items this morning that i'd like to emphasize because i believe that worthy of further comment number one the political standard of review and why did novo review doesn't fact apply to two of the items that are currently before your honor's number two civil code section seven that is the correct standard in fact we point that out at page twenty one of our own brief what i do need to point out though what i've leaves the salient point of analysis is that when you're dealing with legal issues issues of contractual and statutory interpretation and how the statutes and contractual provisions in a relate with one another that's to novo that's reviewed to novo there has not been any substantive opposition to that point the only complaint that dr hobson makes about our point about those principles is that we don't address that contract concept in the context of attorneys fees cases but he doesn't dispute the principles themselves and if he wants to look at two cases that dealt with those principles specifically in the context of attorney's fees attorney's fees as discretionary and as such this court reviews under an abuse of discretion standard however whether the district court properly interpreted and apply the relevant statute is reviewed de novo and even more forcefully in rock creek where the analysis was whether or not attorneys fees were available under a particular statute quote awards of attorneys fees pursuant to forty two u s c section one hundred eighty eight are reviewed for abuse of discretion but any elements of legal analysis and statutory interpretation which figure into the district court's decision and the legal standards applied by the district court are subject to novo review under those principles i respectfully submit that two questions are thus reviewed to know number and that quote the prevailing party is the party prevailing in the breach of contract action i take issue with that and i'd like to loose a date by virtue of bringing in the stance he says taste because that's the case that both parties cite exclusively i believe it best frames the issue dr hobson quotes from the stand he says case and this is a direct quote from the case and in his brief page twenty eight he says quote because plaintiffs complained includes this is quoting from stance he says because plaintiffs complain includes a claim for breach the sentence instance he says and i'm not nit picking here the rest of the stans is important and it says we must look to section seven hundred seventeen to determine whether the seller defendants are parties prevailing on the contract who may recover attorney's fees incurred in held that section seven hundred seventeen applies only to actions that contain at least one contract claim if an action asserts both contract and tork or other non contract claims section seventeen seventeen applies only to attorney's fees on its face the provision embraces all claims both toward and breach of contract and plaintiff's complaint because all are claims arising out of the execution of the agreement or the sale and court and similarly if you consider the action here as mandated under section eight point one zero the same results obtains now one thing i'd like to talk about is why does it matter because again there's been a suggestion that it really doesn't matter that it all shakes out essentially the same way it does matter in fact it's of critical importance perhaps the most important point i have for you today is this if you look at the whole act as it's mandated under the contract the case is brought squarely within the auspices of c c p california code of civil procedure section ten thirty two eighty four entitle prevailing party in any action using that same nomenclature is the contract provision or proceeding and access prevailing party is the party with a net monetary recovery a net monetary recovery now it does several other items or several other situations under which a party could be deemed the prevailing party but i urge you to look at that provision you'll find that none of those apply to this case the only one that applies is this one the party with the net monetary recovery then and crucially section ten thirty two a four goes on to say in situations other than as specified so other than what i just described the prevailing party shall be determined by the court other than a situation such as here where you have a party with a net monetary recovery here because you have such a party and because that party is o c a the discretion the doctor hobson while before it paid just twenty nine thirty of his brief and his citations of the crawford case and the sears case have no application those cases don't apply and that discretion doesn't apply because ten thirty two eighty four says that if you've got the party with the privilege the net monetary recovery that's the prevailing party no matter how the one with the net monetary recovery and again as a reminder that if she was reviewed to know because again this calls for an analysis of the interlacing ship of the contractual language and the pertinent sections at the very least the matter should be remanded for a determination by the district court to analyze the issue under the contract and under ten thirty to a four because the district court's decision by the court's own admission was based on equity not monetary recovery was based on equity analysis on this point he has it backwards in his brief it page forty six he says quote it is beyond dispute that the contract language authorizes an award of costs the language does not limit the scope of the award of a cost in any way except that the award of  t that the cost must belong to the prevailing party the only natural and plain interpretation of such language is that it authorizes an award of all costs of a let along to the prevailing party and of no that's incorrect that's not right first the provision doesn't say all costs and it very well could of many contracts do many attorneys fees and cost causes do but more fundamentally like