those lawyers as the davies firm or the insurers this morning please the court contrary to the district court ruling seven separate real estate investment lawsuits that were brought in state court five of which are still pending against levy's firm all brought by different investors involving twenty three separately negotiated transactions as counsel on both sides separate transactional documentation prepared by the davies lawyers over the course of six years from two thousand and three to two thousand and nine do not amount to one single related claim under the three separate policies of liability insurance that these in church purchased from liberty libert position and the summary judgment was granted by the district court ignores basic rules of california contract interpretation including the teaching of the controlling precedent with regard to in a related claims in california they cities case which was argued a generation ago a case in which i participated i remember well the policy must be read as a whole the policy must be applied according to its common sense meeting and because the duty to defend and that's the duty defend any single point that's the duty to defend any multiple claim is is broad and it's broader than the duty to indemnify it depends on potential coverage so we're talking about the potentiality s of what could be not only what's actually pleaded liberty's position seems to be four corners argument that you're the four corners of the complaint if it's not in there it's not covered and actually will demonstrate i believe and have demonstrated in the district court that even the allegations of the claims are significant and significantly and substantially different and at least potentially covered subject to the duty to found under the expressed terms of this agreement which would continue the defense of each of these claims should continue in till it has been admitted or adjudicated that the claims are completely the same according to liberty itself in its own policy it promises to defend fraudulent criminal malicious and deliberately wrongful acts or omissions quote we will defend allegations of the foregoing acts remissions until the time that they are finally adjudicated or admitted by you that's page three thirty eight of the record liberty agree with us that professionals like that the firm's transactional workers purchase professional liability coverage every year because when they come to work to do their jobs if there's a real estate market crash and disgruntled investors in a handful of transactions that they've been involved in documenting a negotiating sue them they will be covered for that from year to year and when multiple claims arise in separate policy years they expect to be covered up to the per claim and aggregate limits of those coverages each year commentators over the last thirty or forty years have talked about the bases case talked about in a related claim so said while by the labels that the courts place on whether something is similar of the same related or unrelated it can produce of certain extreme results in this case it doesn't have to the controlling presidents are base cities and this court's decision ten years ago in financial management advisors a financial management investment case in that vein the most recent taste of comments on all of this development of the wall including bay city is the decision from the utah district court which has come down within the past year which comments on this case comments on the liberty case and its approach to this common scheme or modus operandi theory and it's funny the modus operandi which i buy latins not too good but means method of operation or your way of doing business the courts a comment on that frequently especially in the financial investment or professional y ability realm modus operandi is is your your way of doing business and one of the commentators m says in arguing that claims are common to a modus operandi parties need to be careful to characterize that modus operandi narrowly rather than an extremely broad fashion extremely broad fashion is liberty's done here for example an attorney should avoid alleging the insurance modus operandi was to fail to provide services that constitute the insurance core business model because under that theory virtually any suit against the insurer would be related and a court would be unlikely to adopt such an expansive interpretation and this court should not have adopted that kind of expansive interpretation because it wasn't warranted here among the many differences the morgan case talks about treating a single claim if they are factually and legally distinct as these are  so that the relationship between the two become so attenuated that an objective reasonable insured could not have expected that they would be treated as a single claimant of the policy we don't apply them as and later into related claims court commented on this court's decision in the financial management advisors case where they were this court declined to find that claims were in a related quote whenever two parties are advised to invest in the same fund or both claim claimants claim the same financial advisor we don't remotely have that here we have twenty three separate investments we have supper we have seven separate offices in when the in which the individual investors according to a thirty  page declaration that mr davies submitted in opposition to this most of her summary judgment with hundreds of pages of backup points out the many differences the courts in the cases that we've digested the financial investment cases the financial professionals cases the lawyers and accountants cases basically focus on four things can determine this in a relationship one is that we have the same claimants here we don't there are different the different claimants who claim that they've suffered different injuries and in different ways we look at the timing of the investments in the transactions are they the same or are they different they're all different we look at a causal