good afternoon just my name is dennis elder i represent if you go back and take a look at the bankruptcy court and see the proposed findings of fact that were submitted and the extensive reference and argument on those facts that were submitted to the bankruptcy court and then wait a year and approximately one year later the bankruptcy court rubber stamps but the objectors did it then makes it way to the district court that do searching review in correctly looks at certain things and we're here nowhere anything this court has read can the court see what the facts actually are because they've never been referred to as an ever what has been referred to in other words if you win the courts when the justice is going take a look at our proposed findings of fact which are rich in evidentiary detail and rich in references and to the defection you're right she adopted but the final post by the other side i mean it's not uncommon we frown on that it's not prohibited it is not prohibited absolutely but it then goes to a searching review not done by the district court and when that searching review is done there is only one result as a matter of law the matter of judge with regard to the substantial factors right you know i believe that when the court searches the entire record and does what the court mu do which is take a look at all the evidence and first decide is it so substantially one sided that only one reasonable conclusion  yes as to the fact that as a result of the malicious prosecution part pac suffered last profit damages some lost profits but that that would turn on the question of at all yes in other words the only way it doesn't happen is if the lucius prosecution case was remote or trivia factor with but remember that the objectors who prepared the finding of fact and law basically use that's seems to be what to be what she found she didn't think it had anything to do with she didn't find in other words what i thought oh well she came pretty close to finding you know what i'm saying is she says she stamped what we understand how can we understand ok see that i don't think you can send it back to her and the reason this is an article three can you can waive your right to an article three judge you can absolutely waive that but it is restricted because as all of the appellate courts say including this court in bellingham and the related cases that it has to be knowing and voluntary and when you look at the role you see that it's just well you can kind of my understanding is this if the question is whether you waived the before the findings and the findings and conclusions whether they're considered are in ours or not were issued and you would seem to be at that point asking for an actual withdrawal of the whole case and for the just require to either start over again or at least make findings itself because from day one they object to the claim they issue your respon things that are just inaccurate both legally and factually that evaporated the entire case to talk about what's profit law because one of the things that was fascinating about the district court is how does flo which i think was in their conclusions of law seventeen eighteen and nineteen apply to this case not only that not only that the head repair of business law it is all over the ballpark in the conclusions of law they never define substantial factor tell her there is it when the when the court when his business had done very well all this for this last year when he was supposedly in such terrible shape and that in the whole transaction there was no discussion  briefs that again i'd send from the beginning we talk about all of this but the facts relied on the play the that were rubber stamped out of all the facts in this case or about this much and let me and here's what's interesting the district court says the plaintiff's theory was that stress caused him to so it was absolutely not our theory of trial it was not the theory in the claim it was not the fear limb that was the theory the theory was this and this is what's fascinating about this case it's a bankruptcy case where george marcy arno took all of his power and all of his money and one by one decided to go after people o hear and along we want this we want this talk to our lawyers talk to this and you can see in the medical records at that time none of it's ever been discussed that he basically goes to them all this is unopposed he basically goes to them and says lie for me about kristi's or i will suit you they say no what you're asking us to do is salute lee wrong two months later they sue him he sues them in the record is substantial evidence of what alley was like before and after it wasn't just that they destroyed marciano destroyed his health he destroyed his will but what seems never to be here is that a very rich person came in to the legal system and basically said to hardworking people with a life long business that they love so the phone you're dead i'm going to chase everybody beyond my grave all in  a malicious prosecution by definition is a is a something available when you go into the law basically he and what is it citywide a malicious instrument to use mol business and injure and it's on and so he goes in and he's overwhelmed how does he fight morsi on it manifests itself physically which is some point we need the kind of searching review that at least acknowledge is the evidence though here may i just save some time for a bow yes thank you can have a minute opposing counsel said that this case is rife with error what is actually is rife with is independent bases to support the court's ruling with respect to the causation in order for them to recover any actual damages of lost profits they need to prove one causation and two that there were damages with respect to the causation issue the court did find it clearly in paragraph fifty six through fifty eight of its findings and it w to reflect that the evidence and all of them are in fact cited the evidence that was in the record that supported the findings of fact that the court did make and the court found one that it was not a substantial factor of his decision to sell that he was sued two months before he decided to sell and fact she didn't simply find that that was not a factor she found what were the factors that he was had health problems that preexisted it that he wanted to retire she also cite to the fact that he had represented to various people including his broker and including the persons that to whom he was selling the business that he was selling it because he wanted to retire because of health reasons and he never told any of them it was because he was being pressured by it was not honest to the to the buyer that that was further evidence that he was not being honest to other people as well people who sell things to other people don't have to tell me everything you know how debility is for the trier of fact in the first instance and she found were critical that was with the reason that she didn't find the credible she also found that their claims were exaggerated and from their declarations of cells if you review them their claims for forty million dollars and in lost profits based on a it's actually standard in bankruptcy court for people to submit declarations and the appointee how did you cross examine them i did not believe that there was anything i needed to get out on cross examination and also  said he had explained this for some of the things he was faulted on and so assumptions were made that he couldn't have stood up to cross examination and maybe cut out tactical decision was made not to cross examine and to give them a chance to go beyond what the testimony was here limited at a back to the court trial to the evidence you choose to put into your initial declarations and in the other side they don't want to cross examine him they don't