[00:00:00] Speaker 00:
called.

[00:00:01] Speaker 00:
And with that, the first case on argument is in Ray Deco Enterprises, Inc.

[00:00:06] Speaker 00:
Brian M. Grossman appearing for appellant and Jonathan Hayes appearing for appellee.

[00:00:13] Speaker 05:
All right.

[00:00:13] Speaker 05:
Thank you.

[00:00:13] Speaker 05:
Good morning, Mr. Grossman.

[00:00:14] Speaker 05:
Would you like to reserve any time for a reply?

[00:00:17] Speaker 03:
Yes.

[00:00:18] Speaker 03:
Good morning, your honor.

[00:00:19] Speaker 03:
I'd like to reserve nine minutes for my reply.

[00:00:21] Speaker 05:
All right, and hopefully you can see the clock.

[00:00:23] Speaker 05:
We'll try to give you some heads up if you can't, but it's ideally your responsibility to decide where you want to cut off.

[00:00:32] Speaker 05:
With that, you may proceed.

[00:00:34] Speaker 03:
Thank you, Your Honor, and may it please the court, in light of Judge Spraker's comments, I really tried to condense my opening comments and reserve as much as I can for the reply.

[00:00:44] Speaker 03:
As the panel understands, the bankruptcy judge based her ruling upon three findings.

[00:00:51] Speaker 03:
each of which we think is erroneous.

[00:00:55] Speaker 03:
One, that my client failed to prove his claim for equitable indemnity.

[00:00:59] Speaker 03:
Two, that he failed to pursue his claim against Saman Sinai.

[00:01:04] Speaker 03:
And three, that equitable indemnity is simply not available under California law.

[00:01:11] Speaker 03:
And I think all three issues are

[00:01:15] Speaker 03:
really not even a close call.

[00:01:17] Speaker 03:
As we know, Judge Blubond made repeated findings of fact as to Saman's equal or even greater culpability with my client, Benjamin Pouladian.

[00:01:30] Speaker 05:
And I think it's- Can I interrupt because I agree you're laying it out exactly as Judge Blubond laid out in the order and actually the proposed order proposed, but I found it a little strange that

[00:01:46] Speaker 05:
The stipulation email waiver issue was the second issue raised by the court, and I don't want it to be the second issue raised here, ideally, because if it's waived, how do we even get to the other two?

[00:02:05] Speaker 03:
Oh, you mean as to whether the claims against Saman Sinai were tried?

[00:02:10] Speaker 05:
No, no, as to whether the email, the February 12th email effectively waived or abandoned those claims.

[00:02:18] Speaker 05:
And importantly, they didn't just abandon them against Saman, they abandoned them against all three of the brothers, didn't they?

[00:02:24] Speaker 05:
That's the argument anyway.

[00:02:26] Speaker 03:
Yes, Your Honor.

[00:02:27] Speaker 03:
And I think it is at best unclear what that email accomplished because the email is discussing an agreement among counsel as to what claims counsel

[00:02:39] Speaker 03:
we're going to try in that matter.

[00:02:41] Speaker 03:
And Saman was unrepresented at the time.

[00:02:43] Speaker 03:
And so what our position is, is that A, it's not clear that the claims against Saman were being released.

[00:02:51] Speaker 03:
And most importantly, the best evidence that those claims were not released is the mere fact that Judge Blubond repeatedly adjudicated those claims.

[00:03:01] Speaker 05:
Now, that's one version of it, I think.

[00:03:05] Speaker 05:
The other version is that she was pretty clear in saying that Saman was not a party, right?

[00:03:11] Speaker 05:
And then she made the other claims because she was running down the pretrial order and everything that you asked.

[00:03:17] Speaker 05:
And then it got rolled in, didn't it, to the proposed order submitted by opposing counsel.

[00:03:22] Speaker 03:
Well, then, Your Honor, I would submit that Judge Blubond made repeated

[00:03:28] Speaker 03:
mistakes and I don't believe that's the case because if you're putting yourself in the position of a judge who has made a ruling that these claims are no longer being adjudicated against Saman and you're going through your list and you're making repeated findings with respect to Saman,

[00:03:47] Speaker 03:
That doesn't jive with me as to how any learned judge would act.

[00:03:53] Speaker 03:
I mean, you have to think to yourself, okay, I've dismissed Saman or I'm not adjudicating against Saman, but I'm repeatedly making findings about him.

