could to back up i'm the attorney that appeared in august when i threw the first time on august sixteenth former counsel appeared for mr white the plaintiff's lawyers were there as well guy between the attorneys and and the court was the agreement the stipulation miners compromise the trust agreement attorneys fees cost general survey of issues that were required to be resolved if and when the the matter was then to come up for approval the agreement in the minors compromised and what's significant about that hearing is that issues were left open significant material issues were left open for further research by counsel input to the court the next time the matter came up for a hearing specifically counsel for my client is dire stated we could reserve addressing that the issue namely of the confidentiality clause in the agreement is matter of fact judge prior raise whether or not the confidentiality provision of the settlement agreement was valid with whether or not it was against public policy it was discussed back and forth and  it was left that that issue would then be resolved the next court hearing and just by i said sure and then further proceedings are curd and the court stated quote think about it and come back and say whatever you want and quote  vacation to both sides to come back and give input to the court and the next he at the next hearing those issues had to be resolved before the matter could be before the agreement could be finally approved before the miners compromise actually could there they scheduled i'm sorry was there a trial date was there a trial date scheduled it was a trial date of october eleventh yes your honor that had been scheduled i think back in march of two thousand and five and that matter the trial date was the reason i the reason i ask you counsel was i was thinking a trial charity would have a very serious reason not to grant any continuances at the end of august with an october eleventh trial date because anything that could put up in the air was that the crowd was going to go forward would make it very hard to try the case at all rounding up a bunch of witnesses and victims in mexico and bring them to san francisco for trial the very time consuming difficult process i agree with your honor but it was august twenty ninth six weeks were left for trial all the parties in the court  much time if you don't fish or cut bait and you get to five weeks in four and three and then your trial date is threatened it may or may not have been i didn't ask for a continuance of the trial date i only asked for a very brief continuance it was monday august twenty ninth i was i had met my client yet i just got in that day and i needed to get the fur your client your client has the airplane defense if the airplane doesn't show up with the witnesses you win that was a favorite defense in serious major defects in the selman agreement in the stipulation and that my client elected to withdraw his his offer to settle and that was communicated that friday i only asked for a very brief continuance a very brief  of to vacate a settlement agreement that are even approved it could have been a day to well we'll put it over give you a chance to meet your client talk to former counsel look at the files read the settlement agreement which i haven't seen even and come back and see if it can be settled if it if it can't then i suppose everybody would deal with the trial either october eleventh or some some later date where the records you choose specify how long you want i don't see that i didn't ask for a specific agreement and the settlement and the stipulation and about the guardian ad litum and so on there were some major problems with the settlement agreement and the way it it was it was going going  have for their objections i'll hear you later and he did hear you on the merits of those objections later right as he did so i don't understand your prejudice argument ok the prejudice is that had the court put over until september ni but the status of those two planes this would be decided on the next at the next hearing until their status was resolved that they were missing and they'd be dismissed or they would be found in these or sign or not sign and and the agreement would would go forward but the agreement wasn't finally accepted your honor until their status resolve that their status was was put over until september ninth my client withdrew his offer he is he was entitled to withdraw his offer under under your theory under your theory right but it seems to me and the judge bryer really took a look at your arguments and you decided them on the merits he didn't say well you forfeited it because of the actions i took on on august twenty nine right he did he did look at the he continued the approval and therefore left open the acceptance valid players until september ninth my client would have withdrawn his offer by then and there would be no settlement agreement there would be no contract he had an absolute contractual right why he was changing lawyers so late in the game time later not so if he got the continuance of the crowd it would be threatened there was a conflict of interest between my client and former counsel and i informed the court of that in a declaration i think  fully satisfied and convinced right i mean this is what i read the record it looks to me as though he heard all the arguments on the merits you have ample time to present your objections the judge bar didn't catch you off later because of anything that happened on the twenty ninth so it's hard for me how does your client have standing to assert any of these