the fees based upon the california california court's rulings because there were two dollars separate affirmative defenses one of illegality and one of notation can i stop you right away and ask you what was the raised as part of the affirmative defense of novation so with respect to the bankruptcy court susan on this claim number two the court to sustain the objection in part and overruled that in part in allowed the claim in the amount one hundred and six thousand dollars and only discounted the amount by ten percent and in allowing the claim my client's position is the big groups the court of use discretion because it's clear that the court had not familiarised itself with the ten percent was appropriate because that's what was included in the claim objection or i'm sorry the claim itself yes to that extent yes but he also supported that with not just his own argument he pointed out what he believed would be that the nuances of how the court would reach that decision what facts it would rely upon why it would favor this person is the argument that was made by your by mr scarpa and the court resolved it to go with what mr abrams and support his position right fair so so if we are reviewing it previews of discretion that you apply to correct standard and he had facts and in the record that would support that as my position is that the court didn't spend the time to examine the arguments in the briefs and now it's evident from a lot of the court's comments on the record the court expressed regret for not having agreed to allow the state to be terminated so the kids can go back to the percent award was appropriate but when you look at the case as a whole the litigation that you place in the marriage county court it went on over a long period of time and the name case itself was based on whether or not the purchase i believe at the end of the st day of hearing on march th i did make that argument and i pointed to specific issues in the record for example four days of the thirteen day bench trial related to an issue about an attorney client privilege that was unrelated frankly to either defense and i also pointed out there was a th amendment issue that was unrelated to the nation defense so i did point to specific billing entries and parts of the record that address that there were matters heard by the trial court that had no relationship to the new patient offense so yes i did make that argument at the end of the st day of hearing  well let me let me i have the same question but i'll maybe take it a step further the the whole burden of proof issue could approve a claim scenario is maybe a little bit i don't know if you do bankruptcy law all the time but it's a little bit different has a fairly broad discretion a claim is filed and it is deemed a laugh out lesson until there is an objection ok the focus of an objection has to be to create enough doubt about the claim to shift the burden and the concern that i have then i think i'm also heard from judge brand is when you come in and say well here's a bunch of things we don't think really have been to do with this defense which the judge is not bound to use to reduce the client ok is not required to do that and we'd like you to take it down by seventy five percent i have a hard time seeing how that by itself would have shifted the burden back to the claimant as opposed to you know the burden never really left you and if the claimant the size of that point you know ten percent a reasonable reduction in the judge agrees with that that's why so i mean i've got a long question but i'm trying to figure out here is how do you deploy the court to specific entries in the billing records that would show that they were not related and i did take the position in the brief as you saw that allegation or person that was fired and appreciate the court's point in really think this was a error because we should substitute our judgment for a judge to be easily and we should find that your arguments are more compelling and those arguments work and therefore we should reverse this you had i don't think that's yes and that's exactly what i'm asking that it be sent back to judge beasley not that there be a substitution and that perhaps at this point after an appeal he would spend the time to review the record and make a more informed decision three so if i could i'd rather take it that you're right thank you thank you and so the nd claim is claim number four and that is the claim that my client filed based upon an assignment that he received prior to the california supreme court's decision and this is in the record that mr kendall seeks to hold my client liable on a theory of alter ego related to these attorney's fees and my client wanted to preserve a right to send off related to that because he is standing in the shoes of two of the prevailing parties sundowner and glen larson and when the judge heard the arguments the judge decided that my client or that my client client couldn't seek an in california under the qs law cited in the breeze standard it is whether or not the these were incurred not whether they were paid and i think this issue come up in the circumstance where there's th respect to the two appeals i think the comments from the court correctly focus on burden of proof here and the abuse of discretion standard that seems to me to be the based on something not on the record that's not what happened here the record on appeal includes three separate transcripts on the record on these to prove the claim matters for almost a full two and a half hours one of the sessions was recessed so because the judge had been interrupted in his preparation for one of the hearings and this is on record and it was  he kind of wish that he had allowed her to to go back to the marine superior court in the st instance and that's all you see in the record he questioned on specific issues he addressed specific issues  specific allocation of what was done in the case it was broken down in a whole number of ways i did the principle that corporation in support of the fees and for each time period in the cases it has it  went through its phases i explained how the time had been spent on the illegality defense and came from i had a unique perspective on it because i had litigated the exact same issue a few years before  in involved the purchase of a portion of that it neither did the subdivision map act under both california nevada law that was it the fact was stipulated to so i thought it based upon my analysis of my billing records the more than one hundred and thirty pages i went through and again i did my i looked at the work done by my colleague david on it itemized that the ten percent is really  think the principle problem here is that mysterious her and her burden was to shows pacific facts not general conclusions mishal argument first session of the argument is seventy five percent should be