confidence did not take the position that the underlying conduct occurred in judge walker's code until february th two thousand and fifteen when they filed  copy of peter tran transcript of the thirty thousand dollars sanction or twenty five thousand dollars worth of the attorney's fees were for fees that were incurred crude before the peter multiplied the proceedings and that the attorney did so on reasonably and facts actually for the latter there must be evidence and findings of one of three t improper motive or reckless disregard cannot three talk about the timeline for a moment about exactly hsu knew what and when to my understanding is that in january of fourteen is when your client got the seven questions right that said please specify where this conduct occurred in that same month also in january fourteen is when you filed the st amended complaint that includes the sentence to the contrary th she was in judge just court that day and mr morgan understood from his interview ms morrison that the underlying conduct occurred in ms because court it turns out that was a mistake but that was fourteen but he knew in january of two thousand and fourteen morgan knew that he needed to figure out which court room he got the list of seven questions and knew that he needed to interview his client which he did into the incident mr morgan's position is it it's got his client's fault slash lack of memory on his client's part well it as this court said in f d i c versus calhoun it's easy for us with the benefit of hindsight to say an attorney should have done this or should not have done that and the court in fact cautioned against that kind of hindsight approach that evidence is mr morgan met with his  evidence is that ms morrison has a memory for some details but not others as she confessed herself of the sanctions hearing that she didn't have a full appreciation of where the underlying events occurred until she actually got to  we're talking about the january complaint despite morgan's in depth knowledge of to dish on immunity and his need to plead facts carefully the original complaint all too conveniently does not specify which court room  eleven as well as nine hundred and twenty seven and talks about what violates who eleven doesn't make a law distinction about whether the standards may be different but i think really an opinion does articulate the proper standard my concern about this is also there are also things in this opinion makes it appear to me that judges is making a judgment call a factual determination no judgment of actual determination that there's an awful lot of gamesmanship in this opinion that is that is certainly suggestive of intent or at least recklessness of not nailing this down and we're looking at an abuse of discretion when i looking at how we would review this evidence and what we would think it would meet but did i say that you may tell me it would not have been sampled what not only we do have a transcript of it and there was almost a designer and i need to say it that way there's almost a desire not to identify what courtroom this occurred there's argument here that the judge is making the judgment factual findings on ed at the very least reckless conduct on the part of the attorney so mr bond you're absolutely right the standard is abuse of discretion the district that is a no on a frivolous position but that was mr morgan's position and as of the time of the original complaint he didn't need to specify where they can undermine conduct occurred because at that point in time his theory was a basis for answering jetton did morgan's basis for answering the seven question or the whichever number was about which courtroom it was and was i interviewed my client ms morrison and might in response judge southwick into me your response about the factual basis for the sanction order is well it must be the ms morrison was having memory issues because he must keep we know that morgan interviewed her at the sinks in searing didn't she testify that she remembered the case she remembered being there that day she remembered leaving a briefcase in the courtroom she membered wearing her three inch heels and she seemed to have a pretty detailed memory of basically everything except for the court room whose crews she also testified that she didn't recall specifically that it was the peter crank that is and that she was of memory that is good for some details and not for others and frankly i'm sensitive to the i'm in my fifty's now have taken lots of vacations over the years and have very good memories about some of those by cations candidly there are some times when i transpose that they pale from one of those by connections with the others that happens and there's morrison and mr morgan  sensually that's what happened here ok also to the question that is probably hard to answer maybe because of lack of clarity but what i'm trying to get to it seems to me the judge quite readily could have said doesn't refer to the court room and you said why but it doesn't in me that if the judge had said more of that in the opinion we'd be in a no clearer footing to say that he's making credibility findings that he's making findings that whatever i make of that of the lawyer himself needed to do more oh you can't just file something like this without a better evidence not just negatives is reckless to make these sorts of sessions if the judge articulated  that way in and said i i find it implausible that a judge odom is asking that particular point is just implausible that she doesn't remember that regardless of family vacations may have been  taking me we have an opinion that's pretty far along the line of of within the discretion of a judge and a judge and ride it that way and that basically what we're dealing with is a not well explained opinion dealing with without some evidence to the contrary from the evidence of what somebody remembered not whether it happened we know what happened now but the issue is what somebody remembered kate do anything other than credibility about that will i think that there them and it is a reasonable explanation that she offered the judge kaplan said well what about the affidavit that was attached to the original complaint was from morgan reasonably responded oh sure i knew that peter tran was one of the many clients that ms morse and i have to do but there was nothing in the affidavit that would connect peter trained him to the false perjury clinic all the sanctions in which we had evidence taken in this matter and that's a on the record at three thousand six hundred and sixty eight dollars just given ask me is it the seminal issue in this case of whether or not the ballot factors whether or not mr morgan or whether or not mr morgan somehow realize that miss morrison's case did not fit the ballot factors and therefore official immunity didn't apply and so after magistrate given took over this case from judge and with respect to opposing counsel i have to disagree with the statement and this is the statement from morgan's perspective the situs of the underlying conduct only became relevant when judge hawthorn issued his order of january nd two thousand and fourteen asking morrison did the perjury charges concern activity in walker's court a provided slides a promise i won't dwell on them but if the court would go to the rd slide i quote mr morgan's own amended complaint at the top where he actually disputes what says what his appellate counsel just said of the footnote and that's where he cites the ballard case himself in his st one of his st aminah complaints and says another important case guiding the issue of walker's potential personal liability is ballard of the wall which contains the four factors the fiserv considers one of valuating judicial immunity and even before the seven questions were posed your orders i had filed motions to dismiss and mr morgan through counsel to excuse me miss morse and to counsel morgan responded and you can see there in june of two thousand and thirteen the actual quote from his brief where he