i don't see how they in any way prejudice your client they produce my client in the following respect if if there is a basis for one of the miners and one of the pla minor plaintiffs or the other adult playing this would have a basis to try to set aside come back to court under sixty motion and set aside the the state of the settlement agreement and say we were uninformed we were defrauded we didn't know all these facts and reinstate the lawsuit against my client but that's that's the prejudice number one in other words my client is now open to the potential for the plaintiffs coming back and saying we want to reinstate a lawsuit against you or against  a defendant bring him in because you never signed the stipulation so they could say well he didn't sign therefore the agreements the mutual release of claims against plaintiffs and defendants doesn't apply anymore so we want to we want to that's an inside we want to reinstate laws conflict of interest between him and the minors and i think it goes to the heart of the integrity of the judicial system for a guardian why can't you why can't you raise that after paying him the money and then the only order on appeal here is the order your client a judgment against your client to pay money into court and judge bryer said well entertain some of these issues later but there is a concern that the money is going to be dissipated and  understand what's happening if that money is paid and there's going to have subsequent proceedings on how to disperse the mine and you can appeal from that right yes they can be appealed from so why what's wrong with judge buyers order at this juncture to have the money paid into district court period because his involvement irreparably irreparably affected the fairness of the settlement process that went forward appearances before judge spiro talking about the period and that he's going to resolve these other issues later so how can we get you can get into that it was all the other issues later of course is another problem here because all those issues should have been decided at the hearing on the miners compromise and the miners compromise was the time when the status the court has not completed i mean i am not even if it started the hearing of the necessary issues in the minors compromise the court has not completed that hearing and therefore still open and so therefore my client still has the right to withdraw his offer occasional record is there one well as there's no sort of occasion as a fifty four b judgment usually a summary judgment as to less than all of the parties and all of the issues does not result in a final a fifty four b judgment and usually we wouldn't take that except by certification from the district court the way i read the record is that judge bryer said that he thought there was some advantage and i went forward on appeal right now an issue with fifty four b judgment but i think which i kleinfeld saying something that concerns me as and i'm not sure really it's a proper into law kotori appeal  and that's what's and that then the money has to be paid and there was a bond that was it was posted to stay the payment of the of the judgment so it's the final if there's nothing else to decide there's nothing else to resolve it did he make an express determination that there is no just reason for delay and express direction for the entry of judgment it's just here in fifty four b that directing in korea the final judgment as to one or more of the fewer than all the claims your party's mail may be made upon an express determination that there is no just reason for delay and about expressing direction for the entry of judgment if you have the words  i don't think those are the words although in the judgement i think the judgement is final with respect to the well i think the judge decides all the issues before the cour well we don't look at the judgment to decide whether we think it is or is not final if it's some less than all the claims are parties and there is no expressed determination pursuing my prior line of questioning i mean what judge pryor said was he was going to reserve the issue of conflict of interest and the other guardian ad litum issues for a later time right and that your go ahead judge i thought there was a california law that says you can't have a final judgment until the fees are settled this well in a case involving juveniles so until it's all wrapped up it's just not done well ok i mean that hasn't been raised i would have to take a look at it  for the first time that but it's sort of i guess the real question is what's what's left of this and i gather that there are some substance some of the substantive issues that you raise in this appeal are still left on the case the question of the settlement agreement right well you're right he did say that and that's something that i did him to do in the decision on the summary judgment that's one of the issues that i raised challenging the validity of the agreement but he did not address it he didn't the question obviously the order itself does not make the findings that we would ordinarily consider appropriate if you for i gather there's no separate certification order because i didn't find one you're correct your honor there is no certification order i think we were all under the impression sent to the court stated that it was entering judgment and filed a judgment on december fifth along with its memorandum an order in which it sent out all its findings based on the motion for summary judgment which is that pages nine forty nine through nine sixty six of the record w by the court