deducted she thought about it came back to the next argument and said you know what will be it should be fifty percent neither room those general conclusions regulation moments were supported by any documents yes she did say well i object to two hours here and three hours there but in this case where two thousand two hundred and fifty hours was  that didn't hit her burden per so there is a recent case and i think judge brinn was on the panel which goes over what the burden is in these kinds of cases that case is and i sent a thousand and twenty west law two row sixty thousand three hundred and seven and it specifically stated that in a case like this where the attorney's fees are at issue the burden is the objection cannot be illegality defense was appropriate and the three other issues that mysterious raised were resulted in evidence that was material to the defendants prevailing at the trial the st type of evidence you objected to was the preliminary hearing that took place with respect to an attorney dave sonti who had represented both have ject had to testify as to his conversations with the mountaineer side because he claimed that attorney client privilege those communications were important after a four day hearing which mostly took place in the mornings the judge ruled that there was no attorney client privilege and i was able to inquire of mythology freely and the balance of the trial and that evidence was instrumental to principal witness was arrested relating to matters that involved the case being litigated there were big decisions that had to be made with respect to mr module lessees amendment rights  have valuated it we hired outside counsel alternately the decision was made that mr modulus you could testify at the trial he did testify is testimony was instrumental to the defendants  case the rd issue i guess is the allocation and i want to make sure i haven't missed one the recent one other objection that they asserted we incurred fifteen or twenty hours of time in connection with a writ of mandate proceeding so i think the evidence is well and substantially establishes each element of the ruling made by judge because late we think it's fair and we think that it really reflects the facts  most of assignment issue was quite troubling for me i was representing mr larsen it time and mr scarborough went around my back and met directly with mr larsen and bought this claim it's kind of interesting if we focus on what he bought the assignment promised you know two things number one he had inserted the rights to somebody else whatever those rights are and number number two mr scarpa acknowledged the following that the total value of the claims transferred were unknown and speculate mr scarpa received could have received nothing and did receive nothing because it is undisputed in this record that that mr larson and sundowner towers never paid there is no evidence to the contrary and my understanding is that's why this aspect of the case is entitle to denote review the cases that are relied on by mysterious none of them are like this case none of the cases involve a situation where there are two neither of those attorneys represented mr scarper or mr larson so in the exact numbers on that there are are is two hundred and eighty six thousand seven hundred and fifty two dollars and that c even if he is an argument about allocation based on payment nonpayment they would never be liable for obligated to pay those that's actually our argument that they never represented the parties  kendall in the paper she filed so her fees were only occurred on behalf of mr kendall she did not represent mr larson she did not represent sundowner towers  of the cases that are relied upon by mysterious are not on point i think that the true case stands for a very simple position which is you sign an that a party had prevailed and was legally entitled to it turns these if the court didn't construct the rulings that it did then the party that early the attorney's fees the obligation or would never have to pay them in our case it's different in our case mr modulus he paid the fees and to the extent he paid the fees the obligation to pay fees was extinguished for all of the parts and i think that's the key distinguishing recover the attorney's fees the aga would have gotten off scot free so it makes sense in those cases that that the fees would be paid in this case there is a party to the action who paid the fees and is entitle to receive and it just seems to me your honour's that it's equitable that it's fair that it reflects economic reality i think the never built mr larsen or sundowner my agreement as written in the document that's a part of the record was my relationship was with the genre to lessing i had represented him for many years prior to this and my agreement says is while in that case if the court would not have awarded the attorneys for these the aboud who are the past party the party who lost the litigation would have gotten off scot free that's not here in our case another words u nless it was paid to the party who would the legal fees would never have had to a paid and that's the say the macias case is exactly the same so i understand why the court fashion that remedy here that's not what we have here we have a party to the case who is entitle to pay to be paid the fees and paid them and so it seems to me that that's the fair and equitable result in these very different circumstances where there's a party who paid the fees party but the last point i wanted to make is that  were clients and presented to the engagement letter they were jointly and severally liable for the fees and the fees are reported to prevailing parties not to attorneys and and fair enough i think when we filed the proof of claim your honor we were just trying to preserve our rights and your point is that this is really a dispute among prevailing parties in a dispute with the debtor and the party who owes the fees this is a dispute among prevailing parties but to the extent that claim is very broadly defined in the code and i do practice it could see a way to ensure that my client's right for an ultimate ostap if the big receive court were to decide the issue of alter ego which apparently it will now that's been determined since this case on appeal i wanted to ensure that i protected my client's right for that right of sent off and i didn't want the fact that no claim of been filed to bar his right for a cent off that's really what that pertains to your honor thank you so that's the ultimate lee that's what my client is attempting to preserve is this right of set off and the case law we pointed out says that the standards that encourage not pay and we're asking the court to find that there was legal errors the extent that the court found that pay payment was the critical issue and not the fact that the fees were incurred in q thank you very much matter