there are two issues two main issues in this case the first one deals with the summary judgment motion that was granted when the former dr sacks was incarcerated at lompoc granted his opposition the opposition that emanated from lompoc was probably not the best piece of legal writing but under the circumstances i think it was sufficient especially combined with his oral argument to create a tribal issue a fact as to the well you mentioned the contract of eighty two what contract governs this is it eighty to eighty seven now in one case seven his contract was well both i would say both how can they both the i thought one superseded the other well i'm not sure they did supersede the other but i don't think it really makes a whole lot of difference in payments issue do under the eighty seven contract yes ok so it sounds like the eighty seven contract to the extent a contract governs does governor ok ok well i mean i'm asking you i gree that that was my question so the the point is  whether or not there was sufficient evidence to eliminate the tribal issue a fact that the dr sacks is intent the court held that his failure to report various activities that are rather quantum merit case is disputed that after nine hundred ninety one by the operation of the one nine hundred eighty seven contract he is no longer entitled the famous that is to say it's not a matter breach is a disputed that he received something on the order of a million dollars that is not entitled to well it depends if if you go on to quote a merit we would dispute that he's not entitled to the money i think the judge no i'm asking out of the contract was entitled to that money has clean hands that he took roughly a million dollars to which he was not entitled well again he he did the work he and his associates did the work so if we weigh equities which was supposed to do under the unclean hands you know the main issue is whether he will fully willfully engage in unclean hands he did the work he felt he was entitled to it i think that the  uing now about the need for willfulness he does in a roundabout way not being an attorney at the oral argument he explained to the court that when he was asked why he did not report these activities he stated i did not send them any letters because i did not have the contract for maybe two and the events happened ten twenty twenty five years later and then he went on to say that everybody knew about the events and didn't really know that it was his obligation to do so i think that goes directly to the willful element ok thank you you're welcome the second is you know let me follow up on judge schools question if we determine that he did not raise that argument adequately at the at the lower court level hasn't that argument therefore been waived unless one of the exceptions supplies to waver and if it has been waived can you tell us which exception you think would apply well for one thing it's a question of law and the the argument has been fully brief by respondents so there's no or prejudice to them i would argue that there's no prejudice the argument has been fully briefed what more does the court need to rule one guy was in my position all right and the second part of the appeal deals with madison park which was dr sacks the surgery center that entity hired and employed several other physicians besides dr sacks including nurses that provided services to the i l w u recipients and again the problem dr sacks had was the problem faced by i would say everyone who's in pro se and in a federal penitentiary at the same time he could not get counsel he had other cases going on he had he had had to counsel did he did but only you know he was able to get the lawyers for this case but he's also paying lawyers for his divorce which was very expensive and also his criminal defense attorneys so he wasn't in the very best financial condition and being in a penitentiary he wasn't able to earn a whole lot of money either so he basically what he had to do was have to plod through all these problems which he did and when he was able to get up sort of on his feet so that he could retain counsel meet with coun and explain to counsel all the the ramifications of the case he did so and basically it appears that the great liberality that that that is to be afforded and setting aside it's a high threshold but i think on the record in this case especially given the fact that he was incarcerated and the issue was never really prevented for example citing the cases that   part we talked about earlier and if we were to set aside the default with respect to the surgery center i assume the surgery center really has nothing more than its own quantum arrow claims that right correct yeah so i'm not sure a separate entity right lester any more questions i'd like to reserve good so he's got a little under six minutes reserve ok thank you yeah this case is primarily about equity in by that what i mean is as the the united states supreme court has held in the position case cited in our brief the court should not become in a better of inequity and by that i'm just i'm referring to the unclean hands doctrine and in particular we believe what the record is clear that the district court  applied the appropriate legal standard in deciding that the unclean hands doctrine barred judge barred the claims for want to marrow it here's my here's my hesitation about the dollars maybe more maybe less when he was not entitled under the contract to have any have any of it he's claiming that he and his surgery center performed about five million dollars worth of work i'll take that number as a given for purposes of the question although i do note that is five million dollars in change for about one hundred seven clients which works out to  quite a bit of money per client but i'll take the five million as the right number for now why is it fair for your client to have received five million dollars worth of work and not paid for that doesn't seem fair to me there was absolutely no evidence in the record that they did turn around or did what there's no admissible evidence in the record that our clients receipt any of these supposed services that are alleged in the complaint well why is that not on the record because we didn't get very far right to say this was dismissed on quantum arrow grounds without getting into the proof no y was argued on our motion for summary judgment on the on the breach of contract the claims that were brought in they were brought together in the complaint dr sac and madison park alleged that  together had claims of five plus million dollars when we filed our motion for summary judgment in the original case on judge a part of me the claims by sacks and madison park we are motion was as to both of them we there we stated very