[00:04:02] Speaker 03:
I think it's completely inconsistent with common sense that she would do that to say that, oh, Saman is out, but I'm going to repeatedly adjudicate claims against him.

[00:04:11] Speaker 03:
To me, it's not a fair reading of the record.

[00:04:16] Speaker 03:
And it's on that basis that we believe that, in addition to which, that it's completely unclear as to whether these claims were dropped against Saman.

[00:04:25] Speaker 03:
He was never dismissed from the case.

[00:04:29] Speaker 05:
But whose obligation was it to dismiss?

[00:04:33] Speaker 05:
I mean, generally, the plaintiff dismisses the case if it's under 41, isn't it?

[00:04:38] Speaker 03:
Yes.

[00:04:38] Speaker 03:
And the court can do it su espante itself, saying, OK, well, if these parties are not being pursued,

[00:04:45] Speaker 03:
then the claim against Saman should be dismissed.

[00:04:48] Speaker 03:
The thrust of the argument that we're making, Judge Spraker, is really twofold.

[00:04:55] Speaker 03:
One, that the email is far from clear, and two, that the repeated findings of fact by Judge Blubond and her adjudication that Mr. Polidion did not prove his claim

[00:05:11] Speaker 03:
for equitable indemnity demonstrates to us that those claims were being adjudicated.

[00:05:16] Speaker 03:
Because if a judge were to say that these claims are no longer before me, why would she adjudicate the equitable indemnity claim?

[00:05:26] Speaker 03:
She made a specific finding that Mr. Palladian didn't prove it.

[00:05:29] Speaker 03:
So it's our contention that the record is far from clear that these claims were dropped or dismissed.

[00:05:38] Speaker 03:
And if we work off of that,

[00:05:40] Speaker 03:
you know, assumption, then we have to go to the findings that Judge Blubont made that should, that must be reviewed under de novo standards.

[00:05:49] Speaker 03:
Very important because we're not, you know, questioning the facts.

[00:05:54] Speaker 03:
We're basing it solely upon the facts that she found.

[00:05:58] Speaker 03:
And on that basis, we're not dealing with a clearly erroneous standard.

[00:06:01] Speaker 05:
We're still be saying based upon these- Does that apply to the waiver issue as well?

[00:06:06] Speaker 05:
What's the standard view under the effect of that email, which was read into the record by Judge Blubon, of course?

[00:06:14] Speaker 03:
Well, it's an excellent question, Judge Breaker.

[00:06:16] Speaker 03:
And having tried this issue or trying this issue right now, I want to remind everyone that a waiver must be proven by clear and convincing evidence.

[00:06:26] Speaker 03:
There's Casey instructions on that.

[00:06:28] Speaker 03:
And I think it's very important to remember that a waiver must be proven by clear and convincing evidence.

[00:06:36] Speaker 03:
And this is far from clear and convincing.

[00:06:41] Speaker 03:
I don't know if I've exceeded my time.

[00:06:44] Speaker 03:
I wanted to make sure that I... You had 850, so... Okay, I think I reserve nine.

[00:06:51] Speaker 05:
Yes, you do.

[00:06:52] Speaker 05:
Thank you.

[00:06:52] Speaker 05:
If you want to... All right.

[00:06:54] Speaker 05:
Well, we'll stop there and let you reserve the full amount of that.

[00:06:57] Speaker 02:
Thank you, Your Honor.

[00:06:59] Speaker 05:
All right then.

[00:07:00] Speaker 05:
Mr. Hayes, you may proceed.

[00:07:03] Speaker 01:
Good morning, Your Honor.

[00:07:04] Speaker 01:
John Hayes, RHM Law, appearing for Appellee Samson.

[00:07:10] Speaker 01:
I have a few comments, as I'm sure you imagine, on the discussion that I was just listening to.

[00:07:20] Speaker 01:
The email, the argument seems to be, well, it's unclear.

[00:07:30] Speaker 01:
I'm not sure what that was supposed to lead to, but they, you know, Judge Blubon gave Mr. Yates, the attorney, a trial, so many chances to explain that.

[00:07:43] Speaker 01:
She said to him, you know, am I missing something?

[00:07:45] Speaker 01:
During the lengthy colloquy before the trial started, she asked him, she even said specifically, what does that first sentence mean?

