findings those findings are entitled to clear deference from this court the principle argument that you for us made below one liability was  there there was nothing fraudulent about g four s is good probability email which is principally issue here and the reason is that supposedly that sentinel had asked only for the views of justice  management about their expectations for the north carolina bid that with out for out for consideration for us argues that because justice is c the good probability language that the email actively reflected the views of justices management this is this basically an evidentiary challenge can't prevail for a couple of reasons it ignores the evidence in the court finds that this from a good probability representation was not the sole basis for the fraud finding a trial court expressly found that the good probability email was contract didn't comply technically with the requirements of the agency there are three specific respects that justice was aware were not in compliance they admitted that noncomplian email he knew about the noncompliance he'd been told about it by justices present martin also martin told jorgensen  when she asked for his input on what to say to sentinel about the bit martin told her that he he thought it was only a four thousand and fifty percent chance that justice would prevail  and so so we have two issues here we don't have just the affirmative good probability representation we have it compounded in the evidence by the total nondisclosure of the bits noncomplian the record in someone that substantiates that the probability male is not to saw representation at issue and that organ in any event knew it wasn't true based on the information she'd received three exceptions to that mere opinion rule that apply here and are supported by the evidence there's discussed in the new vision case and the pacesetter decision cited in the brief the st exception makes it clear contract when they gave it to him in due diligence they told them nothing about the bid accepted the bid was out there and they told them only that it was it within the top fifteen contracts they had when it turned out it was just it was the single most profitable contract that justice had the nd exception to the mere opinion rule that supported by the evidence is that the party expressing the opinion does not in fact hold the opinion and basically as i've already discussed we know that martin didn't hold that opinion that it was a good probability and that beach knew that it was true the rd exception is where the statement is sent it is an affirmative affirmation not a casual statement that it's intended to meant to through alliance and the evidence shows in the district court found reciting the standard from alliance and the stout cases which is the standard in three thousand three hundred and forty three and the evidence we put in completely tracked the loss of value measure and the additional briefing a final point on that on that issue is that well what the proper measure of damages is is an issue of law for this court to know review and it and  should straighten that out the law says whether regardless of how it was presented below so even if you feel there was some confusion in the measure of damages proposed ok acord had in front of her at least in part at rest in part so how can you say the district judge erred in that when you that was part of your claim with trial it was a district court the district court judge had both both references to to the two different standards before her and and it's frankly well and good for us was arguing three thousand three hundred and forty three which the judge did not apply and we presented evidence consistent with th that's correct right now st of all what is the standard review and why did the district court or well but what is the standard review in your in your argument well i think i think she should the calculation of the amount of damages is is a discretionary issue but i think whether she played the wrong standard is a legal issue de novo and i think she applied the wrong standard because she  and gave reasons for not allowing it correct no she did describe that we went and had to get mezzanine financing and what the evidence is on that issue is that that was more expensive financing that we had to get it in  to make the extra you know in order to come up with the entire purchase price if if we hadn't had to pay for the for the loss in c d o sea contractor the value of that contract we've been able to reserve that we would have had to get that she didn't she didn't consider three thousand three hundred and forty three as how she was going to calculate damages so i think it's a methodology issue an issue of law as much as anything her actual numbers are obviously  for two reasons one is she she arrived at that measure by concluding that she had to take into consideration in amount of damages what the risk was that we knew about but the point we made in our brief your honour's is that if you of whether there was increased risk and whether we knew about some risk which we clearly did is in if you that doesn't go to the amount of and that there was a good probability they'd get the contract but they assured us in fact so that risk just goes to whether that was a misrepresentation and  can't detract from the amount of damages a consideration of risk that is part of the liability findings so that's the argument we've made on that and there is no there is no evidence to support the measure  dollar of the contract and done it the same way but there's no evidence to support that they would have done that and the evidence is that if we'd known about what the hell withheld from us we either would basically the centerpiece is case in the minor case control the confounding arguments that g four s is made on attorneys fees are based largely on the sue case and it doesn't control because it involved only a contract claim and sente says and maynard make clear that where you have a broad contractual attorneys provision in have mixed tort and contract claims that recovery properly recovers those fees as prevailing card and and that simply stated is the asked the representative of g four s susanna jorgensen what was justice his management opinion of the likelihood of some bids are out there coming in so just to understand i think this is important i think arguments have a tendency to lump together g four s and justice souter's and those are separate entities even though for us even though just as a subsidiary of g four s there are separate corporate entities there was no allegation of alter ego alleged or found in this case of the need to be considered separate g four s as the parent had no detailed information about the business operations of justice susanna jorgensen the representative of had no detailed knowledge about the business operations of justice that is why when sentinel c e o asked what's going on with some of these bids that are out there mr both the president of sentinel and miss jorgensen knew you have to ask for the opinion of management of justice so when the president of central asked the question he said susanna can you give me the opinion of management of justice on what is going on with some of these outstanding bids because part of what was being purchased here is not just the existing she was not credible so how can we really