the last case on for argument this morning is sure when williams company first says j v collation services cases one six dash five six five six six and one six dash five six five eight eight so if you can come forward on that before we start the clock so i have just a couple of questions of counsel so each side got twenty both counterclaims this well so it would seem that you probably have a little rebuttal time is that my understanding  here they are they are but i just want to make sure or so even though i mean i guess all make sure that i don't want to go back and forth back and forth and back and forth but by the same token it would seem that you might each have a little  that you each have one counsel arguing for each side is that correct and then i have one other really hard question that how do we pronounce mr  mr taska all right so it would sort of make sense that i think you go first all right so if you would approach the podium state your name for the record and tell me how you want to use your time thank you  this case i think is unique in the sense that the last time the ninth circuit it appears that the ninth circuit addressed the matter like this was in one thousand nine hundred seven with the central office telephone case but then there hetzel case came about in one thousand nine hundred eighty and since then we've had some of the case of so in short in brief on this particular matter the issue that we're here on is the and just so the court's aware of that don't think it's clear in the record we had six jurors in an alternate and a judge judge up perms required that the alternate become part of the jury for purposes of of deliberations and so we had seven members deliberate and all seven came to unanimous verdict on the issues that were about to discuss that and that's important because at the end of this case for fraud and the one point two five million for intentional intentional misrepresentation and the one point two five million for the negligent misrepresentation they came back and they are firm unanimously that that was a verdict those were the amounts for each of those claims then they were polled and all seven agree agreed that they this was their verdict this gets to the heart of the case because ultimately judge burns in our opinion nullified the verdict of the jury even after that occurred so we have to look back at the words of the seventh amendment and without reading them unless we need to do that for the record essentially this case i can explain central office having to deal with a lost profit case had an expert testify and the court as a matter of law in that case found that there was no evidence at all to sustain the expert's opinion because the expert admitted that he had made assumptions that's not the case here we produced evidence so much evidence in fact that the court found in all favor on the fraud and the intentional and the negative misrepresentations and that's a major difference in addition the hensel case then came out the year into his contract we have a what they call a p q r product quality report in which a body shop in orange county california had died back not to want to two cars but according to itself it's internal documents of the cars they never told mr test about that their product was defective before he purchased before he was locked into this long term exclusive contract to buy the recurring because look your honor there are two different amounts said the jury clearly was looking at two different if if i had the opportunity yes that would be a better argument but it would be a better argument not saying you failed but i'm just saying it would would that not be a better argument certainly cars at two thousand dollars per car that actually your honor we asked for the total was thirty two hundred dollars per car times ten thousand cars all of which had died back that was the testimony that's the evidence it's actually comes to thirty two million dollars i am we my client on the stand i was asked by the other side and he said twenty million but that doesn't mean we weren't counting cars and that's the fallacy the problem with this case george burns did  from testing them that's a stipulated fact read to the jury and what do you read to the jury in closing how much you offer that how much for the for my client's distress financial but mostly emotional distress we have evidence and testimony about how showing williams was causing him this distress and because they weren't paying for the war to work and he was paying out of his pocket how is how much is really a totally with you that there sufficient burns with the simple question of what portion of this verdict shows any identifiable amount i will tell you it's in the record but it's not all good but in the record that both sides did  submit special jury verdict forms i think between the two of us we had eighty pages and of course harry didn't say the basis of it all right if if that if the damages are exactly the same but it's two different theories then it's double recovery there's case law to support that correct if but if but it's but there are two different causes of action not theories two different actions conduct have for instance the sales person we don't know what contact what we don't have any special products right collect it's a general verdict we have people on the on the ground who were up for instance testimony about jose garcia and hillary castro who told my client well oh we think we think that is you're the only people who have this problem that's a negligent misrepresentation crusie didn't know but let me met with  hammond the vice president or the regional vice president he told them that oh we're looking into this we don't know of anybody else who has this problem but he had the particular specialized knowledge of knowing what was in our exhibit five seventy all of their internal documents and by the way it's not all systems that's what we put together we only had one off the court knows us but the judge allowed us each ten hours to try the case so we took a big body of documents and we made it into whatever exhibit five seventy s current had a new because he was involved as a matter of fact in think you know exhibit five seventy kurt having knew at the time he met with my client that company including the vice president of the whole company mr soul who actually comes to san diego and meets with my client and he knows what the results are and he lies about them there's a difference between not knowing and making the neg misrepresentations and knowing what's in them and then the fraud is different because they knew before he even entered into the contract they had problems and they had