[00:07:55] Speaker 01:
And there was never any even suggestion

[00:08:00] Speaker 01:
that while it only means this, we're not giving up the equitable indemnity claim.

[00:08:09] Speaker 01:
The declarations by Mr. Palladian, his trial declaration, said nothing about equitable indemnity other than there was a couple of snide remarks.

[00:08:31] Speaker 01:
In his closing, he said nothing about that they've established that it wasn't brought up really until that objection.

[00:08:42] Speaker 01:
When Judge Blubond made her proposed findings, those were objected to.

[00:08:49] Speaker 01:
That's the first time it came up as far as, oh, by the way, we didn't give up that claim.

[00:08:57] Speaker 01:
And I want to say that the

[00:09:00] Speaker 01:
the opening brief, and that objection is very firm on saying that Mr. Sinai is and was still a party to the case.

[00:09:15] Speaker 01:
He was not severed out.

[00:09:17] Speaker 01:
It was not dismissed.

[00:09:18] Speaker 01:
The judgment is effective against him, but there's no right to equitable

[00:09:26] Speaker 01:
uh, indemnity and, and therefore the suggestion that we'll, why don't we send it back and let, uh, uh, Judge Blubon do the rest of it, uh, uh, you know, that they could ask for that.

[00:09:40] Speaker 01:
They, they could have, uh, uh, filed a motion for a new trial or motion, a 60B motion saying it was unclear, uh, uh, that there was effectively a denial of due process.

[00:09:54] Speaker 01:
And it should be done over that.

[00:09:56] Speaker 01:
That wasn't done until after the findings.

[00:10:00] Speaker 01:
I mean, there was no request for a new trial.

[00:10:02] Speaker 01:
No, no request to try it over there.

[00:10:04] Speaker 01:
Really?

[00:10:05] Speaker 01:
I think they're they're asking the back to order a 60 B motion or a rule 59 motion.

[00:10:15] Speaker 05:
Yeah, sure.

[00:10:17] Speaker 05:
What was someone represented at all at all of that proceeding?

[00:10:22] Speaker 01:
No, as far as I know.

[00:10:24] Speaker 01:
It went on for five years or four and a half years, but no, certainly I don't think ever he was represented.

[00:10:33] Speaker 05:
Did he participate in the litigation actively?

[00:10:39] Speaker 01:
I think his deposition was taken, but I wasn't there either, but he did not show up to trial.

[00:10:49] Speaker 01:
He was left off the witness list.

[00:10:51] Speaker 01:
After the waiver, after that email came out, he was removed from the witness list.

[00:10:57] Speaker 01:
And he didn't show up.

[00:10:58] Speaker 01:
He wasn't there at trial.

[00:11:01] Speaker 05:
But there's no evidence that he received the email, the February 12th email either, is there?

[00:11:09] Speaker 01:
No, not in the record.

[00:11:14] Speaker 01:
I'm trying to speed think that now, right?

[00:11:17] Speaker 05:
So how do you respond to Mr. Grossman's argument, Mr. Palladian's argument that the first line is that all counsel got together and agreed to the following, paraphrasing.

[00:11:32] Speaker 01:
Well, I'm not sure if Mr. Palladian says, you know, I've decided I have five things that I was going to argue.

[00:11:39] Speaker 01:
I've decided not to do two of them.

[00:11:43] Speaker 01:
I don't know why it would matter as long as he told that to the judge.

[00:11:47] Speaker 01:
I don't know why it would matter who heard him say that, you know.

[00:11:50] Speaker 05:
Would it matter to the other party that wasn't going to be tried?

[00:11:55] Speaker 01:
Absolutely.

[00:11:58] Speaker 05:
But that's what I don't see in the record is anything recognizing that Saman specifically knew, appreciated, acted on.

[00:12:08] Speaker 05:
I mean, it's just, it looks like it's just blank.

[00:12:13] Speaker 01:
Well, I do know, from what I've been told, but I do know that once that waiver came out, and it was in Judge Blue Bond's tentative, and she commented that he made the decision not to participate anymore after that, believing that he had been specifically and intentionally left out.

[00:12:42] Speaker 01:
I don't even know if they had said, well, Sam, we're going to leave you out of this.

[00:12:48] Speaker 01:
What would he have said?

