has pointed out in the briefing there's been failures sites of the record in certain instances and certain documents missing and for that reason i'm not going to argue the trial lateral stoppel issues and i'm going to focus solely on the five twenty three a four issue for which there is more than ample record before this court and in that regard the  addition with respect to the five twenty three a four issue is virtually identical to judge taylor's opinion in the molar versus wimmer decision issued out of the southern district bankruptcy control specifically help of corporate principle is not a fiduciary with respect to five twenty three a for not could you please expand a little bit when the facts of who is not the corporate fiduciary and what the letter what the ruling below was that said that he was in this case yes richard hong i'm still trying to get my hands around what we withdrawal and just say this i mean what's contained in the record is that he was found he was added to the arbitration to determine whether he was the alter ego and the arbitrator went way beyond that and found all manner of fraud in de falco asian upon which the bankruptcy court relied and and it's our position that and i wish the demand were in allegation that the company is insolvent when it was filed and that all of the alleged developed nations occurred prior to the filing so for that reason alone i don't think collateral solve should apply but you're not actually contesting that or now you diverted funds and therefore under the california trust fund doctrine it would be nondestructive all under five twenty three a four a four and then that was appealed to the district that's correct and the district court found it just record found that the bap opinion in re jacks was correctly decided and that the judge taylor's decision in the mother case did not influence her or persuade her and we believe judge taylor the subsequent two thousand and nine opinion and berger enterprise and control the ninth circuit determined that a corporate principle such as mr hong is not a five b and control made a point of that and said that that mattered right so why that's not our situation here so why should we i'm not sure how you're connecting these dots well it i don't know whereas this case involved the corporation but the reason it wasn't asked to decide the creditor issue and of course cases aren't authority for propositions not considered so so how should we use it to decide the creditor issue here well in the burgh case if you if you if you look at burr in connection with control in berg it was a creditor corporate creditors of an insolvent corporation but the berg court specifically noted that since the one nine hundred ninety one dollars delaware decision the lyonnesse decision no california court had addressed the scope of the duties od'd by corporate principals to creditors of an insolvent corporation and so berg took it upon itself the burke court to specifically limit the duties to those trust not what we have here right that that trust arose because of some a surprise appropriation and that's not the claim here about the california trust doctrine the claim here is that the trust arose because there insolvent at that triggers it then in burgh there was a misappropriation it triggered it right that that is true the question here on appeal is whether or not the application of the trust fund doctrine imposes  state law whether or not there is a fiduciary duty under a four as a matter of federal law right but the trust under california law arises under the california trust dr i well i would dispute whether a trust arises that there was not a trust created it was not a translation or creditors under the california trust right and that was in a case about creditors that is true that is true but the and this is the scope of the duties under the trust fund doctrine are very limited there they are not coextensive with the duties to a corporate principal i mean odor to the corporation by the under bankruptcy law if the felt cation of trust which is a claim that a corporation can assert against the principle or attempt the creditors are less than the duties odes to the corporation or to the shareholders so the only thing that happens upon insolvency is a shifting of the party that has an interest in the corporate assets prior to insolvency you have the shareholders after insolvency you have the creditors all the trust fund doctrine does is shift that interest and that being the case there's no logical reason under control to say that even though they're not a fiduciary under a for with respect to the corporation of the shareholders race another party yes but we have to follow california law and california has the california trust doctrine so how is what you're saying responsive to that as judge taylor noted in her opinion the our trust fund doctrine is a misnomer it's an unfortunate misnomer it under a four you have to have an express or technical trust and express trust requires declaration of trust and a conveyance of the race none of that happens and under what body of law i mean so it's ok that judge said that but what is that interpreting california law yes so what if we disagree that's not how it's how i read what california law has said about the california trust doctrine it seems like it gets created whenever there is an insolvent company with debts to creditors  characterization of it as a trust fund the trust fund dr what it is it's a it's a doctor and a place is a duty upon corporate principles to not squander corporate assets not a the five twenty three for issues that were just discussed need not be reached by this court the case is that you rely on for that they don't have an intermediate appellate court in between the court they had the double judgment and right so here we have the district court which was appellate court in this context and our jurisdiction comes from the district court doesn't it understood but the center of review on appeal to this court is a review of the bankruptcy court judgment independent and without reference to the district court that's true but and i've never heard of a doctrine that says that you have to appeal something that you want to and that is what you're arguing with but let's be clear in the district court there was nothing that was won by the appellant richard hall because there was only a judgment affirming the bankruptcy courts judgment in fact the entire discussion of five twenty three eight two by the district court was mere dicta because the district court like this court only needs to find non one of the two alternative grounds only needs to affirm on one of those grounds and in fact during a colloquy in the district court judge mauro pointed that out asked the question of the tongue and said is one of the grounds for summary judgment sufficient for your purposes or do i need to rule on both and we said one is sufficient and that point has never been disputed and if there's a case in sight in our briefing at the case i think that's how you say a p t one circuit case that says exactly