rgument and they noted that it seems like there's no ninth circuit case or in fact any sort of court case and there's a split in authority they seem also to kind of lean in our  your court well we're correct on that because the quote states that a person and no case on fraud who has a cause of action for contractual fraud can get both benefit of the bargain damages and out of pocket but he can only get he or she can only get the out of pocket on the fraud and can only get the clear there's a confusion between party who has these two causes of action and a cause of action getting both type damages they make it clear in the cases they cite make it clear that part of it's for contract part of it's for tort right right in the cassie the california jury instructions which i think are the final word on california law so states you can only get the benefit of the bargain if there's a fiduciary relationship and when my opponent cites cases in california to refute that it's always a fiduciary benefit i decided today to start probably arguing  on the baptists and because we have a somewhat there's a different flight different cause of action in that we're in a federal court we're under a bankruptcy statute and i maybe i just notice these cases seem to talk about policy and whether ninth circuit court should adopt the it's the idea of using a benefit of a bargain under a five twenty three a two and i reasons why it would be very bad in this case in the case they discuss and in this case and to put a benefit of the bargain as they say part of the reasoning on the wording on five hundred eighty two is gone because of versus fraud not you know benefit the bargain is not something caused by fraud it's something you did not get why would it be bad to have a benefit of the bargain in this case or any five point three two freeman mentions it's to and dead and i would add that it doesn't nur to the uniformity in the law to use an extreme example not to being facetious why and where record never benefit of the bargain would be if i were to sell a person the another example but so their court would then say well we're not going to benefit of the bargain on another case they may say we are going to do better for the park and if you call that your only issue in this appeal part of me is that you're only you know  it to get a contract well we would still win because without the typical tort damages you get rid of the contract he didn't have the right to the equipment except for the contract what he calls the fraudulent contract gave him the right to the thing he now says he lost but it was we have another argument and that assumes that i'm wrong on this and the court's going to hold the benefit of the bargain goes in the the bankruptcy court and the about gave too many damages and that's by the way freeman mentions giving double damages the contract was if if you pay full value of the equipment and all the arrears so we have another argument to separate from the benefit of the bargain they did not prove that the arrears that existed before the u d could have here the bappa really did i think some twisting around to provide new money by saying there's a new lease the new leases a new money because it's neutral ghobadi gets an extra benefit but the new money rules does not get rid of deferred payments that are not the new money itself so i don't think if the courts are going to you know by my first argument i believe the damages should be lessened now of course and in fact my  want to understand why do you agree that damages should be well i hope you book the first argument i would say there'd be no damages at all because well there would be ok there would be damages for conversion because this that's another thing this case were in bankruptcy court people try and fit it into a fraud and it's not as breach of contract and covers i might i did something wrong all right he after doing the whole contract which i think  away he just went on with all his contractors and took all the stuff away and it would be conversion if you want to use or worse word of it might be left they didn't so why am i arguing against fraud and saying we're apps i'd prefer conversion because well they didn't find conversion but that's what this case really is breach of contract and conversion that's all what would have ever happened in state court the reason is conversion is partially dischargeable and treated differently in bankruptcy court in a chapter thirteen you could you don't necessarily have to pay the full amount on the conversion but you do fraud so upset as people may be hearing these facts i just don't think it should be jammed into a fraud mold when it can't be and one last thing mr my a poem mr sharp seems to agree he'll get up and tell you if he doesn't lower than before and partially deferred that's not giving up an opportunity to miss the pelly would have to show there was some third party somebody else there who would pay higher because my client was painting something for it to be damages has to be shown they had someone who was not paying something so they just say oh well he would have paid more had we not done the deal i'll reserve the rest of my time very well he then made the representation about what he would do those misrepresentations didn't cause they weren't the proximate cause of the rent that had accrued prior to that time were they while it is true that  something occurs later in time cannot possibly cause that which preceded it so but i mean what if he never said anything the rent that had been incurred from point a to point b was it was owed it was her right that's is this is one of them i mean first of all the banks the appellate panel addressed this by arguing that we were incredible to benefit the bargain damages and there was a new settlement agreement and part of that sum green part of the quid pro quo was a payment of this thirty two thousand seven hundred dollars from your perspective there's no requirement approximate causation it's just benefit of the bargain that is partially correct that's not the only leg upon which i'm standing it's not the only basis of the argument how many legs are there's at least  the previous crude rental payment how is that how does that relate to the fraud if you will very simple we're not trying to recover the prior rent amount we're only trying to recover some consideration it was promis refer to this prior rent and include it they did and it's under those circumstances that you have to show how that relates to the fraud if you're going to have it survive it only it relates the fraud to the extent that it was part of a new agreement that was happening in my client did not know is if i did know so let's go to the other part of this with the other is that the bit of the bargain point how does how does the bankruptcy court get to where it is where you get both out of pocket and benefit of the bargain is that lives  are now what they were lined up on i think what the banks the court was trying to do is to compensate my client for the harm my client suffered and my client suffered a lot of harm some of them to give some examples been hired based on the fact that the unpaid rent amount of one hundred forty one thousand one hundred eighty five dollars which included the thirty two thousand seven hundred that was the subject of our discussion but that only included went through december two thousand and twelve which is when the  interest on that amount through the date of the judgment and the bank's appellate panel actually according to their numbers the actual damage figure should be one hundred eighty thousand which is more than thirty two thousand