so we are here on the trial court's grant of national union's motion to dismiss yahoo's complaint  i would like to focus on the main allegation in the complaint that is it is shoe here and that's founded e r twenty three and twenty four specifically it's the allegation by yahoo that yahoo specifically saw to expand the personal injury coverage provided by the national union policies through a separately drafted manuscript indorsement because that's the essential allegation of the complaint that's at issue i want to walk the court a little bit through the intricacies of what this particular policy is because it may be a little bit nuance what we have five policies here but there is so that's what i was going to walk you through and just indulge me a little bit on how this works so what it typically happens and this is not an exception is you start with a foreign policy and i saw a policy that national union puts out and that's how what the starting point was so yahoo said i want to separate out personal injury coverage and i want to separate the separate out advertising injury coverage because those are two separate kinds of coverages and yahoo wanted specifically for personal injury so yahoo negotiated with national union and the manuscript came out in the manuscript can be found at page one hundred through one zero three e r want to one hundred one of three and by doing this what you did was you basically took away that conduct oriented offenses put them under personal injury and you took the content oriented offenses and put them under advertising injury which are two separate coverages and what we're focusing on here is the personal injury coverage on the right  publication of material in any manner that violates a person's right to privacy and the reason why that's a very important here is the going back to your the court's riginal question is the foreign policy had an x express a statute that's at issue here so put yourself in that situation and what yahoo is alleging yeah i was saying we want separate line of coverage on on personal injury we see this t c p a and exclusion in the foreign policy we want that out so when you fast forward and you look at the manuscript policy that's out there ya got exactly what it wanted which is coverage for personal injury and for complaints that allege the violation of privacy rights and just to be clear the t c p exclusion is now no longer available so that's the context in which this we treat the two thousand and eight policy differently than the other four policies i believe you're going to hear from national union but they're essentially going to be the same because they all have the same endorsement the manuscript endorsement that we're talking about in each of the for each of the five policies that issue so and that's the endorsement that yahoo contending here is that the trial court failed to consider the details of the policy and instead relied upon the sort of the standard foreign policy language that's out there and in the process lumped law may be a little unclear about this issue with that i would agree with that your honor so and if you were in our situation do you think this is something out of you certified to the california supreme court since this is in the air and which we presently live obviously something is going to become increasingly important so i would say yes your honor but i also just to give you at least some comfort is that i also believe that there are sufficient authorities in terms of policy interpretation that's already provided guidance from the california supreme court on how you read the policies that you could find in our favor in this particular points your honor first of all what's important it would say two frames and the concept into two frames of policy interpretation of the context is important yahoo doesn't disagree with but keep in mind the context that's at issue there the context there was soley in the connection with advertising injury coverage and the advertising injury coverage all involved the publication of material libel slander these were all sort of content based offenses that were identified there was four of them and we don't disagree with that in terms of what that what that was because those are the four content oriented offenses that are in yahoo's separately covered advertising injury injury offenses that are issue in the manuscript policy that yahoo is secured and yahoo is not going to seeking coverage on that again under advertising injury but going under the personal injury by lation of a person's right of appellate court thore the national union relies upon actually could potentially being complex so you have potentially two appellate decisions that are in conflict even if they came out on the right on the same side and that is this s involved policy language that didn't have publication it had the language making known which is obviously very different than publication making known makes it clear that you are revealing something to somebody else as opposed to affecting the seclusion privacy right well in in a c s in doing so the court actually distinguished cases that used the word publication and that were different than publication were making kno well j t frames did not critically evaluate that and made a leap of faith ignore that sort of policy distinction that was done even though it had the publication language and automatically equate it making known what publication so for that reason well i mean obviously you want it but how does that fit into the way california does things well first of all i think if you look at the courts in the highest courts that have interpreted this issue and there's four of them out there that have done it and in fact one of the honour's and i think that the reason for it is you have to kind of other states so i think in this in this situation i'm actually surprised that california is actually in the minority because usually california is usually ahead and kind of set the standard for other courts look to and here i  d clearly say that the california should look to the other courts and given the opportunity i believe that the california supreme court will understand the logic associated with it and follow those highest courts and secondly there is no  of any other state who has ruled the other way to hold that this excludes the right that that a right of privacy is limited solely to a pro a secrecy right as opposed to his seclusion right so again i believe that there is sufficient california supreme court authority for this court to be able to predict what it's going to do but if it still continued to struggle which i completely understand this is an appropriate case to be certified for the supreme court to finally resolve for for a number of reasons that there is potential conflict among the appellate courts that have really not resolved the issue and the fact that there are conflicts around all the other state but predominantly