that when you have alternative grounds for nanda stretch ability the court need only find a firm and on one of them that's right but that doesn't mean if if you don't appeal the other one that is unnecessary that all the sudden you don't have to resolve the issue that was decided on appeal i mean this is a that would be a bizarre result well i don't know the bain case the four circuit case that we cited in our papers that was the exact result and they employed the same standard of review that is a to this court reviewing the bankruptcy court judgment now and the bank court involved a denial of discharge instead of nondestructive billing but the bankruptcy court entered the denial of discharge judgment on two equally dispositive alternative grounds and the court sees me the debtor in that case appealed to the district court the district court affirmed on one of the grounds finding it didn't need to address the other ground because one not a published case is it is not a published case but i don't think you can cite it to us  t the rationale is sound based on the same standard of review that is a political in this court and and to your point about the cases that we cited yes a lot of them were district court acted as the trial court and then it was appealed to the ninth circuit but it's effectively the same thing because of the standard of review the ninth circuit now sits to review the bankruptcy court's judgment to no vote and so it has to look at both of the grounds for an honest charge ability and it has to consider any and all challenges to those both both of those grounds for non discharge ability i recommend that you tell us why you went on the issue that was decided certainly and the only issue that is before the court is five twenty three a for that's the only issue mr hong is arguing for here is the change in the law the law has been fairly clear in the circuit the opinions beginning with the lasagna case by this court in one hundred seventy nine under the predecessor to five twenty three to creditors as deficient under five twenty three eighty four and the argument that's been presented to the court is that that should change that this court should should essentially change the law and the basis for doing so is that between the last time it was decided and now california has said something different and that's simply not the case the burger court did not say anything different about the scope of fiduciary duties under california law in insolve do we do with our court's decision and double bogey double bogey is limited number in that case the issue was whether the fiduciary duty could be imputed by virtue of the alter egos or so the the appellant in that case argued that because there was because the corporate principles were alter egos the fiduciary duties od'd by the company right and we don't have that issue but but of above you said common law doctrines rarely impose the trust like obligation sufficient to create a fiduciary relationship under section five hundred three a for the kinds of trust typically created by operation of law constructive resulting or implied trust never satisfy section five twenty three and four as rigorous requirements what do we make of that we need that no we don't need to the reason why the california courts don't get there is because this comes up in california cases outside of the bankruptcy context so they don't have occasion to say this is an express trust or a constructive trust for purposes of five twenty three and four so the california courts it's really deciding whether is an express trust requires the federal courts faced with that analysis in the five point three four context to make that judgment and what what isn't expressed trust is a trust that's written down though i'm not sure what the definition is but i'm not sure this fits very naturally with what i think the definition as well so sophie go to the court's decisions in lewis and ragsdale to look at property and so we have all those things we don't need a requirement that it be written to express doesn't mean written and the court louis ragsdale in jack's made clear that express trust can be imposed by common law and in like those cases the fiduciary duties here give rise to an express trust and that's that's been the law all along and there's there's been nothing to change that notion i know that there's been much citation there is wrongdoing and that's it's clearly the finish your duty arises upon insolvency and there's a duty to refrain from diverting dissipating unduly risk in corporate assets because the creditors are the residual beneficiaries under that issue and it's important to remember cantrell was decided employing the bainbridge analysis by the california supreme court where they specifically looked at the fiduciary duty owed between the corporate principle and the company and shareholders and said no that's that's not the same fiduciary duty that's a duty of agency that's not an actual trust fund like we have here this is this this appeal comes lot of litigation as many appeals come to you and there was explicit findings of fraud breaches of these fiduciary duties and in fact the arbitrator employed this same analysis in trying to determine what was necessary for him to agree or excuse me to find in the arbitration award and in fact made those findings of the exact breaches of fiduciary duty that were subsequently found to close of the bankruptcy court now you want to read the certainly i think that's all i have to say on that issue your honor thank you applicable because in one case the district court only ruled on one of two issues the other issue remained undisturbed which needed to be appealed so with respect to the fiduciary duty issue there are different types an express trust soon extreme anomaly it's been the it was held in this court case in ragsdale and also in the lewis case interpretating arizona law however in both those cases involve partnerships and the common law is replete with these decisions discussing the fact that partners are trustees of each other with respect to trust partnership read our court has decided that the c said as you noted in double bogey that it's an extremely rare situation and it's usually tethered to some statute whereby the common law just cleared more clearly expresses already finds the duty and that is definite not the case with the trust fund doctrine it's a pure creature of the courts and therefore i would suggest a double bogey strongly suggest that should be rejected there's no reason to impose to impose or just like should be rejected that we should reject the california trust fund act then you should find you should hold that the trust fund doctrine does not create a five twenty three a for express or technical trust because there's no relationship there that would give rise to a technical trust and there's no expression of an intent to become a trustee unlike partnerships and there it may be flexible your honor but under one circuit authority in in ragsdale in many other cases the interpretation of a fiduciary duty for purposes of a four