coverage issues and explain why in this context in this policy the term resident of your household is ambiguous and should be construed in accordance with the reasonable expectation of the insured and against all state then i would also like to address the district court's dismissal of plaintiffs third cause of action for breach of the implied covenant of good faith and fair dealing based largely on the court's parsing of the complaint with hearsay  testimony from the underlying month long trial that i tried in two thousand and eleven and also based on the litigation privilege would you explain why the phrase your household is ambiguous yes your honor in this case  fire and marine insurance company and that's the case when you're analyzing the ambiguity in insurance contract context it says to determine the phrase if it's ambiguous or not the analysis is we look at the context of this insurance policy within the context of these facts and the analysis is through the expectations of a reasonable person term household is unambiguous in that context it is and that's why in california it's so important that we have the law under civil code section six hundred forty one in all the case law going back one hundred years that when you interpret in any contract including insurance contact you cannot excise a phrase and look at it in a vacuum you take all the terms together well the job so what you are the phrase you are household seems to be even less ambiguous than the word household it could that the term household has no inherent individual meaning and then it cites five cases including the california supreme court in ireland and then it says other cases have held that the term household  is not ambiguous and then it cites five more cases so the includes more public court cases and then it says we'd be with form but here's the difference in this case that we have here the term household is referencing a the defendant the underlying defendant lived it's undisputed the policy defines it says insured premises means residence premises so when this case in any analysis of residence including resident of your household you necessarily have to be analyzing the peabody residence so she wasn't the insured person on the declaration page this is aipac was not actually residing there is she testified that she didn't reside there she does her presentation to the insurance company was apparently incorrect right because the homeowner's policy was for your primary residence and it wasn't her residence i don't know if so if that was so this doesn't seem to be a dispute that she wasn't residing there correct that's correct your honor there's no dispute that she was not residing there however there was no requirement that the insured premises is her primary residence that is not where were the policy almost equal if she had the westgate policy seven months before that she purchased that property and she had viability coverage there also it all still new that she bought this policy it's not disputed that richard  lived at peabody and when it was so that it was so taken up says that the household the term household broadly defined is a collection of persons weather related or not who live together as a group or unit of permanent or domestic character under one roof or within a common kernel ledge who direct their attention toward a common goal consisting of their mutual interests so is that definition wrong in your view or is that definition applicable to the case here that definition your owner is right in the jacobs case in the jacobs case it was clear that the household they were in was the insured property and so that is not as rights what i think is missing from california law i'm going to ask both council the same question i can't find a case in california where california a quite a california court has said that on a homeowners policy the person who resides in the subject premises and is on the title it was is a home owner and full full time resident there isn't an so the grandson wasn't an insured but that they didn't say that gramma wasn't and of course so in coal house mom owned a home but live somewhere else her adult daughter resided on the premises but was not on the title and the adult daughter was not insured correct ok and then an island there's a named insured who had an a on the title and lives in the home and the question was whether an adult son who was away in the services whether he was covered so those are all different and what i understood your brief to be arguing about when you said california says you have to look at that definition from jacobs which i think is absolutely on him but has to be looked at in context so i'm looking for a case where california has said that the individual who owns the home is on the title  and and lives there is not covered in her homeowner policy there is no your honor and that's that's our point and that's why it's in big us in this context there has never been a case in california published decision saying that the homeowner which is what we have here is not is not the insured on homeowners policy this is not an auto policy so you have this observed result under all state's analysis and or the trial court ruling here that the homeowners policy there's no insured in that home because there cannot be a household there cannot be a household of people so the roof that they're referencing when jacob says under one roof the roof in their analysis is not the insured roof not the roof that you get paid for i there's a fire it's a roof across town and a west gate that's referenced nowhere in the policy oh here's a different problem if it was the father richard richard yes richard isn't insured under the policy let's say he is then andrew is two and this policy excludes criminal conduct he would not because andrew did not reside there andrew would not be on the policy he would not be on the title wait a man who lived at westgate with grandma well sometimes he did but anyways look at the was part of the household or they would have defended the underlying case they wouldn't file this declaratory relief action citing language that you're talking about the intentional acts exclusion and about the occurrence language in all this of the policy language and completely left out resident of your household it's nowhere in this doc really faction they switched gears because the discovery in this case made it very one hundred percent clear that andrew lived at westgate richard lived at peabody we're only talking about the really talking peabody i'm still trying to figure out how you're going to i mean i've asked the question maybe you've