is my name is bruce all children will be presenting the issues this morning on my own behalf i'm going to make my opening statement brief to narrow issue in the br and i'm going to reserve for five minutes or rebuttal but present this briefly in metabolife cited in the case two sixty four fifth's third eight thirty t the ninth circuit held that the discovery limiting aspects of the anti slaps that you do not apply in federal court because it would be a state court statute overriding a federal statute in the law tells us that that's an permissible in south sutter l l c that case tells us that the appeal strike that the appeal  post dismissal hearing on attorney fees is a statutory anomaly even under state law so ask the question to this court if this case is dismissed under forty one a one i completely fully and unequivocal no issues remaining how can a state court statute provide jurisdiction where the federal statute clearly states none exists the district court not what  deemed final upon the filing of forty one a one dismissal and that's what moore's tells us and that's what commercial management tells us the language is clear in those cases the court has stripped of jurisdiction to hear any further issues so while your honor accurately says the statute doesn't provide that jurisdiction no longer exists all the other authorities do say that's the effect of a dismissal it unequivocally it's the case still existed even after the dismissal it was a dismissal of certain rights so the jurisdiction with the district court stayed with the with the judge with the district  that when the court says that nothing in the language of rule forty one or other statute or federal terminates the district court's authority to impose sanctions after such a dismissal and it is well established that a federal court may consider collateral issues after an action is no longer pending commercial space management versus boeing one ninety three fifth third ten seventy four  filed the court loses jurisdiction over the case and may not address the merits of an action or issue further orders for that and that america but that's what could or intel tells us is better such as rule eleven matters such as attorney fees or collateral issue may have come up into colluding attorney's fees or roulette and sanctions but i think the issue but i think rule eleven sanctions and her new fees are two different things one is a collateral matter and the other isn't a collateral matter and i think that's the position taken in the whether there was a malicious prosecution in the unilingual is whether there was a case of fission to defeat the anti slaps that you the district court held that quote taken as a whole that i was not the prevailing party in the underlying action i submit the following facts to your honor's the first allegation of my malpractise in the underlying case was that i improperly renewed the judge improperly renewed the the tax code judgment in opening statement in the underlying case that was withdrawn the failure to the alleged affair to improperly renew the judgment was a source and an allegation of a six million dollars error because that was the value of the paid first had good judgment but it was withdrawn in opening statement in the underlying case second allegation of malpractise was well worth it wasn't judgment rendered rendered against you dollars and even though there was a judgment that was entered it was entered on a discrete separate fact different from the other facts of malpractise which that underlying cross complainant did not succeed on so that is how i would s argument to your honor's there were numerous allegations of legal malpractise none of them succeeded they were in the tens of millions of dollars they involved three in four different cases they involved allegations of failing to properly  break out each issue and say well i i won on this what are they didn't prevail on this one and they did prevail on this and therefore it's a mixed judgment and therefore i can i'm just being malicious prosecution as to the matters on which they didn't prevail and a case in which which anybody has ever upheld any standing i know maybe versus high it tells us that the failure the fact that a legal malpractise plaintive succeeds on some of his claims but not all doesn't render those other claims that he doesn't succeed on in lacking malice you can maliciously prosecute causes of action even though you succeed on one or two causes of action that you did not proceed  maliciously and that's maybe versus hiatt and it's in my brief that would be my response to your honor i would have no greater authority than that other than that's what the case cases and that seems to be the standard of law and california having said that i would say your honor for your time yes if you have used all of your time but we also we also help to you that i'm going to forty one minute to reduce the chilling effect of marriage's medication on acts of free speech and the california legislature believe that this fear of paying legal fees was chilling that's a free speech introduced this telephone you gave defendants the right to attorneys fees in such cases if the court determined that the suit lack even minimal merit this court held fifteen years ago in the news ham case that federal courts would apply california's anti statute in federal courts when sitting in diversity i submit the news hand was correctly decided under the radar print in its analysis applies just as well to the practice of awarding attorneys fees where a plain dismissal what about the cases he said well those cases that the cases that he cited about losing jurisdiction they don't bar the collateral actions the courts routinely taken awarding attorney concert herrera we've heard the california supreme court speak clearly that there is one judgment at the end of the case and if you don't have that judgment you do not get to bring an action for most if the maybe the high a case that was brought up here was a case where actually the plaintiff who brought them was his prosecution action had won the entire action contain the judgment and then afterward brought suit and the question was if all the causes of action were not malicious could you bring suit and the courts said yes if only to have the judgment in your favor you can bring suit only on the cause of action that were malicious if some of them were not malicious but you have a judgment in your favor you moshe's for malpractise and one of four hundred thousand dollar judgment the fact that certain causes of action certain things along the way did not make it to trial has never been held to be a favorable determination for a malpractise case i don't think it's a close decision i think that the california supreme supreme court in jenkins be pope i believe will tell us that it's also worth noting that when we speak of a indeed it would almost seem a mockery to hold that fire uniting groundless accusation with those for which probable cause my other source that the findings could thereby a scape liability because of the injured parties inability to divide as damages between the two with delicate nicety such we think is not the law citing to singleton versus perry we agree with the foregoing reasoning and conclude that plaintiff having shown that defendant honor's looking at the cross complaint looking at tens of millions of dollars of alleged damages knowing that the cost complainant real wealth had no basis to make those arguments we submitted facts showing that they knew at the time they made the arguments they were groundless we know they're gramma's because the california also that if we were to push that there might be some unusual circumstances of which it which a court would would want  sort of trial about trials when you bring a malicious prosecution case in a case in which you did not prevail in the judgment below all of the sudden now we're going to have to we're going to have to try again whether you might have prevailed had the court reached questions it didn't reach your honor that's not the point i'm making although i understand that's the point you're making my point is that the damages that were assessed which i contend weren't properly assessed but which were assessed were in a distinct different factual pattern than the non than the allegations that i successfully defeated it's not so intertwined i think is your honest question s they were separate distinct facts separate page versus had good judgment from start to beginning fully enforceable and when the underlying underlying judgment that a sought to challenge it through the court of appeal in the trial court last that every occasion each and every occasion that underlying underlying judgment that a cannot properly challenge the renewal of the judgment or the assignment of the judgment and that was known to real wealth at the time they presented their case and filed their case and that's why it did not succeed on any of those claims so i'd ask your honour's to at least remain on the case to the district court to determine whether that those various different cases and those various different issues raised did provide my office with the ability to successfully defeat the anti slant motion even if we decide if your honour's have decided that the assessment of the attorney fees is a collateral issue they still have to pass the burden of showing that should have succeeded i don't think they did so i think you're ok thank you thank you for the argument the case is the minute that completes the oral argument calendar for the day and