gets paid back there is no deduction from profits for the principal repayment so if it was paid back all at once you would have an overstated profit of seven hundred fifty thousand dollars that is one of the reasons why the board has to retain discretion another reason is you have to look at the totality of circumstances making a business judgment at that time is it better to never did but what about that what about the equitable argument that you say well he was paid out half of two thousand and nine so why should he have to pay taxes post two thousand and nine corp from what you've been cashed out but the essence of what's wrong with it is a quantum arrow it is only for a service provider sure i understand the concept but i mean the notion that you cache that he is cash out of the company as of two thousand and nine and pays taxes from two thousand nine on is somewhat anomalous well that's because you overlook the correct remedy the correct remedy if he's been mistreated is to sue not the corporation but pace and lawyer for unjust enrichment because corporation as two thousand and five he is he is no longer in two thousand i thank you and he's no longer considered a shareholder as of two thousand and i'm but he's paying shareholder taxes after that no no that's wrong he is a shareholder until the thing you say is wrong but he was dissolute the the other two shareholders and in effect that's what he's done here because they're the they were the they were you know there's only this the shield of the corporation which which is the technical distinction under the facts of this case for all practical purposes he was suing has to be his to his two partners well yeah that i find that argument frustrating because it's you're saying on that it's like you want to have it all ways and then you're saying well he should have actually sued the other two partners instead of the corporation and i it it kind of supports the theory that your clients have fought this after a step of the way tooth and nail and all and because it was not the corporation tax law obligation the benefit that you could argue was inferred was to the extent the dividends were not paid cash was retained made may have and you don't know