given it your best shot now if richardson ensure your position is still that you think that andrew is not andrew is not because andrew is not a resident a saying that as a matter of fact or as a matter of fact and it's a matter as a matter of fact in this case it's been firmly established that andrew is not a resident of peabody so he is not a resident of your household living with grandma into a park at westgate and richard was living at peabody the insured premises and now what we have with this new argument that's come up on summary judgment six years after this case was filed when it became and said wait a minute which appear even though we said in our reservation of rights letter you're the insured you're actually not is it your position then that any person who has a homeowner's insurance policy whether they live at that that one house she doesn't live at the people who house but you're saying nevertheless the people the houses her household correct i'm saying and so that would be true any time you have a homeowner policy you know why not why is it different household her home excuse me but ten times excuse me that i don't see why that makes a difference because you have to say she's living someplace else and that halse is her household that she's not living at and why doesn't that apply in every case because the because the insurance policy is very clear it has to be a member of your household so that would have to mean that you can live wherever you want but if you get homeowners insurance policy people living there in your household because the facts aren't always like this case where she's in sharing her son with a hand that was together he lived with her what would attend that be in her household so in other words she rented that house out why not because she's not buying the policy to protect the tenant from and a separate house and you don't live but if a relative of yours lives there then it's your household that seems contrary to check ups right not knowing or not the reason this is contrary to jacobs is because there is no ambiguity in jacobs because peabody in the policy is residence premises so when you're analyzing who is a resident of what household under the insured language version of the household of course you need to be looking at peabody and it's him big us because it's but it's an absurdity in terms of the expectation is reasonably of the insured that there's no household at the insured house and that the homeowner is not insured and it's clear that her intent was to protect her household at peabody which was the son she thought there was going to be on behalf of defense excuse me helly allstate insurance company as framed by the briefs the issue is very simple the court has been discussing the issue of residency and how else will this morning i won't belabor the point we're not writing on a clean slate here the law in california has been clear in terms of what a household is for sixty eight years since the island case was decided is there any case i just want you to answer the same question that i put to opposing counsel has california ever had a fact pattern like this where the person whose name is on the title and lives there is not and insured on a homeowners policy your out of the closest case i could think of is the bonaparte case which is not a liability case it's a first party i couldn't find one either right ok and just to flush out that thought a little bit more the facts of this case would suggest that perhaps the peabody policy property was consistent with being a rental property we know it was a duplex  buy rental coverage she bought homeowners and she owned it is that was there any evidence anywhere in the record that she was her son was renting from her it was a co owner he was he was one of many people on title career your brief argues that if even if you argue strenuously he's not insured but you argue that even if he is then there's a different problem because the policy excludes conduct criminal conduct by unnamed insured correct can you respond to opposing counsel's argument he says that andrew didn't live there he did argue that that is what the depositions in this case showed but to your own question your honor that would prove too much because we know that the policy excludes the intentional acts of any insured under an unbroken line of authority if anyone commits an intentional or criminal act there's no coverage for any of the insureds and on the facts of this case the appellant's argument seems to be that there is some sort of large metaphysical community of the pira family that spans two residences that's essentially their theory and if that were true and are would have to be a member of that household whether he lived with his father or his grandmother the effect is the same thank you as i was indicating we are not writing on a clean slate here the term resident of household has been defined repeatedly in cases from the california supreme court from the court of appeal from this court and from district courts in the ninth circuit and we know that at a very minimum to be members of the same household people have to live together so the opposing counsel says that this is a pot that that was her household at peabody and if that wasn't her household then the coverage is illusory can you could you address that is that true that's not true your honor the peabody property was not her household it was a house in which she had an ownership interest we know that a household is not an address it's not a structure it is a community of people that live together the coverage is not a looser ie in a couple of respects first of all the structure was  liability coverage for mizzi park as an owner of the property this is protecting her if you could just pause there for a minute would be protecting her she wants let's say she's an owner i think that's understated she wants to protect that other house where she doesn't live meaning protect investment in it not only her investment your honor but her liability she is a she is an owner of the property if somebody slipped and fell on the property i was a body or it is that what you're saying is that if you're just somebody slipped and thought fell at peabody you think that she's it she's an insured because her name's on the policy even though she doesn't live there so she'd have that covered absolutely ok actually so and i believe that this court's opinion in the case did address that point we know from the briefing and from the summary judgment argument below as well as from the arguments today that there is no question about where richard lived counsel has vehemently argued