could let you know when five minutes is there please proceed thank you again my my concern is when is enough enough we have mr davis who i think it's very clear in his statements of financial affairs is schedules took liberties with the facts the truth he did not disclose the fact that he had participated in a meeting just some nine months before filing which diluted shares of stock in a company called s nine hundred ninety nine thousand shares which had a value of one dollar per share and indicated that he didn't feel he had to disclose it because the effective date of that meeting was actually some twenty two months previous but state court found and this is what's complicating this a little bit is that we've had a significant amount of litigation in the state court significant findings which are finding race to the current collateral stop are is are the binding my understanding of california law is that court always has discretion not to apply preclusion principles if it would be unjust or otherwise inappropriate well your honor except that factual issues i think once they're found by the state court especially in this case were judge kaufman said go to the state court deal with what you can there we filed a motion for lee from state we can write we could have been denied that motion it was granted we went to the state court spending and credible amount of time there and then got to the point where the seven twenty seven action was tried in the in judge commons courtroom and ruled against us and then we went we're going back to the state court to deal with the five twenty three issues which were appeals we have another appeal that we just filed briefs on monday of this week my opening very so it i'm sorry i thought it was a signal to me or something you can the state court decisions basically preclude related cation of all the questions under seven twenty seven five twenty three and my question is there's mental state issues in both of those claims intent knowledge and such how do the state court findings were made to date have precluded of effect as of those specific questions of mental state that are presented or seven hundred seventy five twenty three be the actual issues of the mental state i'll agree with your honor could only be educated by the bankruptcy judge however the bankruptcy judge did say we're not going to re litigate those facts you're not going to go to the state court and get a bite of the apple there and then come back in my courtroom and have a second bite of the apple agree and but for preclusion to apply it has to have been necessarily decided in the state court we know that mental state the requisite mental state wasn't necessarily decided in the contract claims and th is going to find another retry those issues no no i'm not i'm not saying and i'm not being clear i'm not saying that she she to the extent something was necessarily decided in the contract action that there a contract and a br and to the extent that's relevant to the frog claim that will come in and be entitled to close of effect on an adjudication of issues but for you to win for you to get a reversal she has to have the rangana number of things one of which is the mental to alter ego there are seventeen different factors that have to be decided many of which do deal with the intent of the individuals and in this case they were all decided in our favor every single one was the side of the durned davis knew what he was doing and did it anyway and if you want to jump to what happened in the in the bankruptcy court we can do that because we had mr polls our expert the only expert who went over the records and said based upon his expertise training  experience that baron davis should have made disclosures at least about the as bill drawings he at least had a duty to do that and our expert said based on everything i've seen there in davis knew he was withholding it there was a letter from m who was the engineer to mr davis and in that letter he said you've got a problem with these ad billed as bills if you don't get a new survey it's going to be a problem it's going to cost a few thousand dollars but i'm not taking responsibility for it and i got say i find it unusual to have an expert witness on a question of another person's intent the less this person is clairvoyant or something how do they have expertise in figuring out what's going on in somebody else's head well the jointer circumstantial evidence is really all we have no one's going to come into the bankruptcy court and say i did it sure i mean i agree with that but in the expert testimony on that i by the expert was looking at what he saw and he would in his in his opinion his expert opinion he said i don't know how mr davis could not have not intended what he did he knew about the as built he knew it was not disclosed and yet he was told you're responsible for it you should disclose it and there's nothing in the record to show that he ever made that disclosure in fact during davis said himself i never disclosed that because i didn't have to it wasn't on me and then we have the issue of the license or again mr davis says you know i knew i needed a license but i didn't disclose it and have a duty that ok there was a duty to disclose he didn't disclose you still have to get to his state of mind and it has to be done with fraudulent intact not negligence not mistake of intent and the judge didn't find the requisite fraudulent intent and and yet your honor the gross ness the of the conduct can certainly get us to only in ten if we have a story here that's open and the street was in fact open we had blinking lights on it and there was a pit there the cars were going to drive off into because the elevations were not even and mr davis took the position that's not my problem and of course there's a clear error standard interview on those kinds of points because he's making a finding of fact of what was in mr davis it don't you have to overcome the clear error standard of review well i yes i do your honor but i do think that based fact of everything we did in the state court and i know you know there's a question about how much of that carries over the to the bankruptcy court but based upon all of the findings that our expert looked at that our witnesses testified to mr davis knew what he was doing he had done this for years this was his way of doing business so has it so let me see if i understand you what you're basically saying is if you look at these two  resolutions the second resolution is sort of funny given what happened in state court how could i when all these issues in state court and then have the trial judge say well it's just an innocent problem  isn't the problem with that it could happen to judge this look at the same set of facts and at least on this one ultimate issue come to a different conclusion and that conclusion is inconsistent what the other way but that's the problem is that another judge may have agreed with what this judge had evidence she chose to accept that have it and that becomes so finding a fact and it becomes a very difficult thing on appeal for you to overcome that which is why we go back to the seven twenty seven issues yards which were tried first and tried by judge hoffman first and again in the seven twenty seven forum judge kaufman