this case is that we are not claiming to enforce not trying to get attorney's fees arising out of the breach of contract you have to understand there's two there's there's attorneys fees that are talked about in the br and in this case that have to do with the products liability case which is the underlying case and then there's the attorneys fees associated with enforcement of the contract we are not seeking one dime for the enforcement of the contract would happen with respect to this case is that we start with a we have a products liability case of significance of significant injury and significant importance to husband and wife and their family a gentleman is brutally injured in a ford automobile passenger when the when the going around a corner door flies open he's thrown out a car rolls over he gets brutally injured but counsel your your opponent says that this for the sake of argument we agreed with your counsel that olson did cover this situation but that there was no controlling california supreme court case which made that same point should we certify this case to the california supreme court well if you go to certify this to the california supreme court i would appreciate trying to distinguished the difference that i'm making with respect to these attorneys fees to go along with olson olson says pacifically that it is attorneys fees associated with the with the breach of contract we have specific attorney's fees associated with the breach of contract we're not suing on know as i they really you know i don't actually recall whether or not there's a settlement agreement with release at all i do know that there would be offered that the defendants made was is incorporated in their own language and  i put it out of page i think it's on thirty of our three if we find it on time or keeps going on i am going to find it finally here's the here's what the offer was brazil to the california code of civil procedure section nine ninety eight defendant more ford motor company here by offers to allow a judgment of dismissal with prejudice it is action to be entered they said they were going to allow a judgment to be entered in this action they did not we signed the paper we did exactly where we were supposed to send it back to  they would not allow it they filed motions to stop it and everything else that could be done with it went on for five years you have actually got our money but during those five years i had to and we are we had to be worried about the case going to trial if it's not settled we're going to trial well this is a case of a complex city associated with liability experts question can you go over and how the one thousand eight really works as i understand it and correct me if i'm wrong  know offers made and then there's a thirty day window to accept within that thirty day window your clients accept it but the clerk for whatever reason didn't enter a judgment the up until the en whatever reason it would lead wasn't entered for what at ford reasons of a bad clerk or something like that it wasn't entered because counsel made motions to stop we made motions to brit to get to get it to get the settlement done they made motions to stop it now judge orac sat up there and says you know i don't know what was going on in san joaquin county for five years are get a bid and that i don't either but it's five years it's a ministerial act for five years ford motor company briefing this thing they know the law they have hundreds of good lawyers who know this is a ministerial act this needs to have been done counsel your musician is with the offer and judge a ork without respect but the emphasis on this breach of contract is what i just read for motor company here by offers to allow the judgment of dismiss with prejudice they did not a basic breach that cost five years and seven hundred thousand dollars to crash tests that cause one hundred a quarter each depositions of of of a complicated medical situation that involved neurological orthopedic psychological eat this case was settled by me with that but the husband wife to a week and a half after he had a seizure mr walker had a seizure during a deposition being conducted by ford that was his second seizure these  during depositions conducted by ford i was going to kill the fellow we had we had we had there was ambulances there was everything under the sun in there's no question he had seizures on both those occasions so we had to sell is it correct  thousand dollars to your client's wife without a judgment having been entered exactly how exactly we sent it was a fifty thousand dollars for the wife signed it was eight fifty for the husband signed it sent him both off they chose the fift thousand they did not argument was ever entered before they paid no absolutely not no they paid you know years before the judgment was ever in or they paid that because because that's the act they say right there if it's ministerial it's oh absolutely not five years earlier the fifty thousand dollars was paid in i don't i don't know but it was not enough to require me a letter to say hey pay it it just came but there was no way fifty there so you know the the the duplicity of the argument that somehow it has something to do with with the clerk clerk or better to not doing something is i think really just a straw man of an extraordinary nature it was a minister motor company absolutely cost us a fortune and they knew they cost us a fortune we had to do all the work to prepare this case for trial and before our finally dismissed the case which i would likely would have done on the day of trial because i'm not going to kill my client we made one construe it back to say i'm still puzzled as to how you get very few tourney fees or rises out of the breach of contract here's the breach there are two loud judgment it just a breach of contract by itself a contract are