and the material disputed facts arise out of the representations and the scope of those representations by respondent respondent and their briefs answering briefs continued to cite the incorrect standard continued to say that their duty was simply not to make false for misleading statements but that standard has been rejected by both the ball one hundred case and the jones day case cases that both respondents and appellant cite as controlling law in this area and what those cases provide is that it is not merely what is sad but what is not disclosed that can be a basis for a breach of that duty it half truth is often is misleading as continued focusing on just the four corners of what they said specifically and expressly violates public policy considerations part what they said is that there are a lot of things that they're not opining on and when they are not opining you can't rely on they're not opining and that's the problem i have with most of you know how much to misrepresentations or non disclosure that you rely on they're either things that they say we i'm making an assumption but we don't know and there's no evidence that they really did know and then there's a whole variety of things where basically they say you know our opinion is quite limited we're only going to a primer on this and this in the us and you're over here with something else if your honor you've identified the critical public policy issue behind is it not a public policy that you just if it's a factual issue on this record where we're not concerned with public policy when we can read california law but we still need to look at this record and i think it's deficient just speaking for myself if your honor if i mean when we look at the assumptions on which the opinions are based we have to take that into context and your honor just to think very important if they make an assumption because they don't know that's one thing but there are significant facts all disputes year as to whether in fact they didn't know for example when they make an assumption that crop usa has clear and free title to the collateral and here the collateral being all receivables in this case from diversified the insurance company when in fact they know that two years earlier in the exact same loan situation when a default was called the insurance company disputed that crop u s c had title to the collateral and stopped payments which is exactly what happened in this case you cannot make an assumption when you in fact have reason to doubt the truthfulness of that assumption and that's what happened in this case respondents answering brief docket twenty three at page sixteen they list for the court all of the assumptions that they made seven of them every one of them was in dispute as to whether or not they had facts to the contrary when respondent cancel gets the onus after the default was called so if i tell you i know something today it has no bearing on whether i know it you know it knew it two months ago or three years ago it's just not relevant well would it make a difference if you were aware of it in two thousand and eight because that's when the  crop usa in that loan that's how he knew about it it's not that he learned of it he was involved in the lump and that's why he said i always had doubts as to whether governor five would continue to pay at the very least  that's a material cost in fact a material question of fact as to his knowledge his intent and reasonable reliance that should not have been decided on a motion for summary judgment and that is not the only issue that had material facts when the court finds that mr gansey oliseh statements that the litigation was not serious really almost over its cetera and then there is a different statement to the shareholders that it might subject them to significant financial  consequences that's also a material misrepresentation now the district court found that that was not actionable prediction but case law warrants that the difference between  actionable prediction or opinion versus actionable misrepresentation is a question of fact that should be decided by a jury these are questions of fact that should have precluded a summary judgment at this point what was determined that was being pledged the receivables once they try to call a default would immediately be cut off by the insurance company the originator of that collateral would that have been material to a lender i mean i could say it's a question of fact but it seems like a foregone conclusion that that would be material and at the very least as ball hunt said that information should have been disclosed a lender should have been able to assess its own risk based on fair and full disclosures and that wasn't allowed because of respondents breach of their duty and that's why we believe that the most recently judgment should be reversed it should be allowed to go to the jury with respect to causation reliance and damages and motion for summary cation on duties should be reversed and instead judgment entered on their behalf i will reserve the remainder of my time you to do th looks your honesty case turned largely on the language of the two opinion letters there's no dispute as to that language judge lose opinion is painstakingly detailed and comprehensive that there is no evidence that mr gansey all this would have known that jim cap was lending against what they call the gross commissions in other words the evidence is and it's in the record that how much it wanted to loan and whether it wanted to create the commissions to the that work payable to the subagents as collateral so and that's borne out in the very language of the letters if never the less address the merits collateral was defined as all the assets of crop including quote all of the right title and interest of crop into commissions from but so as judge lou pointed out the key terms are they crop usa must still have quote the right title and interest to those commissions and if crop usa did not have right title rights to the subdivision commissions and those commissions are not in compassed in the collateral or plain of security interest so what's clear is that quarles never opined that the collateral included any assumed quote without investigation close quote that the collateral exists and the barroso brights were title to each item there of close quote and that coopt quote has rights in the property in which they have granted a security interest closed under ordinary pinion letter practice stated assumptions th the opinion received to the opinion recipient the responsibility for confirming using facts itself we're taking the risk that what is assumed might turn out to be untrue so not only was quarrels telling gem pap we are not promising you that crop has any right title an interest in any portion of its assets including its income stream but we are putting you on notice that we have made an assumption for purposes of this letter without investigation meaning it's on you it is on you opposing counsel as argument is that there would be a duty to disclose if it made that statement misleading and that there was actual mileage that the payments to the subagents would take precedence so how do you respond to hunt they go versus jones day and prudential versus do we balance time and when you parse them you understand exactly where this case fell out roberts and vega involved  representations that were affirmatively made or opinions that were affirmatively given as to which the argument was the lawyer had a genuine basis for believing them to be untrue or incorrect at the time the opinion was given prudential versus dewey ballantine if you'll recall this case in which there was an error in the documents that gave the lender a security interest and i believe only one percent of the actual full amount of the loan the last three digits were dropped excuse me i think it would be point one percent because it was th of the full amount and the court had no trouble saying the lawyers had no duty to disclose the error even if they were aware of it the key is that in robert's and explicit opinion was given that the entity was a genuine general partnership where as the lawyers knew that a large number of the people who were being identified as general partners disputed that characterization in vega jones day represented that a particular document was a standard agreement when they had