live on anything she said i comply understand completely that was the finding that was made by the district court the argument we are making here actually does not re relies on does undisputed evidence in this file and in the case there is no evidence of any kind that chief or s or mr jorgensen had any specific knowledge about the likelihood of justice securing the north carolina department of corrections bit so that is why miss jorgensen has to ask the management of just as to get the answer to that question and when you look at the e mails here e mails that of course no one ever thought would be exhibits in a trial you see her trying to get the answer to the question in a very honest and straightforward way she asked the folks who are running justice what are our chances of getting this north carolina bit we're garbus of any determination about credibility the e mails are undisputed and the fact that g four s in this jorgenson didn't know anything about what was going on with those north carolina bids it's also undisputed so she asked the folks who know the president and the c e o of justice and that is exactly the people whose opinions were being asked for by the c e o of subtle please ask darrell martin and late beach respectively the president and c e o of of justice what they think the chances are so there was an exchange of e mails darrell martin and blake beach both contribute to the e mails ms jorgensen looks at those e mails decides that there's a good probability based on what she sees of justice securing that north carolina bit but she doesn't just stop there because she's trying to be as honest and straightforward as possible with the information she's presenting she goes back to mr martin and mr beach the president c e o of justice and does this look right to you i'm saying good probability how do you really think about that blake beach says looks good to me mr martin says thanks for clarifying thanks for clarifying on that and in fact there's no dispute in this case mr beech testified at trial he believed there was a good probability of getting this of getting this getting the contract from north carolina and not only that even sentinel concedes that mr beach at meetings with sentinel was touting how he felt very good about getting that client that really doing the bid with the north carolina department of corrections mainly because in this business being the incumbent and is hugely important and just as with the incumbent for north carolina so given all that and putting aside any credibility issues the evidence is undisputed that g four s and jorgensen did not know the state of the north carolina contract justice did sentinel asked for justice his opinion and miss it repeatedly with justice to determine what their actual opinion was what happened here was respectfully the district court substitute its own opinion of what a good probability was for the opinion of justice management even if you accept settles testimony that we have to don't we have to i understood and i will accept that your honor even if you do accept that there is nothing in centinels testimony that can testify to the internal knowledge of g four s or susanna jorgensen forty four s about what was going on with the north carolina contract so one can only testify to what they know about their personal information and they had no understanding the only had a forty to fifty percent chance of securing the contract nobody communicated that to anybody at sentinel instead they communicated that there was a good probability of getting the contract and the court was very specific in weighing the explanation that jorgensen gave at trial as to why he communicated that there was a good probability that was with the credibility finding i think really comes in without being present and being able to observe mrs jordan since that demeanor i don't know how we can question it at this point with the standard review that we have to work with understood your honor i will just i'll move off of this but i will just in summary i just want to say that the credibility doesn't impact this issue mr jorgensen was asking for the opinion of justice management in undisputed e mails because she didn't have any information so therefore whether she's credible or not she is passing on the opinion of justice management which is all that said ask for so therefore how can that be a misrepresentation it's really she is just passing on of the opinion of those whose opinion was asked for and it was just basically she was acting as the middle person here  essentially regardless of credibility she's passing on the opinion that is being asked for under those circumstances that can't be that can't be a misrepresentation there's no evidence in the record as the information that they only had a forty percent chance of securing the contract i think we'd be looking at a different case your honor i under i understand the point however after she changed the language from forty to fifty percent a good probability she ran it by justice maj and they said looks good to us she vetted it with them she didn't just pass it all without asking so therefore the good probability is justice is opinion and if that plate beach the c e o of justice at the time testified at trial he believed there was a good probability of getting a north carolina contract under those circumstances i don't see how the measure of damages the trial there's no question about iran an excerpt of record two hundred and sixty nine it is the only statute they cite in their section to propose findings of fact in conclusions the law with respect and with respect to damages now let me ask you the same our in our brief on this that the standard on this is really whether or not the damages are are proximately caused by defendants conduct and that is an analysis proximate cause you need clear error to overt a district judge had refused to consider that that would be that would be an issue of law and we don't want to reverse correct well i think the biggest review judge did to consider and you can see that the district or you use the correct standard correct that the judge consider everything that was presented to them including interest and determined that the expert calculations that were done as well as the damages theories that were put forward were excessive and record that the court refused to consider that what the court did was it looked at the damages analysis of the central put forward at trial that they were damaged the amount of five million dollars plus about four million dollars about four billion dollars in interest the four million dollars the interest the mezzanine financing interest is based on the five million dollar damages conclusion so when the court threw out the five million as being at the court that excessive and completely lacking in support the interest calculation went along with it so i don't think there was any lack of consideration of it it's the the principle amount upon which the interest was based was thrown out properly by the district court and the district court decided that you can't the expert analysis that was used by by sentinel in this case was the court found completely lacking in evidentiary support and improper in factually improper the court said that sentinel went into th deal knowing there was a risk that the north carolina contract would not come through