leading toward finding coverage in this area and the interpretation here that yahoo is arguing for would be consistent with sort of the policy interpretation that this california supreme court has laid out to you on the say i do go on women's right i bet you disagree with that your honor just a little bit i'm good morning your honor is daniel graham for appellee national union please the court frankly we're a little surprised at the opening of appellants argument basically taking the opportunity to try to supplement the allegations of the complaint talking about what the intentions were or what what yahoo wanted to accomplish what you have of the allegations of the complaint  the complaint to the complaint for declaratory judgment it's very clear yahoo alleges that there was a duty to defend yahoo in these t c p a lawsuit under the oral or written publication of material oral or written publication in any manner a material that violates a person's right of privacy there was no duty to defend under that offense or honors and respectfully california law is very clear it has a developed a body of law on whether this intentions were and why yahoo negotiated this or that i think what you are left with ultimately is the policy language and the policy language is language that courts have construed in other instances it's not it's not unusual but the systems it came out with the the bottom line result favors national union but the discussion really this thing was speech when the language at issue in a c s systems which is making known and it distinguish that from language like or written publication and that suggests to me that the a c s court would have gone a different way had it had the same language as in jake these fames at the end of the day i'm not sure california law does not just take turns in the abstract as other jurisdictions do in this is the case law that yahoo cites there are other jurisdictions that just take a look at the offense in the abstract and they pull the terms out  policy language that we're talking right no your honor g t sprains is actually very much on all fours with the language that is addressed in this particular endorsement think it's just one in the same as no ambiguity i do you're  absolutely and i'll explain why your honor as far as treaties frames is concerned that is a case where the court construed well first of all the pointed out you can't just look at the offense in the abstract you've got to go ahead and take a look at the offense but you got up fired in the context of the policy language and so analytically what j t is frames did was they took a look at the offense oral or written publication of material that violates a person's right of privacy and the court looked at that and said ok we apply the last antecedent rule and when we look at this offense we see that it is monitoring or modifying the material the material must violate a person's right of privacy and then the court says linguistically that's right within the language of the offense but more over that construction is supported by the context of the policy language as well and what the j t supreme court notes is that there's another offense that provides coverage for oral or written publication of material that  disparages of goods products or services of a person or organization and so what the court says is when you look at it in context as you're supposed to do under california law you see that we're dealing with something that is content based in nature and that's important because the other jurisdictions say we're not going to consider context and we're not going to consider the other offenses that are involved in the definition as far as the making known and whether that is truly different if you look at the a decision and you look at the j t's frames decision in both cases the courts are engaging in precisely the same type of analytical framework and that's the type of framework that the call of california supreme court and bank of the west said is appropriate if you're just looking at the definitions in the abstract that's definite that's defective you have to go beyond that the california court of appeal looked at making known and it said from its perspective that is there's no real difference between that and publication and so we have a california court of appeal making a pronouncement of california law on that particular issue now your honor you asked is this language different it's not admittedly we're dealing with a personal injury endorsement and yahoo is argued well there are other offenses out there that are conduct based and therefore j t is frames is distinguishable in a c s doesn't speak to the issue but that's not correct your honor because even if you look at the offense and you apply the rules of construction under california law the offense standing alone is content based but also its context it follows an offense that pertains to libel slander disparagement and that's important because again under california law the context helps determine the meaning and so one  or written publication of material that violates a person's right of privacy when you're talking about that prefatory language you can't give it a different meaning under a libel slander disparagement offense as a as respects a privacy offense  offense that we're dealing with there and that informs the reasonable reader of the policy language and that's exactly j t sprains court's decision and also that the district court in this case that you've got to look at it in context and that helps in the language that was you think is a little ambiguous why what we're dealing with here no your honor because ultimately when you look at the policy language you are left with that offense the oral or written publication of material that violates a person's right of privacy very similar to the same offense that was addressed in j t frames and a c s and the courts like integral for the federal court applies california law on the issue and it looks at this offense and it says it applies to secrecy violations based on content based wrongs versus seclusion and so i think from the court's perspective your honor you have that language and to trying to inject some type of ambiguity it's just not there the language says what it says and the other thing to your honor is when we're talking about something like what we thought it was going to mean this and we thought it was going to mean that i than other circumstances is that there are courts that have looked at this that said it's not ambiguous when you plug ply the california rules of construction and that was something that the district court specifically observed the district court was aware of other law making its assessment and it's doing it in the context of other opinions and it's aware that it's going to take a different approach because under california law you can't just look at the policy language in the abstract you have to apply context there other