now been meditating on this case for last week i thought i had the meditation clear and i'm sitting here i don't you know word began complaining us for ten years this is a wells fargo sham account no matter mr beebe going to try to characterize it this is a sham account that we're hearing all about in the news these days my god this is the worst sham account our family is the worst sham account victim we got dragged in the two lawsuits because people i think i got the pattern i make an argument that ten twenty eight a seven has never been used but if i can plead that on a chance to amend i don't know how you can say direct injury is not attributable when you still some ways identity because you want to put them in legal harm's way well if you say if you're if you if you were given leave to a man what specific facts with you added in order to survive a motion to dismiss you of it well so far use mails send it to a different address so she can find out about it how do you make it related you make related to that is identity fraud i don't know she said i had no well relatedness i had no pattern supreme court cases that say that the injury has to be pretty direct and here what you're claiming is in the current complaint is a legal fees rule bringing a lawsuit against his ogden which seems to be the sort of intervening act that would that the supreme court has indicated would  if you look at the old california case law you know this is a clock still her identity is the allegation but again the the actual cause of the legal fees injury was the the lawsuit so are you saying there's a different injury or maybe explain to me i don't see how well it's a defense ok you can look at it economically in several different ways in the complaint th kind of around revolving around those legal fees right ok we made a claim for legal fees and it's interesting we have a legal fee case right before we claim seven hundred thirty thousand because we're into lawsuits for five years we got knocked two hundred twenty five get a certificate of factual innocence that's separate from the san francisco lawsuit if the judge goes with them in credit he says i was excessive is he making a determination that those fees are achievable something else ok i'm cleaning up the mess and trying to get my wife's name back that aspirins cause that he didn't because judge goldsmith said this is what you're going to get maybe unintelligible excessive or padded ok so where is that other work of tributed to not the last there's a footnote in there i was pursuing a chosen action for the certificate of factual innocence that his clients went in and told the police no she's she's part of it she was the broker she opened the legal fees but i'm looking at a different way also economically there's another chosen action that's a property right now time fifty fifty so i'll have all address the court for seven and a half minutes ok all right just so that what i'm going to do here is what i will tell you wells fargo is that in my experiences to judge a lot of times people go beyond their time and then the person sitting at counsel table is not really sure what to do whether to jump up and pull you off the podium or you know how to do this you will get your seven and a half minutes all right and if it goes and you're limited to your seven and a half and less the court is asking you additional questions if the court is asking you additional questions you know place complaint the answer in those questions and then sit down and you'll still have seven  right go ahead thank you your honors i will be addressing my comments to the court this morning and what i think is the critical issue in the case and that is whether this record committed error in not granting  that the proposed amendment doesn't really add any facts it merely changes the label of the complaint from one of mail fraud to one of identity theft and there are several reasons why the identity theft claim is bardwell there seems be i think judge you could it was asking appellant about the conservation issue or whether there was a break and or whether something was too attenuated and so it seems to be that is your best argument that there isn't any conversation but if we want to agree with that what's your best argument for a firm in the district court yes or an approximate cause assad and i agree with the court's analysis on that issue is general one is the statue of limitations this is an issue that we address below before the district court we address that in our papers counsel had the option of follow reply brief no reply brief was filed we believe that that argument has been conceded and that the right to raise it now has been away but damages that have been allayed the injury that has been alleged is not a cognizable rico injury the ninth circuit has said that rico requires quite a concrete financial loss and not mere injury to a valuable intangible property interest the nice work it has not recognized attorney's fees as cognisable rico injuries and i respectfully submit that this is not the case to do so and not on the record that we have before the court and here's why  the reasonable attorneys fees the reasonable value of the money of the time that was spent in defending this how persist go cases the time that we're spending cleaning up the identity fraud has already been litigated judged determined and pa the paid part is not part of the record because it happened recently but i sure that if counsel is asked you can confirm that that judgment has been satisfied so we have a situation where the injuries are not cognisable where the injuries were caused by someone they don't meet the strict proximate cause standard set forth by the supreme court in holmes and articulated again in the ns a case in the heavy cases which we cite which are motion to dismiss cases where the district court dismissed the cases for failure to allege proximate cause so even if they are foreseeable they don't meet the strict for proximate cause standard that the supreme court has to take you later again the direct cause  a be a direct link the direct cause was mr asker runs filing two lawsuits in san francisco so in my client's not just the plaintiff in