found that there was not enough just show that he intentionally made omissions we shown your honour's all the way from his schedules this was the second bankruptcy filing he had counsel and he made blatant emissions and he schedules that only were corrected when i pointed them out then he ran down and amended them only because i pointed them out after this litigation was started we also have mr davis saying you know the issue of the nine hundred ninety nine thousand shares we have the canoga commercial issue where he sold property sixty days before and within that sixty day period one hundred sixty or seventy thousand dollars paid some to his mom used it to pay some of his debts and didn't disclose it i mean that's a willful omission he didn't disclose that he that he had transferred their property then we have the mojave property and he says simply mojave i just didn't was it i i i had it yes you're right you got me but i just didn't disclose it so we have three significant pieces of property and then the smaller entities like d r d which were simply not disclosed d n a s development simply not disclosed and that leads to what the trustee found writes the trustee found that there were under slows assets which have now been liquidated to two nearly five hundred thousand dollars if this is ok if this is ok for a debtor to say i didn't think was important it's no big deal in the trial and i suspect that many many judges would agree with you on those issues unfortunately the judge who tried this issue saw the evidence the other way you've kind of a funny result given the fact that the other here poena did so well in state court and prevailed in early difficult causes of action where the state court judge saw it his way or his client's way and then for that then he comes to bankruptcy court and the bankruptcy court says well given all that i still don't think you really intended to defraud anyone you know all three you go is really it's not about fraud it's about wrongdoing in terms of  to recognize and so on the follow follow the corporate formalities and that's what happened there were transferred monies back and forth between different companies and that the court determined was wrongdoing because it left the entity that owed the money with no money to paid the debt and the court said you know you can't do this this is going to this is not that they intended to fraud anybody they're moving moneys around going back and forth they were just not as professional as they should have been with the end and the end of the day  the creditor here was paid in full one hundred percent which brings me back to that payment was made in june of two thousand and thirteen payment in full so opponents counsel talks about so he should have gone back to state court back in two thousand and thirteen the latest he requested a trial to do the trial on the on the fraud claims and he still could do that right he could still do that right but he never has and that was the whole reason in this case we allowed for motion for lee from stay on in september of two thousand and ten to lie down to go back to the state court he didn't do it didn't do it the judge was paid in full in june of two thousand and thirteen he's still in go back so we could have gotten these findings in before apparently a favorable venue but he didn't do it and that's that's how the case ended we both got forced the trial because the findings were never determined state court be as to mr davis maybe to some of the other defendants as well this is more of a common than a question it does seem to be like your client dodged a pretty big bullet here and there is a point at which error can be clear i mean well not not here the again the state court never determined any didn't know i need to do that but some point many judges would find that explanation just doesn't wash anymore there's just too many supposedly innocent errors it's true if you if you if my client had two or three different elsie's it be one thing but my client going on and i think the judge took that all into consideration that yeah it's understandable that he may have missed a couple of things and when he didn't this time he promptly mended sketches and put them there to give the trustees sufficient time and the creditor to question state has not suffered as a result of that so as to schedule the particular asset and that's what happened here for example you know the trustee looked at everything and when something was amended trust a little leaguer canoga park and took no action on that three minutes i'm glad you encouraged me to take the three minutes first of all schedule g is a problem because that was pretty pretrial discovery i asked for documents that are says i have no documents at all then a trial he shows up with schedules which he says shows that his assets really have no value he didn't amanda tell as i said before after i pointed it out to him and he didn't amount at all on mojave he didn't imagine on commercial when you say schedule g d b to exhibit g yeah well which was you said schedule g that's what i meant exhibit g which was in that on the exhibit list proport before trial yes it was that was it that my i had requests for production of documents his response was i don't have any documents right those were trial exhibits bank statements no no the only thing that i'm saying was on was my request for documents and his statement there are no documents it was not until trial after i had examined him that council produced exhibit g mine and exhibit g was these financial records that i'd never seen before that the court never seen before that he said well these financial records they show that i have no value in these assets which the those records could have been prepared the night before but i wasn't given a chance to look at them to depose him about them to find out more information because i didn't have them and i think that's a problem as i do for counsel to say there's no damage is just not true we put on evidence of unpaid invoices we put on evidence of waiting time invoices we put on evidence of material that had to be sent back which has never been paid and that was the last day of the trial your honour's if you look at the transcript that argument just doesn't hold water we have a claim but as you indicated your honour's we have a punitive damage claim which is going to go away but if you if you got a judgment already on your contract damages claim wouldn't that preclude these additional what sound to be like contract damages no because we only could we were limited to mechanics liens but they were all based on mechanics liens and the four corners of those we can explains governed how much we could ask for the mechanics of these were recorded before the lawsuit so we have mechanics liens that say x and we have all kinds of damages that follow those mechanics liens we were not allowed to put on that evidence in phase one that's what was going to be saved for phase three along with the fraud cause of action the extra damages also wanted to say that the the court did rule in finding the alter ego that for us not to find alter ego would be to sanction a fraud i know that's that's not binding on the bankruptcy court but that's the mind of the state court if we don't find alter ego against mr