[00:12:49] Speaker 01:
I don't see how the waiver could matter, whether he participated in their unilateral decision, apparently, to leave him out of it.

[00:13:06] Speaker 01:
And by the way that he said, Mr. Grossman said that it has to be clear and convincing.

[00:13:11] Speaker 01:
That's nowhere in the record.

[00:13:14] Speaker 01:
I don't know that that may be true in criminal proceedings, but that's never been argued that the waiver, it's not a waiver unless there's clear and convincing evidence, which by the way, I think there is clear and convincing that there's, I mean, there's a few snide remarks, as I said, otherwise there's nothing in the whole trial.

[00:13:36] Speaker 01:
about whether Sam did things, specific things that would make him liable for payment of... There's a clear finding that he forged his brother's name, isn't there?

[00:13:54] Speaker 01:
Oh, I'm sorry.

[00:13:54] Speaker 01:
You know, that's not what Mr. Grossman was saying, I thought, was the waiver isn't effective.

[00:14:06] Speaker 01:
unless there's clear and convincing evidence showing that it was effective or that it was acted on.

[00:14:13] Speaker 01:
It is clear and convincing.

[00:14:17] Speaker 01:
There was nothing in the trial where Mr. Palladian is trying to ... There's no summary, especially at the closing.

[00:14:27] Speaker 01:
It says, here's what we prove with respect to ... And even most importantly is the jury instruction.

[00:14:35] Speaker 01:
that says, and there was nothing in the reply brief that says that jury instruction isn't right or isn't enforceable or something, but the jury instruction tells the jury you're going to be asked to quantify or come up with the comparative numbers.

[00:14:56] Speaker 01:
How much Mr. Palladian is charged with a whole lot of bad deeds.

[00:15:01] Speaker 01:
You're going to be asked to figure out

[00:15:03] Speaker 01:
What was Mr. Simone's relationship or his liability for each one of these?

[00:15:16] Speaker 01:
Maybe some he was in on it completely, supposedly.

[00:15:19] Speaker 01:
Maybe some he was just barely involved.

[00:15:24] Speaker 01:
And their position is we proved without a doubt a hundred percent that every dime Mr. Palladian was charged with was also caused completely.

[00:15:35] Speaker 01:
At least together was caused by Sam and therefore he's liable.

[00:15:43] Speaker 01:
I actually don't know whether they think he's liable for the whole $10 million or half of it.

[00:15:50] Speaker 01:
That isn't even in the record, you know, that

[00:15:53] Speaker 01:
that they established that, but I feel like I sort of went off course there for a minute.

[00:15:59] Speaker 01:
I did want to comment on the de novo.

[00:16:01] Speaker 01:
I mean, I sort of wondered about that myself.

[00:16:08] Speaker 01:
I mean, is there enough evidence?

[00:16:12] Speaker 01:
I mean, I don't see how you could possibly find that there was enough evidence to make the findings, but was there enough evidence?

[00:16:20] Speaker 01:
I could see where that might be reviewed de novo.

[00:16:24] Speaker 01:
But there's nothing in Mr. Yates' objection to the findings that explains what that means.

[00:16:34] Speaker 01:
Is there a code section, a rule?

[00:16:36] Speaker 01:
Are there cases that say this is what enough evidence means with respect to equitable indemnity?

[00:16:44] Speaker 01:
There's nothing in the opening brief.

[00:16:47] Speaker 01:
It's argued in the reply brief, but really just in one sentence.

[00:16:52] Speaker 01:
that says, well, that's a legal conclusion.

[00:16:55] Speaker 01:
The point of that is that Judge Bluban didn't get a chance to decide whether or not she had enough evidence in front of her to reach the conclusion that she made.

[00:17:13] Speaker 01:
It's not about what's the law.

[00:17:18] Speaker 01:
on enough evidence to make the findings that were required.

[00:17:23] Speaker 01:
So to me, it's not de novo.

[00:17:26] Speaker 01:
It's a clear error.

[00:17:29] Speaker 01:
Was there enough evidence that's reviewed under clear error?

[00:17:38] Speaker 05:
Do you believe that we need to address

[00:17:41] Speaker 05:
sticking on the waiver issue.

[00:17:44] Speaker 05:
If we find a waiver, do we address what effect that waiver has?

