to be old school at least one more time this case has been around it's you know we're waiting the th circuit's decision on two appeals that are going to be argued orally on the st of june and as you've seen in my papers we've said that it makes sense at least to me and my client that we take a pause not really in our favor certainly but at least pause and see what the th circuit had to say because the issues that they're going to be deciding rather quickly are going to be issues that are very important to the decisions of the appeals today and you know i would certainly encourage everyone to go forward today with our oral argument but as far  then there will be some issues in this case that will become the law of the case as per the th circuit and will have a bearing upon our ability to resolve the issues in these two appeals d and before you today so that's that's my initial request it's just a respectful request and just common sense i think and saves time and energy resources but that's all i have to say about that we also are arguing go ahead i'm sorry so so then of course we have one of the most important issue that the doctor merger and i know you're familiar with that i've heard it discussed in the case before us and obviously our position is that the  judgments merged took the sub contract and merged it into those judgments so that there was no further ability court judge kaufman to make rulings especially based on attorney's fees due to the doctrine of merger  you for a nd and that i mean there's there's kind of a variety of different ways of phrasing the merger doctrine under california state law some cases do have the broad language you're talking about but others say the specific claims that were asserted under the contract merge into the judgment and the remainder of the contract survives which of those two hundred should we follow and why well obviously the case that i into the stake or judgments and it makes sense because otherwise i think you would have multiple prevailing parties and a lot of confusion not a lot more litigation a lot more back and forth which is happening in this these very attorney promotion until i don't know maybe once audio gives up or the court says we don't want to hear anymore just stop doing this but but it seems to say that the thirty santa barbara says listen the the some contract as far as attorneys fees are concerned merges into the state court judgment which dealt with attorneys fees both sides had a chance to brief their arguments the matter went up on appeal to the the court of appeal in the state of california which also agreed with my client were good and the firmed the rulings so that should be it and then we get back to the the question of whether five hundred and twenty three allows for further attorneys who is in the i heard the case you just were discussing and again that will apply here if twenty three is exclusively designed to we don't decide how the cases are going to be argued and this is an unusual confluence where we have two cases with some overlap in issues but your case is different it's pretty clearly not a consumer case a five hundred and twenty three d the provision we were talking about which does shift some fees under the bankruptcy code doesn't exist here so all that discussions are relevant to this appeal there's there's two other distinctions i think well there's there's a multitude of distinctions factually they're very different cases but one is doesn't the contract have an anti merger provision a survivability provision of the attorneys fees provisions and how does that i can i can guarantee you the california landfill contract doesn't but this case does and then there's also a nd agreement that you intervent to that has some specific attorneys fees provisions too so can you talk about the surviv in the st contract and the attorneys fees provision in the nd one and why those are problematic for your position i appreciate that let me go in reverse if i may let's talk about the stipulation i think that's what you're talking about as  was prepared by me it was prepared at a time when we did not have to make any applications for turning fees against mr davis because he was in bankruptcy and that's one of the interesting facts that beginning well that's just not true and we've provided evidence that mistreats very did not come into the case until almost five years later and so mr to vera saying well i participate in the stipulation and i know it covered all attorneys again that's just not true and here's how it could be true if we had applied for attorney fees against mr davis who was in bankruptcy when the application was filed it would have been denied if we had received an award of attorney fees against mr davis and been paid it would have been a preference we could not have perceiving down that path which is why in my declarations i said i carefully carved out all of the attorney's fees from two thousand and five until two thousand and ten which applied to mr davis and those are the attorney's fees that we were requesting not anything that was part of that stipulation the stipulation could not have included the davis attorney's fees because he was in bankruptcy and there was no provision to say oh by the way even though mr davis is in bankruptcy this stipulation also applies to him it simply did not and it couldn't have because as i say there was some four hundred thousand dollars that have been carved out that were front of her said he did that he was counsel of record from the beginning of the case which was not true so again my point with regard to the situation is it simply does not apply to these attorneys it only applies to the post petition  charges that we would have been trying to recover against the other defendants not mr davis and subsequently only after the trial was this this case a year ago did we st and only ever ask  from five to ten against mr davis so that's that's one of the provisions that i think you would ask about and the other provision with regard to the survivability of the attorneys fees in the underlying contract the the issue is again i think you've seen is that there were no parties to that sub contract other than my client and t o nine which was called itself owner builder even though it couldn't have been owner builder because there were ten houses not less than four and owner builder only applies in cases where you're building houses and offering them for sale if you are in fact the owner builder the court specifically said one you are not another builder you never have been you never will be and you're