element bas applied a causal or logical test it did that because there was an absurd result an extreme result in that case that the insurance industry objected to and we argued about that focusing on the primary rights of each individual client or each individual plaintiff what was the causal effect well there you have one client who wanted to collect a construction debt but there were two theories and there were more damages than a single policy moment so the argument was gee either of these two commissions related to the transaction when in reality the purchase price of the property was marked so that they were actually paying the commission and that is a common allegation in each that the allegations in the complaint and me and i understand that that's what liberty argues well are the language of a pulse he says alleged that's what claim means it means something that's alleged or asserted so yes we do look at the outcomes case talked about this commission fraud and the specific thing that the district court pointed to it page forty nine was seven underlying actions and that includes the stella case because they putative class action was never certified as a class and there wasn't commonality he invested in different transactions we can illustrate that for the court involve a similar alleged scheme that is in the course of negotiating property acquisition transactions the defendants made a false representation to plaintiff investors that sellers would pay all commissions relating to the transaction when in reality the purchase price of the property was marked up to include a commission payment and here's what stella said it's also what the trial court said when it dismissed that claim as being without merit jack yes a question might be a little different but it's related to the same idea whether there's some common scheme of common practice that covers all the cases my questions were all these plaintiffs in all the separate suits with clients of the davies there were not your honor i know some claim that they were and that's another difference this in fact if i could highlight for the court what some of these material differences are some of the claims allege securities violations licensing violations for example am lab alleges that we should have known the lawyer should have known that the tenant in common interests were not being promoted by a registered broker dealer in violation of any us the n s e c rules but there are other different allegations different than the commission allegations mccready and johnson alleged that the firm in producing its offering memoranda represented that long term lease prospects these are commercial buildings basically that are least including a key tenet bank of america were good for renewal and according to that was a supposedly immaterial representation other than this commission warriors don't represent them they represented sponsors and people who were negotiating on that side of putting these investment deals together and they were separately represented by counsel the buyers and sellers in the course of those negotiations there were allegations about the suitability of investments the baron's amended complaint for example allege the duties were violated concerning the tenant in common but investments businesses that they invested in were they represented by the davies from the businesses that that were investments or were the investments it is actually the davies firm of amc which is  asset management consultants and some of the principals and some related entities were regularly the sponsors those were the clients of the davies firm so no in putting together the the limited partnership investments these investments were being sponsored and developed and promoted and and the warriors were handling transaction documents or promotional materials for those who were sponsoring these investments and were at times managing aspects of these investments  eighty four through one eighty eight specific allegations of the forty one investments that mr stella himself a lawyer who did not allege he had an attorney client relationship he knows better as a lawyer he did not allege that those separate transactions were documented in detail there are are number of different investments that are described in the stella case the hamilton investment limited partnership the baker and overland and one all the investments and those aren't anywhere in anybody else's claims or lawsuits the am laptop the involved a single investment in september two thousand and six and there were claims about the loss of a tenant and allegedly misrepresented reserve accounts having nothing to do with commissions eight her complaint about the czerny of the robertson property wait a minute you know you you were you were leading us down the path by trying to get additional fees so you could promote different investments that was an allegation has nothing to do with commissions that the refuted and moreover your honor these are a handful of disgruntled investors all represented by the same lawyer who does have a boilerpla complaint alleges various things that aren't even the same from case to case and even the investments that are subject of dispute are turn out to be tremendously profitable tax advantage investments as as mr davies described the temple in robertson our properties earned over nine point four million dollars for the investors to prairie transaction made four point three million dollars the fairgrounds transaction made one point seven million why did these individual sue from two thousand and eleven to two thousand and thirteen as one of my partner says everything old is new again you have real estate ups and downs get a market crash in the late two thousand as the real estate market crashed it became difficult to get financing and and it became difficult because the values of these investors want to and a handful of them not many in the hundreds and hundreds of transactions little during this six year period multiple transactions dozens more than this that turned