[00:17:49] Speaker 05:
Again, getting back to this issue of what did the waiver do?

[00:17:57] Speaker 05:
Did it remove the claim totally from the litigation?

[00:18:03] Speaker 05:
And as to Mr. Grossman's point, akin to an informal dismissal of the proof of claim, or even if it was removed, was it still adjudicated and tried for purposes of finality and preclusion?

[00:18:22] Speaker 01:
Well, my first thought about that is the word removed.

[00:18:27] Speaker 01:
I would say abandoned.

[00:18:29] Speaker 01:
It's the same as I said a few minutes ago, if there were five causes of action or claims or charges or whatever, at the beginning, they say, you know, we're only going to go through three of those.

[00:18:43] Speaker 01:
And the court certainly doesn't have a soesponte duty to sever the other two or to dismiss a party.

[00:18:56] Speaker 01:
If the complaint said we're going after five people and we've decided a trial to only go after three, there's still parties.

[00:19:06] Speaker 01:
And Mr. Gross, well, let me leave that out.

[00:19:11] Speaker 01:
There's still parties and there's absolutely been adjudication on what was before the court.

[00:19:19] Speaker 01:
I mean, it's in the joint pretrial order that the court has to make a finding about equitable

[00:19:27] Speaker 01:
and there was just no evidence and it wasn't removed.

[00:19:32] Speaker 01:
It just it wasn't.

[00:19:35] Speaker 01:
It's a plaintiff or the Mr Pleiadian didn't proceed with it.

[00:19:40] Speaker 01:
And therefore didn't prove anything.

[00:19:44] Speaker 01:
Well, maybe not therefore, but the reality is didn't offer enough evidence to prove anything anyway, but.

[00:19:51] Speaker 01:
Totally in effect.

[00:19:55] Speaker 05:
Isn't the other alternative by virtue of the February 12th email, which the court incorporated into its first day description of what was going on, saying the only claim Mr. Palladium is going forward on was the credit card related debts.

[00:20:13] Speaker 05:
Then there was some discussion about a loan, but excluded from that was any discussion of the indemnity against any of the brothers because there were indemnity claims against all three.

[00:20:25] Speaker 05:
So could those claims have been tried at that point, given the statement from the parties and then incorporated by the court that the only claim going forward was the credit card debt and possibly the loan issue raised by Mr. Palladian?

[00:20:46] Speaker 01:
Well, my response is, could it?

[00:20:49] Speaker 01:
Yeah, I would say yes.

[00:20:52] Speaker 01:
I've been involved in cases where everybody's trying to, is fighting about fraud.

[00:21:00] Speaker 01:
And at the end, the judge says, well, there's no fraud, but I find willful and malicious injury.

[00:21:07] Speaker 01:
When the evidence comes out, whatever the evidence is, the court can make a finding and does.

[00:21:16] Speaker 05:
Even if Saman's not there?

[00:21:19] Speaker 01:
Well, if the evidence came out,

[00:21:22] Speaker 01:
Saman's not theirs.

[00:21:23] Speaker 01:
I think it's the biggest proof that there was a way that everybody involved believed.

[00:21:30] Speaker 01:
They never said, where's Saman?

[00:21:32] Speaker 01:
Why isn't he here?

[00:21:32] Speaker 01:
I mean, everybody believed that there was no intention any longer to go forward with the equitable indemnity claim.

[00:21:42] Speaker 01:
I'm about out of time.

[00:21:50] Speaker 01:
Yeah, anything else?

[00:21:51] Speaker 01:
Uh, no.

[00:21:52] Speaker 01:
Oh, that's it.

[00:21:52] Speaker 01:
Thank you, your honor.

[00:21:55] Speaker 05:
All right.

[00:21:56] Speaker 05:
Mr Grossman, we'll turn it back to you for reply and you have eight and a half minutes left.

[00:22:02] Speaker 03:
Thank you, your honor.

[00:22:03] Speaker 03:
Well, this is a have your cake and eat it too situation.

[00:22:07] Speaker 03:
I think the judges can appreciate that.

[00:22:10] Speaker 03:
If the claim wasn't tried, then Judge Blue Bond had no business

[00:22:17] Speaker 03:
making an adjudication on those claims, and if that's the way the bankruptcy appellate panel sees it, then the judgment still must be reversed to remove those claims so that my client can pursue an indemnity claim thereafter.

