i dive in this is a very messy tangle of appeals so it would be very helpful and maybe this is what you're about to do if you tell us what you have yes and my understanding too is that thankfully we're not going to be sort of popping up and down on us responses a about also here's here's with the court's permission what i would suggest that i break this into two parts the three issues that are subject to the rule fifty procedural for closure issue and then the three issues that are not in that order so with respect to rule fifty the defendants at the end of the trial after the verdict was submitted filed a rule fifty motion and they argued three issues that are relevant to this appeal they said that the  instructions on the contract damages were in error they said that the jury had not had sufficient evidence in front of it to return damages on the contract claim and then the third issue was that the damages across the breach of contract that this court's three most recent decisions on the rule fifty b issue all have established that where a party does not file a rule fifty a that party is foreclosed from pursuing a rule fifty be so i'm referring to the tortue case that we cite in our briefs also referring to the smith vs las vegas police department case that's in our reply and then there's a case called mcconnell versus wal mart issued in two thousand and sixteen that fifty a motion before it happened well i think first of all the court and yet he by molly addressed exactly this issue to the parties their challenge to multiple damages awards as being duplicative and the cord and yet by molly said you didn't challenge these in a fifty a and there is no warrant to pursue them because you didn't challenge them in a fifty eight so i think there's precedent for the idea that that had to be there as it were to play a kind of until you saw what the jury decided if the jury had come back with  all of the damages on the contract and zero zero then they want to know but i think there's a little bit more to it than that for example that the way that the jury was instructed included and you can see this said our record excerpts that we filed with our long brief record excerpts three forty three there was an express instruction to the jury that said do not award duplicative damages the jury verdict form which is the form that the defendants stipulated to didn't say for example under your hypothesis if you write in a damages awarded or breach of contract don't go to reach of it is your duty breach of implied covenant of good faith and fair dealing so where you have both an express instruction that says don't award to look at it damages you have a jury verdict form that specifies each of those claims and the specific harms that arise under those claims that's why i think it was perfectly susceptible we would not have been in a position i think to file a rule fifty a motion on the punitive damages issue actually for the reason the judge burrs on just said that the rule fifty a would have needed to come in before the evidence went to the jury right and so you say there hasn't been any evidence presented of what is it their financial condition and so this can go to the jury that that's actually a basically i'm sure it was a he or she basically said tell me what this is this cumulative where is this aggregated yes exactly i think that's actually an important data point judge sessions for why these damages awards can't be found to be duplicative and by the way this all presumes that we get past that procedural foreclosure issue and we're into you know that the plane error manifest miscarriage of justice standards at some of the courts earlier precedents of set out but guess at that joint appendix or x x x or of record three seventy three a three seventy four in our excerpts there's this colloquy after the jury comes back and the judge says i'm confused these damages awards are the same and the four person says and i quote the award is meant to be cumulative so four million total amongst all of those awards and then the jury was polled and no juror disagreed so the significance of that i think is if you look at the cases that we site and actually that i can cite discussing duplicative damages one of the key issues is whether the jury has made clear that in fact it didn't award duplicative damages so where you have not just the instruction which the jury is presumed to follow that says thou shalt not award duplicative damages but you have the jury actually saying this award is cumulative and if you look at they were saying as we did it this way to avoid big plug in other words would spread it all we split up instead of putting it all in one we just split it up but it's but it's so that the damages awarded on each one is less than they would otherwise have were that's exactly right i mean that they could have awarded i think the top of the range of the damages that were requested by log tale was upwards of nine million dollars so the four million dollar award in this is the point that the published case on that from two thousand and nine and then the cases that i mentioned smith and mcconnell from twenty seven thousand and twenty sixteen respectively both under habbush but both of them follow tort too so so so you would say that the instruction we just can't even whether there's a waiver of two objections yes and i think judge sessions that it's with respect to the instruction it's almost a double waiver issue because you have not just the rule fifty problem that we've been talking about but you have the additional fact that these defendants stipulated to the very instruction that was given so whether you look at this through the rule fifty a procedural bar lens or whether you look at justice invited error waiver under the instructions to be lation you get to the same place with respect to the instruction on contract damages we thought we had to say anything about this instruction what does that last piece mean with regard to contract admissions i think it speaks of restitution i think one of the problems that we have with the way that dr canton and i corps have approached this question of the damages instruction is that when you when you pursue rescission you don't bring a breach of contract claim  all and here of course we had a breach of contract claim there are different measures of damages for breach and importantly i think the instruction that dr canton challenges actually speaks to a couple different modes of damages the phrase that you're referring to i think judge burns on has to do