b which is an extreme remedy extreme punishment for the for the court to impose do not exist and those factors include willful disobedience of the court order and destruction right to stand on the a complaint as a my complaint is is is fine the way it is i do not need to amend and then our edwards case say that if you want to stand on your complaint you need to notify the court deadline the court's pass without any communication with the court that is correct or not but again if we if we decide to stand up lady and i don't think that it's something that caught needs to be communicated to that  dismissal entered by the court says is without prejudice so wouldn't strip your client you the ability to proceed in a new action or elsewhere a rule twelve dismissal would presumably be with prejudice so there says you have to tell the court if you're not going to proceed and if you don't you may be subject to forty one dismissal and that appears to be what happened here i'm not sure what you're asking us to do resi is to treat this is a rule twelve dismissal and then to review it thing that we fight earlier because we're not going to change it in any way you have a citation to support the proposition that a dismissal without prejudice if there is a new filing automatically means to dismissal with prejudice the district court didn't even really give reasoning in its initial dismissal because it seems like it thought you were going to amend so when that have been a hint to that maybe the district court would like to know that you're not amending and maybe a substantive good morning karen vogel on behalf of all state i think that the court has addressed the issue properly here and the facts are correct that there was no connection made after the court made its ruling and entered the judgment or even before that the court made its really a motion that was nothing no reason that we had to know whether they would or would not be appealed amending the complaint and it seems like all of the process that the court put in its order granting the motion is all well let me just jump in that order said nothing substantive about the case at all and i have to be honest with you as a sitting district court judge that order looks to me like one of the standard orders order and i don't believe there's any indication you tell me where you think there is this judge actually intended to sanction the other side for bad conduct i don't see any evidence of that now yes that order refers to rule forty one b but in my view that was there because that kind of orders used for pro se litigants of the bunch of other cases that are necessarily applicable here so why why why how in any way can this be considered a a dismissal as a sanction to be able to to not let cases linger on to proceed expeditiously and that that that that authority is you know these are all well established concepts but i'm asking what is the indication in this case that this judge intended to dismiss the case as a sanction other than passing language in a form order what is the indication i think the indication this case is because the court gave every opportunity for them to engage before the court took that step there was no hearing and what once every opportunity doing gauge if you look at the court's order the court said you can talk please talk with opposing counsel please you know and the court's order is fairly specific on that front where it says that where the court says the court expects that defend it will agree to any amendments that will cure the alleged effects that so that so there was a process that the court set up that said here i want you parties to come together and talk about how to fix these problems that are in the complaint the complaint very carefully very carefully the complaint is is is you know saying that someone has a party has no obligation that they can do exactly what your opponent said they can say i'm sorry district judge you're dead wrong we're going right to the circuit and then they need to tell the court don't need to have a conversation with you and they don't need to amend they can they they can choose not to do that they can choose not to do that and that's there's no indication that they that that they didn't give any information to the you know the party on the other side or to the court that that was what their intent was but what rule says unless you advise a district court specifically that you're standing on your absolute unquestioned ri to appeal rather than a man what rule says oh and by the way if you don't send one line into the district court saying you're doing that one line your dismissal suddenly and become a forty one b sanction what case are law or ru i go back and look at the motion that gives me the motion to dismiss it was filed and it's it doesn't appear to be about technical deficiencies it's a very substantive argument similar to the argument made to us so i'm sitting there wondering what exactly is plaintiffs supposed to do to meet the objections you've stated i get the feeling maybe that somebody reached in the drawer and pulled out the wrong wrong standard form of order because i couldn't figure out what was the pleading deficiency here can you  policy i'm sorry the fall and sure it wasn't say that there wasn't coverage for the vehicle that's only if you accept all states representation of what alliances position was and all state doesn't have standing that's hearsay so i'm not sure why by any theory the it so yes your honor our position was in both in the trial court this record and on appeal that that the complaint was was faulty but this whole thing seems to be off off course from the get go and that you know that maybe the result is that you have an judgment from the court that was without prejudice allowed them to refile their complaint that to bring it again if they could could state a claim the second time around that they didn't choose to do that they didn't say this is exactly that's turning into sort of a gotcha game i mean this is this is a no argument case in order that i agree with judge clifton it's a little hard to see what the point of amendment was because there is no doubt in my mind your argument to the district court was as a matter of law there is nothing that can go forward in this case and i believe you even said you  don't have to look at the attachments to the complaint as a matter of black letter law in california this is barred so now for some reason and it's and probably to be honest it's because we have a very strong requirement in our circuit to foreclose complaints on the original complaint we have a very strong incentive in the case law to allow amendment you know the district judge said maybe this wonderful lawyer can come up with a theory that i just can't see sanction the fact of the matter is the court entered a judgment dismissing the complaint without prejudice which as the court has mentioned before seems to be in a better position than a plaintiff would have been otherwise if you're saying that this court doesn't have jurisdiction now i think the