city of martinez not the end of the case because there was no project and that's what we continue on that's we can can't judge constantly purported to follow the sterling builders case and he quoted from it literally but proceeded in our view to depart from the holding of that case by essentially saying the right to continue operating your business and him and have your establishment remain accessible to the public are arguably part of those ri complaint which is i believe this excerpt directed page eighteen all that happened was complained of was his patrons not having access to the restaurant caps and blinders never complained that it did not have access to the restaurant so even judge conti's assumption is not borne out by the by the record invasion requires going into something requires an incursion sterling build this case made that very clear let me ask you a question the evidence shows that the parking lot was flooded with water from ankle to needing food that's correct your honor if the water all the way around the parking lot is flooded ankle to me deep is court make an assumption there's water underneath the restaurant i don't believe that the district court did the restaurant is elevated and if there was water underneath the restaurant it that's not what even causes the damage t if you could have restaurant or water whether it's five feet below the restaurant or five inches below the restaurant the injury complained of here is the denial of access by the patrons and the damage is the loss of profits the water underneath the restaurant and in the region of the building the restaurant sits over the water some height i don't know exactly how high is the space underneath the restaurant is not what's least that's just open air holes it's sort of like it's on restaurant on poles that's my understanding so there isn't underneath a basement area that you can store things correct and there isn't a flat floor it's actually elevated on poles it's always on poles in the tide goes right in there and flows right out if you seen it no i have not you know i've seen you state your understanding on the well what is the basis of your understanding at least based on my discussions with the lawyer and from my office who has seen it discussions elevated above mean elevated above by polls rather than just elevated above my amount that is build upon it says elevator i have to look at to verify whether it has the detail inquires about that would be helpful the only other point i would like to make on the invasion issue is i think the court needs to pay attention to the supreme court of california's decision  are fourteen different times where the policy form uses the word person in isolation in eighteen times where it uses the phrase person organization we think it clear that under duress is crossties decision and the mere parrot case that and applying the rules of contract with reputations to that provision it's clear that the word person in the phrase persons organizations must have different meanings the city has several arguments each of which i'd like to take a moment to refute first the city cites some language  decorations page of the one nine hundred ninety six policy this not even in effect for a different restaurant that uses the phrase i dish no protected persons first of all again it's from a different policy that's not even in effect in addition to which it's a different policy form when you look at the twenty two page policy form and apply the rules of contractual interpretation we consider that it makes sense to attempt to ascertain the meaning of those terms from the very various different provisions of that form itself the city also cites a non auto coverage again that's a different form and i would point out that organizations can't drive cars at least we hope not as to the claim that well gee the notice  captain bladders employees are defined as lessees in the least that's true capt invited employees are not plaintiffs in the case there's no indication that captain blithered has standing to raise their right for recovery of personal injury and such claims united and made in the complaint and lastly city claims the coverage would be a loser ie where the insurer knows that the only possible claim would be by business organization there is no evidence that new hampshire knew that the only possible claim could be by a business organization and in fact that is simply not true cap and why they did something to perhaps one of his neighbors properties or its neighbors properties forgive me that that could constitute an in some type of personal injury if nuisance is nowhere to be found what some of the cases say is in attempting to ascertain a meaning of certain words in the provision it says well for instance this could amount to a nuisance but those cases do not say that almost anything can be denial flight all these things can amount to nuisance but it would not necessarily qualify as an invasion and sterling builders is very clear that in saying that an innovation requires an incursion of the property and we simply do not hav incursion well the question before a judge kindly was on summary judgment is that right so the issue was whether there was a trial balloon to a fact on whether there was a physical incursion into the lease premises put it that way and there would have to be some evidence demonstrating there was some type of physical of a team to think it was because it was pretty much agreed that the water was not just in the parking lot it was also underneath the restaurant itself and even that when he was getting out i went back and i looked at the deposition of al and it's it's pretty unclear exactly what happened is before the restaurant building martin of higher than the level of the ground in the parking lot yes what the difference is i don't know if you have any estimate you know you have to walk up stairs to get from the parking lot to the building yeah how many steps i don't recall during any of these bloody events in the water level down to the height of the floor of the restaurant no how close that exact answer to the base and what is the base the beginning of the stairs leading up to the restroom and that's the highest you ever saw it go is property in other words according to sterling nothing short of a trespass will trigger coverage here which is directly contrary commenee prior cases the martin marietta case general accident all states the actions of a tight other than trespass would be covered now the history of this language is that this was originally