with restitution not rescission and it's just as easily read that way and i think it should be read that way both in light of the fact that the defendant stipulated to this and in light of the fact that we were there bringing a breach so i'm interested in her decision she said you haven't established evidence of net worth therefore in a punitive damages our argument is that it's a little more complicated than that because the california law doesn't prescribe a rigid formula for punitive damages  you do have the cummings case in the cummings case which isn't to pick a ball just a fraud because it cites a number of other cases for this proposition the cummings case said you can contemplate a circumstance where what that case called punitive damages are appropriate and that is what we were pursuing here so that the measure of punitive damages i won't tell you that you can find a list of dr cantons liabilities in the record because you can't but what you do what you do result of those jobs that's what you offered we offered it we offered a few things and you can you can see these sites and i know this is complex but it's page twenty one of the first brief that we filed there are sites to the excerpts of record that accompanied that brief which are different and there is about a five or four or five long line a long list of insights to the e r many of them have to do with what your honor is talking about the doctor cantons graduate level degrees his prior positions his consultancies his work as he put it with the many of the fortune one thousand companies and so forth but then there are you'll see this in the listings as well a number of examples of the hundreds and hundreds  basis in addition to the fact that he clearly had earning potential he clearly had earned problem is that it's perfectly this was all some time ago people spend the money they get i gather what we're supposed to be measuring is his condition at the time of the trial and of the condition earlier i think that's true i don't think that you could point to something in the record and say well he was a millionaire in one nine hundred seventy eight so clearly he has f s but i think the time that we're talking about is much more compressed than that and the fact that he clearly had earning potential and was continuing to earn and had shares in profitable corporations and so but the flip of it i do want to ask you which is it seems to me that this really should have been a rule fifty b motion by the time they made it and that there should have been a prior fifty a motion if they thought you didn't put in all the evidence that you needed under california law they should have told you when there was still time to fix it but i don't actually see you making that argument so i'm kind of confused about the procedural posture of this whole punitive damages issue and as you were asking the question i was i was puzzling over it because we didn't make that argument and the judge didn't rely on that below they a fifty two motion but i don't really understand that yeah i don't think it's a proper fifty two motion and i think if you were to call it a rule fifty motion for the reason that your that your first question was suggesting which is if you get to the end of your evidence everybody's evidence and the party confronting a punitive damages claim says you haven't proven your claim i think there is some force of the idea that they should have filed a fifty fifty what i don't know frankly is whether having not raised that in our brief we essentially waive the waiver but i'd be happy to file a twenty a j or some similar submission on that if it would be it would be helpful if there are no further questions i'm sorry yes the fees issue and i want to be sure to to i was fairly comfortable but i don't understand i get again so i think how you get to canon first we agree with that line of logic and i actually think there's another data point that ties a bow on it which is one of the party that the stipulations that the judge read into the record as part of her instructions so if you look at record excerpts again ours accompanying the long brief three twenty five stipulated fact number fifteen the stock was issued and this is a quote pursuant to the purchase agreement close quote and quote in exchange for all the promises made in the contracts close quote between the parties so that judge bears on just as you're saying essentially aggregates all the contracts and all the promises and i think the result of that is if you particular liable for breach of contract because they assign damages to canton in the jury verdict form because if we can as opposed to the group of yes the jury verdict form you see if i can find starting at our record excerpts three forty eight the verdict form actually asks the question as to these three defendants can't on tie in bankruptcy so he's said to the side and i cor what damages do you find a to each of them and each of them has a damages number attached to it so so that i think is how we get to canton because if if we all agree that those contracts are aggregated and by the way defendants agree that those contracts are aggregated that was what i just read to you then if canton was found liable for breach it follows that he's liable for ok so just for a moment let's assume we disagree with you just so we can understand what happens here so if say we assume cancer isn't liable somehow what do we do about this it's joint and several or what is going on with these damages are understandable question it's joint and several a couple points on that the first is the fia word itself doesn't say anything and the presumption under california law is when you have a contract award or feel or your costs awarded it doesn't say anything and there's nothing in the relevant contracts governing the parties obligations that suggests it's other than joint and several then it becomes joint and several now with respect to part of the record but if you've been following the blow by blow in the district court you'll see that i corps has been subject to a number of series of sanctions orders because it is failing to come forward with proof of its  current profits essentially so with respect to canton and i cor it does matter to us that both of them are subject to the fees and are the costs that were not the bill of costs but the additional costs are those really part of fees be the lawyer lee enter the answer is yes and no if you look at can tons record excerpts volumes nine and ten which are the sealed volumes that contain