also not licensed on top of that so then you go back to the contract and say well who's the contractor and the court of appeal and i think even judge kaufman pointed out that there is no contractor and i think i think we are to the kind of break in here i think you're down to five minutes for one thing but also i think you're talking about issues that were before us in a prior appeal and are now before the th circuit were what we're really asking about is what about the provision of the original agreement that says it's provision survive a terminations of the agreement what's the effect of that in turning t thirty two which require reciprocity there was no reciprocity here because there was no signature to the contract the only person who ever signed the contract for the the other side if i can use that word was mr davis in a representative capacity in a sign for himself he signed on behalf till nine so there is no ability for mr davis or anyone else to say oh but this survived when they were not part of the contract me just summarize if i may for a minute if i can obviously we hear talk and that's whether mr davis has standing to challenge the attorneys fees because the five hundred and twenty three action had been decided had not been appealed and became final before judge kaufman made a ruling saying that there was still a claim against mr davis therefore he had standing we contend he did not have standing because at that moment when the judge  not doesn't matter but they're my built i thought of we don't have that in this case we don't know who they were built to but we certainly don't have any evidence that they were guilty mr davis and thank you all right you're going to have about twenty two and a half minutes when you come two doctrines the court that the court lacks jurisdiction and the law for his doctrine that this court is kind of stuck as to whatever it cannot change those rulings and there is nothing else that bankruptcy court it sought for unpaid voices in voices in the prince of claim site for unpaid attorneys fees and then it's claiming a merger so if it really if there were really a merger and it could never ever sought for unpaid bills and attorneys fees as they're all merged into the judgement but what if you i didn't and the only time if you i brought up the merger doctrine when was unsuccessful on the proofs of claims unable to get those other invoices unable to get it turns he's now he said oh ok now well now there's just been a judgment merge and we're going to go forward and just say the judge there's been a merger and unattractive but this is not a case where this huge issue of stoppel or similar doctrine because a p i never prevailed on those claims right so although they are switching their ground people are entitled to do that sometimes litigation aren't they yes they're entitled to it but i'm the whole point here is it even if yes they're entitled to but nevertheless i don't they don't really believe that there's a doctor merger that applies here because  a for a defendant i mean the restatement talks about merger it says the plaintiff's claims and the defendants defenses to those claims merge into the judgment but it doesn't talk about purging any other claims or rights t the fed that might have ended the judgment because the defendant didn't break the complaint that gave rise to the judgment does that does that distinction apply under california law and does it make a difference here if you understand what i'm  never have merged into a judgment so there couldn't be a complete merger in this case if that's what the court was driving at because there are claims that are simply undecided in fact that's not professionals still pursuing that fraud claim court that wants to proceed forward on that plane but it's still pending out there so it's clear with that front line up there that there is not going to complete merger of all the claims in this particular judgment but the right to attorneys fees in this case it would be tied to the contract claims right would there be an independent right to attorneys fees add to the fraud claims yeah turns he's come from the contract but they also come if you recall from the state court judgment the state court available and so the private client so the judgment actually preserves that right you're saying yes the judgment itself preserves that right and i also believe nevertheless that that you can still get attorney's fees under the much easiest argument alter ego mr ford lee still is attempting to confuse i think the course the alter ego is a good thing that it is mr davis some rights even otherwise had alter ego is fraud it's just something that if the court sees it is the last minute of the last appeal the court can say wait a minute we don't have jurisdiction to hear this there's a good name merger so the argument that it's too little too late again does not apply to this case  with regard to the th circuit pending mr ford they made my argument that we have things pending in the in the th circuit that will impact this case and so we're stuck i think his words were we are stuck well if we're stuck then it seems to me that we should hang on for a short period of time until the th circuit makes its ruling and then issues will either become result in this case one way or the other so i really don't think that we need to be concerned about holding on because nobody's going to be hurt we have money paid and the bankruptcy court we submitted an document showing that we have over one hundred thousand dollars in excess of all attorney's fees awards that have been paid and to the bankruptcy court as collateral on top of that mr porson has linked all the equipment to small professionals in order to have additional security and even though we've requested that elian be released that's never been done so mr portly has leaning against millions of dollars of equipment as well as extra one hundred thousand dollars of money in the bankruptcy court and has been paid as security for a stay pending the outcome of the appeal so your owners and i think it just makes sense to me to just wait and see what happens with the th circuit but again the fees i still want to make the point that the attorneys fees those those invoices i could never imagine getting paid on those invoices that don't show who they're billed to or that the person at least come with comes forward and says they were billed to me i reviewed them i saw them i agree with them whether pay them out doesn't matter but at least they were billed to me there's no evidence that those fees were billed to mr davis