main point in this case is that in the state of california it's impossible to obtain a malicious prosecution judgment absent a finding of a subjective intent to harm there's no such a final judgment for appeal purposes because in this case the court is in fact reviewing not what the b a p did the bankruptcy appellate panel but it is in fact reviewing what the bankruptcy judge did and i think the for further fact finding we'll actress diction i can answer that easily your honor because in this case what we had was not a remained for further fast finding the only issue remaining in this case is legal argument even the b a p said that we are deciding this not on a factual finding but what we're deciding is we're going to compare the requirements for the malicious prosecution judgment in the state court with isn't that a factual finding i would say no and this is why that is why the error of the b a p is so it would be such a gross miscarriage of justice in this case because if you read the in order to decide our generous diction and you know we can't do that the opposite it's sort of a little bit of a catch twenty two i think the problem is that the the entire we look at what would have remained hearing look like in this case what it would look like is the exact trial of the of the underlying case and the reason that this court should have  and the bankruptcy court with then have to determine there's no no facts it could determine because that reminded hearing would just be if we look at the declaration  mr orden submitted to the court it's just the declaration that rehashes all of the arguments he made in the state court and i understand it's sort of a chicken and egg problem but the problem with the only argument if i understand correctly is that if you prevail here in the circuit there's really not a charge ability that is to terminus matter for law it's not a situation where you go back for a trial so so essentially not accepting jurisdiction would mean that it would go down and then if you lose again you'll have to come up all over again that is correct and the problem is that even a remand in this case would violate the collateral estoppel rule because we disagreed with you on the merits if we said that the app got it right our man there and it would have to go back and up again as well right so so we might disagree with you on the merits  for purposes of jurisdiction we have to decide regardless of how we agree on the merits i would argue that that long line i think i cited about a thirty five year line of cases and the supreme court case used the word fact finding and i think that's the most important point here is that what what the b a p was remey ending for was based sort of on a false premise  that right ok that in fact the willfulness issue is was not necessarily litigated indetermined in the malicious prosecution action let's let's just assume that that back out o right so now goes back to the bankruptcy court the bankruptcy court i assume would have to do a trial on the mental state of mr arden in bringing the action the malicious prosecution action hy is a determination as to the mental state of mr martin not fact finding i'd say that it would be the mental state of mr ar would be fact finding but that is that comes best why is it so important for this court to exercise its flexible jurisdiction because in order to come before this court and  that collateral is double makes a completely unfair for me to go back and relive a gate that they're saying you're saying is a prerequisite to that i don't have to relive it gave it and then come back here and then this court might decide well wait a minute the state court already decided this it should be collateral a starring role in this is not a value if we disagree with you on the merits say then the bankruptcy court would have to do additional fact finding  e defendant's mental state that that's the fact finding that we've had in landmark fans and other cases of the supreme court has said is what makes the opinion of the district or the bat not interlocutory so if i understand your argument you're saying because it's so clear or that you should win on the merits that in fact there is collateral estop there can't possibly and for a fact finding but that assumes the conclusion on the merits do i misunderstand i've always disagreed respectfully only slightly which is that the jurisdictional issue is that if it's there's a poke tensional for this court agreeing with me on the merits it doesn't have to be a foregone conclusion but if if there's a potential that this court would look at this and say well clearly the we're making this decision this decision turns just on when looking at the statute in california and what the elements and looking at the elements of five twenty three a this is a purely legal opinion that we're making and if we i and if you agree that it's a purely legal opinion we agree it's purely legal in the past got it right then what happens then this court may take jurisdiction and state there's a potential if we had one and what happens under that scenario your honor what i believe would happen if it then would be remanded and there would be a hearing where mr arden we get to get to get up and give the same testimony he gave in the state court and thank god instances the exact court case i'd say that there's just no fact finding this is a case that can you know it started i filed a lawsuit in the state court over eight years ago and it this this court can make th determination it is the years certainly were houses my sympathies i appreciate that awful how long things can take when when somebody uses bankruptcy and i have which is why they let me do is ask you about something else suppose we were to agree with you on the merits we look at this language in the california court of appeal decision that says the malice element of the malicious prosecution toward goes to the defendant's subjective intent and then we look at it language that with respect to malice the evidence established that arden's fair to investigate the merits and even when confronted with unequivocal evidence not supported by the facts sufficient evidence supports the jury's verdict so suppose we read that and said you're right the back was wrong and there is collateral  she would just be