right before we began on gilman just a few observations we issued the order after obviously doing this is a massive massive amount of information and thinking about it and thinking about having you come in here and just start arguing it occurred to us that we might well spend all your time on issues that are of interest to us without giving you some free range to talk about issues that are of interest to you and in particular that what might happen is on the first because we have overlapping issues we have this one weight issue in both both of the major appeals and or the more dollar  driven appeals and that we might end up giving you know time and one of those appeals the first one to come up to talk about the issues so we have divided the argument in a fairly controlled fashion and we do want to have it argued that way normally on something like this we might have given this is the sort of thing we typically would give twenty minutes aside say combined just argue what we're doing little bit differently the second thing is more of a plea which have read the briefs there are a lot of adjectives and adverbs in there you can certainly use some of them today we'll call you on them if we don't like them but this is a tough appeal there are tough legal issues there's a tough standard for the appellant in terms of abuse of discretion so i'm really going to urge you to get into the law and the facts quickly and deeply and because that's the help that we need as a panel so with that let's call the matter direction for the critters before i go into one want to wait see two or just have to preface something because a major phrase in that statute is applicable nine bankruptcy law and our point you understand from the rest of our briefs is that that two year type of rule is actually not applicable and it is because the lower court made a mistake regarding the erie doctrine  and what we did with the body rule fifty four motion in each case the adversary in the bankruptcy i don't i don't remember you bringing a rule fifty four motion that's what was filed two weeks after we get the notice of this or this was did you bring it based on rule fifty four was that to discussion is the motion for attorney's fees yes that to them asking a different question was rule fifty four cited your document enforcement under sixty nine and current looks at those state statutes and deems them procedural which is consistent with what the enforcement of judgment law says it the text of that statute says that this is these are rules for the judgment court the state court that actually rendered the judgment that's how you you apply for your and forstmann fees the i asked for judicial notice of an assembly report in a lower vision commission report as to what these things and these basically says indicated they're just continuing prior law but extending what was a six month period for applying for the enforcement costs to two years that is relevant because i said in that case go lardy which was a state court case which said if there has to be some sort of allowance made then the time two years would run from the time the allowance of the court allows the costs regarding what we're looking at here and said that it operates the operation of any statute of limitations of the united states or a state affecting the dead of a bankrupt it's going to be suspended until thirty days after the entry phrase is applicable now bankruptcy law fixes the time to commence with continuing an action and then it says they're in a court other than a bankruptcy court in that language is relevant i don't think that's relevant because what congress was looking at was whether you were actually well i think that some of the decisions of this court and others would say well can you move forward in the state court and that's what's relevant let me ask you this because i mean some period of time to do something but we're looking at the narrow issue here of the time to recover fees under a state statute and i just pulled up one of your motions and you know it's brought under c c p six eight five point zero four zero and it does not mention any federal statute at all it's you brought the motion on state court theories in the bankruptcy court so you weren't staid from doing that you could have done it at syria autum during the case you could have brought your fee request multiple times at least in terms of the main case rule fifty four requires you didn't bring it under rule fifty four you brought your motion under c c p six eight five point four zero four zero at sec and c c p one zero two one point five and you also mentioned that that's all you mentioned was an issue as to whether you could recover fees in for bankruptcy would occasionally under state law and we had a motion for summary judgment on this and but the court said yes you correct the traveller's has gotten rid of this phobia and rule and overruled it will decide fees at the end of the case what what is reasonable is is another issue but that's how when and where in rome we do as the romans and collection sure i understand that once there's a bagus you're going to run back to say court blindly and try to get a state court to do something but that's just stating what basic bankruptcy laws are going to administer this through a bankruptcy proceeding right now is all that matters i'm sorry and i said you're going to the idea that you're not going to go back to state court to enforce this is neither here nor there you never are now you're in a bankruptcy process the point of which is to come up with a restructuring or a liquidation of rights and to pay claims correct ok so i guess i'm struck with why if you can would you absolutely can't do follow an objection to an exemption and if you can follow objections to discharge ability and you can do that i mean why are you why is  good morning your honor mark ellis on behalf of kevin gilman so now let me tell you what worries me is when the when the panel says that they see the one zero eight issue as a tough issue because i have to tell you i don't i mean so given we did well you know yeah i will as you can probably tell i am not i don't think anyone would say that i am