that's undisputed it was out for a bit right the expert analysis that was done by sentinels expert basically value to the entire contract at five million dollars and subtracted that from the purchase price the court said you can't do that the court says that that the amount they're exceeding seeking is excessive and completely lacking in support since knew the north carolina contract was out for bid and possibly they would not when the decks the different proximately caused can't be the full value of the contract this is excerpt of record ninety one so what the court did was it try to reasonably evaluate what the value was of the risk of not getting the north carolina contract and what it did was it adopted the damage our alternative damages analysis of our expert mr szell's who said if you look at the purchase contract there was a specific paragraph that says if certain contracts which didn't include north carolina if certain contracts don't come through here is basically the refund we're going to get you the adjustment we're going to get you on your purchase price and that came out to firm then we have no complaint with the damage than alice's as done i'd like to turn to the other bases for across the people which i could if i could which is that the court improperly determine who with the prevailing party here for purposes of attorney's fees here the standard should be even though general are generally all acknowledge that attorneys fees awards are reviewed and are an abuse of discretion standard however under the e e o c versus bruno's case if the court applies an incorrect standard then that's abuse of discretion and this court reviews it to novo here the trial court disregarded california supreme court authority to determine that sentinel was the prevailing party because it found that it had a net monetary recovery on tort claims that is not what you do in these circumstances the starting point for any analysis or for contractual attorney's fees is who is the prevailing party under seven hundred and seventeen it's the holding is the party who is determined to be the statute reads the party who is determined to be the party prevailing on the contract shall be entitled to reasonable attorney's fees the california supreme court in the suit case said we examine the legislative history of the terminations prevailing party for purposes of fees to be made is to be made without reference to success or failure of non contract claims it further head said the words quote shall be entitled the party prevailing on the contract receives attorney's fees as a matter of right the trial court is obligated to award attorney's fees in this case there is no dispute g four s prevailed on the contractual claims there were contractual lawsuit the court in both sue and sente says says for purposes of an attorney's fees award on a contract when there's a contract involved the only thing you look at is who prevails on the contract claims you disregard the tort claims for purposes of a to revisit a couple of points first counsel repeatedly referred to the requests for information made by sentinel is a request for management opinion actually was a request for management's expectations i think he's trying to pull it into the nine actionable pinion around but i think the exceptions that i discussed with you make it clear that it is actionable in the trial court i think his discussion of trying to support mr organ seems good probability e mail doesn't work principally because of her very clear credibility problems but the fact is that she did not pass along what justice is management told her because martin who is just this is management told her that there was only a four thousand and fifty percent chance that the bid would succeed  o at a minimum she she changed that she did it for her own purposes which the court found to be not credible as to be each the fact that beach said he thought it was a good probability beach did not disclose anything that he knew about the nontechnical the technical noncompliance of the bid and the evidence was undisputed that he did know about it nobody nobody mentioned  it and so although martin said martin testified in can in telling jorgensen there was only a four thousand and fifty percent chance he was taking into account his knowledge and his concern about the non compliance of the bid as it relates to the court's question about what we argued on damages i specifically like to refer to the court to excerpts of record v towards we also then quoted from alliance instead which specifically identify the following correct amex measure the measure of damages for the fraud or parties out of pocket lust directed to restoring the plaintiff to the position  e before the fraudulent transfer awards the difference in value at the time of the transaction between what the plaintiff cave and what the plaintiff received those are our proposed findings in those paragraphs so i think more  involved only a contract claim there was no other tort claims so whatever the souquet said about when seven hundred and seventeen applies or not doesn't really help us in the context of the mixed mixed claims thank you very very briefly on earth with respect to the allegation that mr beech did not disclose the technical noncompliance with the north carolina bid mr beach understood that he took that into account in telling  jorgensen all in all i still think we have a good probability of gaining this contract primarily based on the fact that they were the incumbent so whether was disclosed or not disclosed is not the issue the issue is whether was just as his management opinion when you consider everything including the quote unquote technical noncompliance there was a good probability and there's no dispute that was mr beaches opinion both in the e mails what he told ms jorgensen and what he testified to a trial with respect to a respect to the attorneys these cases counsel argues the suit case is not applicable because it only deals with contract the holding in the suit case specifically says that when you have a victory on a contract claim there is no comparison and you do not take into account any other victories in the case on non contractual claims on tort claims under civil code seven hundred and seventeen the only thing you look at is the contract claims to determine who is the prevailing party similes with santi says in that case while the section that counsel quotes is accurate it's out of context what happened in santee says was that the contractual claim was dismissed prior to trial and under seven hundred and seventeen dollars that means there cannot be a prevailing party for purposes of attorney's fees when the contract claim is gone then you can turn to whether or not a tort claim under a contractual attorney's fees clause might entitle someone to attorney's fees under a sort of a more general pragmatic litigation objectives the termination that did not happen here contract claim was brought went all the way through trial g four s prevailed under through and santi says the court was mandated to award attorneys fees to g four dollars s under seven hundred and seventeen that is not the analysis under sue and sente says if you have contract claims and you have tort claims for purposes of prevailing party on attorney's fees the only thing you look at is who prevailed on the contract and you do not take into