judgment motion in which the district court ruled that as a matter of law my clients the appellant's were not insured the court held that as a matter of law there was no triable issue of fact that my clients for sure the factual information that show that the helis were in fact acting in the course and scope of their employment as officers and as director are many first there is the third of many complaint that was filed in the underlying case by harris in paragraph eighty of that complaint the complaint specifically alleges that each of the  paris's point against your clients and to the price which are judicially noticeable so within those two areas as far as i can understand  california hello you move dress facts simply address the facts of what was going on which are not in the complaint or visually noticeable would be your own s claim disparagement wasn't the appellant's went to clients and allegedly told the clients that harris was like a bank of america was not a small shop like my c f o that the type of services provided by harrison would in no way meet the quality or needs of the customers that was disparagement those statements were made because my c f o as chief executive officer ar made these statements these disparaging statements when you look at the actual facts those statements were only made that we can't look at the facts we looked at were limited to looking at the complaint and whether or not the allegations in insurer at the time of the tender or resubmission must take a look not only at the four foreigners of the complaint but as must look at all the information that's provided to them whether through discovery whether through correspondence to see whether or not there  that recent supreme court decisions of even held that if there is extremes of evidence you can shirk himalayan the extrinsic evidence to show there's no possibility of coverage but the law in california for at least the last forward the client is then asked the question who is harris bank are they going to treat us the same way you've been treating us should we sign these forms the clients interview ask you to sign the forms the clients they asked again who is here space are they going to give us the same type of service the clients in response to their requests that they were told to do by our chart all of this is communicated it's all in the record it's all letters that were sent to the insurer telling exactly what i'm telling you right here and the insurer still said there's no duty to defend all th information was provided to the insurers and they also know that's not enough that information was provided then a response my clients respond to truthfully and they told them that the terrorist bank is a bigger organization it is it's not the small type a company that my c f o was the a hands on type company in response to that they got sued only because they were told by my c f o as chief executive officer to get these consent for myself as a little more  as well competing business and found that complicated the matter if it were simply that they were being candid and terms of their description of the acquiring company of the current entity that would be different but there was another wrinkle the complaint made allegations of that but there was also a declaration that was signed by the plaintiff plaintiffs counsel that said that they were not only being sued for that they were also being sued in the course and scope of their duties as m the officers it wasn't exclusively unrelated to my c f o didn't quite paraphrase mr charlie's defamation the summary judgment motion as well as i should have but in terms of them setting up another company that was not a secret what was happening is the escrow between my c f o and harris was was very was very question where that was going to close or if it didn't close there had to be an alternative entity because my c f o would have filed bankruptcy they would have had hundreds of clients who literally have millions hundreds of millions of dollars billions of dollars of wealth who would not have been represented they would have had claims against my c f o tax returns need to be filed there had to be a o to have consent forms signed they made the statements only because they were officers and directors employees were told to get the consent form sign and answer their client's question that's enough it's a very broad coverage clause and if we take a look briefly at the cases that national union relies upon to say that if you're acting against the interest of your own company you're not insured there's more to it than that in the loans case for example the court of appeal held that the defendant president made a defamatory statements after he was no longer president in the the claims against the insured corporation had already been settled there could be no claims for anyone acting in the capacity of the insured corp in the lots of case the insurer did provide a defense it was an issue of that were totally frivolous in maryland that were filed by a company to drive them out of business and to prevent harris from having to pay my clients the money that they owe them it was really a preemptive frivolous  filing of the motion of summary judgment but before the hearing if we look at the the barnett versus fireman's fund if there's just one case to read the case is basically this case with different names that case involved doctors and the doctors were told by their new employer to go ahead and do various things they want to have been talked to the patients and they told the patients that they were unhappy with their employer the employer sued the doctors for defamation and the poor appeal held that the doctors and ask in answering acting in an insured capacity when they allegedly made the injury producing and conduct in this case it's the same thing the appellant's were acting in their allege everything that we told the insurance company about that we were the good guys there was nothing we did wrong we were only following orders from my seat of those executive officer all that was just thrown out the window we have at least should be able to go with a jury and let's not you can't from the ropers office free on behalf of the national union the the court has already focused on what the test is here for the purposes of establishing not merely the capacity of not merely the status of the plaintiffs as being within having a position of employment or of an executive officer but also acting within that capacity at the time of the allegations that are being asserted against them and that is the critical part of the requirement that is not met by the claims here and that the court is focused on it's focused on in the barnett case which the plate of sight and have cited again and again and is judged by have pointed out in that case that that element was satisfied because in the