morning your honor is my name is paul geary i represent the defendants lumbermen's mutual casualty company your honor there is no dispute that on summary judgment the district court in this case ruled that the claim of misrepresentation by non disclosure was out of the case at least until further notice it did both as to a simple failure to disclose and it also did it based on the theory that each member of rep misrepresentations included alleged suppressions of fa court did this for a very specific reason and that reason was because the plaintiff did not disclose during discovery upon request information with regard to the what the suppress facts work it not only did not disclose it during of that it wasn't up to the defendants to guess nor was it up to the court to guess what the suppressions effect work at the time that the trial started there was no knowledge on the part of the defendants and you have to go back because there's been a lot of briefing a lot of issues are lot of of water under the bridge but at the time of the trial the defense did not know what suppressions of fact were going to be raised at the trial indeed the defense had a reasonable belief that suppression of fact was no longer an issue in the case now although you didn't know they were going to argue that there were false representations about the going after the ag business and things like that and we did know that there were going to be a allegations of false representations but what we did not know is that there was also going to be the allegation that the reason that the defense the representations with regard to ag were wrong agriculture were wrong was because only issue in the case was what are the actual misrepresent and were actually representations that were made at the time true or not true were the statements made were they why was it how would they establish that they could establish it for example in the agricultural for example by saying with regard to that that they had no intent to pursue the ag business they had no intent to pursue the small agro what they could not do because they had not disclose this information was the say you had no intent to pursue the ag group because you knew with the time you did not disclose to us that you weren't going to have a minimum amount you have this minimum amount which was above for premium which was of the minimum amount that we were allowed that was thrown out by the was thrown out very specifically by the court in fact if you're saying that wasn't at that would have been admissible evidence even would not have been admissible evidence because there was a motion in limine egg that was filed prior to the start of the trial with regard to the suppression of evidence claim and the court held that any any evidence dealing with suppression of evidence was no longer relevant to those claims because they were out further the court specific lee dealt with the specific issue that you are raising right here on page forty nine of the decision on summary judgment the court said exactly this kind of point which with the court raised two plaintiffs merely alleged chase new plaintiffs would not be allowed to write premiums under ten thousand or over twenty five thousand dollars and fail to tell them it is not this court's responsibility to ascertain the alleged suppress statement or statements therefore the court granted summary judgment on this that claim was the one that claim was gone as of the time of the trial as a result of that as a read but despite the fact that it was gone despite the fact that there was a motion eliminate the spike the fact that during the course of the trial this issue of non disclosure was again raids and the court said at that time and it's in our priest the court said at the time i dealt with the issue at the time a summary judgment based on what i know if things develop during the trial i will let you know and we will deal with it that we never received notice from the court that suppression was back in the ca never ever not until the final ruling on this case to the court ever notify us that suppression was back in this case that misrepresentation as a nondisclosure was back in this case the fact of the matter is is that the decision of the district court is infused with this with suppression claims for example with regard to the misrepresentation with regard to the commitment of of agriculture the court held specifically that misrepresentation in large part was due to the fact that we did not tell the plaintiffs about limits on the renewal business that we did not tell the plaintiffs that there was a high risk involved in this endeavor and that we did not tell the defendants sorry the plaintiffs that we were only painting taking about a quarter of superior nationals business the court held that those were the reasons why the representations that were made with regard to ad business in large part were not were not were misrepresentation suppression claim the same thing happened with regard to the finding on on brokers on the misrepresentations woodcarving brokers the court said that the misrepresentation was because the the the defendants did not disclose issues  which brokers with issues regarding when brokers would be allowed to do business with certain regional offices suppression again they also said that the misrepresentation was due to the failure to disclose which officers which would handle which kinds of business high whether or not it was high risk and whether or not kemper intended to take more than a quarter of the business those are at paragraphs nineteen paragraphs twenty three paragraphs twenty two paragraphs twenty paragraphs twenty six of the court's findings of faith the only misrepresentation that was held that did not have a suppression element to it was the one dealing with the mind the  mind operation and i'll speak to that in a minute because we had no relative at any point in time that there was that these issues were back in the case we were double the prejudice we were prejudice number one by the fact that we need discovery on what the claims of that of suppression were and then we would need to take discovery on why they believe that what was said to them at the time and we never knew what the statements the we suppressed work that they were  was false yes and why is that i guess it's a restatement offense overman is questionable why is it when you're trying to show a statement is false you don't show the facts that were known or should have been known to the person or entity that made them false you certainly can