that richard was not a resident of the westgate home  and on pages fifty two through fifty six of the record which are the transcript from the summary judgment argument mr venuti said he wanted to make a quote huge effort and quote to clarify that we're only talking about the peabody policy where richard lived by himself and he was the only person that live there and was a co owner in the appellate record of page one twenty as well we see that in the counterclaim  alleges affirmatively that richard lived at the peabody property and so appellant himself invited the district court to make a ruling based on the supposition that richard lived alone in the  peabody property so the facts aren't disputed appellants arguments on the meaning of household i would say you're a little bit odd in the sense that they are untethered to any legal a contrary to all existing authority of which we know appellant argues that the word household is ambiguous and we know that it's not the as i've mentioned this court the court of appeal of  california and many district courts have repeatedly held that household has a specific meaning it may be difficult to apply in difficult circumstances of cases where for example you have people that only live in a residence part time maybe in the case of children of divorced parents but as has been indicated before here at this morning the jacobs case pacifically held that the term is unambiguous and in fact in california casualty vs frederick's the california court of appeal actually reversed the trial court's ruling in favor of coverage finding that it was erroneous to find the word resident of household ambiguous that was by the trial court about opposing counsel argument the california law also says you have to look at these terms in the context of how the case is unfolding you've already conceded we don't have case law really involving a homeowner  that one must look at one always looks at any policy term in the context of the surrounding facts that's certainly true in the context of the surrounding facts in this case there is simply no argument that richard was a resident of his mother's household we have looked carefully obviously appellant looked carefully and this court has looked carefully i'm confident for any case in california history finding that two people who are residents of the same household when they didn't live together every single case addressing the concept of residency says at a minimum two people must live together in the same household or within the same curtilage of the area around the household to be household members and even in the cases that appellant has relied upon so heavily principly the boss around the case in that case the court held that james the minor in that case was a household member  quote at least when he was actually living with his father so in that sense although we may not have a case exactly like this one we have cases that are awfully close yes but but here  the argument has to be that household means the household living in the insured premises i understand i understand the argument i understand the question your honor and that certainly has been a poet's argument throughout this matter the problem is it's simply contrary to the law i mean we're here to interpret a policy the policy talks about covering a resident of your household so it's really worth pointing out that it's not even clear that on the facts of this case and maybe i shouldn't go there but even if richard and linda had lived under the same roof in a duplex it's not even clear they would be residents of the same household because we have the jacob's case in which relatives lived in the same building and the court looked further into that and said well just because you live in the same building doesn't make you residents of the same household you have to function as a family unit  share meals together do you have enter interlocking finances this sort of thing and in jacobs the court look to a missouri case a louisiana case and held these were cases where relatives lived in the same building and they weren't even members of the same household if you live in the same building and have separate lives you are not residents of the of the same household lots of cases like that he thought talking about i own the home and the question is my child goes back and forth between me and my my you know divorce resident my house my adult child live there but i don't i'm on the title and she's not there's a lot of that kind of case there is but i just come back to those folks weren't on the title and richard was i understand your question your honor and it's an interesting question it's all due respect i'm not sure it's a question we need to answer today because we're here to interpret the policy and i think the know your household who's the you and it certainly seems to be an odd result if the you on a homeowners policy doesn't the homeowners well i think what that issue really entails is was there was there some problem with the been an issue this happened in two thousand and five we fully litigated this matter there's never been an allegation that richard should have been on the policy should have been listed that there was ever a request for richard to be on the policy they can't find in the record no no there's not there was no discovery to that effect it's never been an issue if richard had wanted to bring a case within the the statutory period arguing that his mother's all state agent negligently and not having him to the policy about what it would have been a different case and we'd be having a different argument here today i see that my time is dwindling down i think i've addressed the main issues that i illuminates with this case is really about and that's true maybe richer should of and there's an underwriting there that shows the intent of the parties to this contract and the true intent of the parties to this contract was to ensure richard at that house and now all states going to say suggest well we made a mistake in our underwriting and so it should be held against richard pira and there should be no coverage linda at pac clearly intended to ensure this at peabody and her son and when they talk about personal property there she had no personal property there it was all richard gere's property i just refer you to page five ninety of jacobs where one that says household is an ambiguous that's in that case and it five ninety the jacobs court says there are cases that have held that household in itself has no meaning and it cites five cases one of which is the only east california supreme court case referenced which is ireland