all of log tales billing records what you'll see at the end of each invoice is a list of costs of the costs have to do with things like travel for a deposition meals westlaw fees and so forth and they're all listed in those  invoices so this isn't a question and i worry that the doctor can dance brief might suggest of the country but this isn't an issue where we just said oh by the way we incurred one point four million dollars in costs of the costs are actually very specifically laid out what the up under california law because when the controversy true that even federal court when you have a field for example that's always a peculiar a lowly my understanding is always been understood to mean essentially what would be in a bill to a client including cost that's right cept for expert fees i don't know why i know it's sad but but you're right and that's why i made the point that these are all in the bill to the client because they are i think in that respect and maybe just fruitless was your question that a good justified so she said for example did you have to travel to hong kong for that particular meeting or could you have had it in san francisco and so with respect to that she said i'm going to knock ten percent off the costs that is perfectly permissible what the supreme court has said  cases the defendant cite in their brief this is not a mathematical process the judge does not need to be a green eye shade accountant so the judges ten percent shave was perfectly reasonable and you're not challenging that at this point no you know we're not if there are no further to matters under the agreement it's also has matters in respect to the equipment right i would disagree with that innocence first of all your honor there's there was no integration of these documents and same with these these dr these documents were exhibits attached and under the stock purchase agreement the parties had an obligation at the before closing to enter into these additional contracts those contracts did not have an attorney's fees clause the provision to this agreement this agreement is a defined term in that and if talk rates agreement it refers to only the stock purchase agreement when they refer to other contracts  enforcing a right with respect to this to the to this agreement the right in under this agreement with respect to those additional contracts is their right to have these other contracts entered into that's the only right and obligation and not having abided by me and not have them abided by just entered into i was i'm sorry you're under there and not have them abided by in other words you're saying you're acknowledging that and then that entering into them is with respect this agreement yes having them be enforceable it's not it's not just empty pieces of paper know their contracts which are in forcible in their own right and they were entitled to convince this jury that there was a breach of one of those other contracts there were five contracts here we don't know what contract the jury found was breached they were not asked in the special verdict to make a finding as to what contract was reached the the verdict forms said in the first question was there a contract or contracts and the jury said yes so at this point we don't know whether they found one contract or multiple contracts and we don't know what contract they found to be breached question for dealing with the issue of whether there was a breach said did the defendants either fail to do something the contract required or failed to do something the contract prohibited we don't know what contract they're talking about there we don't have we don't know is the stock purchase agreement and as to cases make clear the court cannot imply findings from a special verdict it's the plaintiff's obligation to get all of the findings that it needs in a special verdict so that the court can enter the appropriate judgment and make appropriate rulings they did not ask for and did not obtain a specific finding from the jury as to what contract was breached and without that we can't say that the jury found that the stock purchase agreement was  let's back up for a minute the the stock agreement says this agreement the exhibits and schedules your chair when other documents which includes the exhibits include the other contracts constitute the full and entire understanding and agreement between the parties with regard to the subjects it's the same language you had with regard to him or now it's close with respect and so why isn't it true therefore that the fallen and chiron queen with respect to the subjects here is all of the agreements together well there's a difference between saying this is our full agreement and saying that the attorneys fees clause which is contained only in one of the contracts applies to all of the other contracts if there was a breach of the other contract which do not have and it trades fees clause ok they can be they can get the damages caused by that breach but they can't get attorney's fees only attorneys fees if the stock purchase agreement is breached and the stock purchase agreement we don't know the stock because it was breached in the first place but it's it's the fact that they even refer to all of the documents as  other than because it doesn't mean under disagreements what it means it has to deal with the other portion of the sentence which deals with enforcing and you're right they have to be enforcing a right under this agreement not the entire agreement and the right under  with respect to this agreement so the agreement right doesn't have to be under disagreement it can be with respect to this agreement well but it's not with respect to that agreement if it's with respect to another contract that's what i would argue if they wanted to put it attorneys  is limited by a court can imply any findings the court can't make its own findings because these were issues submitted to the jury and only the jury can make those decisions with the courts or has the has the ability to accept representation anything about whether the gamut you should be aggregated or not but but for that but more importantly the court found that the evidence in the record showed that the same damages and the same conduct was responsible present that may be true but if the jury decided to take the same damages i e four million dollars and divided up because he knew it could be cumulative so they just described pieces of it different to various of the defendants and causes of action is there anything wrong with that yes you would be in