seen as two types of claims under yes i don't believe that sterling is correct for the reasons cited in the brief it ignores other cases and it does not stand on righteous or not it's not really our question our question if i understand it correctly would be what's the california supreme court likely pollution on this lease property that's true and so the pollution exclusion wouldn't apply and and that kind of analysis on the property historically i think it's worth looking at the policy language itself because historically it started out with language that simply said run for entry or the action there was no other invasion language and those cases did hold that you had to have some sort of physical i certainly believe that sterling was mistaken given all of the other case law and i think that resolution of that would be beneficial not only for this case but other cases in california i believe there is a cure i created a conflict is it your argument th case was concerned with was the plaintiff claimed that the insured had by means of fraud obtained and easement which was never used and the courts concern was well you have a piece of paper which says there is some right to use your property but no one has ever used it and this is simply to a federal and in fact it wouldn't constitute a nuisance so certainly destroying court didn't have to go so far as to say nuisance doesn't exist well if if that's the case both the bankruptcy court and the district court relied on sterling for their opinions is it your position that we should reverse them send it back for reconsideration because they are had their own case that they were incorrect should we send it back then and say you know sterling is not good california law or it's out of step with all of the rest of the california law therefore we have to vacate every and that would be an appropriate result but i believe based on the existing case law that this court can determine that the claim being made in this case clearly is within the coverage because the language includes  wrongful addiction wrongful and or invasion of the right of private occupancy now at the point that you say there has to be a physical invasion you're saying that nothing short of trespass will amount to coverage that eliminates the invasion of right of private occupancy language because you already have a wrongful entry coverage so you're saying well it's wrongful and free fiction or wrongful entry period because nothing short of trespass whatever amount to coverage under this case so it eliminates it also treats anybody in your telling but in the right the invasion other invasion what is your theory of what invasion it is not invasion of property the talking about invasion of a right and the right that's being involved in vote here given that trespass and a wrongful entry in a vixen have already been discussed has to mean something other than simply repeating what's already gone before that sounds like a trespass to we will treat this like a trespass claim and courts and gone on to say well invasion of the right private occupancy must mean something else because it's not a repetition of the exact same word otherwise we are elimi words from this policy that are supposed to have meaning and so it must mean something more and it's treated as an interference with the use and enjoyment of the property it's not a physical dispossession of wrongful addiction is a total dispossession of the property actual ownership or control over the property but loss of use and that's what the additional language is meant to treat is an interruption of usually enjoyment invasion usually means something invades that's true thing that i d the restaurant what invaded the restaurant here the water invaded the blither his ability to use and enjoy the restaurant it gives my point invade the restaurant right and the policy language does not say invasion property it says invasion of the right to private occupancy invading a right for example if you want to invade someone's right to free speech and you were not the statute which says no one is allowed to make a contribution to a public official and they say well that invades my right to free speech because that's how i make my voice heard does that mean the city has to then go into people's houses physically and rip up their checkbook invasion of rights to not require a physical  into someone's property and again if if what new hampshire had meant by invasion is trespass only they could have said trespass or they could have said or other invasion of property but they said invasion of the right a private occupancy and the right of private occupancy is to be able to use and enjoy that property and an interference with that doesn't require you to physically go onto their property but it could equally mean the invasion has to invade the property and then it will in the heat way the use of your making one step you don't need to invade the property in order to come within the policy and i you don't have to invade the property in order to invade the right a private occupancy and exactly what you're pointing out is the reason that so many of these courts found that this language was ambiguous and using interpreted principles apply to insurance policies where there's an ambiguity exists you have to find coverage if the city decided that they were going to put barriers all the way around the parking lot and not allow anybody y that's an invasion under your theory it's an invasion of the right to private occupancy it's not a trespass if it's not part of the property and so it doesn't come within the wrongful entry but it does come within the invasion of privacy invasion you don't have to have anything touch the restaurant it doesn't have to be within one hundred yards of the restaurant the restaurant is being invaded it does not have to physically enter that's correct just as a nuisance does not have to physically information as well nuisance well we look at the law of torts and what we see we see we see a vision we know what that means wrongful entry quote that sounds like trespass that's what we're going to treat it as so what do we do with invasion of right of private occupancy has to be something different and looking at the law ating the wrongful entry language because the other invasion language didn't exist in those policies so they have now taken a different policy lang and grafted onto a policy that has other coverage if we should go into the building itself now what was the relationship of the parking lot and is the entry into the parking lot