the what we are seeking here in this case is a reversal of the summary judgment granted below on a title insurance policy this case arises out of the title insurance policy acquired for a premium of two hundred sixty four thousand dollars in connection with the acquisition of a right of way that involved the alameda court in that title insurance policy one particular title exception was not shown some seventy years ago a judgment of condemnation was recorded but was not fully indexed and the office of the county recorder under the names of all the parties as a result some seventy years later we're here insureds on the policy include the city of long beach by through support of harbor commissioners and the city of los angeles by and through its board of harbor commissioners we maintain it under the rationale of cases like historic smith ville and the terra in addition the alameda quarter transportation agency is also an assured successor insurer by virtue of its involvement it is the vehicle it is the joint power agency through which the certainly alameda quarter agency was in existence at the time the policy was purchased certainly it was foreseeable that that entity since it was formed for the purpose of operating the corridor would operate the court and so those are the standards the t hindsight being twenty twenty that would have been preferable none the less all the appellant's are insureds but also then damage was suffered by all the pallets the title to the property everyone admits is not as is shown in the policy so clearly we have a case where what was purchased what the parties thought they were purchasing is not the same as the title that ultimately ends up in the policy and and you had we were supposedly provided that is yes yes well i think what we have in this case is we have contradictory testimony about what that value map show wasn't the question you didn't have it we did have a copy that's correct as did the title insurance company and both we in the title insurance company reviewed it beforehand it was reviewed in connection with the issuance of the  it was reviewed in connection with the survey the title officer obviously didn't think it showed an easement because he didn't include it in the preliminary title report he must have been very careless he was there to be seen there to be read and also is here i mean if one is challenged if the city of los angeles is to be challenge what then to have excluded all these myths that created why then will the policy show thirty three exceptions for easements granted to the city of los angeles and schedule like each and every one of those exceptions is the utterly superfluous if one interprets the policy as automatically excluding every easement created by the city of l a the district court rejected that exclusion exclusion nine a insured in the policy is defined narrowly the plain language of the policy defines the insurer notwithstanding the way it was cited by by the other parties defines insured to be the city of l a acting by and through the board of harbor commissioners policy is the parties identified in the declarations page and those parties who by operation of law as distinct from purchase including but not limited to and a whole bunch of different ways or are stated acquire an interest in the property so the definition of insurer is both natural and broad and there's nothing contradictory about that the narrow portion of it operation of or that i think that it's operational law as distinct from purchase including but not limited to so it's not confined to obtaining an interest by operation of law after did not purchase an interest in a property act without purchase through a contract between an interest in the property operation of law as distinct from purchased including but not limited to the distinction is not whether the transfer is voluntary or involuntary the distinction is whether as the historic smithville case said whether it was foreseeable that successor party would have an interest in the property and whether or not it was an interest that was acquired through purchase or not and here that was clearly no purchase makes it clear it's not intending to mention every single way the decision i think the policy is making is what was outlined in a store smithville case which interpreted the same language that we have here the decision is is there really any additional risk if fact isn't insured then then clearly we don't have any issue with the application of exclusion nine see whether or not there was damage to the insured claimant but even if fact it was not an insured this case was b between liability and damages we did contend below that the property is not what was shown in the title policy the owners of the property the courts got a property that was not what they what they intended to purchase in terms of what was shown in the title policy so exclusion nine c should not apply nor should the argument apply that the public record in this case that this easement is not shown by the public record i think that argument exclusion nine be in the policy also exclusion three is is yet another area where the district court committed serious error the list pendant was properly indexed and recorded it should have been shown the judgment which the district court contends is not part of the public record if it expunged as the list pendants which everyone admits is in the public record the state of the public record cannot be determined except by referring to documents outside the public record and that is the import of the district court's holding below and the import of the district court's holding below was to to have that impact was to have the impact that all title insurance policies would expire essentially after two years by charging the policy holder with constructive notice what's relevant here is not whether we saw the valid maps which the district court didn't rely on or the valuation maps refer to no you couldn't because you'd have to find an undisputed issue of fact as to whether or not they showed actual notice and the testimony of the people who supposedly reviewed them mr stacy identified to people by name and said other representatives were that they didn't see the portions of the valley maps that they were not on actual notice and they didn't see the portions  that show that there was an easement further the conduct of the title insurance company itself which also reviewed the valid maps and the title survey company which also reviewed the valve maps neither of which bothered to show the  maps aren't as clear as some people might think they are there's clearly a disputed issue of fact there and if you sent that down that would be a possibility another possibility would be these questions involve novel questions of california law as a district court suggested we filed as as the panel is no doubt aware and motion to certify questions for the california supreme court we do not think there is any controlling california authority on any of the questions for senate in this appeal and accordingly we do not think without defining mr what california law is the panel can determine that any of the exclusions apply or the panel can determine monday but as i go through the issues on appeal this morning i will let the court we're only now our position on the motion to certify the district court granted stewart title summary judgment on three distinct and independent ground court opinion from new jersey has whatever persuasive effect you choose to give it but in that case the original owner was out of the picture that's not the case here these continue to own the property here court i e the meaning of operation under california law these additional cases that will be meeting monday with our opposition to the motion to certify all construe the term operation of fluff and hold that the term does not policy in athens they're trying to graft additional language onto the policy the policy talked about operation of law they're