when i got out of law school the first thing i learned was the case asked out three things liability damages and somebody to write the check this statute is about the fact that employees who lose on small benefit cases which is typically what's involved here are not in a position to write the check just as my client who is on disability with her husband who is on disability  been through bankruptcy all of which is in the record is in no position to pay a seventy six thousand dollars fee award you would concede though that until amended the statute certainly permitted the district court to impose it did so that were really the question here is retroactivity well it's not really retroactivity because this case is still pending so retroactivity and the sounds of the cases over a new laws passed as a going to apply to a finished case that final judgment had been entered well this case is decided under california law under california law the case isn't over until the appeals are don and so forth which definition of anality applies here is it the definition that appears to be the one the parties used in the briefing which is that it was after the summary judgment order  in the final judgment had been entered or is it the definition that we see in the federal supreme when the supreme court cases in the lower court cases applying constitutional retroactivity questions  and the answer is that this court has held attorneys feet questions under state law are governed by state law and that would be larry's apartment at two forty nine fed third eight thirty two a t thirty eight and m r o communications one ninety seven fed third twelve seventy six a twelve eighty one so the attorneys fees questions are all decided by state law right and which one and state law what's final under state law what's final under state law is the appeal is done for the remainder is issued and the case is over and that's one of the differences between state and federal law but here there had been no award of attorney's fees at the time the decision was made so if you apply the rule that the decision is made based on the law at the time of the decision then there'd have to be a showing of bad faith which there plainly isn't and the fees have been incurred that's true but office under california law this is treated like a cost item it's like a deposition transcript it goes on the cost bill and there's a long line of california cases that say attorneys fees which are cost s are treated by the rule at the time of the decision we cited olson versus hipaa that's still good law in california there are if you shop or dies that there are all kinds of cases  which follow that rule and you know this is a this is a remedial statute we have if you look at employees with benefit  on a fair employment housing act case in california never get to this kind of award you have you have a statute that wasn't fitting in with the general idea which is that employees need access to the courts they can't pay corporate attorneys fee bills and so the legislature and their attention was called this by the supreme court dictum in the in the kirby case and as soon as that case came out they want me amended the statute and they said ok no no we really mean that you have to have bad faith because that's consistent with the rest of the california labor code it's consistent with how we do things under arrest and it's consistent with california law which holds as we pointed out in our brief olson versus hickman but there are certainly many cases which have the same rule i think most  recently syria investment at two thirty eight fourth seven twenty five came out a month ago and that it deals with a bond which was part of a cost and how you calculate the cost of the bond and they applied the rule has changed after the appeal so you know retroactivity and perspective for the  perspective application of legislation is designed to protect settled expectations you don't want people entering into contracts and having the rules change during a lawsuit this isn't that this is sun item in the costs bill and whether the courts call it a procedural instead of substantive a secondary instead of primary and but the supreme court has has told us that we look to whether or not the statute creates new consequences or imposes new and different liability in trying to determine whether the statute should have retroactive effect in the absence of a clear legislative direction one way or the other as i understand your initial argument we wouldn't employ that analysis at all under california law because it's just a simple timing question as to when the remit or how do i square your argument with what the count what the u s supreme court has said with well this is a sham and under california law not federal law but as i look at the california cases just to follow up i went home and said it doesn't seem to be that clear that when there is a appeal pending for example that and statute that became affective after final judgment the during the pendency of the appeal would be deemed not retroactive well when you talk about statutes generally and attorney fees statute this is attorney fees statue well when you try see california cases that apply it to two cases that were that talk about whether or not it should apply to cases that by your definition would not be final well and the issue there is term didn't this phrase in terms of retroactive application well i think if you look at for example there's a good summary of these cases and bank of idaho versus pine avenue association one thirty kelefa thirty five is that your best case for the proposition that as long as the time for appeal is still running that the it is not a retroactive application and the attorneys for sure yes  analysis and but you still that doesn't rest on sheer timing i'm sorry that doesn't depend merely on the timing that you described is that correct yes i mean it's you know it's is in litigation over or turn over benefits to an employee you know is really making market decisions and business isn't based on collecting attorneys fees from the employee that i mean this is a vested benefit that's the nature of the reliance that they're going to incur the fees anyway because they've got to defend the summary judgment motion for example well that's right thing but what i'm saying is it's not a vested benefit and that's because that's one of the parts of that being on the class bill it's not a primary primary thing it's a secondary thing it's a remit you know i mean there are a lot of different ways that the courts have phrased it but what it comes down to is if you fit it in to the whole bill salton of making courts available to people of limited means if something i think that would be certainly would be fine but i think you