the district court dr hobson ers in talking about the issue in terms of what the contract does not limits rather than what it explicitly permits that's the wrong analysis you're looking for a language of expansion not limitation and if you look at eight point one zero it's not there now dr hobson makes several what i call sort of quasi i policy arguments about o c s position on this issue and one such argument is that our construction of this of the contract languages i'm advocating for would somehow render that language meaningless and i s the district court would have discretion to say a pox on both your houses i'm not giving you any fees to anybody or even to award fees and costs to the non for bailing part of the district court would otherwise have that discretion but for this specific language so the construction that i'm lobbying for certainly does not render that language meaningless dr hobson also claims that our construction would he says quote at page forty eight impose the requirement that the contract language specifically address the federal statute in order to give force to its plain meaning also not true there's no requirement that the specific statutory section needs to be invoked there is a requirement that there be some sort of explicit language of expansion that should be with reference to the statutes that issue which would be a little complex but it could be something as simple as simply putting in all costs and the language doesn't say all costs there's no modifying as i detailed before but even if your honour's disagreed under the under eight point one zero it is improper for the district court to have awarded over seventy six thousand dollars of otherwise not available cost under the auspices of eight point one  personally had that discussion with the district court judge he said that we could waive those because we did not submit specifics jury instructions on the promissory notes he made that decision the stipulation that is being referred to there are actually two of them that are being referred to i'd like to address both in the one you're talking about is later on so the judge said why don't we have a jury why don't we tell the jury that the notes are no longer a part of the action and we agreed to that because again judge judge decision to take them out of the case was already if they'd accomplis we were not substantively agreeing with the propriety of that station and we were saying that if they're out we do we do need to say something to the jury so these things that we've been talking about and giving testimony on evidence on they're no longer in the case the jury's naturally going to wonder what happened to them and light of what judge chubs already done we do need to have something that at least call attention to the fact that they're no longer in the case that's the stipulation your honor furring to the other stipulation that i'd like to address and the one that's referenced repeatedly but mostly at page fourteen and fifteen of the  this one under which o c a somehow that there was somehow an agreement that we would not pursue the notes in the context of the litigation well dr thompson is right about talking about that that ascribes stipulation we did we did before they were removed from consideration so this notion that dr hobson has at all times and been happily willing to pay the notes and there's just de minimus issue it's not true it's not the case we were forced to  deal well your honor i submit that that's simply sounds pretty good strategy having refused to stipulate to pay the notes and knowing that he was dead in the water on that issue that's sound strategy is to elicit that information through your own friendly attorney on direct examination rather than having it brought out in the first instance to the jury on cross that's certainly not an indicator of judge of dr hobson's actual willingness to pay the notes or that it was somehow an issue that was of no significance in terms of this c looking at the just assume that we rule against you on all other issues when we show you ok you're correct maybe the note should have stayed in the in the caves to go back then from trial only on  dr hobson has basically rendered the issue of the notes essentially done because he's acknowledged that there are very valid enforceable obligations judge shove would have to do a new analysis because critically your honor the notes themselves have attorneys fees and costs provisions in them so we're not only talking about the fees that would be available under the big what i'll call the peak contract the business services agreement but those are independent contracts that have their own independent fee clauses so even if your owners decided that you didn't want to send it back for it's a fact finding in additional evidence for your presentation i still submit that would be entirely proper and warranted for your honour's to send it back to say look these things should have been removed they were in the case he admitted he had to pay that pay them in the context of trial therefore o c a should is the prevailing party on those notes and judged of district court you should consider those notes and they're independent attorneys fees clauses back off with absolutely yes to an extent it would you know in our post trial briefing relative to these issues the attorneys fees issues we certainly are brought up the issue and  lee argued the issue that the no should be considered did we go back in the context of that brief and assail the decision not a heck of a lot we had to be kind of careful quite frankly because we were still before judge of and we brought the issue that the note should be considered but i had already been told by judge that the notes had been waived so to go back and try to reinvent the wheel on that issue in the context of our  briefing wasn't going to happen but i can tell you want to quickly that yes we certainly argued strenuously and i think might be something excerpts of record but it's probably in the entire record