that language is not the language contained in the or the zelda opinions the language in the year old opinions is an act or a mission in connection with the prevention of  battery those are two totally different statements and have two totally different meanings the failure to suppress or prevent would apply in a situation for example here had this incident occurred at the gorman home and mr gorman stepped outside and saw the assault battery taking case and she failed to do anything to stop it or prevent it then  a lying on your honor in saying that the self defense is still excluded under the policy there were lying heavily on the insult cases to reach that conclusion my point i don't think that the facts of the scenario i don't know in california war and perfect self defense is a defense in a criminal case which can be pleaded only when there is an assault and battery to reduce the grade of mens rea as to culpability but to say that assault but imperfect self defense is not  imperfect self defense which leaves and the salt in very occurred and then later you were further to the underlying complaint and say it was negligently cost that is an inconsistent pleading in the single count is claiming the question is whether there is one of the scans well then we have to go back and look at the original complaint whether it was a duty to defend on the original claim and in this case i believe there was again if you look at the language of this policy there is no exclusion for acting in self defense that's not self defense can't be self defense it's like this where the of one's right right right if that's your theory how can that be pleaded under a complaint which says imperfect self defense the two series are completely separate then we should have been given an opportunity to amend the can now you're talking about something that has some promise we should've been allowed the opportunity to amend the complaint your honor to follow in the formants and trigger a cut if you request to amend the complaint whilst you were in the district court we did not have the opportunity to argue your honor it was taken up and just ruled on the papers all right if you were to amend your complaint what would you say i would plead that there was an allegation of negligence and what fact clever because arising out of salt and battery would bar you regard those who started it right so you would say the one who was making some moves and maloney was perhaps negligent and making some moves which  misinterpreted wharton's moves but it wasn't a fight or something along that line correct here on on an appeal following a motion to dismiss i can tell you about what our investigation uncovered but it might be outside the purview of what we're really here to talk about my point is that if it's the plaintiff in this case try to amend his complaint to now say oh no there was an imperfect self defense i was my client was just leaving his arms around and hit somebody in the face that would be a shame pleading because it's directly contrary to a pleading that he's already signed and filed with the court it's not a matter of pleading alternative theory it's a matter of standing one set of facts signing that pleading and turning into the court and now being told that will takes you out of coverage so now you know why we would go through that exercise when we're all standing here and it's been well i just need eyes and he has no way to substantiate and he won't do what well i'm i'm concerned because he just said he was going to do evidence that we learned during our investment in the area where on the record we see that your honor you don't see it on the record because we're here on a motion to dismiss that we were not allowed to bring in evidence of our investigation in opposing we were just allowed to rely on the allegations in the pleadings brought by this plaintiffs so if we went past today we would be here on a or maybe just in the court below on a motion for summary judgment where we would have that i certainly wouldn't suggest to counsel for the plaintiff that he prepare america trisha's pleading because he will certainly be subject to rule of instinct and if he did that's true your honor that's true i just i would again state that i we can decide this right here that it's been alleged in his complaint and in his moving were that he was leaving his hands around and accidentally hit the other person we wouldn't be standing here because i think under that scenario my client has a duty to defend until it can show it streams of evidence which can i know i'm not allowed to talk yours is only one small point i wish to address because it was raised several times during council's argument and that has to do with the issue of the basis for their denial in their investigation and it twenty eight of the the thing other than with the police investigation was it also as our investigation they relied on what the police had to say and it doesn't advise they are unsure of what the what their investigation revealed resulted in which led to this decision