an invasion of part of blither is used in occupancy well i think as discussed in the brief the s the parking lot is a complicated and and not very clear item under the lease but certainly blither is did have an interest directly in the parking lot and so whether the water going on to that chris you know it sort of common street language and interest in the parking lot sure i've got an interest in seventh street well but you're not the landlord here you know it's not right is work that way here interest but the we specifically refers to bli generalized public right it was a very specific right to make this building habitable and usable that that parking lot had to be made available and if if you surround  building with a fence one inch from the property line to say well that's not an interference with the right of private occupancy you get totally unexpected result from coverage i think that the interpretation of mere pad does not make sense because it is attributing the language about that a person occupies to the wrongful in free wrongful conviction and invasion language the policy language for this coverage comes in parts first it discusses what happens an interruption of a right wrongful objection wrongful entry other invasion and then it qualifies it and says it must be a room while your premises so in other words uninhabited buildings vacant lots those kind of things aren't covered and then it says that a person occupies and i'll get back to that and then finally it has to be by the person occupies and it doesn't say wrongful entry or eviction of a person from private occupancy the language of this policy does not tie this that a person occupies to the wrongful addiction and wrongful entry it's not substantially different there are some differences but for purposes of this analysis it has the same basic elements so for example if you look at the  or addiction of a person from a room or drawing that the person occupies these policies tied together the violation of rights and the person occupying it the stein briefcase the general accident case tighten holding all have that kind of language that it is the wrong of a person from a rumor going that the person occupies whereas the language in mere pat and in the hamper of policy merely talks about a wrongful entry of fiction or invasion of a right and then speech of a room growing a premises and then qualifies the room growing a premises as one that a person occupies meaning that uninhabited buildings such as treated as no more than saying that it has to be an inhabited building but it doesn't say that an organization cannot be covered under this policy and i think that we have to remember that the purpose of  evaluating this is to look at what the intent of the parties were whenever you're looking at a contract such as this clearly that wasn't new hampshire's notion of what this policy meant because nowhere did it raise this issue in it come coverage we would have heard about it before and the fact is no reasonable policy holder could envision this distinction the situation here captain bligh theirs is owned by a man named who also owns a restaurant venetian they're both seafood restaurants essentially identical menus they have the same personality switch back and forth they're all trained by the same person and they are they have identical policies you get completely different results on coverage because of the fortuity of the form of the lease now in this case the lease actually has a language which says that people who are guests and employees are lessees under the leas i mean that wasn't fully evaluated because this issue wasn't raised at the time that evidence was being put to the court but clearly applying mere pad comes with results that no reasonable insure thank you in response to a couple of comments from the justices i was point out that the california supreme court's trend in all of its recent interpretation decisions is due for following suit with a clear and explicit language of the policy and the court reads the policy language very literally the court looks at these cases and all sided with the certain underwriters cases all of the pollution he says when they make that distinction between the word claim in the words and all of the types of cases the court looks very very carefully at the language of the policy and left that policy languages troll we think that is the clear trend in response to the court's question was the starting builders case was there petition the supreme court for you know there was not  with respect to the inquiry about should this case be certified we think it's pretty clear under both near padded sterling builders what the outcome should be but should the court choose to certify it i would urge the court to include in one of its questions or the full question issue or issues to the california supreme court and ask the court to consider including that concept or to get a clear answer from that court the citation to the record that i referred to your honor was page four it turns out it's the same get position testament you read to me earlier so that's that's what's in the record from what i can tell the term invasion i think we need to note is different than the term interference or enormous talk about someone losing  right such as the constitutional right to free speech we talk about interference with the right interference can be all the different types of losses or infer in in huge minutes the council referred to why did why why not say interference with a right of private occupancy  fit within wrongful entry that may not be a trust fast for instance if someone causes a third person to go on to land that may be a wrongful entry but it may not be a trespass and finally i would point out that  that the argument is there but when you have as as counsel in a trial level court when you have a case authority strongly supporting your position and at the time no case with already supporting what is what the  argument it's not supported by a lot of time tends to be a little bit distracting that doesn't mean the argument is not there doesn't mean the argus been waived when i did i love coverage in the wall or preserves all rights of the insured of certain any issue and i would point out to the court that the wallers decision one i believe that was a case where the appellate changed their position on appeal based on a decision of this court and intel and the supreme court said that's fine because what we're dealing with your security an issue of law there's really no no dispute the facts at all