for your honour's that we did argue this issue about the fact that the not specifically be considered and judge show but only devoted about one paragraph of his decision to this issue and he said yes o c a did recut did obtain some relief on the notes in the form of dr hobson's a college meant that those  existing obligations but there still but his reason for not really crediting them for anything was that they were still the subject of further litigation those were his words well let's say if let me and let me take it one step further if we ruled against you and said that you wa then you have to sue him for that right and then the parent you have to sue and a separate absolutely true and then if you prevail on that then those attorney's fees provisions apply to back true about you but what you're arguing here is that you didn't waive it and it needs to come back and be incorporated in deciding the whole the award of the attorney's fees on the entirety of the exactly your honor because under the version you case the version versus super who cares one of the cases we cite even if we don't actually have pursuant to this action a judgment against dr hoxton for the notes and we have to as in fact we are filing an independent stu's on the notes by achieving dr hobson's acknowledgement that he did to the action on the notes has not yet been filed but it will be and it has been filed it's been a problem for us it's been filed it's actually proceeded proceeding in the san joaquin county superior court  currently pending in front of judge removed the promissory note case from the state court case back to judge and they have a pending motion to remove that case out to change of venue motion out to louisiana and make it at a point that he was in a half nelson pen and you know and didn't want to further aggravate jed shab well the first the first issue with respect to waver is that the  in not including the promissory notes in the jury instructions was o c s err the trial court accepted all of o c s jury instructions and o c elected not to provide the jury instruction on the promissory notes what else he did is create a jury verdict form that accounted for the promissory notes and and try to separate that out but they did not create a jury instruction to deal with a promissory notes and so that that was as error and therefore would not be subject to appeal here jury on the promissory note some worry about this issue a bit of a double recovery so we came up with the decision to instruct the jury not to consider the promissory notes and we mean gauging the stipulation which we agreed  applies implies in its brief that it was instructed by the court not to include the promissory notes in its instruction that's that's not correct and that's not what the record shows the record does not show that that judge the trial on wednesday the jury and was instructed on friday and wednesday august fourth and the jury was instructed i believe in aug sixth or so and what happened after that there's a further issue he has not appealed appeal and in any kind of timely appeal or in their notices of appeal precludes o c a from bringing them in at this point your honor let me add to i don't know if it's real it's not part of the record but we've been we've been trying bankruptcy and louisiana that's correct your honor and what we have here is a claim by and against o c a and their students does the automatic stay in bankruptcy come into play in because that's kind of like walking by an octopus and expect them to get away with it goes out of my experience reach everywhere in fact this this appeal was stayed for approximately four or five months while that issue was taken up and then after the trial after the bankruptcy court issued its order we waited the thirty days and then the the appeal was back reinstated so that orders are even if it is that order in the record here is the order of the bankruptcy court say the state doesn't apply yes your honor actually i filed that order immediately after it was issued i believe it was in august of this year i'm so i think i know i said send it to this court for the filing and asked that this appeal be put back on i also want to address section ten thirty two it appears that o c is basing their claim for that they are the prevailing party exactly accurate he leaves out the key key sentence and that is that ten thirty two eighty four expressly provides the trial court the discretion to all three award attorneys for non monetary recovery they can determine which party was the prevailing party and consider non monetary recovery and this court specifically addressed that issue in the berkeley case which is site in our briefs but in in two thousand and two this court addressed in berkeley at page nineteen this court cites ten thirty two and ten thirty two eighty four states when any party recovers other than monetary relief and in situations other than as specified the prevailing party shall be as determined by the court and under those circumstances so the california civil code or code of civil procedure expressly authorizes the trial court to consider one hundred sixty dollars is not on monetary relief and it certainly is a monetary relief because it has a huge impact a doctor hobson but that that the fact that dr hobson defeated that twenty five year contract and eighteen months and is at free from that obligation certainly had a huge impact financially on dr holmes and it's completely artificial to say that o c a prevailed because they have a net mon recovery on the on the judgment page we have at some point we have to consider the fact that dr hobson terminated this twenty five year contract and that's the eight hundred pound gorilla that's what the whole case was about and and the trial court was not confused by that and the trial court made that very clear in its order the trial court listed everything that o c obtained didn't list everything that dr hopson obtained and his action and all of his successes but it listed everything o obtain