complaints and incidentally one of the  fix this defective product and then get comments within twenty minutes ask you argued for thirty two million or twenty million or whatever and they had entered twenty million or thirty two million on each of these exactly what you asked for with then you'd be entitled to sixty four million or forty million is that your argument would have done that because that would be that was the total i don't see how they could have done that and if they had done that i think that would have been a problem because they were didn't ask for that pay so how do we know how do we know that common sense is worth one point two five to five million and the die backs are worth one point two five million to how do we or we don't because it's a general verdict which is why judge burns judge burton said this i have the option to see what a reasonable jury would do and we had seven out of seven and if i can if it doesn't comport with mond view of the evidence then i can always reduce it by really minute or he's not committed to do that without given us the option of a new trial on damages that's that's really something what we asked for and he said it himself his personal view of the evidence  this but i can tell you this what he counted cars why did he tell cars i didn't ask the jury to do that that was what the jury instruction said jury instruction number thirty six it's for all hong kong that's what it says and drew instructions twenty seven twenty eight and twenty nine on the fraud that intentional clicks in the next inflection all say the same thing for all on cars that we have proven that's up to the jury we chose a jury trial we went to we went to trial the jury spoke and then judge burns counted cards he didn't have the right to count cars where he had the right to do if there were if it was as a matter of laws look at some identifiable quoted in the mix case it says it two types of legal error that permit reduction of the jury award without the offer in the trial number one portion of the portion of the jury verdict is for then a five dollar amount that is not permitted by law we don't have that in this case and number two punitive damages due process we don't have that means case the parties agreed to a general verdict the verdict was simple and that's what the jury made its decision on so respond i think that might help us thank you ron thank you did and i think the implication from that suggestion might be that the court is thinking of and you know directing that a new judgment the entered for a specific amount and i think your honor that that that approach is precluded by  a case from this circuit freud versus nyco med that's three forty seven f third seven fifty two and it paid to six seven sixty four things sixty five is a situation like this where the court had before it both a new trial motion he basically he basically said there was there wasn't sufficient evidence that it was speculative on the prospective damages right but if we look at the record and say yeah there's you know i mean i don't know what more could someone do in terms of they give you one hundred cars and they say that this is what happened they tell you how many cars that they did they have testimony that practically everything had died back and i don't know how i don't know how anyone could have a good reputation if every car that you do has died back and they have to bring it back so it would seem to me that you know they obviously don't have to call ten thousand people  evidence and there's always perspective this is speculative and not having an extract amount are two different things because the jury was instructed that it did not have to prove the exact amount of damages and muster term in damages that will provide reasonable compensation for the harm why isn't the hundred redos a reasonable compensation for the harm that he suffered and then the other evidence along there why when you put all of that together why to which is the thirteenth juror power which he could have exercised to find even if there's evidence sufficient to support this a smidgen of evidence i think it's not it's not supported by the evidence and as a thirteenth juror i think they awarded too much money here and i think there has to be every minute or with a chance to accept that or not accept that a new trial so judge burns did not exercise that second power and if you decide that he was wrong and l judgment is a matter of law then it needs to be sent back for him for another look on whether there should be a new trial and i'm glad you raised that because i've struggled with understanding when had to applies and what doesn't so maybe you can help me out here so if a judge says i find as a matter of law there was insufficient evidence of this then you would say had told does not apply correct correct if the dividing line is whether the judge finds there's evidence to support liability or not or whether he's saying yes there's liability but too much money in this case now walk me through this case what happened so in this case the judge looked at the different elements of damages that were passed repaints that had to be done there were some cars waiting that were painted there was you know a set amount for those two sets of damage damages but then there was a some prospective amount for prospective injury for cars that had to come back and be repainted the court what the california law the greenwood decision which says for those kind of perspective damages there's a reasonable certainty requirement and reasonable certainty requires more than just the prospect that some cars are going to come back with a complaint it requires that there be a showing about how many cars are going to come back and how many people are actually going to sue to enforce those rights to get to get their cars repainted and under greenwood the court said there's nowhere near enough evidence to meet that standard for two reasons first there's no showing about what percentage of these cars is ever going to come back because in the past nobody else has come in and asked for their car to be of people coming back to get their cars repainted in fact mr test this theory was for damages i want to go out i want this money so i can go out call people invite them in look at their cars and then tell them they need a new paint job and then i'll repaint their was there law of the circuit i think central office is a case of like ours we have this perspective injury claim under oregon law and the court said you didn't prove prospective injury to a reasonable certainty as oregon law requires and so the court said for your perspective injury porson the the thirteenth juror and then are you