determination on the factual issue of whether or not the motions were brought within a reasonable time that is such a to review or reversal only upon a showing of clear error of course we agree with the truck with determination that the underlying when you are reviewing the record in this matter i would suggest to you and alternative test for evaluating the arguments of mr sayer it coulda shoulda woulda test and that is pretty upright these arguments sooner than september of that he didn't bring it at that time allows for the reasonable inference that it lacked merit and it lacked merit for the plain simple fact that the reason why carson and the reason why national union were allowed to state away from this judgement is because t party but at the time the issue of attorney fees came up it was the rig late in the day it was what trial brief as i recall it raised the trial only no head and then you notice up to that point mr sayer was no longer in the lawsuit the law firm it essentially disbanded as i've understood from what i can read i don't i know not what happened it's not definite in the record but one of his former partners now is in carrying the ball so to speak he's not a party not a name party never has been given notice of any kind other than through his former partner and isn't there a serious question about this judgment against him at that point in the court's ability to go forward ask another question kirsten in this case sensually had no claims against niall when this litigation a rose and as i understand the ruling on this very convoluted i want to confess to you that i had to read these materials three and four times and i i was starting to believe that my wife was correct and i'm not as you can vote only trainable because i couldn't understand what had gone on but if i went back and looked at these materials it looked to me li e carson had never made any claims against dial in order to have an attorney if you ward of any kind it had to depend upon actions under the california code that were taken by carson and therefore any liability astaire was derivative and ultimately it was determined in this litigation as i understand it at least the one person got out and everybody else got out essentially there was no basis to go after say or no my wrong or my right or am i think dated substantially before that there was a one state one point page order that came from the court to disallowed fees on appeal ultimately there after as i understand it  ten thousand eleven thousand no judgment entered against him based on a default taken at the district court level and i believe those fees were based upon fees and were incurred on appeal what can you tell me about that i believe it's the season we're talking about were fees that were started when when the when the court order from the ninth circuit said that the parties will not be allowed their fees on appeal for anyone being entitled to attorneys fees and the america well it allows them to be compensated for the costs of litigation well yeah cos i understand but the argument in this case is predicated on intricate case of california corporation code section three seventeen we can be argue or disagree about whether or not that was a proper application but that only the error of law which would be sufficient to sustain a motion we can we can say that's twisted logic we can say we disagree with that the point is that it would be a misapplication of law but it wouldn't give rise to a motion for relief under sixty sixty four it's just that it's not the the judge at the trial court level in this case essentially found the due process violation mr starr was not a named party mr serry did not have legal notice now i understand you're arguing that he had practical notice and in the real world he had notice what's the standard of review in this court for those findings named individually to be the real party in interest that is when he acquires the rights of a sign that he fires the right of dial corporation to maintain that action and of course when he maintains the action against spinner record was the sign from dial dial was the mission leave the aggrieved party it was supposed to have been insured under a declaration of insurance the chlorine gas came out a bunch of people were injured and there was a big settlement dayal have the real claim against skinner was dials interests that were being prosecuted by mr sayer and person although kirsten you're correct had assigned it's rights as i understand the record there were no cross claims of any kind filed against carson and no claims filed by  against skinner or at least they were not prosecuted at that point in the only way that tourney fees can be awarded as i understand the record in favor of skinner would be based upon having to defend against sometimes i feel like i'm on the outside of a window and i can't get in in the course of this proceeding originally there was a lawsuit in which i represented a number of primary school children because of a chlorine gas done so you could not trigger a corporation's code three seventeen only if the person had filed a lawsuit or there their rights had been filed in the form of a lawsuit could have been pursued against were counsel says you needed them never said i assumed the lawsuit in fairness i assumed a lawsuit which had been filed by dial but shortly thereafter was given to mr bush and he proceeded with that the trial at that time i they also brought a motion that point after having brought me down to another federal district court to try to have a judgment that examining which i refused to answer saying look i'm the trustee for some kids i'm not the person that has the benefit of this thing and fulfill all this or somehow well that i think is what the essence of sixty sixty sixty five with judgment i mean you have the final say it's like a civil he's corpus you have the final say to anything any ruling that relies on such a determination such a determination being an agency between person it will hold by that ruling but it's just it's been constant and so now what we come down to some issue in the case of which i was not a party to he made that representation in his opening brief and in the opposition we point out that the proof of service doesn't show that he didn't reply to that but now  ultimately the motion needs to be denied because the plain fact that these issues do not raise to the level of a failure of due process we're talking about questions about whether or not the attorney fees were properly awarded or not whether it was a proper application of mean one of the issues that comes up he was not aggrieved in two thousand and three that's what the court of appeal said he didn't have any right of appeal at this point could they not have assumed that since he wasn't a party and didn't have noticed trustee that's involved in this situation let me also ask this question as a supplement i don't mean in any moment going in effect late in the day so to speak you to have him determined to be individually liable and that motion as i understand it was denied although for technical reasons on the other hand you never went back in and tried it again so doesn't that sort of speak for fairly loudly on