barnett case there was an express allegation that the officers were acting in their course and scope of their positions with the which you will find when you look in the record your honor is that what what the insurance company had before and after time was were the three complaints because ultimately the suit the first amended second amendment third a medical plan these were all sent to the insurance company sixty pages of pleadings and they had two letters from cal sol four for the plaintiffs and those two letters are in the record and i believe page t these plaintiffs yes your own kind of that when they were demanding the defense they submitted it to the they tendered the case and then once the claim was denied they sent a letter saying you should not have an idea just for the following reasons that's at page two it's a two page letter confirming a telephone conversation january twenty seventh is between two ninety three hundred of the excerpts from the but not in either of those letters and the complaints themselves do none of those allege that the insurer it's anything about the insurers acting in a fiduciary duty and saying these things because they had a belief that they had to protect these clients of the underlying company my c f o all that has been the assertion that is made in this case it did not arise until after this case started and in fact when you look at the declarations of the plaintiffs even submitted in this october first and started smoking contingency plans for a separate company that they were going to set up which was going to compete and the gravel none of the case brought by hearsay as the court has already pointed out is that these plaintiffs were competing with harris this business had it in the process of the competing take in information that they were not entitled to take from my c f o had transferred it over to their new corporation were saying things that were slanderous to the organization or disparaging to the organization of harris as part of that and that was the nature of the claim it was not that they were peroration so they cannot otherwise afford to have their own in house so it's an outsourced if you will financial officers and as financial officers for these various clients of my c f o they assert that they could be wrong but and but none of that was communicated if you look through those letters will not see through sheri duties communicated the national union back when this was being tendered a national union and the nature of the claim again is not focused on these employees performing their fiduciary duties it's focused on these employees in essence stealing assets of my c e o that were intended to go to harris or using assets of my c the did go to harris but they were things like client lists information about employees and other things that these plaintiffs then used for their own advantage to compete with parents and that is outside of the  plaintive for example plaintiff's attorney here cannot be the determining factor the words of the court or they are not the arbiter of the coverage and the reasons for that is because various platers attorneys might have reasons for steering cases toward coverage or away from coverage depending on what goals they were trying to accomplish that statement has been repeated in a number of places including in the montrose case sometimes it works to the benefit of the insure sometimes it works to the benefit of the insured here there was no statement by the playchess attorney until the motion the underlying play history gives me and the cover again with no i think i think the underlying case was over at that point but tell this motion for summary judgment was filed in this case and in fact strangely in this case federal the primary carrier contacted the attorneys for the plate is during their coverage investigation and mr hurwitz who is mr henson his predecessor wrote them a blistering letter which is in the excerpts of record a page ninety six accusing them of bad one of the assertions of bad faith that they were making against federal law other words that they shouldn't have been talking to the plaintiff's attorney the underlying plaintiff's attorney all that aside if you look at the declaration itself that mr  chattered aside it is a page for thirteen and for fourteen of the expert of the excerpts of record and what he says i against the backdrop of a case where there's not sixty plus pages of pleadings talking about how these plaintiffs have been misappropriating my c f o asked for their own purposes he said as he finishes up by saying  defect where the whole case involves their operation as representatives of my c f o and and there's some gotcha clause in the policy the nature of this case had nothing to do with these plaintiffs business or duties as my c f o there was no information given to the carrier at the time that established that it did it was their burden placed this burden is placed burden in a case where they are attempting to procure coverage to bring the case within the scope of the covered it's the defendant's burden of proof exclusions but here the definition of insured under the very case they cite barnett is part of the scope of the coverage it's their burden to bring that up if it's not in the complaint to bring in the thank you jurors this case was unsettled generalized case wasn't settled into all of a few weeks after the summary judgment motion was filed and the insurer has a continuing duty to review all facts and information to see whether the defenses triggered not all the information provided in the summary judgment motions all the decorations were provided to the national union and they still said no we're not going to defend even with all the information provided to you national union says we would not have not have defended this isn't an issue or we kept facts back the record reflects that we pleaded with national union to come to mediation come to a settlement conference and get the information that was out there to just attend we don't even ask them for money we just want them to get fa more than yes your honor we have you have to look at the entire summary judgment motion those materials were presented to national union and request was made that they make a reevaluation provide defense instead they insisted that even with all those facts even with th extremes of evidence we provided to them in the summary judgment motion with the case still proceeding there was still no duty for them to defense even with the information that our clients gave the consent forms and made the statement says so you're not you're saying th review those materials there was still the response this isn't enough we don't believe there are insurance we don't believe even if everything you say is correct mr hastert they're not insurance doesn't it doesn't matter that was the response was also there's