going to make the exact same argument and then judge brown just going to come up with his hundred radio argument is that i mean what is the right amount of damages what should it be reduced to be reduced in the amount the judge burns reduced it to because therefore if i granted a new trial he said at one point as in one of his orders then we were just going to reach the same place which is about six hundred thousand dollars of damages but if you're going to give them some money if you think there was proof of some perspective injury and they're going to get another bite of the apple on that then there has to be a new trial because judge burns well these doug burns has to have the chance to decide whether there should be a new trial before any of that amount is reinstate well so why can't tesco recover for reputational harm i mean there's evidence the evidence at trial showed that he painted approximately ten thousand cars with sure when williams a w x system almost all of them experienced back the ones with that back were rebuffed and repainted at no charge the customer in over one hundred cars were repainted due to the dye pack how does that not leave approximately one thousand cars painted to share one williams a double you x that have yet to be repainted so then you're going to go back and make the same argument and he's going to do the same thing on them we'll be right back here saying that he's still overstepping as the thirteenth juror but first of all your honor again i mean judge burton seems to have an idea about how this should come out judge burns found correctly that there was no evidence of reputational harm how can that be because reputational i mean to you it would require some kind of showing that before he started using this paint he had a certain reputation in the community and after he began using this paint he had a different reputation that kind of implicit though in a case like this where you're you're the guy who guarantees a good paint job except all of a sudden it's a bad paint job i mean there's a company to that man i mean the there has been some evidence from somebody saying mr test his reputation in the community has gone downhill even mr tested did not say that there was a single e mail in which he said the surnames my reputation is at stake here but there was no evidence that harmed his reputation ever came to pass no showing that before he began using the pain he was making a certain amount of profits and afterwards it declined by some amount not he all that but he lost money with all that the hundred died backs right there when they read back to him did it again they didn't charge the people again right we don't know that we don't know there's no evidence there was no documentation for the hundred redos so we don't know if that was reimbursed by insurance companies we don't know what amount in fact this was part of our constant bills that because it was no documentation the so tested before trial as attorney said we're not putting in a of customers in the light why wasn't that sufficient evidence didn't apply to mr test was a fellow who had a company called bumper dock and he did not testify that mr tested loss of reputation or that there was any similar fact for him to mr pesca really so there was nobody who came back to him complaining about di back except one jaguar owner who showed his cars that car shows and had a particular sensitivity to the shine on his cars but there was no evidence that anyone else came back in and said my car looks bad i want you to repaint it there's not a single witness who came and said wow ok that the jury for addict that you sent i mean that jury charge said that it was for all harm right and that's what everyone agreed on and so we can't object to that right now if that's what they were told so all harm could have included perspective damages it could if included reputational damage could have included a lot of different things that if we believe that there is something that supports that isn't that enough though you know if you look at the instructions jury instruction number thirty six when it talks about all harm it goes on to define what it means by that and it says nothing to do with reputational terms with emotional distress harm those claims were never in this case they've been manufactured for appellate purposes here there was no mention of reputational harm in the closing argument no mention of emotional distress harm in the closing argument the words emotional distress don't appear anywhere in the case until the appeal has begun what about emotional distress he's testif e mail in i think twenty thirteen to sherman william saying he was losing sleep over whether cars were going to come back he never said that that was actually true it could have been posturing for a motion for certain ways purposes and that was the sole piece of evidence the soap piece of evidence in the case about mr to ski having to school having emotional distress there was no emotional distress instruction to the jury no argument about emotional stress nothing in closing argument  referencing emotional distress this is simply something that's been injected into the case after the fact to avoid judge burns proper jail ruling that this prospective damages theory really was not proven  there's nothing also to show that the samosa distress and that california seriousness requirement that the the idea of losing sleep is not sufficient to meet california's requirement on that there's a number of cases saying one has to be more than must leave in general anxiety you have to have something so debilitating you can't continue in your normal life functions there was no evidence of that kind of emotional stress here so what is your definition of all harm the definition of all harm here in this instruction has to be read in the context of what claims were presented to the jury and what evidence was presented and in the instruction itself it makes pretty clear we're talking about them which is that are measured by market value and that has to do with you know what injury did mr to tesco suffer in the marketplace not really clear because you your you were not counsel and trial cracked i was and they say and they weren't consulting you at that point and everyone agreed on all harm and they talked about all of those things and there were no special verdicts even everyone agreed that they didn't do all of those and the jury came back so why do you get to parse it up here when that's the way they did it down down there you're saying he's coming up with this here why do you get to do that he doesn't get to do why do you get to do that i'm just looking your honor as you as you will do also