the first one is that with respect to the burger con defendants there was a change in the law and the decision of the case schaffer vs berger in terms of what judge klausner did in dismissing them as sham defendants we then later in the course of the case filed a motion to amend the complaint to name them and others which was denied for reasons i'll get to but what we're saying is the flexibility of the consumer statutes with respect to burke on but with respect to the bad faith claim as well and the claims of misrepresentation fiber con the district court case shouldn't have remained in the district court but should have been sent back to the state court even at the time when the original action took place prior to the issuance of the schaefer vs very conscious decision the law even at that time would have allowed us to file a pre filing request petition in the nature of a petition and the court could have allowed us to do that in order to was the first of which as the discovery cut off he was unilaterally changed in the case was that it was a mistake and the mistake was corrected the court unilaterally time to propound discovery based on our strategy and order to obtain the responses and then act on them with respect to maybe additional discovery or the filing of dispositive motions so under those that has to be considered by the court with respect to that kind of a unilateral change we then made a request to change the schedule in water which the court for whatever reason denied we believe that both the denial of the request for the scheduling order and the fact that there was a unilateral change in the time for discovery was something that was so prejudicial that that in another itself would justify the court's reversal this this case was dismissed practices and in this case you can see in particular why it is the manipulation of the claims travis for allstate does is they drag now the claims process as long as possible and they do that in order to get to the point of the one year period for following the lawsuit then what they did is they used the claims process to affect the litigation process hoping that there will be that they can use those two back and forth one to affect the other as they've done in this case and this case there was never even the mold remediation which required the gutting of the kitchen the demolition of the kitchen there  because it was rejected by the clerk at the window there was a blue paper issue and then we moved to correct that and he denied our allowance of making remedial measures so the motions could be filed so he never considered the issue of class certification with respect to the motion the file it was kicked back on technical grounds as well as our motion to stay the case pending appraisal if  need cases which will come out and i must say this this is this is quite startling to me as a reading of the statute and quite startling to me that even if that were the meaning of the statute in california that would be controlling o people's houses didn't they couldn't do an inventory and companies like allstate were saying we're not even going to address your claims issues unless you can provide us with an inventory and so we had a wide class of people who  were being affected by these saying you know legal claims procedures and under the circumstances i could see certain things as an attorney that related to the claims practices the relationship between that and the law i mean you were your attorney but you had a big interest personal interest in this case right not after the beginning of the case i was kicked out of it by the judge we were told that we had no standing as plaintiff even though we were covered insurance under the house for about forty eight hours after that and then there was a cleaning team brought in by all state that was so incompetent that they used toilet brushes to try to scrub down the walls to clean the walls there was there there were so bought that is common and typical for every person that is involved with them or is unfortunate enough to be involved with allstate and at the time something else was happening as well there was a pack out of everything in the house my personal materials files and so forth and others and other goods were taken out and put in the storage containers with american technologies a company that they chose one of their contractors with a project they called project time cost and under those circumstances i was i wasn't even able to access my own files let alone personal materials but when it came time for appraisal allstate was able to find its way into american technologies without any know this to us whatsoever and they took out all the materials all the stuff i think one hundred boxes of goods and materials and documents and records photographed them inspected them and had their praises look at them when logistically it wouldn't be possible or it wouldn't make any financial sense for us to be able to do that these things were hidden so deeply inside the story of containers that it would take a number of people to remove them from the storage containers just to be able to access them let alone make them available to talk for photography and appraisal which they did we were given no notice of that whatsoever so every  please the court i'm alan michael with the burger con law firm because of the procedural nature i spoke with counsel for all state he suggested that i come up first and talk about the birth on issue and i usually try to say it's already in my brief for flynn i bring here that's no three on the first thing i found was that mr early prior counsel said there was a change in the law when the schaefer case came down but then i heard him say a few moments later that all along certain fact had occurred a certain position had been taken by kerry when in fact according to the allegations that kerry think it's taken a different position this case is so far from that the allegation really is that nobody mostly my partner working with  allstate