a seasoned bankruptcy practitioner when i come into bankruptcy court which i often do in front of judge klein or judge charges and the folks in the eastern district where i'm at i have to study two says this if a political non bankruptcy law ellipsis fixes a period for commencing or continuing a civil action i think that a civil action should be underlined and highlighted in a court other than a bankruptcy court on a claim against the debtor ellipses and such period has not expired before the date of the filing  petition and such period does not expire until the latter of hyphen one the end of such period to thirty days after notice of the terminations or expiration of the stay under section three sixty two my point here is that this is a motion these were motions for attorney's fees they were not civil actions isn't this akin to filing over you knowing the judgment filing mechanic's lien and any of those items which in my circuit has addressed several times i think so i think you know that the two cases that i keep coming back to one was actually sided kozinski and then there's a per curiam decision entering brickley which is seventy bankruptcy reporter one thirteen that's nine hundred eighty six i think all of i think these cases support the argument that i'm making and that is if there is a claim for b s and there was before we went into bankruptcy court you care so and that's all still kind of pending out there in the placer county superior court appellate division because if you can believe this john dies forces join deiced type of odyssey started and in limited jurisdiction court  with respect to those fees that may have been outstanding at that point in time those were enforcement fees there to as high read one zero eight that stays in the ability to go after those fees at that point time because obviously they're in a court other than the bankruptcy court to see what i'm saying and so thirty days after the judgment came down here that's when one away would apply to let him go back into placer county superior court and bring the motion well to thirty days after i did that state terminated correct if the state terminated us and isn't that a fascinating issue creditors have taken the position in placer county superior court this is not going to be in your walk of this is all happening right now that the judgment came down in july the rule fifty four partial judgment came down in july and i think that was in part because this court asked do we have it behind the scenes do we have jurisdiction here and it gets to keep going but i don't i know where you're where she want to go my point is this and and you know judge kaufman is i've now been in front of her for six years she said extraordinarily thoughtful judge not withstanding that i think counsel on both sides myself included have stressed her to no end at one point or another hopefully  but it has been i can say contentious relationship and not withstand that through all of us she has kept her composure and does really really thoughtful rulings and so in this case when she sa look you're asking for fees for enforcement with then the bankruptcy court then not in another court not in another court and in these cases all stand if you if you read them carefully you know they stand for the proposition that there's there's claims outside of the court that are state by three sixty two and then the claims within the court and that's what judge coffin says you're doing this within the bankruptcy and then here's the here's also among other things the state is not a relevant and you'll see that the court relies upon or cites with approval the second circuit case then got cited in a breeze and i'm going to butcher this it is as outside so one await applies when you've got a claim as you said aleem or terms we claim or something outside that is being enforced in the state court action three sixty two comes down then you know no one in state court you know no judge in state court once get near three sixty two so that all stays and then one zero eight applies and says ok all of this is going to your right to go after that or to read up that is within thirty days or sixty days after the stay is lifted for whatever reason but within the bankruptcy court you have to follow the rules and and here's the the the point that you have to i think following predators come into court under six eighty five point zero four zero right under the in force with the judgments law that's what they did not under rule fifty four i'm still not even sure i understand the rule fifty four analysis at this point in time but  the only way he gets them and you know i fought him on a little bit because the even the say court statute in terms of other law which is the provision under sixty four point zero four zero it says either if you have a contract or under other law you know i said he didn't have a contract and the other law was and he fought that and judge kaufman said ok no this is unfortunate within bankruptcy and the california supreme court case and the queen says that you know you can't enforce in bankruptcy court that's enforcement proceeding and the queen by the way is fifty nine california six o two and the a political supreme court decision is page six thirteen but the point is this you can't use that statute and take the benefits and you know what i'm going to say now it's you the detriment of the other requirement let me ask you a question just an adult me on this when you're let me just take mr jacobs side of things for a second tell me what you think the purposes of a two year requirement under state law under six thirty five zero four zero and should it be the same when we have the limit serves a policy purpose of its own to prevent unfair surprise to the judgment debtor and that always goes and what they're what they're saying is is that under the statute you know you should you should  don't think that we should start speculating as to whether or not well it might it should have its full effect you know i'm trying to figure out if it goes to mr jacobs question of what's the right will i'm not that's hitting out analysis for me ok the i guess you can't if there was no motion