did reduced to writing the oral findings the court set forth on november fourth and again forty thirty four be judgments on appeal and if we don't then then we wait for final judgment and what we measured by are the findings that there is no reason for delay and so forth which i can't find in this case i must say i but what concerns me in this case is that it really appears that there are some significant issues that are unresolved in this case that affect this appeal and one of the problems with fifty four b is you want to avoid two appeals on the same issue so what we hav findings indicating that there are no issues of fact involved in the issue as to whether the defendant white intended to and did in fact enter into a settlement of the litigation with the pla and so my concern goes be a little beyond the whether he substantially decided this is fanciful merits and it really goes beyond whether the magic words that will fifty four be require sir in there they're they're not and that's real serious but as judge thomas says even when the magic words are in there we still sometimes reject the appeals here i've got a couple of really substantive concerns with the non finality one is it looks to me as though the california authorities under rather this california probate code section thirty six zero one it's sec may very well require tying together the approval of the fees and the approval of the deal the settlement with the plaintiff and my other concern that frankly to me is more serious is where the money is the nice thing about a final judgment that resolves all claims as to one party or all claims as to all parties or some claim to us to one party is it can be executed on and that means you don't get to appeal unless either put the money in the registry of the court post the super c d s bond right now nobody except the defendant controls the money as far as i know now correct me if i'm wrong but i don't think the money has been posted and i don't district united states district court for the northern district if mr white does not do so in the time allotted so that he supercedes spawn has been think and posted so the seven point two million a i'm going to vacate the settlement agreement what it where does that leave us but he would have to set aside the judgment and then i can state as a matter of fact it's not in this record that you're asking me so i have to respond as an officer of the court a motion was made to rule sixty be to set aside the judgment that should be in the docket so it's not on the docket so and that was denied so  i mean theoretically it could go back and and the judge could say i'm going to set aside the judgment but i guess you know there's no indication that that would happen but i guess if he were to set aside the judgment then there could be efforts at another appeal but if there was that if he did not set aside the judgment in this court affirm the judgment that has already been entered of then all that left are matters between the plaintiffs and the court and consul has nothing to do with mr white all that involves mr white is whether if i pay this money do i get a dismissal with prejudice and the release and the end counsel and the parties in the court in terms of how the money is allocated and part of that dispute a rupp's the results in one or more of the parties pulling out of the agreement or being found  by the agreement because it was a conflict of interest between them and a guardian ad litum or that their rights were not represented or whatever it might be then all of a sudden mr white no longer has that full release that he bargained for correct but that that judgment has already been entered on the agreement that the parties have an event to number one number two as a practical matters are relevant at this point because that matters dragged on for so long that there are no minors involved at this point they're all adults i don't know if that's because you're problem is that forty percent contingency was not agreed to by adults and that's too high for minors right so and i but i'm going to you're more than happy to let the court make a determination on what's appropriate under the circumstances and whatever the court orders is what the court orders then there i can stay here and now th no disputing what judge bryer orders whether orders twenty five percent or what have you one thing they could order i suppose under california probate law is there is no deal at all i think that i'm not talking about this case now or any of the people here but i think the reason why probate codes typically tie approval of the fees to approval of the deal is to enable empowered judge to overthrow deals where he thinks basically the representatives of the a state are minor or incapacitated person or bribed to throw the case at that's why they're tied together so there doesn't necessarily have to be a deal well i think in this case number one there is a letter in the file in which m conflict of interest because mr bray goes being paid for its efforts i mean you could make the same argument about consul for plaintiffs and a contingent fee because they're being paid for their efforts they have a conflict of interest with  client i don't see that possible for white has not cited any authority in that respect and in addition to that judge briar has already taken that under consideration and has stated in the record that he wants the money paid in the court because he will make the determination himself on whether and it's mr bray goal is to be compensated and if so to what extent let me ask another question ye payment of the