submit ours that has been the one that appropriately sets that forth and the reason why is that that if you take chase like west south they weren't speaking the the parties that had control over the money and they were seeking a remedy of specific administrative health and welfare committee varcoe in the southern circuit and others had a contract you may be able to say that it's maybe a contract or however you want to characterize it so long as you were staying within the parameters of the rules set forth in knutson and more and more importantly about crash the constructor of christ you've got to find the property or a clear substitute for it that has some sort of a defendants and you wanted some money back from them but i guess i don't know that that's different from any other death as opposed to being a particular property that you can actually find put across  i'm sorry now it seems to me and to get to maybe try to get them both threads an analysis of it there doesn't it doesn't seem to many separate property varcoe there was a separate account you don't have a separate account here and therefore i seems opinion because the procedural posture of this case is the fact that it's an appeal from a twelve to six motion and what we're trying to get straight here is the rule of law the rule of law so long as we can identify people who have  that's not anything to do with the contract we're just saying that we're looking to the planter and we're going to enforce the planter against  trust allows us to plan for anybody who's suing under five or two or three to sue anybody who potentially may be covered by that so what happened was we didn't we may not i've had for instance a contract with the that again this is a an appeal from a motion to dismiss you take the the facts play it as being true and that's on we do have some knowledge here to allow an amendment to the complaint to allow us to  that's and that's what we're looking at here where the case law controlling case law of the circuit that were in the ninth circuit is over clear and well established it's difficult to believe that even here we have six published cases we have two unpublished cases one of which went to the supreme court affirming the entire body of law counsel for the union fund takes these various supreme court decisions and basically nit picks takes little phrases out of them completely out of context and builds his entire argument about harris trust is a perfect example he takes one quote from dogs on trust in harris quote that constructive trust is based on property not wrongs and tries to build his entire case about that but if you look at the same page in harris trust where the supreme court is discussing constructive trust the entire page is replete with references to the wrongdoing or breach of trust or violation of i do share a duty that is necessary to establish a construct of trust for example and these are quotes i'll take them out of context as he did this what the court is talking about a trustee in breach of his by do sherry duty as we long ago explained in the analogous situation of property obtained by fraud whenever legal title to parties obtained through means under circumstances which rendered unconscious answers for the holder of the legal title three taining hands of the original wrongdoer they can be cut off by a purchase or in good faith again the speaking of the original long do do or the common law of trust sets limits on restitution actions against this and then some other than the principal wrong only a transfer of ill gotten trust assets may be held liable under constructive trust circumstances that render the transfer in breach of trust transferring must be demonstrated to have that actual or constructive knowledge of the circumstances that rendered the transaction unlawful and this is completely consistent with the common law of constructive trust if you look at a typical statute and i don't mean to bring pickler kickass state's law into the equation but the california law of constructive trust is that civil code twenty two twenty four determined long ago that the submission of medical claims to a group insurance plan and the receipt of those or the payment of those claims and then standing on one's rights under arrest is not wrongful conduct an f m c versus owens and same finding was made in this case first by judge barrett in the t r o where she said nothing of that store is involved in this case despite what i consider to be a sham pleading where they a ege fraud undue influence and so on and so forth judge hop at the first twelve the six motion also found that you you mr union fun have made no showing whatsoever of any you have to show you are on the same funds and again as they have are prone to do taking things out of context if we look at the actual language in great last verses knutson the court draws the critical distinction between the two types of restitution first legal which is not allowed because it's the equivalent of a breach of contract and the second equitable the first is and i quote in cases in which the plaintiff could not assert title right or title to the possession of particularly property but in which nevertheless he might be able to show just grounds for recovering money to pay for some benefit the defendant had received from him the plaintiff had a right to absolutely prohibited under the holding in great west vs knutson of honor harz did not get one penny of the union funds money those were paid to medical providers this is the distinction that the foster court actually is the list that the actual holding in foster is you can sue and recover from mr foster who received no money or property from the union instead he received training you c benefit upon him and because you conferred a benefit upon him and now want to sue him for damages for the value of that benefit that is legal restitution it is the equivalent of an action law and it is prohibited by now most importantly well there's a lot of discussion of lot of undertone in the case of judge king actually found that there was a windfall there can't be a windfall because of express holding in west death which is hell for the first time of anything by any court anywhere that congress intended to prohibit reimbursement actions at this time when it pas if you accept the west death toll during the congress intended to prohibit these types of reimbursement actions then their entire org argument goes nowhere on the main appeal and more importantly on the attorneys the argument judge team incorporated those