created by the c c p ninety eight offer so the settlement contract the offer itself they offer to do to allow judgment for eight hundred fifty thousand i accept breach of contract when they don't do it don't think so i really don't think it is so as i said here who we got it we got a didn't the court finally said it was settled back then for eight hundred fifty thousand dollars then we had a of emotion on both for whether or not it was kno there is no need under nine i need for a settlement agreement oh i don't if there's an offer and an acceptance and then the judgment it's all done because whatever terms there need to be are supposed to be in the offer letter that's correct yes or not you know you do s lies under another constitution if i'm seeking to enforce the contract these attorneys fees and these costs one hundred thousand dollars for crash has those costs are not to enforce his contract you never for trial should be borne by or because of what they are because the clerk didn't enter it because ford made motions to stop also if that's the case then you'd never contract and  to try to get the court to enforce the agreement what well we went back to that they said well there should be an extra element in this contract there should be in there that we have to take care of medicare and we have to take care of other things like that they're they're not in the contract so uh the first judge who heard it judge holly said something to the effect that if you get a letter from from medicare saying that there's no money out outstanding or owing that that wasn't part of the contract it didn't have to do that whatever couple of months few months later medicare finally gave us a letter we sent that to him so we now have the letter and they make another motion pollies no longer on the case new judge new judge says well i don't see that  morning there was a lot said about the factual background to this case i just like to take sixty seconds just correct some of the statements which i believe were incorrect the ninety eight offer that for all ford served on july obligations under federal law for both sides to comply with that with respect to conditional payment disclosures being made to the government if the case was ever resolved after initially accepting the nine nine eight and all this late august  plaintiffs declined to comply with federal law after that on september twenty seventh it was plaintiffs who rescinded the settlement offer a plaintiff who when they filed ninety eight never filed the actual judgment as you're supposed to do they rescinded the selma and offer on september twenty seventh telling for this was off get ready for trial we for ford sent plaintiff a letter saying please reconsider on october fourth next these facts were judicially noticed and judge or accept those of the state court record on this for granted a motion to dismiss not a motion for summary judgment are correct and except a judicial notice of the state courts  rescission of the selman proposal the plaintiffs did the about face and suddenly decided they want to settle months later after a lot of trial prep occurred why did that occur because both sides of that time acquired a surveillance videotape taken by the workers comp provider showing the plaintiff a claim to be disabled and oxygen was actually perfectly normal had no disability was out on the golf course playing golf was doing a lot of normal activities no wheelchair requirement no oxygen tank requirement and as soon as plaintiff saw that and we saw that months later after playing us a twice rescinded the proposal they said they had a change of heart and they wanted to try and move to force the selma they'd also familiar with the full state court record provided plaintiffs with a four hundred thirty thousand dollar interest payment post judgment by proton and in doing so judge year as refer to that as an extraordinary windfall for plaintiff saying he was struggling with the equities of that and judge ross said it was simply not fair to ford but those judges all four judges have the full state court record plaintiffs then what they had  counsel with georgia work decided was that this couldn't proceed because there were no cognize civil damages correct correct not on what you're saying he said that these attorneys fees are not recoverable because of the american r and he said that emotional distress is not recoverable because of general california contract principles for us that's exactly right and those are the issues before us arose or the issues before the court of course this court that also firm on the other grounds that ford raised as well and there are several additional grounds that ford raised to affirm judge oryx decision down below but on the emotional distress issue the plaintiffs argument is that ford was aware that mr walker was those have these two seizures in the future after four that are the service ninety nine they'd offer and so they were part of ford's thinking and so that's where that consideration comes in and the answer is there any california supreme court case is what olson says which is that the american rule and section ten twenty one are the old word of attorneys as damages that are incurred in a call out or all action that is not the action that's brought to enforce the agreement is there any california supreme court case where leon point i'll go also there's a case it squarely on point that was in one nine hundred eighty nine cent of the court of appeal correct so is there any california supreme court case squarely on point not squarely on point there is come up with supreme court cases reiterating the american rule the plies there's a host of other cases like the valley in the court of appeal that reiterate the american rule also the squarely on point on these facts it's been on the books since one thousand nine hundred eighty nine no