for four attorneys he says i believe gets to the the point mr jacob was making but you win on a application of want to wait see that because you had those fees there non dischargeable now you're able to go back out did you have to can you do that not sure i understand your question is he being paralyzed but i have running it by bringing the motion for fees within the bankruptcy absolutely because why not because that's the appropriate place to do meet here's one of the things that i can say but it would be appropriate actually goes to mr jacobs argument it is appropriate place to do it because you had to bring it within the time imposed by the procedural rules so i but he always controlled the time in the bankruptcy court that that was that was judge kaufman's he did not and so i think judge berger that my position and i'm not sure fun answer your question correctly but this is kind of my seat of the pants anything that isn't heard in terms of attorneys fees and costs in state court needs to be voting state it needs to be brought in front of those judges that heard the and saw what was going on i think that's the only way that attorneys fees work and i mean whether we're looking at position to decide whether or not the fees are reasonable and reasonable is going to be the touchstone in all of these cases is the judge that can which that's appear in front of now structurally i think the way that  eight does work with this is that whenever this bankruptcy does ever completely in hopefully in my lifetime anything that is still pending in state court will go back to state court and i can tell you again this is not in the record that is what what is happening i don't think mr jacob will deny that he's going back to the placer county superior court appellate department is now asking for attorney's fees now there some other issues with that because i think he's asking for attorney's fees in this case that judge kaufman didn't give him a bankruptcy court i've opposed that saying that's improper in this not in front of you but i'm trying to answer your question in that federal attorneys fees and for some of it in bankruptcy court gets decided there and you can't you can't sit there and basically take the rule and say ok well i'm to i'm going to ask for fees under this rule but i'm going to say that bankruptcy court rules or rules of federal procedure basically let me pick the statute that i'm doing to get all the benefit and none of the detriment or none of the burden just doesn't there's this as i said something about other than a bankruptcy court because also cited the gurney case which the that mentioned that this was or used languages and the issue is whether you were prevented from is what has happened i think is in spirit toast broke away from that sort of thinking and said wait if you actually look at the language of the statute basically it says whether it's barred by the stay is irrelevant and we've  do you have any case involving one zero eight see where the actions that are at issue were entirely post petition and not involving any state court action goes away and they're saying you know you couldn't and for so i read the language and i saw night circuit so we took it very seriously but i'm not sure that i'm comfortable that it applies foursquare here under these stat so could you help me with that why is it here there was nothing the budget from doing anything as evidence by the fact that she did well actually we've certainly said we were dragged into a proceeding in bankruptcy we didn't fi bankruptcy under so called six eighty five but overall we filed under federal statutes preventing a discharge and then we just made a claim and said seven thousand a piece as we have to if we have a claim for attorney's fees we have to prosecute it here by putting out as a claim so we were we were directed by the federal rules of bankruptcy procedure procedures like a regular civil litigation lawsuit the general solicitor got that case but it doesn't absolve you of the basis to the point you keep coming back to six eighty analyzing this and struggling with the overlay between bankruptcy in the state quite statute in the time limits is the fact that you pled that relief in your request about relief and the the complaint itself helpful to federal rules to govern them and the fact is that state the state just happens to believe and didn't decide until after the traveller's case which overall for being to say well you know what anything you do in bankruptcy that is and contrary to what mr mr ellis said about appropriate times or where to go the jaffe versus the chili case is a case where bankruptcy would engage in is undertaken they go back to state court and they say hi for state court we did we incurred these fees in and well that's that's a whole nother issue maybe we'll be here another day on that but your time is up at this point in time so we're going to switch to the other give you a chance to take a deep breath argue make case first and then the avocet that's fine we just want to know what page to be on there's a lot of pages just ten minutes per side on this and again do you wish to reserve any time all right thank you and i think i would just observe before your time starts that you can now see why we did this because we would have easily kept you on your entire fifteen minutes on at least the first appeal talking about this issue and we know that you have another another other points you the running comes into this stock because there's so much volume so many issues we were really actually happy to stand mostly on the on the papers and just to go over just a few points the first point is that we all we see this case involving the gaming of the carter decision when we can claim any exemption we want without doing any research into it that's how we see debtor acted here because the burden is on the other side to disprove our exemption point and what happened is there was no reasonable research into mr gilman's claims of disability because that would involve  medical research and vocational research as to whether this this person could earn a a in income and if use we included some excerpts from a trial in which