on a coverage matter was attempting to coordinate on the claims and because of all of the the discontent that the spiritual family has with the way all stake a claim and the end the point person becomes melody mostly in con and this idea that shape or change the law so is wrong this case is very much like the original rumor case where somebody tried to sue the lawyers who would help the insurance company make the coverage decision and it's so clear for so long that the asian community rule insulates the agency somebody somebody who works for an insurance company any company any person has to be able to say i think you can do this without having the fear of  the other thing that i would bring here today that's new is i was looking to get the priors for his case didn't realize it but apparently the lawyer who is up there is a member of a firm who like my firm has been sued by the spirit justice for rico a conspiracy with their client the client was the trust in bankruptcy i take it i know nothing about the case but what i heard in court here and here we are this and apparently there is an animal need a lawyer create a problem broaden the scope of the dispute from the focus to the general and that's why matter he just broadly based his ruling on the dismissing berger khan and the agent immunity rule we have brought the motion timely the state court judge anthony more before removal had that he had put that out to be dealt with later and it has never been complied with and that the blog requires a factual showing not just a pleading a factual showing of the kinds of concerted action that would hope that would differentiate the age an immunity rule and there's no such factual showing was ever made and on sutro case the long california is that if any of the claims in a lawsuit whether it's multiple parties or multiple causes of action if any of them are subject to the conspiracy claim we have to show he was actually limited partner and so there was the limited financial gain but the only exception in the statute is actual fraud malicious prosecution doesn't apply and i suppose there's a whole host of intentional towards talking about conspiracy to commit with that person or their entity except for a cases of actual fraud or except for cases where you can show that that lawyer outside of getting feed is putting money in his pocket he's acting out of a financial gain in other words in those cases where lawyers are doing what lawyers do advise in the newspaper whether it's ok to print this article advised somebody that it's ok to breach the contract the things that lawyers do you've got to come up with something that's factual third a judge to look at and say you know this goes beyond the line i see that you have something here this isn't just a mere allegation i'm going to let this case go forward and the rule is that yes if that's true as to one cause of action but not as to all the other causes of actually going to start over so that's that's to progress the protocol the supposed of the fall out it's a good big keeping function mess with the others court calls or gate keeping function to prevent somebody from dragging a lawyer in and then creating whether it be a conflict of interest situation where the lawyer has to move out or in any event broadening the this view from the need party in this case the insurance company through the insurance company's lawyers and then on and on and taking all that is true plaintiff the mere absence of a cause of action as pleaded has been found to be sufficient to meet that test and i don't have a case it's like it's a but it is in our brief so the sham the word is sort of te there's the admission that kills any possible claim other than actual fraud then you look throughout that complaint and say where is there actual frock of the nature that was alleged and by the way never proven in shafer in that case it was a past fact did the insurance company take a position with an insured and somebody allegedly said no a different position was taken it was a it was black and white not is this law firm working on behalf of an insurance company assisting the insurance company in a way that the claimants or the insurer now differs with so i think it's i think it's such a different thing than we're not saying that they were kind i think to do what they find in the state court but i but i that i think that they want to name people outside they're there for this specific target they did the same thing in the case i mean before ours but that doesn't make it right and it doesn't excuse them from the pre filing requirement for so many different ways in of the record the appellant records page six ninety four this is the printout by the pacer computer system which is basically the the online system which will indicate what the what was happening in the court list after the scheduling conference in november of two thousand and three it lists the schedule for now to trial when one looks at it anyone who's a practitioner knows that there must be f because the discovery cut off for example if that for getting to this may fourteenth yet the motion cut off this positive motion cut off if that for two and a half months before that march thirty first now everyone the parties knew that all state and it was in our papers had intended to file at least a summary judgment motion after discovery was over and the deadline therefore that was going to be march thirty first therefore made a comment about his strategy i'm not sure what that strategy would be because obviously if the motion for summary judgment and that was the last that could be brought the clear implication and every district court i've done before is that therefore if that's the last day for a motion cut off you should have all your discovery completed now it's important to bear in mind this case was filed in august of two thousand  proper class representatives and in fact judge moore said you have a grave concern here because you in fact all right plaintiff you have a