judgment to the defendants originally there were five cause of action it was granted on all five we appeal on the only one that is the fourth cause of action which was a interference with prospective contractual relations that cause of action was no contract between the plaintiff and the third party with which the defendants could interfere there were two separate contracts pled as the court knows one was a short term disability policy the second was a long term disability policy we indicated that the defendants interfered with loath the moving papers did as to the long term policy the moving papers the notice the motion the undisputed material fact motion united says plaintiff legal claim for intentional interference with the strength of destructive contractual relations fails as a matter of law because there is no third party contract that's general across the board correct so does not put you on notice and why didn't you defend this motion well the reason i didn't defend the motion is because we were in mediation with a retired district court judge we had been granted to separate continuances of the hearing on the motion because of the job it is indications that he was making progress motions it been made stipulations had been entered into and in fact the district court didn't grant the last continuance until four days after the last date to file opposition then again the mediator said there are more documents please get them says to the defendants they're going to get him we've made another motion but this time omitted to ask for a amendment of the pretrial order and production which can be done in two ways and ultimate burden of persuasion on the initial burden of production it can either be met by putting forth affirmative evidence nagin ating and essential elements of but it wasn't raised on summary judgment there were no facts brought out about it had no third party contract i'm sorry they said you had no third party confines or stand on addressing only the short term policy which they support  well no evidence was presented on that no because i mean his deposition so is it but how courson of the deposition was not attached to the motion because there was no issue raised on the motion on that the only things that would have to be addressed in any of them if that were opposed were the issues raised by the motion that was never raised the long term was never addressed the only evidence on the short term policy as i said was this label which summary judgment burdens can be met by explaining and reconciling the supreme court cases of cell attacks and advocates versus sh press and in this case the defend then attempted to meet their burden by negative an essential element as in advocates abacus was denied by the supreme court because although there was evidence submitted by the moving party that there was no agreement  between the police officers and the people at the cross it who refused to serve this white individual civil rights protester sitting with some blacks the court indicated you didn't do enough you didn't submit declarations from the waitresses saying that a police officer had indicated he should serve these individuals in other words they have an obligation to negate an essential element they court reviews de novo all this court has the same discretion as the carmen versus the san francisco unified school district said the district court has to consider those other matters in appropriate cases and we think that's appropriate create an injustice at the least and perhaps even a fraud on the court i mean for some reason the moving parties didn't see it although they had the agreements for the company to attach the real evidence which would have shown the insuring partisan parties and in the forty four undisputed fact he mentioned in passing on one fact that is number forty four that by saying this there h r manager says that you know what was the claims administrator on a short term self insured short term disability on united shot self insured short term disability policy that doesn't say what insurers we've indicated that the definition of self insured is simply setting aside a fund to separate fund of the losses rather than through an insurance company the parent company did that and therefore they are the  as this report more pointed out the focus is very narrow it is on the fourth cause of action only and within that cause of action as the moving party for both of these entities united and unit train only the summary judgment i think a fair read of those documents does address the entire spectrum of potential insurance policies that are speaking to but in the fourth pass to the fourth cause of action specifically  united we only address directly the short term disability policy clearly and read of the papers will show that it does not specifically state that the long term disability policy which is a union policy is one that is being challenged specifically in that cause of action surely it was our intention to have a broader meaning and through the usual briefing on on summary judgment through opposition in reply that would have been made more certain my preference would be that it was the civically in there in the moving papers that was our intention to have all of those votes two policies so to speak addressed seems pretty clear paragraph thirty seven that he was raising the long term disability  and so whether it's a read of that in conjunction with our moving papers which was the basis upon which the motion was brought that is we have the allegations now we're bringing this motion it does not specifically address the long term benefits and it should have so with that said i only mentioned in passing that the broader motion itself speaks to a summary judgment as to all causes of action and certainly move force to some reviewed occasion as to each cause of action so again there's no specific addressing of a long term event that's just just to finish on this the issue having to do with the plaintiff not having an opportunity to brief these issues i think is just disingenuous obviously that opportunity was there the time had passed he did not move forward with that  there was perhaps referee ongoing mediation review with respect to this case with presently or at that at that time there was ongoing mediation at the time and there is some question here about additional documentation  clearly that's not an issue of the record but there was no additional documentation as well it was one of those things as if there was more evidence to present to the mediator let's bring that stuff forward alternately there was a life of whether that  reason for asking the court for a continuance it certainly was the basis for the second continuance the third continuance is a different matter altogether and i will also say that obviously counsel is working well together we stipulated to continue if the court on april fifteenth we'd finally receive the documents that had been promised for a long time but getting back to the short term policy again and we're fact that somebody says there is no evidence is not sufficient they attempted by affirmative evidence to for filing opposition i guess too much was assumed ok thank you we appreciate your arguments matter will be submitted