trying to add to it so that it would read either you're an additional insured either thank you sixty by operation of wa or any old additional party in the world if that party did not increase the insurance which that's not what the language d otherwise it was more convenient for them to do it through a joint powers agency for the simple reason that i am now down to put all the liability in the joint powers agency and have to try to power the agency slowed bron agreement yet or have him blessing of the legislature they could not have well they don't go to court or no absolutely not they did not need the blessing of the legislature to build the court they didn't need to do it through joint powers agency if you look at that there's actually three joint powers agreements they were amended and restated several times but if you look at all of them they also say in the warehouse clauses that the cities had the authority and power to build the corridor to operate it they didn't need to do it through joint powers agency they did it seems through that way because they wanted to limit their liability and there's nothing wrong with that that that's very commonly done but that doesn't make after an additional insured under the terms of the policy company do well i'm not sure it's relevant what the title company would do but i will tell you what the title the title company does not search the public record the title company operates or most have title companies operate  valley california where i've actually had the privilege to go and it is a large room with many many filed tours and some of the documents that are in the public record are in those fi and a title search or actually when he gets a parcel he or she gets a parcel description they go through those drawers and search the property but they do that you have to keep in mind the difference between a title unsure and found the final judgment by searching the public records but you could have found it in the title plan because there's a indexing is different in the title plan it's not indexed in the same way it is out so we don't dispute that and it's important to keep that distinction in mind because what the post doesn't have about what's in your title plant even though the insurer doesn't use the public record that's what the whole thing says and that's what has to be enforced so policy reason for finding that annie that once a final judgment has been entered the antecedent longer gives constructive notice it encourages the judgment holder to portman's they would check the index and make sure that the clerk indexed it crackly it would be very easy for them to follow up on that and they didn't and here if they had done that there would not be an issue of the section three exclusions apply the only reason that that explosion applies it's because they both ducked and they didn't make sure that their final judgment was only filed that was properly and but to turn your attention to this man that was delivered i looked at that map and i could see the i could see what was between absolutely why did die which doesn't that in the case am i don't agree they asked that this court certify to the california supreme court whether the standard in actual notice or constructive notice and i would agree that it's an open question under california law actually exactly that's why we don't think anything needs to be certified because we absolutely believe it was actual notice and all they say in response to that is well you know yeah we had it but you know we don't remember looking property right if you go down and that and each one of the or independent arguments would be an argument to sustain the district court a lot of explosion nine a was won the district court not only did not rely on but rejected as i recall because it was not dispositive that all it would affect is one of the two and insurers and terms of the insured having created the the insurer claimant having created the so i don't think nine a is is something the court should other unnamed cases which i can't respond to because i haven't seen them the hawkins case did not interpret language defining ensure that is the same as the language at issue here but more significantly i think the hawkins case concluded that the corporation that received the property from the two individuals were named insurers on the policy was not an insured but that even though the corporation held the property the two individuals still suffered insurable damage because they were shareholders in the corporation so and allowed them to proceed in pursuing their claim against the title i'm sure so hawkins this controlling authority here you should still reject exclusion nine c even if you conclude that act is not an insured you should conclude that those who have the ownership interest and act in this case the two ports can be damaged to the extent that active has been damaged to the extent that the property is not what was described in the title insurance policy now as for actual notice it is a disputed issue of fact as to whether maps provided actual notice it's not merely an issue of people saying you know i don't remember the testimony was a permit invite each of the individuals in a good way and nat's the only individuals identified by name by mr stacey that they did not they were not aware of the meaning of the valley laughs they were unaware of the existence actual existence of the series a little november one thousand nine hundred ninety keep in mind what the vall trying that the valley maps don't show the true nature of what the property interest is if you didn't show any segment it showed a reference to a judgment of condemnation if you look at page forty three you read all the words of the description it doesn't use the word easter in addition this property thirty seventh street is the boundary between the city of vernon and the city of los angeles and i believe one of our got florence testified that one of the things he was aware of the crossings here would be crossing a city boundary and that it would be unusual for sanitary sewer lines to cross a city boundary all that being said if you can't hand written notes haitians for me and you're buying a piece of property from me and a handwritten note taishan says put down what i think is the state of title of the property that's not public record that's not a copy of the public record document we then in turn said all right the  got everything we're going to do a title we're going to its primary title report on title search done title survey done we had all of those things done and they showed no evidence of the sewer easement now i recognize this is not an issue of negligence reliance on a search the title insurance company that i think the record is clear the title insurance company did not search here we're not making a claim for negligence the claim is a strict liability claim in contract under the policy and the state of the property is not as it was described in the policy now we've talked about what is in the public record and the cases that relies on louis hochste those cases repeatedly refer to the concept that an improperly indexed document is not considered to be part of the public record why because it cannot be found when we know of here that plant they'd search the grants or grant t n x they found the list pendants and they could of follow through on the list pendants and check the court record and they admitted that in some other context it's they've admitted in the record that in fact that's what they do so in this case to say the judgement is not a public record because it's improperly indexed relying on cases that say improperly indexed documents are not part of the public record because they cannot be found is simply of course the sewer eas could be found and it's not the fault of the city it wasn't found here it's the fault of the insurer the collected a quarter of million dollar premium and didn't find it so you know it's not an issue of who's negligent on one