clearly what our position was and that there was no evidence in the record after we had gone through much discovery there is no evidence of the record of services having been provided and in response the there was a declaration by dr sacks and there was no evidence attached to the declaration whatsoever and there was a lot of hearsay there was a lot of hyperbole things that were not anywhere in the record and there were evidentially rulings made  the declarations the method by dr sacks and the district court sustained our objections to the statements that were made in dr sachs's declaration supposedly providing the evidence of this five million dollars the evidence was so flimsy it was that there was no there were no documents there was nothing documenting this alleged five million dollars of services provided and that sustaining of our objections was not appealed for that that is not before the court that that has that if that were an argument to be made that argument has not been made before this court will  the five million dollars assume that there's been some work done that were you able to get rid of any evidence as to any work being done on behalf of your client there is no evidence on the record of any work being done and if  let me ask a slightly different way if quantum arrow it had not been the ground for dismissal and the case had gone forward so that quantum arrow recovery was to be allowed at least in principle was there no way at that stage for any evidence to be introduced for any work having been done for which no compensation had been paid i believe that is correct your honor there's no evidence in the record that would have supported that claim now if you made that argument to us yes that is in our brief and another thing i wanted to point out alright but i want to keep pursuing this short on the assumption that we disagree with some of those aspects and on the assumption that it's open to us to think that the case may be a if we set aside the with the doctor was not paid for so you have to look at the facts of the case first of all i quite did not receive the work it was the longshoreman and their dependents who received any work if there was any done whatsoever but the  you're deflect me but i'd like you to answer the question yes karan assume for the moment that dr saxon madison park did perform some work for your clients for the women for their children for them at cetera for which they have not been paid is it fair for the payment not to be made yes that is your honor ok why because they should have notified us we never would have been sending any patients to  to madison park if we had known that he had virtually essentially calls the death of patient on the operating table he was operating without a map without any medical malpractise insurance since two thousand and four we were informed that if we had known that there is no way we would have spent any patients to him he was also he had stipulated to the disciplinary order  two thousand and three which which stated that the charges were brought in two thousand and three he stopped related to that in two thousand and six that he had committed gross negligence that he had committed fraud in  with respect to submitting insurance claims for medical services provided all of this was kept secret from us i'm having a little trouble with this having spent thirty five years representing health care providers before i went on the bench understanding the reporting requirements they have i can't understand how it is that your client was completely unaware of this doctor's conduct that he's disciplinary problems and everything else that they not require him to periodic lee update his information and disclose things or they required him on the forms that he sent misrepresented and so if we had known this we never would have sent patients so it's not fair to charge us for for these services during a period of time in which he clearly should not have been working on patients were there any patient complaints that were made there were patient complaints made and that's what led us to initiate a fraud investigation and we initiated the fraud investigation before we learned of all  wrongdoing as dr sacks we learned of the wrongdoing once the complaint was failed and we thought it was the ultimate what's brought to the fore dr sacks once his medical license had been completely revoked and once he had been indicted longshoreman and the and their dependence on the west coast do you think we should decide this case based on the waiver argument that that that dr sacks is now advancing an argument he didn't raise with the lower court or do you think it would be better for us to address head on the merits of these claims i believe the waiver argument is strong your honor and i believe that that alone would provide a sufficient reason to affirm the judgment below but if even if you did not use the if you did not find that there had been waiver and if you did take on the argument of unclean and we believe the the overwhelming  evidence in the record as well as the vuelta reasoned opinion by the district court supports the finding of the district court that the quantum arrow it plain should not should not stand and that  no your honor the the with respect to the unclean hands argument the i know that he addressed the nature of the misconduct prong i don't think he addressed the other two prongs at all and and so then the question is if the lord court didn't address those issues can can we address them here prejudice the with respect to the unclean hands document doctrine also the question was raised of whether or not the there was a direct relationship between the unclean hands and the claim that's made and we believe that the relationship is is direct and that it was it was not only a breach of contract but it was an intentional  part on dr sacks part not to inform us of these wrongdoing and thereby continue to get paid knowing that he had no malpractise insurance knowing that he had all under which someone without a contract claim can recover for the benefit that was received by the party there's so much as rather technical question it correct to say that given the evidence really rulings of the district court that were not received that were not appealed that the record as it stands before us what does that indicate that there's any benefit received by your client yes judge the and you hit on a point that is that is  i think critical in that want to merit is the is usually found to be disfavored and not applied when you do have a contract governing the relationship of the parties here the contract had been breached and has no legal basis because the determination by the district court that there had been a breach and that that there should