contract claim played a concert of that each of the defendants for bound by the contract don't have breached the court found there was no contract that had been merged them with no four for a fact we got a judgment we're entitled to you can make a claim as a prevailing party on a contract when the defense to the contract breach claim is that the contracts gone because it was marriage into you know in other words that there is no contract well and the opening has a it's different if someone made a contract claim and you said hey there's no contract at all that's one thing this is different there was a contract and the question is that the contr operational law and if it is does that eliminate the recovery is the prevailing party when you're sued on that well and the opening brief we start a number of cases that indicate under the garcon a merger of the contract cause of action there are multiple causes of action all of which were clearly rooted in contract and all of which concluded with judge diversions very clear a finding that there was no contract and in fact frankly the greatest right it was supposed to reflect the intent of the parties and one of the ironies here was before very sharman died ms honey recognizing that there was this judgment had come in hundred seven into the state court and tried to force him to either carry insurance or going to monetary reward award now the only conclusion your honors i can find for why they would shift to a breach of contract theory after his death and file wouldn't federal court is for the very reasons why why does does this just mention they were hoping to confuse the issue and they chose their remedy they chose their forum and they lost and for my clients to have had to go through that expense and be told that they can't get attorney fees when a bar is very clear that in a clear victory like this judge diversion literally had no discretion this matter really needs to be remanded  that are at stake i do not remember after the action was over your client's position was not a bit better than it was before and it was worse because you had a finding there wasn't a contract and the fence position was not a bit worse than it was before in fact was better because the contract  taken up with the state court and the courts the democrats say that the defendants were not a quote party prevailing on the contract close quote which is the statutory language i guess for fee just briefly your honor it's the magnitude of seizure order is sixty thousand and six fifty three and the lower court and of course we're asking unusual statement and the attorney fee hearing i believe that all of the other statements and the orders as quoted in my briefs made very clear the judge diversion ruled expressly that we won the case because you found there was no contract california supreme court authority makes clear that you can win a contract action because there is no contract and that you will get your attorney fees as a consequence already prevailing on the contract absolutely there is there was no absolutely because the argument is my clients were found by a contract and they breached it  if you read the above or a case the of our case stands for this very proposition that if you have and the other cases that i've cited as well if you have a breach of contract action and the defenses but let's take a different example let's say i claim that the contract was forged but that's not really my signature but they say no no no that's our signature and we're going to make you answer for this contract and i prove it's not my signature  expressly provided when you look at all california law california law status if your suit on a contract and you successfully proved by the fans that the contract doesn't exist you get your attorney fees and the reason