and your stuff it what evidence was presented of these particular came claims of injury this is a case about repainting cars this is not a case about most of the stress it wasn't even a case about reputational injury but even if there was some evidence that you could infer reputational injury from the use of this paint the fact of the matter is that there was no evidence that would allow anyone to quantify what that damage was and that's what judge burton said was the real problem here and there's a case that they cite in their brief i'd urge you to look at it's  for an amount of damages and that's what we have here we have tiny little bits of evidence a mystery to sca felt like his reputation is at stake but no evidence from which the jury could come to any conclusion about to quantify what that damage was how many of these cars are ever going to come back for repainting what effect in the community this suppose a loss of reputation was causing di that is it is it is an issue that doesn't cause any injury to the car  part of it all right but then after that i'm assuming that counsel would have argued something to the effect of if you don't you know if you don't agree that you know that this is how i would count this is what all harm means what if they argue all they argued thirty million or twenty million or whatever thirty two million thirty twenty million all the arguments focused on are any of these cars going to come back for the painting there was no discussion by either side most of the stress damages that wasn't even in the case or this idea i'm slayer in the trial court argued that they were limited to the hundred cars that they argued make that argument or what did they argue they said there was no no they did they say that one hundred cars were not even in the case the hundred cars had been disavowed before trial so no one was arguing about the hundred cars that had been taken out of the case by a pretrial ruling as to other cars coming back the argument was on surer way inside there's simply no evidence these cars are going to come back because there's no evidence  anyone in the past has complained about cars coming back or cars having died back so nothing by which we could predict them coming back in the future and the judge pointed to that he pointed to the absence of evidence on a number of different theories that th ey could i guess it's just ok i'm just wondering in terms of i do say they argued for the men you argued for sorrow and the jury didn't buy what either of you said and they went back and decided what they thought all harm was and they were given all of this so why doesn't you know you but you had a jury trial why doesn't that stand because the evidence did not meet the standard under california law set forth in greenwood and in a number of cases afterwards that side of the case and the preceding that safe you have to establish reasonable certainty of these prospective damages and there was no evidence judge for it correctly found there was no evidence of reasonable certainty that any cars were going to come back much less two million the there was no evidence to show that the greenwood standard was not and because that claim for perspective damages was legally invalid the judge was able to identify that particular claim x ties and identify feibel portion of damages out of when there's an eye a defective item of damages and it can be identified what the amount is to excise it from the judgment and the court here properly exercised that power under the law the circuit and the the judgment notwithstanding judg matter of law really should be affirmed if it's not affirmed it needs to go back to judge burns to decide whether he would exercise his power as the thirteenth your to order a new trial to remit the damages to a certain amount and ask the other side of they want to accept that or whether they want to have a new trial those are the only two remedies this court should not direct that some amount the entered other than to affirm the judge as a matter of law ruling and the judgment judge person or it must send it back to him for a new decision on whether there should be a new trial if that to just three quickly three of my point i think it would help us if it would certainly help me i can't speak for everyone else but it would help me if if you were to prevail on reversing saying record at your five eighty where judge burns himself said there's some evidence he's testified about loss of reputation there's been some evidence that turn in our cars where customers aren't satisfied in the shine goes away right away it's going to reflect negatively on his business that's a matter of for the jury to consider as a matter of damages so i say to judge burns where's my was my reputation damages you said i on if if we were to determine that judge burns erred i'm just saying this hypothetically if we were to determine that he erred in saying that there was no evidence to support the verdict then he gets reversed but what counsel for sure when william says saying is but the judge didn't rule on the second motion and so it has to come back on that and it does have to go back but we have but what we asked for is ninth circuit reinstate damages of twenty million dollars or ten million dollars you're not asking for that correct but i am i'm asking for the three point two five going to be reinstated but at the but in the alternative of it what's the authority stop right there what's the authority for us to do that give us a case that says we can do that i am looking at the minks case which says that the trial court has to look at identifiable portion of the verdict in order to excise any part of it i'm saying when i was asking this court to reinstate i don't you know it's a site it's just like that's all i don't believe this court has ruled on a case similar to this since the central office telephone case and the heads all came out after that and i think that this court should use equitable powers at this point to to go back and say reinstate it or show us how show us what it is that you excised and how you came to that i was going to say it because there's another point that was r you why do you want to smoke this is not a clean way case because no one suit when he is going out and bringing these customers in to fix their cars and he has been doing that he was doing at the time and they knew it and he said this is my life i'm building my business for my son i need to call those people i need to get them back in and get their car fixed but i can't i can't afford to do it they're breaking me they're doing exactly they're breaking me they're taking me down financially i can read afford to pay my lawyer that's