in and give them the intent to make a false statement before i didn't mean to interrupt you here ana you certainly can do that there is there is a claim of misrepresentation for non disclosure there's no question about it the point here is that that issue was raised on summary judgment you can certainly say look i was information was recent it was misrepresented to me because you didn't tell me the whole story you didn't tell me about these other things you can certainly make that claim my point is we my point is that that issue was presented to the district court on summary judgment the district court granted our motion on summary judgment and he never told us that he was changing his mind on that issue during the course of the trial to give us an opportunity to respond we believe that those kinds of misrepresentations were out of the case and we had a right to rely on that because we had a summary judgment ruling exactly on that point and the failure here was the court material course prime conclusion that there was misrepresentation we believe your honor of respectfully that that if you take out the suppression issues the entire case falls apart because there's so little left in it and therefore because because if you take out the rulings of the district court on what we should have told them and failed to tell them there's there's precious little left in the statements but the the essence of it was that mr chase made representations of his that he liked the broker system that he hoped it would be maintained over a long period of time these statements were made on august first at that point in time made those statements arguably not true and there was no evidence to the record your honor that the statement ok and and i just want to point that out to you i understand what you're saying but the evidence relied upon by the plaintiffs with regard to that the opposite the the answer to your question your honor is that what i believe what what mr what there are what the argument of the court was or what the finding of the court was was that the basis for the misrepresentation was a not that we didn't tell the truth but we didn't give the entire picture and gave a misleading but when i was filming that theory you gave a misleading misleading if you told them all the facts but it worked out pretty remarkable but the fact that you didn't tell them the facts change the fact that it was misleading i understand what you're saying and i think that we're having a little bit of a disconnect my my point is your honor that what they were what we what we believe that the court was saying was not that the information that we gave them was wrong or untrue but that we did not give them the entire story and because we didn't give them the entire story then what then and then it was that was the misrepresentation the failure to disclose what the others were never true that you would not have been misleading if you had given them other facts and other things but so what the fact is is that was misleading and your honor in response to that respectfully well we believe is that when the statements were made they were true what the court had a problem with and it stated specifically in its findings of fact was we can go back and amend and say by the way we didn't disclose these we we now know additional things you need to know before you take this job that's the basis of suppression and those findings were keyed to the court's determination and because that we had no notice that that was going to be an issue in the case that's where we were prejudiced and we were prejudice both as to discovery and we were prejudice both that's to notice because we never knew that that was going to be part of the case because the court had taken it out and we were never told that it was back in the case let me go specifically to that for example on the broker issue at the time we had the discussion on the broker issue we did not know that this turf war was going to deprive the regional office that the plaintiffs were working out of of broker of broker of of  ability to work with brokers that only came about later with their complaining what the court was upset about was why didn't you tell them before they took the job on the turf working about later but the desire by i forgot of the agent the name that was called camp or chicago operation yet to take all this stuff was known there was that there was discussion about that but no decision had been made about it and the belief of chase  at that time was that it wasn't going to happen and in fact there's there's evidence in the record that even after the conversation with these plaintiffs on august first on august ninth chase was having additional conversations where he was saying exactly the same thing that it was not an issue that the plaintiffs were going to be able to work with their broker the brokers that they had so at the time that the statements were made they were not false the same is true with regard to the end statements the issues that were raised with regard to the change in the template that they were crew at the time after yes yes the court specifically said that the failure that their failure was not informing them prior to that when when they became aware of it and not informing them prior to the time that they became employed with regard to the act your honor i have only five minutes left and i'd like to reserve something f circumstantial evidence case as the court noted and in fact in the proof of fraud in the inducement in an employment contract circumstantial evidence is seen particularly in the lock persis clint eastwood case lockers as warner brothers of knowledge is that circumstantial evidence is often the only way that you're going to be able to prove fraud in the inducement in any particular case particularly in the employment context which is what we have here the second point i would make and i will get back to that in just a second because that counsel makes reference to all of these events and objections regarding the supposed evidence that occurred during the trial i read through the record and my recollection is that there were two or three relevancy objections made by defense counsel to proffered evidence one of which is referred to by counsel in their brief regarding high risk and at that particular time co sort this out later will let it end for a limited purpose a purpose and counsel for the defense was invited to consider these issues he never brought it up again they talk about the ten to fifteen or the premium requirements for the small at which