contravention of the court's instructions to the jury as to what the measure of damages is they were told that in order to awar damages course that was it went a little too far but they have to award and can only award damages caused by a particular breach but i think there are multiple causes so i mean if they were told you can only start with contract and award everything for which contractor was any cause maybe they would have awarded four million dollars contract but instead they were given this instruction made them think they should kind of divide it up and not so they divided it up i don't understand what's wrong with the way they did that they weren't given  instruction telling them it was ok to divide things up i think that would be improper if they wanted to award four million dollars for breach of contract they should have awarded four million dollars for breach of contract not six hundred sixty six thousand six  think it would have been appropriate for the court to make a proper inquiry into the jury as to what they wanted to do but they would have said then no this is not needs are to put that out we only mean one four million dollars yeah and it's like this is basically what they said we only mean one four million dollars that's that they if in order for them to do that they have to completely disregard the court's instructions on what to award is damages i don't really understand why you think it violates the instruction because the court told the jury that well i descend every thread read to way where suggesting the six hundred sixty seven thousand dollars was caused by pressure contract it just wasn't everything that was caused by breach of contract when where what's wrong with that well i not sure if we're talking about the court in warding six hundred sixty six thousand dollars against dr cantu on for breach of contract we're not contesting that that's not part of this appeal we're contesting their award of six hundred sixty six thousand for duty because the law is clear that you cannot award duplicative damages where the same conduct and the same item of dan i am asking is if somebody he says he should in the you can only award  all together they cost a four million dollars right now oh but the judge told us we can only we can't have to put up damages if we write four million dollars each for down for each them work awarding to duplicate it damages so we're going to write down for each less than everything that was in fact caused by that breach breach what's wrong with not awarding everything that is true for that breach and it's a problem if you go over but if you go under why is that a problem with the instructions the jury could have done but they were asked we don't have to apply anything they were asked how much do you ward for this particular cause of value and they were asked afterwards whether it was cumulative or not they said no well i don't i would submit to the court that that is not adequate to get around the special verdict signed by this jury the session special verdict was the was a decision of this jury and we can't at the court cannot imply any findings from that that's clear  california law and you would have to imply that that's what the jury wanted to do judge magistrate laporte determined that there is no separate damages for any of these claims she determined as a matter of law biased more biased because the fact that they were suing for money was not the only fact that indicated their bias and what i'm saying is it's a little odd to try to prove the bias of a party to a lawsuit as opposed to a witness who purports to be dispassionate but these people were not just witnesses to the situation they were the party so that's right so the jury assure us sir they going to know that they're biased somewhat you have to be more biased because because the jury didn't know that these people had stolen i corps technology they didn't know that they were suing i court because they want to put it online and we're trying to get that i mean the ultimate problem is that the your it's really isn't relevant and may be relevant to their bias but there's no point in proving more bias you're actually trying to get in for other reasons well i think i think the party is entitled to put in relevant evidence unless it's more prejudicial than probative whether the other various factors under rule four zero three we were entitled to get this evidence in the court didn't engage in any balancing here the court didn't try to put any limitations on it she wouldn't let the jury know that these people were competitors of ike or she didn't let pete the jury know that this is a multi billion dollar business where they've stolen i course technology set up their own manufacturing facilities in hong kong were going about trying to patent i corps drug for themselves now i submit your honor that that's an evidence of significantly more biased than simply i'd like to win this lawsuit and i think that it was prejudicial to to the defendants not to be able to bring this in i don't think that there would be any difficulty reigning that in by the court the court could it's not like there needs to be a mini trial or anything like that so even if canton unties testimony had been totally discredited  can times testimony ties testimony in the documentary evidence is enough to support the verdict that no not at all they were the they were the essential witnesses to the fact that misrepresentations were made to the fact that payments were made out of the company that they were not district court level seldom result reversal based approaches i would i would i would agree with that your honor and it works this extraordinary because this is an extraordinary exclusion of a very very  significant evidence to impeach the credibility of these witnesses this is all they were laid out loud to present to the jury is these are people who would like to get their money back that was all the jury was able to hear they didn't hear that these people are competitors trying to drive or out of business they're thieves didn't get to hear any of that why does it matter though i mean if they invested this money and they were cheated out of it why does it matter this other stuff they were cheated out of anything that's the point that's what norman way and being one said they said they were cheated out of it they said they didn't know what was going on they said they didn't know about these related transactions which were engaged in in order to keep the company alive after a lot of jail refused to put any