out to be profitable a few investors were disgruntled didn't make money which is a risk of investing complained that the lawyers and the accountants and anybody else involved should be financially held to account and should reimburse their individual and separate damages both the financial management advisors case and again more recently at pages thirteen thirty four and thirteen thirty five it discusses the that timing and the and the individual loss aspects of each investor claim in that case there were two investors a husband and wife and each of them had different losses and each of them had different claims even though they were put into the same three investment vehicles according to this record in that case rejecting this common scheme and common plan argument the very argument that  may please the court that he berk on behalf of liberty insurance underwriters and that this case concerns the scope of coverage on professional liability policies issued by liberty to davies let us as you've heard there  seven underlying lawsuits there it issue when the first was filed in two thousand and eleven liberty provided the defense to davy's linus when the second lawsuit was filed liberty evaluated that claim apply the policy provisions and determined that the first and second lawsuits arose out of the same or related wrongful acts and therefore constituted a single claim that would be subject to a single each claim limit of liability as each of the subsequent seven lawsuits were filed liberty did the same analysis came to the same conclusion based on the same course of conduct that was alleged against davies lamis and advised davies limits of the same position over fo years liberty paid over one point one million dollars to defend these limits in the seventh lawsuits in two thousand and fifteen as the full extent of the single claim limit of liability was nearing its end liberty exercised its right to file a lawsuit seeking a declaration that its interpretation the policy was correct the operative language in the policies is as follows claims alleging based upon arising out of or attributable to the same or related wrongful acts shall be treated as a single claim the district court applied that language according to its plain meaning determined that the seven lawsuits constituted a single claim and was subject to a single each claimant of liability this appeal presents to straightforward questions for this court to decide first is that same course of conduct it's alleged that davies lemmas engaged in process seven lawsuits constitute the same or related wrongful acts and second in answering that first question was the district court correct in looking to the allegations of the underlying process to make that determination there's no dispute in california law controls here and there's no dispute as to what the standard is and that is whether the claims arise out of wrongful acts that are either the same or logically connected and here that standard is m because it is the same course of conduct that davies lemmas is alleged to have acted in across all of these seven lawsuits as yours were a lot mentioned the basic scheme alleged in these cases was that a representation was made that the sellers of the properties at issue would bear the cost of commissions and fees when in reality it was alleged that the purchase price was marked up to account for those fees and costs that was a key allegation in the scheme to misrepresent to get these investors to invest in the property and that is because for all of these plaintiffs low upfront costs was key to the investment whether it was a limited partnership investment or a tenan in common investment they also relied on other representations made including the fact that leasing status and tenant status of various properties the common element there is that it was all done to make the trip the properties look more attractive to the investors and as to davies limits itself the allegations are that they participated in preparation of the offering documents they were aware of these misrepresentations and they failed to disclose th with the exception of the stella action all of the other six actions do allege that davies lemmas had an attorney client relationship with the plaintiffs they also allege that davies lemmas had an attorney client relationship with the promoters of the investments the allegations are that davies lemmas failed to adequately disclose that joint representation failed to obtain informed consent and waiver and savor the interest of promoters over those of the plaintiffs is also alleged by the plaintiffs that they failed to adequately advise the plaintiffs including encouraging them to enter into special purpose entities for purposes of these investments which limited their rights now the focus of the language here is the and you've heard discussion about multiple plaintiffs about multiple properties about allegations against other defendants but the key here is according to the terms of the policies same for related wrong acts and this conduct and so the focus is on these limits it's not on the other defendants in the kids because there were the promoters were named as defendants the accountants were named as defendants the brokers were named as defendants but the focus is on what davies lemmas is alleged to have done and here the broad clause easily in compas is that single course of conduct it's alleged to have been engaged in by davies lemmas first language talks in terms of same or related wrongful acts so obviously they don't need to be identical second the bases court decided that related would be interpreted as logically connected and clearly based on that single course of conduct the allegations against davies lamis in each of the seven lawsuits is logically connected this is not a provision that limits coverage this could just as easily be ensured arguing that multiple lawsuits were the same or related for purposes of avoiding multiple deductibles and the bases court determined that the same or related language was unambiguous