knowledge that they were manifestly nonstandard terms another words that which was disclosed related directly to that which was represented well i guess yes the argument is that by saying we've done no investigation that that isn't quite correct where corliss represented cropp at the time of the earlier  fault or that if it is true that there was no investigation that itself is sort of a problem so you know you've given a good explanation of those cases but have you have to hear you explain how this one tracks out your your honor once we tell them that we are not telling you what portion of the commission's article and all of the collateral we're write this opinion water and he knew in advance that only a minute portion of the premium was going to be the actual collateral well you're on it let me put that up it's not established in this record what the collateral is keep in mind that the i do hope court's decision was not admitted into evidence  its persuasive not admissible but considered solely for its persuasive value and we were not a party and crop had the fall so crops rights and that  they were we don't really know what the collateral lives didn't he make make a representation that he was aware that whomever the the of your insurance company was was going to pay the subs for in after the after the default had been declared right when he was attempting to arrange the work out he certainly identified that as a risk but that is not inconsistent with anything in the opinion letters and it's not clear by the way that he identified that as a risk because diversified would take the position that it wasn't collateral diversified had declared default as to crop we don't know why diversified wasn't paying just as a business matter that was a risk and he was he was trying to get a workout signed you know so but i think the key point here we have to go back to this which is there's nothing in the opinion letter that deals with gross commissions that deals with an entire income stream that deals with any representations as to what was and was not the collateral and it's critically important that that type of opinion which is different from the types of opinions that are being given here opinions about corporate authority and the sufficiency of of all a lean agreement on manifestly different from injecting a lawyer into the business side and talking about who's going to do what down the road and so i would point out that the letters and selves also the state that no opinions that are not expressly stated can be implied and just turning to the knowledge qualify her knowledge qualifier does not apply to the opinions it only applies to the litigation and by the way the notion the representation that he said he was uniquely qualified related to the conversation in which he allegedly and for purposes of this record except that he made a representation that he would be uniquely qualified to make a statement about the litigation not about t what what jim chap is trying to do with the litigation paragraph really exemplifies the point that i think you were taking your question in the direction of it's the difference between getting a lawyer to a pine on business and litigation issues and on the one hand and something cold and hard and legal opinion on the other and so the litigation paragraph says that to our knowledge there's no lawsuit pending were threatened against crop that quote might adversely affect the of the time i'm going to take that question as an indication that i should move on so turning to the statements outside the opinion letters the borrowers disclosure schedule i do want to point out because i don't think it was adequately mentioned in brief but it's in the record that the loan and security agreement explicitly defines the borrowers disclosure schedule to be quote the disclosure schedule prepared by the borrow and for obvious reasons when a lawyer prepares a declaration for his client or reps and warranties for a client he's not adopting them finally of the representation that litigation was correct that's exactly what happened in ball hunt involved hines the opinion letter reflected that the entity was in general partnership although they had doubts as to whether or not that was true because there was some shareholders who disputed that it turned out that they were right it was a general partnership and ball hunt said that's irrelevant what's relevant is that you had doubts about that entity and you failed to disclose those doubts to the lender well completely different topic it's we're talking about representations and right about each one has to be taken on its own and if one is true then you move on to another one because they're not just one big mass misrepresentation each one there has to be evidence with respect but with respect to the duty of full and fair disclosure whether or not that disclosure was required to be made is based on whether or not the attorney had doubts it doesn't even have to  rise to the level of knowledge or actual knowledge if they had doubts as to whether or not that representation was providing the full information to the lender so that they could make an informed decision they were required and we're  jam caps own need to confirm things that are not said i mean this is somebody else's lawyer but you're relying on not your own lawyer that's right and  where is there a duty to make him opinion one way or another about what the collateral is that's exactly right there's no duty to make representation and i did make one but i respectfully disagree your honor once they do make representation there is no question as to what the collateral is it's defined as all receivables including commissions it's not some subgroup of that it's all receivables including commissions it's undisputed in the record that they knew that the borrowing base that was being used was based on all collateral including all commissions not gross not net it doesn't matter what you define it as it's all the revenue stream coming into the borrowers account that included those commissions there were doubts by an attorney that was providing opinions for the lender to make and with the express purpose of them relying on those opinions to make that long in which they failed to disclose their doubt as to whether or not that the whether or not prop had clear and free title to that collateral that is the very heart of the representation that is being made the question is can an attorney craft assumptions that they know to untruthful and then base opinions on those assumptions and then point to that limitation to say that for fills the public policy a full and fair disclosure i submit it is not it is actually a breach of their duty a full and fair disclosure they say that they are not responsible for disclosures made by their client and disclosure schedule that was rejected by the trial court that was rejected in jones day jones day held the defendants potentially liable for omissions in a disclosure statement prepared by those attorneys in connection with an opinion letter just as in this case there are disclosure statements that fail to provide for material contracts fail to advise of litigation and in which the defendant the respondents here i'm sorry state that they have no information to believe that those representations were untruthful or inaccurate that's what they say how article was your client's due diligence our clients do diligence was that they had the respondents had unique knowledge that was not available to the lender and that is why the lender made as a condition of the loan an opinion letter that held out that there was good and free title that there was no material contracts that were not disclosed etc the letter was prepared for the express purpose for the lender to rely on it to say that by relying on it they did not do their due diligence would sort of turn the purpose of the opinion letter on its head again if the assumptions were being made because respondents had no information one way or the other that would be ok but here there is at least material questions of fact as to whether or not they did have alternative information that would make them doubt the truthfulness of those assumptions and then is it ok at that point to rely on those invalid assumptions to render an opinion and say we're only liable for what w submitted we appreciate very helpful arguments from both