have they don't have they don't give them a put it into their case in chief it was their car and his declaration yes in their declaration they were entitled to put in whatever evidence they wanted to support the case but this just goes to one evidence on causation another separate independent grounds why can't  is because they did not put in a competent medical expert that was excluded that was required under california law you cannot prove that you sold your company because of stress which was their claim without a medical expert under california law they didn't challenge that that was the law on the appeal to the district court and they didn't challenge the exclusion of the expert to the district court so that would have been waived and it was an independent basis but then you get to lost profits and lost profits again there was substantial evidence why the bankruptcy court rejected their their expert and cited their like twelve different factors in the findings of fact and the but there's again another separate independent reason why lost profits could have been awarded it was undisputed not contested with a district court that under california law in order to collect lost profits of an owner business owner where the owner works for the business you have to some lost profit something more than zero seems simply to be proven i mean all the quibbling are even if it isn't quibbling all the findings about she would have worked that he would have her charge sooner and you know their numbers were way too high understand all of that but that doesn't lead to zero yes but it's not quibbling it's their obligation to put some evidence before court for work and actually fix a number that has some compensation and when they the evidence they all put in presumed that a low mode jury was going to be working until she was sixty two when she was permanently are able to distribute i can find no she won't she's so i'm taking her at i'm assuming that's not going to happen but he will work for at least a while and with regard to the value of their services i mean that also seems to be kind of the result of this strange procedure because he was a genius in that in the end this was their products that he was a genius in the boxing industry and you really couldn't put a value on his services and that's why what they took as salary had nothing to do with what he believed the real value of the services was so really actually the value of this business according to mr moti jury was the value of the services and if they had been deducted from the business i don't know that there would have been any profits the business was him and under california law you have sour some somebody thought that there was a value offer and i mean that's not a bad measure of what it's worth the fact is that and somebody paid for it for good well and they got that in other words yes to the extent that there figure out a number on its own and say one just going to worth two hundred thousand dollars is as damages for lost profits it's the obligation of the plaintiff to to puts forth some kind of coherent case and they could go hear a case as to an amount and they didn't  issue in the case which is the am was a waiver of article three and so on it doesn't really make any difference to the district judge say what he was doing here with which what she was doing i think he clearly review the facts closely anyway if you look at it and he looked was looking for clear and if they'd been findings of fact made by the trial court because it would wasn't in power though i believe it was waived there would have been the same level of review there were been no different review by this district court it did review it carefully if you look at the district court earlier but not in this appeal on this appeal in the decision of the deal they did not argue that at all and it was they didn't are and i was going to ask you now and i'll ask him that what they didn't argue you're saying is that the district judge should review an hour an hour ok they did not make the argument that that was the reason why that should have been done and if that's all they're arguing where would the waiver of been when was the way for that with a waiver of that i believe was when they specifically initially said with they wanted the court to conduct the hearing and when they specifically said they wanted the trial court to try it and they never at any time suggested that this was something that was  not strike that i think they did suggest that they thought it was poor i actually think that for the reason we stated that this is not a personal injury tort does not qualify so and that doesn't matter because there there's it's an article three question whether it's a personal injury t i don't believe that's correct there are but we want it and it doesn't have to be a personal injury it does have to fit within the statutory definition of personal injury for that purpose is that much but this is a claim this is the decision of a claim and to the extent that this is your claim that is a core matter and is only not a core so the classic levels of a claim is my understanding is that stern and wellness basically go beyond the statute and say that even if it is a car with a statute it still may be beyond these the scope of an article three and article one court's authority i believe that the district court in fact did give a searching review of this case and that its decision in fact indicates that it did so regardless of whether or not it specifically we believed itself was required to review and you know i think in fact did review the record below very carefully and looked at it cited the specific evidence will understand the practice of you know using well when they never mention that they have a disability and they've been held disabled the same time they're claiming in their declarations they would have continued to run the business until they're sixty two and the evidence to the contrary was brought out of your deposition but not in their declaration that they submitted i  speculative at this point that whether you could do that what it would cost and that's evidence that should have come in and did not come in at the trial ok well square has any other questions purpose yes we because your first your motion to withdraw was about something else a motion to withdraw also included the article three issues yes but didn't include the notion that if they were findings in the bankruptcy court they should know that was one of the reasons we said to the court you're going to be doing do no bowing this any way you just said that he said no i opening brief we basically said so far the court has ruled that this isn't that this is an article three case not a do noble review the courtship visit and we go on there is not an issue that the court has talked about here that hasn't been extensively briefed by us it was interesting that the district court said well you filed of what a twenty or thirty thing statement of issues in the bankruptcy court but i had to go searching for it the problem was when the court looks at all those these are all errors of wall the cases don't stand for the propositions that they say they stand in the sun inconsistent law they go to florida on lost profits and the reality so here i think that the common sense of this basically here's what we have we have a business that has been built the ground up in the did we summarize the evidence of how the business had grown year after year after year after year all i can ask the court please is this is an evidence driven case where the evidence has never been reviewed when they say that they need we need medical testimony and the bankruptcy judge says well i'm not bringing in dr mellman because he didn't interview the witness and i'm not going to believe him anyway or how about the idea where she said