same two concepts that arista does not prohibit reimbursement actions a risk that is not this windfall there is no windfall because there is no right the contract is invalid because congress intended to bar that type of provision or action in the contract when it passed a risk according to the he skipped the special circumstances doctrine which he is supposed to apply out of the box where you have a prevailing a risk of participant the first thing you do is you apply special that the courts should first apply the special circumstances doctrine from smith then the court need not even consider the hummel vs right off factors if there is a prevailing risk of the dissidents they can just rely on special give attorney fees that he could not be bullied by and frivolous have actually against him and several courts because of the draft of attorney's fees and that he would be compensated for such when you apply those factors with the this remedial purpose in mind you you reach a far different result in addition in considering the five hum over the dry cough factors without the remedial nature factor making a a finding which was an error of law because it contradicts western direct holding of lestat and therefore whining that there was a windfall he took the second factor ability to pay fees and compared the eighty million dollars net worth of his union fund with the worth of a working carpenter mr vander hart and his family and determined that that's slightly favored and awarded fees that shows that he was biased in his approach to the attorney's fees issue from the outset probably because he misapplied the special circumstances dr when he goes through all five of these he applied them correctly all five would have had a favorite in awarded fees certainly factor number four where he made the misapplication this finding of law would have changed had he not found a special circumstances exist to deny the award of fees he doesn't say what they are we're supposed to look for them in his discussion of the hummel versus right cost factors which can contain these two errors of law and which clearly do not reflect a remedial nature of the special circumstances doctrine required to benefit the employee the participant and the beneficiary and that's where he went wrong in our humble opinion on the attorney's fees issue  the court is quite correct that the arista plan is a contractual documented that's why we have participants that's why we have third party beneficiaries the bonder heart family are beneficiaries of this contract and all of their claims all of the union plans claims relate to and arise from this contract that's precisely why all of their state claims are preempted i don't think we need to go deeply pay the bills until the additional documentation drafted whichever way the union wants to sign and even put that in their complaint at the bonder harz were required and  attorney were required to sign these lien documents and reimbursement agreements before they would pay their medical bills no additional consideration nothing more than there payable to the clerk of the superior court you go down typically to the probate department where the settlement conference judge or the i c judge whoever is assigned to it and you petition for a minor compromise the court either approve or declines it or modifies it in some way they big money then goes into a blocked thank you can't or a structured settlement or in some cases a special needs trust special needs accounts as well as that right is granted that may or may not permit the imposition of a mean by a third party without i do not specific court and i believe you are correct and i have no expertise in that whatsoever but i believe the reason that one uses a special needs trust is that there is no reimbursement of the various indigent health care plans etc you have to notice them social security whatever it might be right but i think take i know it's not binding or anything but i think the other thing too is if you take a look at harris trust you can see that yes one of many grounds for the imposition of a construct you trust and if you take a look at our brief with court's claim that equitable rescue is available only in limited circumstances when there's an identifiable race next which we're going to go after here and that's that's the the crux of this whole thing here madison at least your complaint the only identifiable race you have is the thirty thousand dollars trust account and we were also saying i know you keep saying you want to man but that's not in front of us that's right and we and i can i may be wrong on this but i think that with me there certainly be a lot of other issues involved as a special needs trust that's fine i think that we didn't know about the special point what happened was that the money going on what it was going to in my scrumptious we know that that's the law we're trying to monitor they would never tell us when that would happen that's one thing they just really shielded us from informational you would certainly want has been that's correct we did was we had a runner you was going to go and we could have asserted it but that would have been something beyond you know for all other purposes we didn't know what that was but i would just like to also pick up on on a couple of more points the first point is that the california law to construct a trust different if you do so or you pursue it on on and they says that fulfills the i want to have a foster and i think that's the thing you know if you take a look at the other cases that have allowed this type of thing to go forward you will see that they will allow money relief under five go to a three if you for instance go after a client trust account or some type of segregated account and that foster case has upheld that approach and that's why all these other other circuit cases are adoptable into the this stream of thinking and and foster just like the rest i raise the point that he that he addressed the fact is they didn't consider or they didn't say that particular case which other cases involve things like overpayment and stuff like that you can't really trace that money anymore once it's gone that's a got contract or that's that's a breach of contract or whatever torts state law claim that you want to characterize that as that the fact of the matter is is that when it looks like you're looking for or you're going after a breach of contract action when you're trying to follow the rules of newton and the varcoe carpenter of the fourth circuit and wherever