know even if you were to say that this is not going to be your honors may please the court my name is emily barker for defendant of healthy financial industry regulatory authority the limited question that we argue here today is whether or not labor code section two eighteen point five as amended should have applied retroactively to tourney's fees that were perfected and vested prior to it's an accurate can use bond to the question about whether these really was a was it retroactive that is was this final and then b were these vested in the sense that they would not have been that they were that the fees were incurred in reliance on the availability of the fees without a bad face showing yes your honor so the version of labor code section two eighteen zero point five in effect at the time that this judgment was granted summary judgment was granted in full on may seventh two thousand and thirteen provided for mandatory fees all the case on california at that time made clear that the language of the statute says the court shall award reasonable attorney's fees at the point that one of these motions is one shows that that it was such an award is mandatory as of that because fees were mandatory and the judge had no discretion to say appeals and where the time for appeals expired is there a is it is it final so as to make application of the new statute retroactive yes your honor i final especially when you consider the fact again as your honor pointed out the reasonable expectations of the party at the time which is something that's very important in these cases as described in the u s supreme court the reason why expectation the parties at the time that they argued and brief the summary judgment motion both parties in his vertues you know as well as founder was that when judgment was was awarded it would be mandatory fees in favor of the prevailing party in terms of expectations she was sorry in terms of finesse expectations it was not expecting at that time to have to prove a bad faith requirement it incurred those fees in reliance on the fact that it would be giving mandatory fees at that time in terms of the decision to proceed to summary judgment as opposed to some other choice protect her perhaps settlement or other things the calculus changed for fender and that is really the key  here the u s supreme court has been very clear that when you put applying a new statute retroactively imposes an additional one forseeable obligation upon a party then it then it applies impermissibly retroactively and i think some of the cases that this panel directed us to for today point out very clearly why it is that in this instance this statute would operate impermissibly retroactively on the determination that she should be awarded in this case ho versus montgomery in that case there was a statute similarly there was an acted middle acacia and it did two things that kept him out of fees that a diff an attorney who was defending a prisoner of prisons rights to get it also required a prisoner pay a portion of such fees from this award the statute in that case mandated that fees shall not be awarded unless the few was directly and reasonably incurred in other words the reasonableness and the  left to the district judge has discretion correct correct your honor but that's a very unusual bester right isn't it is unusual but i will say this that the portion of the fee statute that was changed that was amended had no it did not change requirement whatsoever and so the only the only portion of the statute that changed was the portion that dealt with entitlement and the entitlement is what's at issue here and the reasonable is of the fees i something you know that can also be discussed but really the question at issue here currently is whether or not the entitlement applies at all but up my point is that it's in that they're sort of tied together because if you are entitled to have the question of fees put to the district judge's discretion which is essentially what you would have been under the prior statute under the prior statute fees would be mandatory would be and  once we reach this entitle it the distributor madge would have discretion as to the amount but of course the discretion is limited by case law as well and that discretion is limited by their certain presumptions for example there's a presumption that attorney's fees the lodestar for actually consider the financial situation the point in the record itself i don't believe there is any indication of that but also in the briefing to the lower court i don't believe there was actually say anything one way or the other that i've considered it and that's one of the factors in the twenty five percent reduction in the attorney's fee award no he did not hear and doesn't our case law suggest that if the district court doesn't indicate that it actually considered a factor that it must consider that we have to send it back and ask the court to take another look at it here i'm not sure the law is clear that it's actually something that must be considered in terms of your response to opposing counsel's argument about this ironclad finality rule that all we need to know is the timing of the issuance of the remitted or before we can declare that the judgment is final i think th answer to that is contained in the fairness principles that articulated under land graft and the idea that parties should be able to litigate their cases with a reasonable expectation of the laws that will be applied to their case and that time i'm not sure that rules on the judgment i have to admit that was not an argument that i picked up on from his briefs and i'm just wondering if you're as surprised by it as i was i am your honor and i don't have a case to respond to at the moment because it was not my briefs and i wasn't expecting it and i can submit one i can look incident one for you within the next twenty four hours if you like but my initial reaction to that argument is that the california case law that was developed that surrounded the  two eighteen point five being a mandatory fee as of the date of the judgment would seem to be somewhat obviated if if it's mandatory but it's kind of wishy washy wanky and may or may not happen at it would certainly ease the application of the retroactivity rule if if that were the case i tell you you're not familiar with the bank of idaho decision that he says this is best case on this i now why didn't you say your best case to well i think also versus hickman is our best case but then but what you said to judge rosenthal well you told him that it was bank of idaho bank of iowa has very nicely and there's a line of cases that talk about attorneys fees these are costs and they apply when the rules change will take a look at ok thank you thank you her