he made a big point as he should never have come in in this particular case that we sets what i interpret he said all indicate to the core and i remember the i tried the scales and i remember extremely well that issue was litigated or at least fifteen to twenty percent of the presentation that was made by both defense and the plaintiffs during the trial and not once was there any objection me or any statement made by defense counsel that it was irrelevant and should not be before the court not once in point of fact the only way we could prove this particular case was essentially through circumstantial evidence the discovery issue which is brought up here today i would indicate you it's the first time that i've heard it in this case in fact much of what was presented in the plaintiffs or the defense excuse me offense brief in this case is the first time that we ever heard  not only as far as the objections made to the evidence at the time trial but also to presentation in writing to the court at the time the case was tracked for example the negligence issue which they didn't discuss here today but which they discussed they say that we couldn't recover under negligence they took the position up until the initial appellate brief w filed in this lawsuit that negligence was an issue and that we could recover under any negligence standard they took it in the pretrial conference order they took it in the presentation to the court in the writings prior to trial they took it in the argument to the court and they took it in the final argument at the very least they've waive that particular argument same  scuse me it was in my who i said in the response brief the reply brief that the defense presented in this case they acknowledged that the issue was whether there was an active misrepresentation the court to find four issues or four or five issues for active misrepresentation in the pretrial conference or two of which involved brokers in america was there a misrepresentation for that they were interested in ag in the context of this is important in the sense that our clients fifty percent of the fresno market as i'm sure the court could understand was agricultural there's a lot of evidence trial in that particular case the broker relationships have been built up for over a period of twenty to thirty years by our clients they relied upon it that was the essence of what they were doing in the present area for twenty and thirty years in the case of my client exactly what it was and we were entitled to prove by circumstantial evidence as locke said as well those were untrue they made clear statements that they were going to do that counsel in their briefs and the proposed findings of fact and conclusions of law that they submitted to the court even in that those representations were me so it was our responsibility to show as the court is indicated that they were actively wrong they were advised as the evidence will show the context in which ag was successful yet they knew at the time despite counsel for representations i will say the record is replete with the court judge e c found with reference to is the fact that when these representations were make kemper had already made the decision that they were going to limit the ag they were preparing the templates that were already doing this i would also indicate to the court despite the on but can be circumstantial evidence along with the other context of the fact that there was fraud going on at the time that the representations were made in this particular case i won't for the entire record court has a place for it i don't have the time to do that there were substantial circumstantial evidence to show to support the court's position jeezy's position in this particular case that  there was a misrepresentations made on ag and brokers and mine then counsel can talk more about mine that i can in this particular case and support me determination that that was something that should in awarded damages to that extent counsel talks substantially about the inability to litigate an issue because they simply didn't know about it all due respect  true that they did regard to litigation a trial we had nine days of substantial witnesses there's a representation made in their briefs that they didn't have a chance to talk about the problems of the workers compensation industry in california in two thousand and two thousand and one two thousand that's all they talked about when all the witnesses they brought didn't they presented exhibits which i believe are before the cork i don't know where he in september and they had all these issues forty two pages we didn't argue the case until the summer he knows what the issues are he knows all of that stuff we've been through nine days of trial we a page and a half final argument in which he admits that maybe legends and fraud is not the issue what's the problem it's the status of the workers compensation industry and that's the reason that we should recover they had ample opportunity to get a gave everything i don't know what they were going to discover a summary judge of the preacher summary judgment motion was made late in the case and the depositions have been taken of those issues before and and like i said the first time i have ever heard anything about the fate inability to make any discovery on this case is here this morning but surely not presented in what they submitted in this case in the original a couple of one point that i did want to make your honor with regard and i think the negligence of it already admitted the negligence was an issue in the way they handled it just try to bring it up now even though they at least waived  they try to argue that the issue of the reasonableness of the representations is not an issue in a fraud an inducement employment case that's not true garamendi quite specifically says it's not only th but it is also whether or not the representative of the person that's making the representation reasonably should have no and there at the time that he made the representation whether it was true or not and that is a government he is frankly one of the last it was a two thousand and five case involving fraudulent inducement for the employment where they found against that on that particular case d i want to quote from claim for misrepresentation this is on page three based on affirmative statements require the defendant to act actually actively represent something that is not true in this case there were three representations made which were not true what is confused by opposing counsel is the