cases  like california and we mention them in our briefs the web solved decision and you you look at j t s frames you look at that in the context of bank of the west where the court is saying this is how the analysis is going to be undertaken i don't think there is a problem i think i think the reason you can look at the language the way you do is speak cuz there is so much information even in that indorsement it's not enough to say well some of it's conduct based and some of its content based i think even in this instance where you're dealing with t offenses i think it's very telling that the language of those offenses is identical and i think it's telling that the very first offense is talking about libel slander disparagement because that informs the other other offenses well your honor what's your view on certification to the california supreme court let them have the opportunity to answer this question of state law well your honor i guess my response would be thus as far as the body of case law is concerned addressing this issue these decisions j t sprains and a c s have been around for ten years the california supreme court had the opportunity to review those decisions and it declined to do so i think that's telling and as this court has recognized it's telling when a california supreme court declines review of lower court decisions and this court is also recognize that the california court of appeal may very well reflect the law of the state as it does in this case we w under the ninth circuit the ninth circuit endeavors to apply the law of the state and it is not going to just easily dismiss the law of an appellate court in favor of what the ninth circuit on its own think it should do it's going to go ahead and it's going to enforce the law and recognize the law in this case a c s and j t is frames have done the the pronouncement on california law on the scope of the privacy offense in the context of the t c p a claims and there's no coverage for it there's no reason to upset that and yet if this court has any hesitation about the the significance of the a c s and j p s frames the national union would say it would agree with certification to the extent this court has as its and see if there a is it would be difficult to answer that particular question other than the court has denied the opportunity to need to hear it and the pronouncement of the california law on this particular issue in the scope of the privacy fence hasn't been challenged in ten years  now it's a situation where it's an opportunity to revisit the issue this is a settled area of law your honor the privacy fence does not encompass privacy though i think you would admit is an area that is standing massively because of the nature of technology increases read about public hearings about some very large technology companies have been accused of one way or another with respect privacy significant consideration but when you're talking about coverage for a particular claim you start with the policy language so so so do even if there are developments in the in privacy law in the abstract that doesn't necessarily change the analysis and that's why i'm talking about due process and the fourteenth amendment so just words right the meaning is james just saying where it's going change even though they're in the policy words can change your honor but in this case we have  specifically alleged that it had an expanded definition but i completely agree with national unions counsel that you have to look at the policy language so what we've done is to support and show you in the rocker that the policy actually is consistent with yahoo allegation that the definition has been expanded and we showed you that by showing you what the form was that regionally started and where we ended up in terms of making the move to eliminate the t c p exclusion and as you know you're closing councils yes all that may be true but it's not alleged in the complaint and therefore it's really not important to our analysis but your response to that oh i thought i would completely disagree with that by the specific allegation  the complaint that what we're going to be referring to in the complaint that you think is contradict what you're opposing counsel sure so it's starting at paragraph twenty four which is that your twenty three and i'll read it significantly for purposes of this lawsuit yahoo specifically sought to and it goes on to the next page expand the personal injury coverage provided by the national union policies through a separately drafted manuscript indorsement the reason why that's important is again that is a general they take should to the policy and the roadmap that i showed you is the policy where you went from the form ended up where it did and  to show you something that creates some potential conflict here so j t frames we talked about had similar language in the oral and written publication material that violates a person's right of privacy i would agree with that but if you look at the case there are four enumerated offenses that it covers first oral written publication material that slander or libel second is or written publication material that violates a person's right of privacy third is misappropriation of advertising i d s and the fourth is infringement of copyright if there is no conduct based offenses than they are in j t friend you don't have trust pass if you don't have libels wrongfully fiction you don't have to conduct oriented offenses that are at issue in yahoo's policy so i agree with the concept of you need to look at policy language in the proper context of where it is but you have to look at the context of the personal injury coverage and let me just point to one one distinction that that potentially creates problems here to national units argument so i talked about the fact that personal injury and advertising injury are separate so let me read you two offenses tell you if you can tell me the difference between the two so when the personal injury section there is a offense the one that's here that says oral or written publication in any manner material that violates a person's right of privacy that's under personal injury the same so are similar offense and advertising interest which we're not seeking coverage or is oral or written publication in any manner of material in your advertisement that violates a person's right of privacy so now you've got to pretty much identical fences one in advertising one in personal injury and the one in advertising makes it very says in your advertisement which is again if you read in the proper context of the other offenses their public disclosed to a third party probably more appropriate for a secrecy type of right to privacy along the lines on the personal injury you're talking about offenses fall to russ was just prosecution wrongful eviction and then you conclude with oral or written publication of material that violates a person's right to privacy so i think