this case but my clients as well though that was the direct cause of the alleged injury so for those reasons because of the statue limitations because there was no cognisable injury to business or property and bec and your position as i understood it was the phony bank account did not directly cause her injuries it was the as good as they could have put it the other issues that that i could get into but i think that they are set forth clearly in the breeze if the justices have any questions some happy to answer them otherwise i will heal the time to my colleague we don't appear to have additional questions thank you thank you you it's the first time after i said that what people do all the time they never use their time under used good morning honors a man please the court tabi before wells fargo bank i've heard a number of numbers mention to the one that i did not hear mention was the subject of the underlying lawsuit this was a collection action for forty thousand dollars that's all there's no depositions it was dismissed for failure to prosecute no trial and the california court considered the plaintiffs fee application and ruled that the reasonable and necessary  incurred defending that action was one hundred twenty five thousand dollars not seven hundred thirty thousand to defend a forty thousand dollar collection action one hundred twenty five thousand now to my eyes that's incredibly generous for a forty semiconductor case and in this case the rest of the complaint alleges how well fargo was the victim of bank fraud wells fargo was also a defendant in the underlying actions wells fargo had the privilege of paying its attorneys to defend it dollars in the wells fargo account and another twenty thousand dollars later in the wells fargo the world's far account just might have charged him some fees for transferring exactly what the plaintiff in the uk the semiconductor case alleged robbery and this court held that that was not the incidental fees from opening a bank account were not damages resulting from the rico activity the rico scheme of circumventing creditors of this nightclub was separate from the incidental sees that might be generated from a bank account i'm sure the the rico activity defrauding creditors at a nightclub sale from the end from the incidental commercial activity that go goes along with that if they took a cab there ye cab might have made some money but that's not the rico violation if they use telephones the phone company made some money but that's not the rico violent trying to find your answer here are you saying yes they probably did get a benefit from opening the account back i think we've already talked about the concept that if the court was to reconsider the question of whether attorneys fees or cognisable rico damages this is not the case to do that because the rico  the superior court was related to the lawsuit that's the amount he asked for an award and the court said they were excessive he is not here saying i spent seven hundred thirty thousand dollars in the court cut that down because it was obviously padded but in addition to that seven hundred thirty thousand dollars i have some more mr ogden's here saying he now wants to redefine the fees which he told the court were reasonably unnecessarily incur action and the court quite properly said that application is wildly excessive and in grad of the number which i thought was still high but it's been determined it's been litigated it's been paid what is your best argument for a firm in the district court in the us in these cases like pick asking me which of my children is my favorite i think there are two or three that are the best first one is this is an attorney's fees case attorney's fees are not cognisable and rico we don't want to turn the rico into a free for all for disappointed litigants to get their fees back in every case the second one is if there's no t case against wells fargo strictly responding out superior okies semiconductor teaches that the scheme has to be the better for the bank not that there is some incidental benefit from opening bank accounts but the scheme has to be to benefit the you just quickly respond to the semi conductor just try to side that basically on but for causation the theft occurred prior to the bank accounts being made created so he said rico causation motions plus ten pleadings by the time i got the judge goldsmith it was a forty thousand dollar case that's why i look so unreasonable because i got it there he says simple failure to prosecute that's because i got up there is that unwound it was a liquor license transfer sick and tired the first appellate district sue a sponsor referred his attorneys to the bar i came back down and got forty thousand on a single issue appeal hundred twenty five thousand for five years litigation nobody understands what an identity fraud victim goes question with other than that not that we know of ok as to the statue of limitations i believe that's an affirmative defense number two i don't think mr martinez character as it rises the correctly we have injury but the question is in two thousand are you asking us court in terms of since what you're asking for is the entry being attorney's fees has than is or is there a ninth circuit case that the injury the injury is ten twenty eight eighty seven the restitution statues were recently amended to specifically recognize that identity fraud victims incur legal harm restitution needs to mere civil damages that a case cited if that's the case congressman schiff because the district judge in utah wrote how difficult it as this lady went through so much harm i can't give her the the fees and the cost curve for cleaning up the mess ok congress amends the restitution statutes to say judges can now make that award t victims of ten twenty eight a seven violations i say the r j our reynolds the supreme court case they were going with the presumption against extraterritoriality on a rico issue guess how they defeated the presumption they said we look to the predi identity fraud victim incurs to clean up the mess is damage to business or property i have nothing else rather i thank you both for your argument this matter will stand submitted