question is whether we review for abuse of discretion or genova so if we're reviewing a twelve six to be done over but if we're reviewing a sanction it's for abuse of discretion so that's i think what's at stake here and so reviewing cream court the u s supreme court gave broad discretion to district courts to to control their courtrooms and you didn't argue in your brief to us that this was a sanction rather than a twelve six did you did not so have you know i think that that matter is i mean i i think that that matter is clearly stated by california law so i think we that point so you know i guess from my perspective if if i'm not sure that it matters on the merits we think it's very early very clearly stated by california case law that coverage and saying that it when you have an insured car and insured vehicle that that is not an uninsured motor vehicle for the for purposes of the statute and that that principle is very plainly stated which is one of the reasons why i don't necessarily disagree with that in the case law but in the statute  does say a motor vehicle is uninsured when there is the applicable insurance or bond but the company writing the insurance or bond denies coverage they're under and i've just been having i understand with the case law says and i have my views on it how do you reconcile that statutory sentence with the case law the same way the cases have your honor and the way that i think that they've done that is so that the coverage still deals with the car as a whole and not with a particular claim made as to that car that's in all of the cases that has been have been cited in in the in the briefs the only case the only difference is a dissent and that dissent is the one that the plaintiffs rely on heavily but it is a dissent it is one dissent and we have not fit exactly within that language i'll refer you to the language directly from the cases that have i'm not asking about the cases i'm asking you from the statute in the state of california where this the statute the case law might pretty clear that the policies are to be read liberally in favor of the insured because they're written by the insurance companies and i look at a statute that says where there is where there is a policy but the trying to distinguish the in those cases if you read that that that way if you read the statute that way what you end up with that way is what i just read that's an english and what i'm saying is the word coverage the second use of the word coverage there has been interpreted to mean by the california courts that that means coverage for the specific for the vehicle there has to be there has to be a denial of coverage for the why the reason is because if you if you change that and make it coverage for th particular acts what you end up with is a situation that was proposed in the hoskin case and in the denny case where somebody is own insurance policy is found not to cover them for this particular accident but the vehicle is still covered and  what the insurers should expect to have happened his own carrier came in and provided coverage and then sought through several geishas to get the the coverage paid by the carrier in the position of alliance here why shouldn't the insurer expect his carrier to deal with that why is why is somebody who has his own coverage and has uninsured motorist coverage expected to say well sorry you lose out both ways the issue here if you were to read the the statute i just for a particular accident and not just for the vehicle policies must be read in favor of the insured why am i why am i taking this torturous path to make sure that the insurance carrier gets off the hook you want if you have to read the s consistently for every circumstance we're talking about a statute here that has to be read consistently that term coverage then would have to be read consistently so that it would be in the situation where you have  own policy that is trying to be used to cover a particular action as an uninsured motorist action there's an exclusion this is no you can't use your own policy to do that then that reading the statute so that coverage meant coverage under for that vehicle was being denied i'm sorry for this particular i thought would be there any logic in this result from the insurance perspective i'm sorry from from the insurance perspective  perspective uninsured motorist protection is there to protect when the car is not insured the car that hits you is not insured well that cannot be the case because the definition of uninsured motorist specifically includes or there is the implicit will insurance or bond but coverage is denied so it can't be the case that i'm sure the motorist only means literally there's no insurance policy the statute doesn't permit that result his court handles diversity issues i think that this court is required to address or to apply the law in california as it is as as you would interpret the highest court of the land to court the state to interpret it and in this case there has there is no other you have no direction other than the court of appeal i suppose you could you could send the issue to the california supreme court to see if the california supreme court would take it up but there were there was a third vehicle at issue and page right the phantom vehicle yes but that's to the vehicle at the very end of the court deals with that third vehicle separately at the end of the opinion when the court deals about the vehicle that actually caused the accident and the court said coverage and claim are by no means anonymous indeed it is practically a matter of common knowledge and ensure against him a claim it's made doesn't matter if there's no coverage i mean i know danny and hans concerned specific reasons why there was no coverage but why does a principle of law in those cases turn on the specific reason why there's no coverage i don't know that it matters why there's no coverage i mean that's the point i think is that there are frequently deny claims on issues relating to liability even though the coverage is actually afforded and that's the point is that there could be coverage there is coverage for the vehicle but but the insurers have to have the ability to say no we're not providing coverage for this particular accident and if and  be that they could amend the complaint to allege a reason that is different than what we said but that is the law california thank you counsel for your argument we will we did get into the merits and we took you over your time on the procedure so i will give you five minutes for about  attached to your complaint so it was incorporated by reference i thought that letter said you are insured for we are denying coverage for this claim or accident that's another worst to judge freeland's point there's not as high degree of precision in the use of the terms coverage claim and and even maybe an accident but certainly the coverage in claims so the gist of the letter was yes you have a policy with us but in this particular incident we're not going to we're not going to cover you now the next