monies that he's agreed to pay percent the settlement agreement stipulation is a free man so to speak in other words judge bryer has made the determination that the amount of s miners is fair and equitable views of the of the miners that that's a fair settlement for them and that the terms of the release that they're to sign is fair is a fair released running to mr white the only determination that's relevant to white and he dismissed the action against the missing miners without prejudice right dismissed it without prejudice in court on august twenty ninth orally he signed a written dismissal without prejudice on aug thirtieth and then countersigned the stipulation of dismissal without prejudice on august thirty first those are all on the record then when mr white complained at the hearing on september ninth through his consul that that didn't give him enough protection because it was without prejudice they could always come back and sue and and what have you to judge dreier at that point said fine i'll make sure they can never come back at you i will dismiss them with prejudice  part of the order subsequent to the hearing that took place on september ninth that would be the october third order i believe that was so stated because i know judge bryer was mystified at the time because whites consuls complaining what was supposed to be a dismissed without prejudice now you're doing it with prejudice therefore the settlement agreement has an effect that the cause of his without that he says but i'm giving you what you asked for i mean it's i mean it's obvious that white's coming up with every conceivable thing that we could throw into the kitchen sink to come up with an idea why not proceed with the settlement even though we attorneys who represented  litigation came into court on august sixteenth saying mr y has agreed with the settlement he's agreed with the stipulation he wants the court to approve this settlement and then on the twenty ninth when the court set t for the final settlement right before trial and october eleventh new constant kind then now there's a statement over there's a conflict of interest well that was never stated on at the hearing on september twenty ninth and if you look at the judge a judge briars decision and received in on the summary judgment motion he states over household offered no excuse for his client's last minute decision to substitute a new consul so i or whatever to him there was no statement from his former counsel and his judge bryer said there was no excuse for the last minute decision to change counsel so let me ask you about the you've said that all of the ticking right well mr white pointed out in his brief that the time for them to bring an action against him would expire sometime in september last september so the clock is checked and ticking so far as that's concerned mr white i think gave the date of september something or rather two thousand and six as being a time when they could finally reappear and sue him judge bryer stated well if you know there's any theoretical lawsuit that they have because they got lost and they've never reappeared i mean whether they're you know god bless them i hope they're still living but if they are they they've made very little notice to the world about  as far as are you saying that they did not submit a declaration saying there was a conflict of interest i just heard today that mr wright wind said at some point he did but that would have been well after the hearing on september twenty nin because this judge briar stated in his memorandum an order which he filed on december fifth in ruling on the summary judgment motion and making the findings that he did you find that at page nine fifty one this court's record he states moreover consul offered no excuse for his client's last minute decision to substitute consul i heard mr wright whine stay here today that at some point subsequent to the hearing obviously he filed a declaration saying it was a conflict of interest there's been no declaration from mr white that he changed counsel for that reason no declaration from prior consul and if there was such a declaration there is no explanation as to what this supposed conflict of interest was simply a statement with no basis other than consul now stating that was a fact i'd like to point out you know what i think is very important and it's stated in the record mr white three points mr white insisted that the state court agreement and the federal agreement that is the two california plaintiffs in state court and then now twenty plaintiffs in federal court be linked because you didn't want to settle one without the other and if you look at the agreement itself that it requires that link we pointed out in our view contrary to what mr consul for mr white has just said that mr white could have withdrawn from the agreement after he signed it we decide i mean there's no no agreement whatsoever on that point because he's already performed under the agreement by paying white excuse me by paying garcia in paying being the two plaintiffs in the state court case he's already performed and the under the agreement he made those payments in july and to say that he could have revoked at any time had he been given more time to revoke that's incorrect because we have a written agreement signed by all plaintiffs signed by the defendant no provision for revocation the only provision is a contingency left of the court and that was up to the court to approve or not approve the agreement the court  it does not say that the parties are not bound it only says the effectiveness commences