more money  was a perfectly proper restitution damages way why not they didn't they didn't rescission in restitution again perception restitution restitution is an equitable remedy this is not an action in equity this is an action it's an action for breach of contract and breach of fiduciary duty they can't give the jury can't give equitable remedies they have to give the remedy provided by law which is damages caused by the breach and long tail didn't prove any damages caused by the breach well ordinarily at least what i learned from law school was that the usual remedy for a contract breach is to put the person in the position they would have been in had the contract then  much if the contract had been breached presumably they would have gotten five thousand dollars worth of value they put five thousand dollars in expecting at least not to lose their five thousand dollars so they would have gotten it if because they did not establish that because of a breach let's let's take an example they said there were these related party transactions they paid some money to this company that was running so they research money out of the company and give it to somebody they should have given a chill so it's no that they're paying this is all part of the work the daily work of of high court these are all legitimate expenses they don't allege misappropriation here they don't allege they took money and gave it and gave it to someone improperly or i thought in their brief initially related parties persons associated with the operators of or they don't say that was wrong they only say that that was in violation of the agreement which says you can't do that without getting our approval so they have the i don't think the clear suggestion their member and their brief was that in fact the money was misappropriated i they don't use that word they just simply say that it was it was given to related parties which is a breach because the articles of incorporation provide you can engage in any related party transactions without our blog tails approval that was the breach of get that's that's because a given to themselves they were working for the company ross type dr ty was the principal operator he was the one doing all the research he's the one that had all of the technical technical knowledge that started this company in the first place like tail had no problem with ike or continuing to g its research they went out and got a contract with the united states army to have research done through northwestern university i mean this is and this is after day after log tale had stopped funding the company and w complaining that we're engaging in these related party transactions yet we are we're trying to keep this company alive that with no thanks to you and so yeah they engage in the engaged in a transaction with oxen ox which was another company by d was all the same let's all relatives friends all these people yes and dr todd i paid one hundred thousand dollars for that opportunity and i was a related party transaction arguably in breach of the contract but what's the damages to log hill from that they got nine hundred thousand or whether you approach this from record excerpts three twenty five which mr ward did not address which is the record excerpts three twenty five which is the stipulated fact that says that the stock purchase agreement essentially was exchange of stock in exchange for all of the promises made in the contracts so this is a unitary contract the stock purchase agreement was breached the stock purchase agreement has a fees and costs provision attached to it  corps were correctly found liable for those with respect to the damages and the contract damages the court the court made this point the court's instructions told the jury not to award duplicative damages the jury came back and said we did not award duplicative damages we wanted to cumulate these damages across these creek claims and it is perfectly appropriate judge version as you said for a jury to allocate damages across those claims those are the cases gentile and craft that we cite in our brief so for further to your point judge friedman with respect to the different causes of harm i think that's exactly right which is why if you look at the jury instructions themselves and this is our record excerpts three thirty six three thirty nine three forty one what you'll see is that each of those claims talks about the harm differently harm to log jail as a shareholder harm to law tail stemming from its contracting obligations and harm to log jail from that implied covenant which the instructions say sits in every contract essentially so there are overlapping facts of course there are there often are but the cost the harm in the nature of the harm are different finally with respect to that evidence this is abuse of discretion review there was no abuse of discretion when the district court found it relevant the very arguments that she had earlier right the stipulation that council refers to basically said that the parties were bound by all of the agreements doesn't say that these other contracts it did not have an attorney fees clause the contracts the tread those dark contracts were referred to as the transaction agreements not this agreement so you can't apply attorney's fees clause to a contract that doesn't have an attorney's fees clause unless they're all integrated and they're not integrated words but i think the parties have a contract and they're bound by the terms of the contract and i think the law states that in order for there to be an integrated contract the parties have to agree that this either this one document is all there is or it incorporates all the provisions of these other countries much exactly and said here is where attaching a bunch of agreements and all of these together is the entire agreement that is the entire agreement and they start the attorneys the just like entire agreement the i respectfully submit that even if the jury is told not to award duplicate damages the court still has to look at the entire record which is what to see if there are some perfectly good  she looked at the record and there was no evidence of any separate acts or any separate damage and it doesn't need to be there god acts can violate three different things i correct correct so there doesn't need to be separate acts there have to be separate acts unless if you're going to get duped otherwise you get you run the risk of getting duplicative damages let me explain so yes that's exactly our point the same acts breach the contract