ms bliss examines me and asked questions about whether i'm a doctor to my inexpert can i say anything about cancer and so forth well no but neither is she and how could she have someone walk into her office and they say i may have cancer and even if you have some argument about you have to bring rule levon or rule nine zero eleven eleven motion prior to some decision  requirements for beyond the rule nine zero eleven requirements for these d r reins in attorneys and i think it was in the papers that you have no information that the claim is invalid and yet they did have information that the claim was invalid and certainly those things were available on on public media social media and so forth and the very fact that someone is not receiving disability benefits was claiming to be disabled it is a red flag  understand that but but that's not the way it works said gee this is a dead or dead or a leave agency get relief agency and that it's there's there's language in there mr gilman a trial saying oh i did look at the records her medical records and three years in the case saying oh i haven't looked at the medical records and look at the written responses we get to the requests for in mission that we send off which are in october of two thirteen two thousand and thirteen i think and they this is with respect to ms bush trying to get the good sanctions for attending a mediation which was out required to attend and her what you see here is churning of the file and it 's really bad faith by brandon reeves who is the attorney for the us law group who sees an opportunity to obtain sanctions because my client missed a plane and even though he did not want to reschedule the deposition or she read it it will be mediation and he knew that the mediation went forward in that my client participated in comes this motion to say oh well give us sanctions and what what's really going on there is an attempt to argue that because she didn't make a point in time she she acted contemptuously and judged her didn't report that she had in fact prepared and purchased a plane ticket and so forth but the  of something like that would go to the court and say hey she disrespected your authority it's not give us and it's true what they did is they turn this for a motion and all the churches to get all their to fees for mediation when they knew prior to the mediation that there was not going to be a so if you want to stop there and let's stop the time and get a chance to give me answer anything else a main case you can do now or you can do it reserve time and do it now ok i think start the time again actually sanctions it's just cost shifting and we and the size that there was a knowing noncompliance with section three twenty nine and i don't see how any word of attorneys these can be made whether you call them with their for shifting costs or even a sanctions or anything and sanctions as an assumption of the lower court which is inconsistent with what the eighth circuit said in which the decision appears in one of in her actual ruling on the issue that this is and there's just not that noncompliance with section one twenty nine three twenty nine i don't know whether it's associated with this it's part of the main case it's not want to wait see too it's the second all towing issue there was some question as to why we cited what the lance case only n t z and that's because the california supreme court has said that the legislature is very well  capable of saying when equitable towing applies and when it does not and i've explained several times that if you require a motion to be brought it gets back to this idea of a central procedure and deciding the fees at the end of the case so it will towing into the state state courts it has not been ruled out in one q one cases actually suggested it's possible appropriate case and we think that this is clearly appropriate in this case and i also mentioned that the bankruptcy judge was not familiar with everything that happened in the state court in the state court we get whipsa we bring a motion for enforcement fees in the state court before the bankruptcy which is was while and in that case we were trying to recover fees that were expended on in force an appeal for example we had moved for an assignment order the t being by mr also so you can't do that because you haven't had a decision on appeal yet so we're getting two sides of these are going to both sides of his mouth and i just want it up by saying that  well you generally go california doesn't require you to take your fee opinion fees an appeal from the appellate court you go to the trial court it is not just as an jeffy you do not necessarily go to the court which presided over the case to get your fees you good morning you can so that last argument the last three minutes which kind of goes back to the if you want me to address that are now ok so everything that that creditors  fee award in the case and so on i guess my question would be you can use your time responsibly or you can you can attempt to shore up or buttress the ruling she made in the case his arguments things weren't argued and that she made the argument she should have done that and that you know that that's one that resonates and that and then he complains that her discussion of reductions was not sufficiently specific he has some on the sanctions issues i think i think judge kaufman was very very careful in terms of finding that there were factually and procedurally that creditors and eleven sanctions motions should be denied and that's an abuse of discretion standard factually and nothing's been pointed out in terms of the law right now i'm just talking about denying their motion as opposed to granting granting my the request my feet request ok so here's the interesting issue i guess i should know better than i actually say raising this but  i guess you know there's an issue i guess under three twenty nine three twenty nine versus getting sanctions because i did ask for sanctions they in no way compensated me for the amount of time i had to spend on that motion or the motion to reconsider whatever i think i asked for eight hours at two hundred fifty dollars an hour and which