seven hundred dollars in addition to the amount just you saying that where they they got to they probably should not include a ten percent interest on the thirty two thousand seven hundred that preceded the date of the settlement agreement back in two thousand and eight and i acknowledge happened even without that i thought that i've done my own calculations and even if you think that hundred sixty four thousand five hundred fourteen dollars  is far you know almost almost thirty nine thousand more than one hundred forty one thousand was awarded and i ask you about the kitchen i'm sorry say and i'm sorry about the kitchen again yes how was i was the destruction the removal and found that the representation and warranty in the agreement as to who owned the kitchen equipment back in two thousand and eight was false when i was intentionally false and that led them to enter into the credit but what happened here was that they took the equipment right after the fact and just destroyed correct and whatever whatever that amount that they were i was that destruction a product of a fraud well two hundred thousand this equipment that the cost of reinstalling the equipment would have been between thirty and fifty percent of that amount and that's what my client you know that that's what the contract said my client was going to get the equipment already in there so that's another fifteen to twenty five thousand dollars in addition to that the agreement the underlying settlement agreement page seventy seven two through seventy four and the excerpt the record actually provided for the cooperation of leaving the equipment the debtors cooperation in leaving the premises if he was on the able to pay rent and didn't pay rent and leaving it and leaving a turnkey facility part part of that some pizza money for part of it someplace seventy two and that's critical because the record also shows that in may of two thousand and eleven  marcia to test it came to light now she's a person who made two thousand and thirteen actually moved into the property but i'm a few thousand eleven she made an offer of one hundred thousand dollars to centrally by the business and have a turnkey operation and move in and that's  landlord and you know that's another hundred thousand dollars that my client lost and we'll see in the records that later on most of the cast reduced that amount to twenty five thousand and finally she not only got rid of it altogether because he quit was missing the wanted four months of free and my client was minutes away or maybe hours away from getting an unlawful detainer judgment and probably two to seven days away from having to force the debtor would not have had time to get the cherry pickers and the cranes to remove all the equipment building you know the point is my client had valuable unfortunate remedies in june of two thousand and eight when the settlement agreement was executed that he gave up because of false representations even with respect to the thirty two thousand seven hundred dollars which in here my read of california laws that there is a section of california law relating to the purchased sale or exchange of real property that does indicate that you don't get benefit of the bargain damages if there is fraud doesn't apply the circumstances is not the purchase sailors change real property and the implication negative implication is that of course there is no such limitation that california code of civil code section seven you know nine speaks about a person who who deceives another being liable for any damages california has a civil code thirty three thirty three similar  there was no evidence of any damages at all as a result of the fraud apparently unlicensed person did a good job that it was a close case under those extreme circumstances it would in fact discharge a liability this case this case is the thing  because in this case there was harm there was significant harm including the loss of one hundred thousand dollars in march at the cast in the may of two thousand and eleven and in this case the statute relied upon does require fraudulent and section five point three requires a common law fraud misrepresentation last bad is it was very not defending that he didn't lose the equipment because he was a lie or because of the state of title in fact mr flea has any kind of didn't matter my gun client was a major stockholder he committed a crime he went in he took it he brought big cranes so there's nothing to do no reliance cause that my guy just my clients are here on the should not have done that this is mean to mr sharp it business owner was going to give all these benefits is somewhat speculative premise tammet is on a future contract with a future tenant that's never been signed and nevertheless that's obviously benefit of the bargain the measure of damages for the lost rent can't be just but mr if he already got a discount and he paid twenty percent less and we're going to measure it he should pay twenty percent more because that would be we'd be talking contract which is hard especially when you come to bankruptcy court to not do that but contracts are all debts are discharged the way that has to be shown is is based on we have the rental that it was no expert about rental value of the result proved that the intent never to perform it isn't that a fraud misrepresented the elements of fraud the first one misrepresentation sometimes referred to as fraud and i'll go along i will have to say the baptists and mr scharf would be right on that in that not the title but if they could show what was in my client's head that i'm never going to give that equipment i'm just i'm just saying all this so i can get what i want as so they would get the  first the first element of fraud but i'd still argue that there's they wouldn't get the damages you can't call the loss of quid and damages for fraud fraudulently causing them to get in the contract when it was  thing itself that gave him the right to be a quick moment then how can you say i was the fraud it into this conduct but i kind of pick and choose i would like to keep the equipment that part's ok and i'll call that my damages and there was no cross appeal so i certainly hope your honour's will reject the invitation to give even more damage if i think we should turn over a turnkey operation which he apparently never intended to do that would be again the first element of misrepresenting taishan but he didn't have a turn key operation so the did misrepresentation didn't cause him to lose a turnkey operation in contractual fraud usually you'll go back to square one before the for person was induced to get in the fraudulent contract and put the party in that position he would have been in had he never got in the contract and the position he would have been in is he didn't have mr pfleger didn't have the equipment he didn't have a turnkey operation he had the prior contract which gave my client the right to remove all the equipment under the fixtures rule if it could be done without damage and again i'm not defending it's terrible behavior but i don't think this court could for instance rule well it should really be a conversion judgment and we're in bankruptcy court where a lot of people get i mean the courts from seal versus law or someone just lied and everything like that and yet under bankruptcy rules they he got away with it so in this case it's not fraud and it's that's why it's kind of awkward things are coming up trying to pigeonhole this and put it in a fraud box and we're having that thing where a contract is fraudulent but the damages are the stuff you promise on the front of the contracts and i just think the