courts of appeal has disagreed with it the california supreme court has never had occasion to revisit counsel i always understood the american role not necessarily in the context of california law as being that the american rule barred you from recovering your attorneys in the extant action  absent an agreement or a statute but that the american rule never barred you from recovering as damages attorney's fees that you had to incur other than with regard to the lawsuit brought to enforce a contract so  it seemed to me that although olson says what you says it's what you say it says that that isn't the american role well we're talking we're talking about two sides of same going here  understanding of the american rule my understanding of the american rule is that it bars the recovery of attorney's fees in the action that are incurred in bringing the breach claim but it doesn't bar the a word of attorneys fees that are damages caught fully in our briefing to judge orac talks about the risks of endless collateral a geisha and if we are in a situation where we have a subsequent action brought to seek fees and costs for the national action  courts and just like not denied that and that was part of their appeal to the state court of appeal which then they decided that they weren't having any luck in state court so why don't we try our luck in federal courts that that's what we have here we have four judges in state court agree agree with for its position we had the court of appeal twice reject claims reputation the petition review for review denied by the supreme court and play a california supreme court and the plaintiffs when they bring their final appeal on this single case where a party in a two party lawsuit proceeds to litigate the entire case and files a separate case seeking fees for that underlying case or and costs and under area it shouldn't plaintiffs contemplate we'd have another ten years of litigation where we'd be raising for the inducement the contract the reason most of the fees the emotional distress claim their veracity plaintiff's actual injuries would be really getting this entire case in federal vs what he can cover under the cause of action the cause of action plaintiff chose to plead and they're stuck with that because they declined to amend notwithstanding judge oryx imitation but the cause of action they plead was solely breach of contract under that they cannot recover the stress damages and they cannot recover attorney's fees setting aside the question of how mr walker is even the proper party for attorney's fees when the lawyers on the other side are the actual party contract is when the judgment is entered counsel those in the california supreme court say in numerous cases i don't think there cited in the briefs that offer an acceptance under nine nine eight are governed by general contract principles and the general contract principles applied to determining whether there's a contract unless those contract principles would interfere with the public policy inherent in nine eight doesn't the california supreme court say that numerous times i don't know where have a skull for a supreme court disagreeing with a nine nine eight statute or with milosevic would say the same thing that the actual contract that's entered and i'll quote from los which which states that if the offer is accepted it just went in compassing the terms and conditions is entered section ninety eight provide such a judgment shall be deemed to be accompanied by celebrant the court went on to state the judgment is well at that time which would be a separate issue to have to be litigated in federal court again showing the folly of not applying the american rule here but plaintiffs rescinded in september they declined our proposal to understand and so we can see on the cobra five we continue with months of trial preparation and then after plaintiff sought to found that by the video and saw to enforce months lay there at that your rebuttal of mr walker thank you your honor that listening to that argument brought it all rushing back about the other issues that get thrown into this case that have nothing to do with the issues that are before we have a contract your honor we have an offer and we have an acceptance that other stuff gets into it arguments and stuff like that that that doesn't really have no bearing on what we're talking about let me c it and who argued what and whether the medicare precondition had to be met but isn't the bottom line they made a ninety eight offer you filed an acceptance and no judgment was entered and the party started to debate and bring motions and oppositions but no court concluded that there was in fact a settlement dating back to the acceptance until judge ross finally entered that so in the interim why aren't the parties free to raise whatever arguments they believe is legitimate regarding the existence of the cream and you raise your arguments four great arguments and apparently many courts agree with for made and accepted by the plaintiff ford motor company as were mr hyman vicky there's no dispute about that fact period there was a contract now for reasons of argument and and stuff like that that you just heard a bunch of it happening again that got immersed but what was really going on at that point in time was that medicare letter so when we did get that medicare letter we sent it off to him here's the medicare letter at that point it's only a little bit of blood in the water they said no you know we won't do it and they didn't take the medicare offer which was which judge paul these first condition that that that was wrongly made because the contract spells out what has to be done but there was what they asked for and that they still wouldn't go for you put the wor advantage they take advantage of every possible chance and what we have is the gaming of the system so