after all parties have signed it's to be presented to the court and then it's to become effect of that's the term of art not binding of september excuse me august twenty ninth each of the items a b and c had occurred the only remaining occurrence was the court's approval of the settlement agreement and  did approve the settlement agreement on august twenty ninth and left open the issue of fees and costs because the defendant had indicated that he was not going to pay the settlement and so that there would be an appeal  have nothing to do with white white the court did approve the amount of the settlement and ordered the white would get his peace in other words his release and his dismissal with prejudice for the payment of the  me for the questions i just want to call one of the court's attention to one point when we got to the issue of whether or not the  that he filed with this court well the only reason he disclosed the amount of the settlement is because judge bryer ordered him to do so and i would already urge that court that was disingenuous on the part of counsel for so that the reporter in the audience could to cap the amount of the settlement and that appears at the hearing and in this court record page six leave it six forty over to six forty one when judge bryer calls him to task on that and he admits that for some reason forgot that particular situation when he filed his brief for respond first let me jump around a bit mr hill argues that the two agreements the one in a separate lawsuit in state court against mr white with somehow linked to the federal case for the federal i'm sorry the federal agreement so that whites performance on the state settlement agreement in some way was partial performance of the federal government in fact the federal government only says that the state agreement has to be signed that your client wanted a global settlement that's agreements each requires signature of the other i don't think necessarily that performance on one the state agreement necessarily means that there is that there is performance on the on the first one such that he can't thereafter withdraw o speak to challenge the validity of the agreement i mean the problem is that there are so many errors and problems with this with the agreement the stipulation is and signed by one of the defense counsels but at the end of the day you have a good so you know which one of them all at the end of the day your client got what he bargained for he paid money that he agreed to and we have just nestles with prejudice as to all of the existing parties and ultimately you've got a dismissal of prejudice against parties who couldn't be located so what you're saying is i might disagree on how the amount is going to be distributed and that would have affected my thinking about that but that's not left open a settlement agreement  get the dismissal without prejudice set aside right and get the dismissal set aside it'll reinstate the lawsuit as of september two thousand and two the two plant remaining well actually all the plaintiffs i mean w because because if you don't convince me that there's some potential out there it seems to me we're just telling it one else and i mean what's the real potential for an additional suit ok the problem is that one of the put the plaintiffs can come back and say wait a minute collings worth one of the defendants never signed the stipulation and therefore he is not we didn't enter into a contract with respect to mutual releases the two releases mutual dismissals waiver of future future claims under and that the enforcement of the agreement was going to be retained within the jurisdiction the district court that's the only thing left here one of the plaintiffs we come back and say wait a minute i didn't know the break i was getting so much money that was concealed from me by the plaintiff no idea i was giving up my claim he can hear he can file a motion under sixty the i don't know you know the one here i said in my in my brief and it doesn't harding carding to you at the time barred and i'm sure that's the position you would take if such a suit were filed isn't it i might do you want to say now that it's not well but i want to say what i want to say is a huge position has to be its time are right about th for and if we say that's all that's all true the only the only crawl you have is how the money is dispersed which is really none of your business i don't think it's time or i mean i think there's a year period that i think if a plaintiff comes into court or client comes in court and says i didn't know any of this i was defrauded i'm still right being represented by this journey which they are i think they can go beyond the one year but they can also files every collateral action seeking to set aside the dismissal th could counsel suppose suppose that the trial judge decided that the case is still pending there is no final judgment to stalk claims and all parties and he's going to reconsider or perhaps reopen under rule sixty his approval of the settlement that he thinks that it was hastily arrived at because the possibility of punitive damages was great in the case and the case really should not be settled for that so even a cade's is that order for approval could the plaintiffs now come back and ask to white for compensatory  we don't we don't need to explore all the others and you for the questions i just would like to make a comment that the settlement agreement which is in the record the e r on several occasions and several in several locations but the money actually has to be paid on page two fifty eight for example