difference between a cause of action for suppression and the fact that you can submit evidence about what you weren't told and that's what  here in this case the active representations were made regarding agriculture brokers in mind and i would also point the court to the fact that with respect to min which is a separate basis for upholding this judgment they refer to it briefly on several pages and their brief opening brief and the reply brief and basically they argue that there wasn't reasonable reliance and it should be tied to the big bang and other words that factually were incorrect and there isn't substantial evidence to support that chase made a representation  mine he said that they were basically highly qualified to be able to perform services to all of our back room work and we could fire our staff but in fact it was of that opinion it's a statement regarding a subdivision of the company at that time is kemper saying our subdivision has the ability to be able to perform the services that you need it what sense was that false when made it was faulty when it was made because at the time it was a ford a company it was a what it was it was it was venue to florida so how does it make a false if they had no understanding of the california labor code they had no experience in california workers compensation law their only thing was the fact that they did east source which was a failed attempt to have an internet marketing of workers compensation and i and we have evidence in the record that he did not do the due diligence but california's worker's compensation law they didn't have staffing they had and they were sitting in florida now how do we prove that that active representation was false in part by what they didn't tell us it's not a step or a cause of action i didn't see any objections a trial to the seven s coming out and these offers of proof they keep making about what they would have done and what evidence they would have submitted hollow because they don't demonstrate what they would have done with respect to the turf or i'm sure the court because they're familiar with this record it went beyond that that we would get the choice as to whether or not and that the agent would get the choice to pick a new camp or versus the old campus that wasn't for we were told with respect to this entire process that we were going to be able to keep the broker necker network but they spent thirty years of their lives building my clients had a forty five million dollars book business a year later it was three million dollars these representations were made to us were actively made it was a dog and pony show it was a recruiting they recruited us mr chase on behalf of lumbermen's recruited my clients and told them what they would hear and went to fresno and told over one hundred brokers what they wanted to hear and it wasn't true i'll be happy to answer any questions the court ma counsel stated they were unaware of any suppressed facts in addition in their opposition plaintiffs still do not notice the alleged suppress facts the court finds the alleged misrepresentations that have been listed by players do not necessarily each including suppress fact and to the extent they do it is unclear exactly what suppressed fact plaintiffs allege was known to chase at the time of the meetings it is plaintiff's responsibility to inform the court and defendant of the basis of their claims plaintiffs have offered no specific evidence or even a listing of the alleged suppressed facts to refute defendant's evidence and there are no alleged that there are no alleged of suppressed facts the court decline basis of plaintiffs claim at this time there is simply no basis for a suppression of fact plain as such summary judgment is appropriate there is a lack of discovery in this case there was a lack of discovery as found by the district court with regard to the evidence of active misrepresentation with regard to the all of the the issues dealing with agriculture there is no evidence in the record that at the time the representations were made that any of them that chase believed any of them were untrue or that lumbermen's had institutional knowledge that any of them were untrue the issue was that additional things occurred this was a very fast moving situation i dish and all things  actually found was that the statement that was actionable was that mine was competent end of story that was that that was the out that was the statement that was found that statement is not enough on its in itself to support a claim of misrepresentation based upon the cases that were cited in our brief including the casella case in the glen holly case in addition to that on the issue of negligence we did raise the issue that because the court found in its ruling that all of these claims all of these issues are representations were essentially promises of future conduct california specifically does not allow a negligence claim for future  promises that's the charmin versus state farm case now it is true that that was not raised below but there is no reason that this court cannot consider it given the criteria that this court normally applies and particularly in this case where the court below makes findings on issues that it had already granted summary judgment on it is particularly appropriate for the court to do a complete review of all of the appropriate cases off all the appropriate law to come to the appropriate final decision with regard to the issue of turf war and non disclosure the testimony is clear on that that there was no evidence in the record that there was any decision made as to which which brokers would be doing business with which regional offices and in fact that both chase and past will let go the two people who were in charge of this endeavor believed at the time of the aug first meeting that the actual who refuse that the dealings with the brokers  would be with that regional office finally your honor there is no evidence in this case that there was any reliance on any of these representations plaintiffs that were not in order way from another job plaintiffs did not have another job to go to you've heard a lot of talk about this managing general agency but the fact of the man there is despite mr johnson saying that these people were like family to him when they became aware of the quote unquote alleged misrepresentations in october he didn't even pick up the phone didn't even pick up a phone because there is no evidence of any kind of reliance on any of these of these of alleged misrepresentations that were made at this