retrying the same case if we said that then i imagine we would say that within our interpretation using our pragmatic and flexible approach the bankruptcy court made a final judgment the baptists asian is review de novo and was mistaken and we have jurisdiction dissolve it including again that the word fact finding is important that this court effect this court determined that as a matter of law the and state court decided that subject of intent issue then it would not be a for fast finding it would just be every man for i don't know what the the bankruptcy judge said i don't know what you want me to do do you want me to or you want violate the rigor feldman doctor and essentially and something that the california court of appeal was wrong she essentially said there was really nothing for her to do left on the case so i would say it does survive because that would be this court's decision would be really the final decision will be a judge so we can still apply our pragmatic flexible review i would state that the court may treat the bankruptcy judgment as a final summary judgment because it was a final order granting judgment in my favor my my problem is a i'm just as to the fact that this was a summary judgment not a trial judgment and all of the arguments about whether there would be a retrial would think that would i can see what would happen if if we say we don't have jurisdiction and it goes back except that the plaintiffs tries the case again that was already tried in california as a practical matter i don't see what else can occur well what tell me the distinction in what would be at issue so that i can see that there's some difference between a case that was already tried to final judgment and  appeal and of a firm and and the case that would be tried in the bankruptcy court and your are the difference is that there was really no evidence brought out at the malicious prosecution case as to my state of mind and well the the california supreme court said it came rarely be proved by direct evidence it's ordinarily proved by circumstantial evidence and she had plenty of that malice out element goes to subjects of intensity and they say she had sufficient evidence that was tried well no i want to know what different issue and evidence will there be in the trial that takes place  ition well in the first case there was no issue at the malicious prosecution trial about the standard of willful in villages under federal law concept never came up what's the difference between that and malice under state law that did come up and was tried to a conclusion because a the judgment in the malicious prosecution case came about without necessarily examining my state of mind it was based on the action that was filed by my client before i represented him and the we took issue as we mentioned in our wait a minute they say that there are three elements to m prosecution i'm looking at the callup decision and the third element is initiated with malice yes your honor in fact we're getting off point but i didn't initiate the action that we're talking about even though it is suggested that i did but it's the records clear i substituted and after the action was filed by my client as a pro curve so i never initiated the action and all of these authorities that discuss about how you feel malice  all that would have gotten you was in california that if if initiated was interpreted as you are now urging you would have won and in the california court of appeal because they said that the state action has to be initiated opinion versus the facts that could be shown of record and in fact maybe maybe so but we're bound by the kal have to session you know it's wrong we're bound by it oh i accept that your honor and a much as you keep saying i want to retry the malicious prosecution case i don't accept the holding however ok so the now let's get back to what are you going to show that's different from what was that issue and included in the state case well my state of mind which is the issue courting to all of the ninth circuit jurisprudence if in fact my state of mind had been inquired into in the prior trial there would be a record there would be evidence and that inference and those inference were drawn by the court of appeal opinion what are we to do with that if there is there evidence that you're saying you'll present that demonstrates a different state of mind than what the california court of appeal has already found  your state of mind based on the inference is strong from the evidence presented in that trial yes your honor because and i don't mean to sound like a mark with the court but the court of appeal didn't make factual findings they were simply reporting show they would have to be shown that you had a subjective intent to harm the silas or subjective belief that harm is substantially now did  the the malicious prosecution case the cal app case does it address either of those issues whether you have a subjective intent to harm or a subjective belief that harm is substantially certain is there anything specifically on those exception and his failure to withdraw allegations of misappropriation even when confronted with unequivocal evidence the allegations were not supported by the facts that sounds to me like factual findings based on actual evidence prior than just a summary of legal propositions from other cases it sounds like your honor and i'm not here to argue it but it's wrong i there was evidence in the record showing my investigation and i put some of that certain that harm would occur i would say you could go that far perhaps but not according to the the standards i mean it might look that way but the standards under five twenty three eighty six was wrong in focusing too much on the instructions and not on the actual findings from the trial in state court why wouldn't we exercise jurisdiction in this case if we continue with our pragmatic approach to appellate jurisdiction because what's being lost and overlooked here is one of our most important rights in all of our jurisprudence the right to trial this was a summary judgment and i mentioned this is one of the complete word whining it's been used repeatedly as i remember when cases are bench pride the the trial judge whether in state or federal court at least in alaska writes a number