have been no monies paid i believe controls the question of whether or not there had been any benefit conferred and as the district court found that there was no benefit conferred and also there was no certainly no unjust benefit conferred based on t facts and based on the ruling for the district court thank you you know i think you lost me in providing that answer i think standard black letter law that if the contract doesn't govern because it been breached even a breaching party who has conferred benefit perhaps thinking that the contract was still in effect or maybe realizing that it was not in fact quite a marrow it is then the alternative remedy and that's just black letter law so the fact that dr sacks might have breached the contract does not automatically foreclose the quantum arrow recovery are you with me so far i am with you your honor then i have a problem with your talk about all these evidentiary rulings that there's no showing that any work was ever performed but you kept saying as are you elaborate your answer about dr sacks not having reported his various convictions and nolan malpractise insurance all of those things which which of course i'm very sympathetic with your class you keep talking about we would never want to send him patients well you're just telling me that you sent him patients so he would he didn't do any work on the patients no we we received bills  honor there is no evidence in the record of actual work being performed when our investigators investigated dr sacks what they found was that he was performing cosmetic surgery getting paid by by  individuals and then submitting bills for for services that were not even performed they were supposed to be we don't pay for not cosmetic surgery under our plan that's what he was performing and then he was sending us bills for non cosmetic surgery for things that were supposedly medically necessary don't contest the fact that you were sending patients but you're saying that none of there's no evidence on the record at this current state that any of the work for which you build is compensable that's correct you know these sound like questions of fact to me not to be disposed of in a summary ruling well i mean all of these issues of whether he was performing work or not performing work whether the bills were reasonable for the work performed the song like questions of fact  your honor respectfully the these were questions that were dealt with during the discovery phase once we completed that and got to the summary judgment phase it was presented in our motion for summary judgment that there was no evidence to support any finding of any compensable services being performed and there was nothing provided in opposition so there is no question of fact if there was any question it would have been well would d sachs's declaration that says i perform services be enough and the district court ruled that it wasn't sustained or objections and that was not appealed the  ruling by the district court on our objections was not appealed so you're saying there is no genuine issue of material fact on the issue of whether there was  for which you benefit that's correct yaar ok what was because i don't i was one question what was the what was the court's basis for not setting aside the default was it because you need to have a lawyer when you've got an thank you say some time first of all on the issue of all these claim forms that were sent and they're not part of the record that were allegedly sent and i don't know what the claim forms that adds but if it's not part of the record i can't really address that second as far as the evidence of the quantum merit there were two motions for summary judgment at the first motion for summary judgment the reach of contract claims of dr sacks were dismissed by the by the court however the court left open the point of merit and left it open on the basis that doctors that alleged that the services that he performed reasonable and necessary so there was some evidence before the district court that dr sacks did provide services the second summary judgment motion was basically trying to  fifty boxes that dr sacks pointed out in his are all argument at the time of the first summary judgment motion of documents so there's a lot of work that needs to be done in this case that hasn't been done as far as we want to marry mr beebe does your client concede that he failed to comply with the notice provision in his contract regarding all of these various disciplinary problems it looked to me like your argument there is that well the argument is twofold number one that that he didn't comply with the contract but number two that the international longshore and warehouse union should and they were in effect on concern had constructed notice of these problems that was his argument at the seven judgment most of which was denied or not accepted by the by the district court i mean it's pretty the contracts pretty clear what he needs to do and i gather he concedes that he didn't comply with the contract and give notice well he stated in open court to the court that he no longer had a copy of the contract and that he didn't know they need to do that well i'm not sure he knew the difference between the contract right but in any event there's a contract requires notice he doesn't give notice he doesn't read the contract or you know by the contract and therefore doesn't read it but in any event no notice or he intentionally  withheld that information or if it's sloppy practice the sounds like a question of fact you know i don't know how on top of the insurance requirements dr sacks where well if the contract includes a notice provision and he didn't give notice to me that doesn't sound like a question of fact i mean he may have reasons why he didn't give notice but it's contracts clear he's going to give notice if he doesn't if you breach the contract i think you can decide that obligation to give notice is triggered at a minimum by his criminal behavior and for him to say that is somehow unfair to require him to record to report in accordance with the requirement of the contract criminal behavior in which he doesn't engage that's a tough argument for you to make well representing dr sacks as you can imagine is not the easiest chore but the criminal because remember one thing in two thousand and seven he received a letter from the union saying you're no longer a preferred provider and and he stopped submitting claims after that the criminal conduct the most severe form of pond i think that i think the court is referring to occurred there after know we got it ok thank you thank thank both sides for their arguments sacks vs l w u pacific maritime association benefit plans submitted for decision and will take a five minute recess