actually acknowledges and states over and over again in response in defense of my motion outside a judge walker's court and this is in june of two thousand and thirteen and some of these are actually subtitle headings not just comments in the brief these are some of the direct headings and then he repeated it again after the seven questions were pose after he filed and then didn't pursue his st st emitted complaint and then after actually his st aminah complaint was filed with the court he repeated the same defenses and so if you look at the st page with the little colors on it the perjury charge or barred by judicial ammonia immunity and her state oil claims are precluded at this moment in january of two thousand and fourteen the the only thing left for anyone to consider in this case was the alleged fabrication of perjury charges that judge walker was alleged to have conspired with our local district attorney and some other judges with so the harper versus merkel is an interesting defense and probably one that stretches because they need to stretch but it fails on this date at this flag at january two two thousand and fourteen because we all knew at that point we're dealing with a fabrication case and in response to the seven questions this is what i find really remarkable yana in response to the seven question mr morgan took a thirty two dollars page complaint with three defendants and filed or attempted to file a sixty one dollars page complaint adding three more defendants including another judge a special prosecutor and me his opposing counsel and i think the proliferation and the exacerbation of the already existing confusion that mr morgan in inserted in this litigation from the outset was was it was a ruse was to prevent the court from realizing look there's nothing left here he know he did not file this complaint he filed another st a minute complaint and as a court can see yet he continued to argue in all three complaints that this conduct absolutely pachinko cantu and calhoun probably the most can't to him change are not published all talk about those in just a nd this one is the one he discussed mostly in his opening statement i think it's this is an educational case for me and handling courts familiar with the facts but there were queues holes in the last minute this case lands in his lap and he tries the case and he says my goodness this this case there is no good faith basis to bring this on the extension of the law and so he sanction his explanation and so there was an oral conclusory order that this case should have never been brought to begin with that it was bad faith by the defense by the if the i seek counsel and that's kind of all this court had to evaluate at this stage though which judge give one supporter that he issued with sixteen pages of discussion about mr morgan and the evidence a deuced at the sanctions hearing by the way there was no sanctions hearing encounter there is no evidence taking here with magistrate good when we actually had a a time blocked off for evidence and witnesses presented and people were cross i was cross examined mr morgan was cross examined he had the opportunity to put on witnesses magistrate give one observe the testimony and then when it comes to the that not reasonable for him to reject an excuse me it's not reasonable from her magistrate given to reject some of these arguments by mr morgan page twenty of his order is very explicit that he just didn't buy it because he notes and this is something i harp on at the hearing that mr morris and just four months prior to filing this lawsuit on the record cites are on page twenty of his order just four months prior to filing this lawsuit she was putting in grievance responses before the state bar very specific details about the peter tran case and about the behavior of judge walker in his courtroom involving the peter train case and then because given goes on magistrate judge give me goes on to recount the actual testimony that this is an important case two or four months beforehand she was doing whatever she was doing why would that mean one way or the other whether she's who civically remembers where she was when this very finite event occurred just magic the rule before he was forced to recuse himself st despite vague and unspecified claims of quote age and health issues close quote it is wholly implausible that morrison a practicing attorney cannot recall the quote specific underlying proceeding close quote that led to her having to testify before a grand jury for five hours which was quote a very humiliating and degrading situation close quote so magistrate hospital looked at th  proper subject to the sanction so it comes down did what did morrison tell morgan i'd respectfully their pitch a coke a sure says differently because in their own published case but change oh that's a case where he represented a prisoner who was suing a doctor for not for not giving him an operation that he said the records required him to give if you'll notice in their case in that instance the prisoner at least gave the date that he saw the doctor and in that instant when he gave the date later on down the road you mode in the opinion it was his own lawyer that went and got the records to see my goodness did it change really miss the referral for an operation or not and so when they accuse me of not having obtained the transcript quick enough st of all i'm dealing with a complaint that they don't know when it happened they don't know where it happened but if somehow it's my responsibility to go figure that out for them but setting that all a sign the plaintiff's lawyer pitch ain't go did that very thing and he didn't even have a client with alleged memory problems he just had a guy in prison and so i like their authority i'm always trying to prepare for the question what's your best case i like their cases because they're instructive on both what not to do as as a district court don't just rule from the bench and not give determinations on credibility or factual findings because then you have nothing left to review but i like to change though with a prisoner who at least gave the date that he saw the doctor and then the plaintiff's lawyer who says who said you know my guy may not have memory problems but i'm going to go get those records and see if there's something here that i need to back off the case and let's not forget the fact that there was the six month delay after mr morgan said he quote shall inform the court after re interviewing his client what you see on page twenty of magistrate givens opinion is just a complete rejection of the theory that mrs morse and couldn't recall these details had mr moore morgan not pride deep enough for pride well enough and for us the negligence is concerned i agree magistrate judge given uses that phrase quite often but recklessness is just the kissing cousin a multiple negligence i mean it's just negligence stepped on negligence is what it is and so perhaps the an accurate could have been a little bit better but recklessness is excessive negligence attempt is made where they're still alleging the same thing the judge says ok at that point at that point that's recklessness at that point that's recklessness so if your honour's don't have any other questions i really am i think i get my time  fourteen is at that point judge hawthorn rejected the harper argument it was then preserved for this court to review which ultimately it did in two thousand and seventeen judge hawthorne defendants but none of those defendants sought sanctions and they're not present he judge walker's counsel says that the complaint alleged an assortment of multifarious new climbs itself is being pursued for an improper purpose and respectfully i think it's hard for the manager strict judge to make that conclusion when the the harper argument itself was preserved and one that need not have a fully developed factual case before filing suit nd they point out that in many cases sometimes the only information available to an attorney is an interview with a client