[00:22:31] Speaker 03:
As we all know, an equitable indemnity claim need not be brought

[00:22:37] Speaker 03:
in connection with the action seeking to place liability on my client, he can wait until there's actual damages through an adverse judgment, and then proceed for equitable indemnity, which is perfectly appropriate.

[00:22:55] Speaker 03:
That's not our version of the facts, but I don't want to swim upstream.

[00:23:00] Speaker 03:
I will point out that the February 12th email, as Judge Breaker points out, begins with, quote, please consider this email as a joint email by all counsel, dot, dot, dot, and that there was no indication that it pertained to claims against Saman specifically, and that indeed, or the other brothers,

[00:23:29] Speaker 05:
are being pursued.

[00:23:30] Speaker 05:
And there's a reservation.

[00:23:31] Speaker 05:
The problem is that there's an express reservation of what is being retained to go forward.

[00:23:37] Speaker 05:
It's the debt on the credit cards.

[00:23:40] Speaker 03:
Yes.

[00:23:41] Speaker 03:
Yes.

[00:23:41] Speaker 03:
And again, not wanting to swim upstream, I do believe that if there is to be a waiver found,

[00:23:50] Speaker 03:
And this is not something that I briefed because it's not something that I appreciated until Judge Breaker brought it up, that this can be construed as a waiver and that I'm sure the court's more than capable of making the determination that a waiver does have to be proven by clear and convincing evidence.

[00:24:04] Speaker 03:
But leaving that aside, and I don't want to swim too far upstream,

[00:24:10] Speaker 04:
What I want to spend my time focusing on the burden of proof, clear and convincing evidence.

[00:24:15] Speaker 04:
You say a waiver has to be proved if people are litigating the issue of labor, of whether or not there's a waiver.

[00:24:24] Speaker 04:
Maybe you're right.

[00:24:26] Speaker 04:
But here, what it is is they're not litigating it.

[00:24:30] Speaker 04:
They're saying we aren't going to pursue it.

[00:24:33] Speaker 03:
Okay.

[00:24:34] Speaker 03:
And Judge Corbin, I'm fine with that because

[00:24:36] Speaker 03:
If I read the tea leaves correctly, there's a very big concern about whether these claims were being tried.

[00:24:43] Speaker 03:
Notwithstanding, Judge Blubons expressed findings on them, and I'm fine with that.

[00:24:49] Speaker 03:
Because if it wasn't tried, then it cannot be adjudicated.

[00:24:52] Speaker 03:
It's having your cake and eat it too.

[00:24:55] Speaker 03:
If what we're saying is that these claims aren't proceeding, they're not being litigated, then they cannot be adjudicated.

[00:25:02] Speaker 03:
And if they cannot be adjudicated, then her adjudication of those claims is erroneous.

[00:25:09] Speaker 03:
And if that's the case, we must reverse the judgment and say that this claim wasn't tried and Mr. Palladian may pursue his equitable indemnity claims in another venue.

[00:25:20] Speaker 03:
Because if you do it this way, you're saying A,

[00:25:24] Speaker 03:
He dropped the claims.

[00:25:26] Speaker 03:
He didn't adjudicate them.

[00:25:27] Speaker 03:
But B, we're going to create a preclusive judgment preventing him from adjudicating them in the future.

[00:25:34] Speaker 03:
There's no principle of law that supports that.

[00:25:38] Speaker 05:
Why do we need to go there on this?

[00:25:42] Speaker 05:
I understand your point.

[00:25:44] Speaker 05:
I understand your argument.

[00:25:46] Speaker 05:
But really, the only thing before us is reviewing, as I understand it, Judge Blue Bond's ruling as to Saman.

[00:25:56] Speaker 05:
You're not challenging the equitable indemnity claims against the other two brothers, correct?

[00:26:01] Speaker 05:
Correct.

[00:26:03] Speaker 05:
All right.

[00:26:03] Speaker 05:
Are those preclusive then?

[00:26:05] Speaker 05:
Is that final?

[00:26:06] Speaker 03:
Well, it's preclusive against the other brothers because we've entered into a settlement agreement with them.

[00:26:16] Speaker 03:
That's just that.

[00:26:23] Speaker 05:
Well, where the two brothers were represented by counsel, right?

[00:26:27] Speaker 05:
And it's not within that email.