is far less than my normal hourly right and was probably not even a third of the of the time we spent and and she looked at that and she granted that i will i will say you know even though that was what three years ago now that has never been paid that order has never been satisfied  so so i'm i'm just relieved that i think all of that is rock solid now with respect to the two attorneys fees motions you know let's just be clear let me throw my self on the sword in front of the court you know that was at a time in my firm where things were moving fast this case was very confusing i had just come into the main action on behalf of miss bliss who had essentially been knocked out by she just couldn't keep up i'm sure that's clear with the record she's a lovely person and she stunned bankruptcy for years but she was just overwhelmed by this case and i came in in her place because otherwise i set out there pete the record reflects that he had cancer you know it and i think when you when you read the transcripts that are part of the record from judge kaufman when she denies the sanctions by saying that you  or due diligence in terms of defending this and you know she's very sympathetic to ms plus and recognizes that you know as an attorney coming into a case you don't know all the facts at the time you know and especially if you're coming in and you're doing a you know a new filing a new petition you know under fast circumstances and you can see from the record in this case one of the things that did happen was that ms bliss had to go back in a min and various pleadings that she missed a day and she came back in the court granted rule sixty you know relief and things like that so let me just set that aside with respect to the attorneys fees the will of the law is clear whether i raised the issue that a court has an independent obligation i say obligation not discretion i believe independent obligation to look and make sure the fees are reasonable that's what that's one of the major things that trial judges do they just  well but that that the case is in front of the judge and so and so and so the question is is i got it and so she goes through and looks at it she raises the two year issue she cuts it off and that's perfectly proper in terms of the cases that are cited really by both sides stand for that proposition and i'm going to butcher this case again but it's like war d d or something case that from the ninth circuit that everyone looks at and they say look creditors use it for the proposition that you can't go in and do that i think the case is exactly the opposite that it's perfectly proper and i believe a trial judge has an obligation to look in this case when the two either in the main bankruptcy case or in the ever at this point in time because i've just looked at the judgments creditors council's gotten three hundred thousand dollars in fees and about nine thousand dollars in costs or i mean there's a piece of paper that says that over you know a case of this would judge coffin keep saying ok it's doesn't involve a lot of money and so you saw in my my briefing papers there's this concept in both state and federal law about padding now we all think about padding as you know putting down time that you actually didn't do the work for but in both federal and state law issues in a broader context and that context is putting time in that is not necessary that's excessive that's when i that's how i use padding here and that's what that's what judge kaufman found both in the adversary fees motion and  the in the in the main bankruptcy the motion and she is in the best position to determine that and you've seen the record you've seen what the what the motions for attorney's fees look like i mean they are for anyone you know to to go through that and try to make sense out of it and she went in exquisite detail now i will say this you know in federal court the ninth circuit has always required that you know judges do go through that detail but she meets that standard here by any measure either from the bench when she explains to creditors counsel creditors counsel has no problem challenging judge kaufman and going through those hearings lasted a long long time much to my should prevent but but they did and so either between her orders or or her ruling from the bench you have a very very very complete record of what she did and why and what what her rationale was i think to go back through that and to try to figure out you know that that's where the discretion comes in there is no there is no manifest abuse of discretion here in any way so i  do have a second here not just say i i see your law clerks sitting behind me as a former court of appeal's law clerk i can only i can only say i have sympathy for them in whichever law clerk or clerks had to go through that go through this record analysis down again i guess i'll see you again in a sec all right so at this point mr jacobs we're going to argue the fear issues related to the adversary proceeding brought in and it's not relevant what is relevant is the law and i believe both of the the ninth circuit and the california courts of appeal are in tune with it it's not it's not the form of the cause of going in response it was a point every officer is based on a cause of action so this was a cause of action for exercising first amendment rights it's not really a mystery to me that this would apply this is a remedial statute the next issue we addressed in our brief was the motion to strike that was denied against a and amended answer and i guess i should when we had brought a motion to strike an equitable stoppel defense and the motion was granted with leave to a man then comes mr reeves comes into the case and follows this elaborately whole sort of whole bunch of new claims and defenses in arguments and so forth and that wasn't within the scope of the leave to amend and we've got a real starkers that's all we can do it because the court didn't say otherwise and that's a sort of the case but i'm struggling here a little bit this is my i'm struggling face with what and why i you know we have a narrowband in the in and out expansive case with expansive issues i'm hoping