and therefore the district court applied the plain meaning of the clause and came to the conclusion that it did now as i said none of the differences that have been discussed either in the briefing or here today changes that single course of conduct that davies limits entered into yes there are multiple properties that issue some are common across some of the lawsuits others  not but again the allegations and wrongful acts do not need to be identical they simply need to be logically connected and second and more importantly the focus is not on the impact of the conduct but on the conduct itself it is on what are the wrongful acts that davies legacy engaged in whether it applies all to one property or to multiple properties now there was some discussion about being able to rely on the allegations in the underlying lawsuits for the district court to make the decisions that it did it islamised takes the position that that was not appropriate its position is that the court should have waited for the attorney malpractise and fraud claims against davies limits to be fully litigated in the underlying actions or in this declaratory judgment action before applying the terms of the policy that is not consistent with the terms of the clause obviously in dealing with same or related long the focus is on the wrongful acts that term is defined by the policy as any actual or alleged act air or admission or personal injury which arises out of the rendering or failure to render professional legal services and the cla took talks in terms of claims alleging the same or related wrongful acts clearly the plain terms of the policy do contemplate using the allegations of a lawsuit to determine whether multiple claims will be treated as a single claim because they arise from the same or related wrongful acts and not only does that make sense from a policy interpretation perspective it makes logical sense as well the duty to defend here is determined on the basis of allegations therefore the limit to that duty to defend likewise should be determined based on the allegations in the alternative a district court could never make a determination about whether a duty to defend is limited by this multiple claims provision because the court would have only allegations to go on now davies almost makes a second argument relying on exclusion to in the policies and talks about being allowed to continue a defense until claims are fully adjudicated now that language appears an exclusion that exclusion deals with among other things fraudulent conduct it is not a creation of coverage it is a limitation on coverage there is a sen in there that confirms the duty to defend that is provided elsewhere in the policy but it limits that due to defend and saying that we will defend until the claims of fraud are fully adjudicated now for two reasons the argument that been made by davis lemmas does not have merit first in this circuit and elsewhere it's clear that exclusions cannot be used to create coverage second and more importantly the interpretation that's been put on that exclusion renders other parts of the policy meaningless and therefore violates a basic rule of construction and by that i mean the limit of liability provision identifies quote the most we will pay for damages and claim expenses for each claim now under dave's limits interpretation that provision and that amount does not limit the defense of fraud claims but rather it's simply the time and cost to litigate those fraud claims until you reach a quote unquote final education that cannot be the intent of the policy because it renders that limit meaningless and further there is not a single court in this circuit  or in california that has declined to apply the multiple claims provision to allegations likewise in this circuit and in california in fact it's routinely done the x specialty case and the presidio wealth case are only two examples where courts clearly identified allegations to determine whether claims were same or whether wrongful acts excuse me were saying or related and therefore subject can look at the allegations and the district court appropriately looked at the allegations of the underlying complaints in order to determine whether they were the same or related to that issue is not an issue that is before the courts here in the seven underlying cases there is no overlap in issues therefore the district court not only did not abuse its discretion in denying this day it handled it correctly the stay was requested on the basis of an argument of prejudice  court looked at that issue and determined that there was no overlapping issues between this case and the seven underlying actions and therefore denied the stay there was no request for extension in the district court there was no challenge to the dish or court jurisdiction as a result the raising of abstention in this court for the first time has been waived if the court is going to take on the extension issue there are reasons why it should not apply first of all the the issue here is not a presumption in favor of abstention which is what davies lemmas argues that is contrary to this circuit's decision to govern employers insurance company vs dies all which says there is no presumption in favor of abstention in declaratory actions generally nor in insurance cases specifically which leaves the court to look at the brill heart factor factors and there again none of those factors merit abstention in this case first there was no needless determination of a state court a state law issue as i said there was no overlap between the issues in this case and those in the underlying case and it is common for district courts to address state law issues in the context of the insurance declaratory judgment actions there is no forum shopping there was no coverage case in the underlying state court actions or elsewhere in the state court the case there was no overlap in issues between the two sets of cases and based on that we would ask the court decline to abstain here and based on the plain language of the