and it said still got the loser share the case and the court was aware of the trial court was aware that the relief that o c obtained was only because this contract was terminated and there were some cleanup issues about whether dr hobson should pay the rent that o c a paid there while the litigation was pending and keep in mind that dr hobson asked requested from o c that he be permitted to pay the right but at the in very inception of this litigation on the first day the complaint was filed dr hobson wrote a letter to o c a and said you are required i'm terminating the contract for cause and based upon our contract you are required to transfer to me all the practice obligations and i make that election to transfer me the practice obligations including the leases for for my offices and also you are required to sell to me the furniture fixtures and equipment at its adjusted pay from the get go and they got and they got dr hoxton to have to buy the furniture for it or at least even have the option to buy the furniture fixtures and equipment as offices so those issues work those issues were clear to the paragraph second sentence the trial court states i page five of his order is one hundred thirty eight in the record hobson did acknowledge the oto stay roughly seventy thousand dollars on several promissory notes however those notes were issue to me is a red herring and we're talking about something that's still pending in litigation and we're also talking about something that was considered by the trial court if this were managed back to the trial court with the order to consider the promissory notes i'm sure he would say i did i consider the promissory note see page five of my order and the promissory in the amount of the promissory notes pales in comparison to the the contract which was the which was the main focus of the fourteen day jury trial and that was fourteen court days not fourteen calendar days i also want to address the the cost language of section eight ten of the of the contract between dr hopson  paragraph eight ten states that the prevailing party in such action shall be written on title to recover its costs and reasonable attorney's fees but there is no modification on what what the what should be included in it cost there's no indication that the cost should somehow be limited the obvious to plain interpretation here is that all costs that incur that are related to the litigation should be included and that's what the trial court determined and the and the trial court exercised its discretion and making that determination and applying that determination it were a doctor hopson his  dismissal prior to prior to judgment in that case the plaintiffs dismissed their getting their complaint against the defendants prior to judgment and the defendants tried to get their attorneys fees in that case  section seven hundred seventeen does not apply on its face because section seven hundred seventeen states that if there is a dismissal prior to judgment then this action does not apply so the california supreme court turn first to section seven hundred seventeen which was the point that we made in our briefs which mr baxter quoted but bennett determine that seven hundred seventeen does not and cannot apply so invented what it called the pragmatic test and then under the pragmatic test we're supposed to consider i sensually i thought of far as i can tell the same thing that you would consider under that those two cases the h as you case and which is who prevailed on the parties about where they would prevail on the claims what were those claims about what were the litigation objectives and what was the what was the net end result given the parties litigation objectives that's the same test that this court the trial court applied in its order so i'm not sure that the i don't see how the pragmatic test would represents a case where a plaintiff sued and lost its claim that came up with a net recovery came up with a net recovery in that case the plaintiff had a personal guarantee on a lease and sued to have that guarantee determine invalid but because the defendant and the guarantee was determined to be in actually valid so the point of lost its it's its claim but because the lease had been overpaid that plaintiffs in that case ended up with a net recovery receive some of that and the money back on their guarantee so in that case the plaintiff lost about one it on paper and that's similar to the situation here dr hobson was the plaintiff he won but it looks like it looks for at first blush like he lost on paper but the key thing is he won his he got out of this this contract that he sued for fourteen days to get out of and of the claims that were presented to the jury to breach of contract claims one claim by dr hobbs and one claimed by o c a a breach of producer duty claimed by dr hobbs and the conversion claim by o c a so for claims were presented to his favor at that point he defeated as to his conversion claim he lost a breach of producer a duty claim and he was out of the contract the only the only reason that we're even here today perhaps is because there was a clean up after the after the jury special verdict forms there was no need to have a juror i would have told judge of this i wasn't allowed to there was no need to have a jury instruction because the promissory note claims are founded on breach of contract theories which are included in the jury instructions we already had no need to have a separate instruction only reason the notes are still the subject of further litigation is judged other mr bradford point out is because judge shove erroneous leave removed those from the purview of our case ten thirty two way for mr bradford indicates that i'm misconstruing something your honour's i've see choose to take a look at the issues is cleanup issues o c s recovery is cleanup issues they are nonetheless an award in judge subzone language an award that was made in favor of o c a on those various issues they should be considered they weren't considered