that everyone agrees that our bandwidth for decision is narrow so while it seems to me you're talking about things that i don't live in a live in a colleague's disagree with me i don't think this is really particularly germane to the decisions we need to make strike was abused because this is a violation of all fifteen b and it was a violation of the local rules and should have been saying since then the ninth circuit has said the rule is pretty liberal but if you don't follow it you're going to pay a price and what he did he through all sorts of things in the case delayed in a prolonged and increasing all these past for all these claims in organs that were thrown out and would have been properly understood is not not being valid from the inception witness would be a corporation but we i thinking well there were two managers dish will people that were inserted at that time right but so i mean you can say that as to one but there were two women there was the person most knowledgeable there was an individual that was at your request both both the person the individual tiny philips was there that day and there was an individual from tammy felt was there as the person most so you're really arguing about that decision needs to be reversed so i can get additional sanctions now we want the we we want those sanctions or to rescind it in the six thousand dollars returned to us we don't have it that's the violation of court orders including an order to pay sanctions mr gilman wasn't was ordered to pay sanction the bank accounts bankruptcy case and would pay them so if you could conduct discovery on that issue you can conduct a discovery to see whether he has some sort of defense about an inability to of sanctions and a problem with sanctions but i don't know how else we can deal with with people not following the law whether it's attorney bliss or or being jerked around by by does the panel need me to address any of the issues that have any questions been raised that the panel wants me to address in terms of the argument that you just heard it's the same situation as as before but i would reiterate just taylor said  opportunity again this is just like the main case in the cover such an expanse that anything that you care to bring to the court's attention is fine or you may respond to the specific matters  up to the district court it got ruled on and i mean the bottom line is this is that an affirmative defense is not a cause of action that can be stricken i'll leave it at that i mean that's what the law is clear the law hasn't changed since then if you want to know why we had causes of action like offset you know just for your own curiosity or malicious prosecutions because they weren't causes of action at all they were simply bringing to the court's attention know the sanctions that mr but the creditors believe should have been you know levied against ms bliss or i guess my associate at the time issues as i said in the in my last argument when you sit and you look you look at the orders and you look at the memorandum of opinions that support the orders and you look at the transcript all of which is of the record for you and you're  certainly when as far as i would like to say in that's because you know she wasn't favoring anybody she went down and she cut it the way that she sought you know again what you will see throughout either her  memorandum opinion or her or her you know all giving rationals from the bench is you know she says i've seen these motions over and over and over and over again and they've been to knock over and over and over again and creditors you just don't take no for an answer and yet you want to be compensated for this and i'm just not going to do  it i did find since these since these two issues overlap with the with the with the fees before i did find the case that i was referring to and if i could just if you let me put it in the record correctly i would direct you to use pages eleven forty six through forty seven and that's ninth circuit two thousand and four and what the court actually says there c or v a n and record and that's a forty seven f stop second eleven twenty four pages eleven thirty three eleven thirty one again that's northern district two thousand and seven and then there's a case that the the court herself cited repeatedly and that center for biological diversity versus city of san bernardino and that's one eighty eight count four six zero three six fifteen and that's a two thousand and ten decision i think it's i think it i think it makes sense that you can apply california law or use that as persuasive authority here because you are you're dealing with the california statute  both underlying the sub's of statute and then of course as we've been talking about sixty five point zero four zero thank you folks i really appreciate the time and i hope that i've helped to elucidate at least some of the statute quote cover moved on actually it didn't get rolled on and this is just a mis representation of the decision the only the only issue that was formally will done by the district court was whether to dismiss for lack of jurisdiction  and they were not a number of issues that were substantively addressed there and besides that if you're going to argue about what was ruled on that court pretty squarely said that miss bliss was made a frivolous motions prosecution  defense and no one has denied that respect to abusive discrimination suit me a use of discretion if you're not following the law you are abusing your discretion in the question is only whether there is some other alternative means of selvage in the decision how is she not following the law and more again in brief you've got a minute and fifteen records and looking down whatever sanctions motion is i think he was talking about the deposition sanctions motion we said we stood on our rights under thirty one and we were hammered for that and that's not that's not respecting their rights with respect to fees cutting the way she saw it well there our briefs because the the sort of summary provided by mr was no this is not as misleading on were guarding the court as an advocate under the why do it case the merino is the other