[00:26:31] Speaker 05:
It goes on to their involvement was discussed in the trial.

[00:26:37] Speaker 05:
So it seems that your claims have

[00:26:41] Speaker 05:
Understandably focused on Samad, but that was not the only claim for an equitable indemnity.

[00:26:48] Speaker 03:
That's true, Your Honor.

[00:26:50] Speaker 03:
And I believe that a proper reading of the email is that the claims against the brothers were dropped because they were represented by counsel.

[00:27:00] Speaker 03:
And that was an email among all counsel.

[00:27:02] Speaker 03:
That's our reading of this email, that it was an email among council, between council, and that Mr. Yates did not intend to release claims against a person who was not a party to that email and that conversation.

[00:27:15] Speaker 04:
Judge Breaker, you're cutting out.

[00:27:20] Speaker 04:
I'll move, I kept moving back.

[00:27:26] Speaker 05:
Can you hear me okay?

[00:27:28] Speaker 02:
Now I can.

[00:27:29] Speaker 05:
All right, sorry, good part.

[00:27:31] Speaker 05:
You're telling me that Judge Blubon understood that your email and whatever it was doing was limited to those parties represented by counsel.

[00:27:43] Speaker 03:
I don't believe that at all, Your Honor, because she made repeated adjudications as to Saman.

[00:27:52] Speaker 05:
That's my point, as Mr. Hayes pointed out.

[00:27:55] Speaker 05:
Why wasn't there any commentary or pushback or correction made by counsel at trial when the judge made those statements, including Saman is no longer a party?

[00:28:10] Speaker 02:
I do not know.

[00:28:12] Speaker 02:
I do not know.

[00:28:13] Speaker 05:
And I believe that- Isn't it possible on appeal that a court could accept that as significant evidence that Judge Bluban was correct in her interpretation?

[00:28:25] Speaker 03:
Quite possibly.

[00:28:27] Speaker 03:
And that's why we have alternative requests in our appeal, which is to either remand it back to Judge Blubon to make a final determination as to equitable indemnity, or to strike out what are improper, preclusive findings against my client that don't- I didn't catch you, Judge Breaker.

[00:28:54] Speaker 05:
To your point,

[00:28:56] Speaker 05:
I point that this really was decided with the February 12th email and letting those claims go, they were, in my word, removed, Mr. Hayes, abandoned.

[00:29:08] Speaker 05:
Were those actually necessarily required to be litigated then?

[00:29:11] Speaker 03:
No, Your Honor.

[00:29:12] Speaker 03:
As I pointed out a few moments ago, that equitable indemnity claim, one could even argue that it doesn't even begin to accrue.

[00:29:22] Speaker 03:
until there are damages.

[00:29:23] Speaker 03:
And the damages to Mr. Pouladian was the judgment against him.

[00:29:26] Speaker 00:
We see people... Yeah, you need to repeat it, Judge Breaker.

[00:29:35] Speaker 00:
You keep cutting that out.

[00:29:38] Speaker 05:
You know why the microphone is... In your view, Mr. Grossman, that makes it possibly improper, but not preclusive.

[00:29:47] Speaker 03:
It makes it preclusive if the judgment were to stand,

[00:29:50] Speaker 03:
I'm concerned.

[00:29:52] Speaker 03:
I could file a case in state court and then argue with the state court judge whether these findings were preclusive because they weren't actually litigated.

[00:30:01] Speaker 03:
That's a whole other problem that can be avoided if this panel says that those findings don't belong there in the first place because they were never litigated.

[00:30:09] Speaker 03:
So I'm trying to save

[00:30:11] Speaker 03:
problems in the future by arguing with some other judge whether or not this judgment should be preclusive because it was or was not actually litigated.

[00:30:20] Speaker 03:
That's a problem that can be solved by this court by simply saying that those findings don't belong.

[00:30:28] Speaker 03:
With that, I will happily submit and thank the panel for its time.

[00:30:33] Speaker 05:
Any other questions from either Judge Corbett or Judge Neiman?

[00:30:38] Speaker 05:
Thank you very much.

[00:30:38] Speaker 05:
The matter will be submitted and we'll try to get out of a decision as soon as possible.

[00:30:42] Speaker 00:
Thank you both for your interest.

[00:30:43] Speaker 00:
Thank you.