of list of finding fact and in a jury trial except where there are special verdicts there's usually a general verdict and there are no findings of fact and the appellate court then also never makes finding determines whether if it was a bench trial whether the evidence supported the findings and if it was a jury trial where the instructions were correct and whether reasonable jury could have reached that decision on the evidence and it looks like you had a jury trial the appellate court said well here are the elements the instructions were ok add to the extent they were challenge they don't recall if they were and there was evidence to support each of the elements one of which was subjective intent i don't understand why you're talking about absence of findings of fact or an event well you're on a load records what you're just discussing is exactly what i was urging must be brought into the bankruptcy court  and i brought in what i could you don't get to retry a case in bankruptcy court if it's already been tried to a final judgment appeal been affirmed in state court your argument the militias prosecution cases definitely not the same cases whether it was there was i acted willfully and maliciously under five twenty three a six in fact my point is this and i've not had a chance to make it because i didn't have a trial ok what's the difference the difference is my state of mind when i took and i've not had a chance to explain this but my state of mind was the same as every other lawyers state of mind that takes over a case for a client you're not thinking well i'm doing this so i can injure the opponent you're taking it on because you're asked for help  someone and they are asked for help by a client who wants to injure the opponent but that kind of intent doesn't get transferred for a malicious prosecution case the standard for a good think it's that you think even if it would be wrong for a lawyer to initiate a case for someone who told a lawyer i just want to hurt her it would be ok for a lawyer to take over from another lawyer in that circumstance and pursue the same  not at all your honor no you but i think that's what you just said oh i'm sorry i didn't mean to say that not at all no my point is that not that there is any indication anywhere that anyone did file then a case to injure but what i was trying to say is i didn't initiate the case i was asked to substitute in by the client the proper who had filed it he didn't explain to me or everson even suggested it was he was doing it to her he lost six three quarter million six hundred million dollars and he thought he had been a victim of malpractise so did i when i looked at what happened but the the  the fact is that i was trying to say that ok let's get back to what would be different about the subject of malice element that you lost on in state court but the you think you could still win on in federal court thank you because the issue in the federal court is whether i acted with a willful and malicious intent to injure ms silas and not a subject that ever came up in the state court i can show it never came up and it is unfair to have granted a summary judgment so how do you get overwhelmed if it didn't come up and you could show it didn't come up how do you get around if i'm i'm sorry your honor what is it that you're where they where they say that the malice element of malicious prosecution goes to subjective intent and that then they say what the intent test to be i don't understand how mind the fact is the judgment was entered in the malicious prosecution case without ever considering whether i acted willfully maliciously it is not a matter of retrying it and and this goes to the fact that the appellate opinion again wasn't stating facts that were found in bush's prosecution trial those are facts that you show by the jury instructions what they say is with respect to prosecution by workers comp and its failure to withdraw allegations of misappropriation that was her supposedly so dealing money he was entitled to in the settlement even when confronted with unequivocal evidence that the allegations were not supported by the facts sufficient evidence supports the jury's verdict i think it was different that you're going to try to prove in federal court you honor this goes to what i was trying to face the second misapprehension here the there is a fairly distinguish between what is subjective and what is the object of the argument that an appellate opinion sets the standard for whether i acted with a subjective intense or not that's an objective argument the subjective subjective means what was on my mind and there's no way to ask what was on my mind vice by concluding what was on my mind from  i represent my client to the best of my skills i never did anything intending to hurt messias as opposed to trying to help my content and i haven't yet had a trial at which i've been able to to explain that now i shouldn't have to have a summary judgment entered on that subject without having the right to a trial and if the record was here over time  unfair to deny a trial when the objective subjective issue is being confused here and conflated thank you thank you you have a few seconds left exactly what was decided in the underlying court so that the subject of intent to harm under the downy case is nearly verbatim to the subject of intent to harm under the jurisdiction case which is a bankruptcy case they both malicious prosecution requires an act deliberately done for the express purpose of causing harm or with knowledge that damage is highly probable or substantially certain to occur and the california supreme court states knowingly prosecuting emeritus case is certain to harm so that the arguments are again just being repeated it's the same trial quickly on the press the general issue because i think that's important issue it's not even just a pragmatic approach it's we have a situation here where we have a bankruptcy judge who has correctly stated there's nothing here for me to try because and she repeated the facts you know mr oren knew this had no merit you continued to prosecute it it's already been decided so what from a practical standpoint would happen if it's real and it is that that judge is going to be forced to try a case that she already  stylus versus arden