conflict of interest you couldn't meet class representative anyway that was one of the that was known by them early on yet they persisted but as well the judge said at that time i see a real problem with this as a class action even to proceed as a class action whil insured twentieth century short any insured fire those are unique issues with regard to what damage there is how much it should be valued that whether there should be additional living expenses how much the contents are  those are all particular to those it is not proper subject of a class action at least the class action allegations that they initially ledged in their complaint which piles to solve that as well no they filed other motions they did not go back and file a motion again and correct the deficiencies that the clerk of noted and asked the court please we made a mistake we'd like to and without that class thirty motion it was entirely proper for us to bring a motion for summary judgment as to the class action allegations that was was done and judge has to recognize that as well in essence your hon there is nothing here that would show the judge klausner abused his discretion now on the summary judgment motion that was filed mr early for a toast plain that they needed more time and they bring it all they argue all fifty six that but remember when this case was filed filed in august of two thousand and two the motion dismissed was resolved by the winter of two thousand and three discovery cut off wasn't until march thirty one of two thousand and four there was a year to do discovery they chose not to do in fact they chose not to do any until we had filed our motion for summary judgment and the discovery cut off had already hit if that was the strategy well then respectfully that was a misguided strategy but the court made it very clear  conferences these are deadlines these will be the deadlines that will be imposed these are to be followed unfortunately we have a pattern here of counsel not following those rules and not following the local workings well and even when the court told them we're striking this were rejecting it they still come back and do the same thing again on the next motion they did not pay any attention to the court's rules and ultimately the court even entertain the motion for reconsideration after the court had ruled on the summary judgment and said even given the benefit of the doubt i still class or says my motion still stan because i need to give you a context of this case while we're dealing with the tragedy the house burns down and the house burned down we are in utah we have to drive back to utah to deal when i think there's a direct correlation because as i stated earlier it is no more than a coincidence that only until we had the allstate fire and the atrocities that occurred at the allstate fire that we had a change of guard at the trustee close to the one your deadline and we weren't getting anywhere with the california department of insurance so you know we were trying to do the best we are doing so in fact you corner the one you're now telling me for admissions ye what i want to address was the reason that we founded as a class action was because of the difference between what the party provides and what we got for example policy has and maintain your standard of living and you thought of twenty five thousand dollars a month my mother  pasadena look for houses everywhere but that if you get a house that's comparable to the policy which is making huge terrible having that everyone can move the house so i could take care of my older grandmother and my mother that's what it would cost and if you buy a new policy now as we have the additional links like there's a routinely about twenty thirty percent of the policy they paid less than sixty thousand dollars eventually and then they moved into a house with no furniture after four months so you know that's a big issue  is additional living expenses that was one issue on appeal there are a lot of issues that were contained in the insurance flood summers policy that we believe were common and typical of the class because they provided or advertise one standard of accommodation and in practice you get another again it was all going on simultaneously with our problems with the trustees so perhaps you were a little over excessive perhaps you were unhappy i don't know how to explain to you what it's like to live in a burned house and have to deal with all this stuff going on you either you know given the talent and very you hadn't committed suicide or you deal with what you're doing and that was what we tried to do i think glass was a good class because i think what they did with us is what they do with everyone and i think that they not allow them to do sell so you're basically stuck with an absolute position where you're trying to get the simplest claim paid for and instead of just paying the claim or just paying for additional living expenses you litigating and that's what we were dealing with simultaneously with  i'm sorry what caused the fire oh what caused the fire actually was a logical shortage but the fire what the experts determined would have been out in a few hours but unfortunately we had  eighty security and they determined all states experts determined that eighty negligently shut off the entire alarm and fire system so apparently the fire went on for nine hours undetected by the way a fire department so that is in fact we had to separate  against a t t to all state because they did end up suing a t t and i don't know if they settled or not but that was the cause of the fire and the problem was is that it broke all these pipes and water shot everywhere types that they didn't detect or i mean they detect the pipes but they didn't rectify the leaking water for about three months it's like the toxic mold which after the house was the kitchen almost died and then they recognize that there's talk that mold and paid it all the way up into i don't think they paid the mold until late two