the claim and in a letter told her that she was required to arbitrate a dispute then she followed the health it internal procedures for appealing there's an aisle and it was denied finally and it was again told she had to follow the arbitration rules if she wanted to dispute this so she did she filed a demand in arbitration health net did not object to the demand in arbitration in fact participated in selecting the arbitrator and then filed an answer to the arbitration demand in which it did not thousand dollars in costs in the obvious ration proceeding and another over one hundred thousand dollars in lawyers fees and twelve months of time with no objection to the arbitration and dismiss you when i think we're we're concerned about is whether the district court here in any jurisdiction to do anything i think there's a good argument it did not and what is that argument that argument is when we are seeking to confirm an arbitration award it's not a thought a federal jurisdictional question even if it was a part of the case in the underlying matter arista does not govern a petition to confirm an arbitration award and i believe it did not have jurisdiction in addition not only did it not have jurisdiction because it was a petition to confirm our situation but the insurance policy itself t t california law governs in the insurance policy itself said that a petition to confirm the arbitration award may be brought in any court having jurisdiction over the matter which means when we sought to confirm the arbitration in state arbitration and i i know the court's already looked at this but i look at this in roman form which is excerpt one thirty two and it tells the carters that arbitration is required against health net the parent corporation health life the subsidiary and even a physician even if position who didn't have anything to do with this policy is subject to arbitration and so the cards pursued arbitration then the letters from health that told the cards they had to ar case which is very informative for us the builder was stewed and did not respond to the arbitration then the arbitrator ordered builder to respond and builder went to the court and said we want you to enjoying the arbitration we're arbitrator doesn't have the right to determine alter ego but they took that out of context with the courts that there was a case was brought in arbitration was brought against the defendant but they never brought the defendant into the case he never defende himself so there was no due process right and still the court said you can't make an arbitration award against somebody who never had a right to fight the case there is no case that states that when there's an arbitration agreement between health net and a party that health that's not a part not subject to that in addition not only is health net bound by the arbitration clause because it was a party to the contract it was an agent of its subsidiary and in fact in this case the evidence limited below net the parent is the one who performed all of the activities related to this health insurance policy health net is the one who marketed the policy health and that's the one who collected the creamy health and that's the one who determines whether a claim is covered or not covered health net is the one who sent the letters to the carter saying we deny your claim and in fact if you look at any one of the letters you'll see for example at page one seventy three it's the health net of california the appellee in this case letter by present a unique form of federal preemption so that they automatically so that a case that is otherwise welcome your complaint is necessarily reformed to present a federal question that is t removed in that circumstance and this court has consistently held that the underlying action is so uniquely federal in character that it becomes as if it were in maritime arbitration that there arbitration in which the court has an extraordinary limited ability to review in this particular case in accord with federal and state jurisprudence the arbitration agreement specifically provided that the happen here the relationship of the two entities with the words health net in their name health not life insurance on one hand and health net of california on the other is a relationship defined by the administrative services agreement between them that document is in both the appellant's record and in the police record it was exhibit b to the petition to vacate the arbitration award the arbitrator himself confirmed that law the existence of alter ego is again a federal question and under audit services versus ralston none of the three criteria w question or as a separate question are tied together now i've now that i understand the question i'm not trying to the answer there they are certainly interrelated i do believe however that the fail that the failure to apply the orbit to applicable law in the scope of the award that health plan document issue is precisely stating that if you act if you obtain health care outside of the preferred provider network the benefits available are a percentage of our b r v s r b r v s is the medicare payment scheme thank you this health plan chose to adopt an independent in fact  parties ability to obtain a reformation of the award or have a vacated under the fair requirements of california law which in fact seems to be echoed in federal law right to proceed against a respondent in arbitration that is not a party to the arbitration agreement must be just treatment by the court now for the appellant to obtain relief from the settled point of chose to dismiss health net life for reasons of their own litigation strategy and proceed against health net of california under this alter ego theory so plainly the answer to the first question here is no there is no basis in the record determine that these people were deprived from having their day in court you know alternative for having answered that question then it seems to me that the obligation of this course is determine whether there  ordinarily has virtual virtually complete discretion in fashioning an award respondent appellant here and the respondent in the arbitration below at the time that they received the demand for arbitration they had three choices knowing that they were not the proper party they could simply ignore say you know we're not the proper party absolutely your honor the demand for arbitration was served in november two thousand and one health net roots health of california responded and raised legal defenses which were identified by the district court below as the fission to raise the issue of the subject matter jurisdiction in arbitration over the wrong party the matter to join the proper party and in a motion to dismiss claims that had been presented in the arbitration damages claims to have been presented in the arbitration as x x charnel and prohibited by the exclusive remedies it was presented only a month before the time of the arbitration hearing he felt this table from being able to analyze the motion appropriately so now having had no ruling on its original motions to  at that point the arista determination had already been made motion the point was also argued to the arbitrator at the conclusion of the hearing in briefing postering briefing so the claimant rather move to dismiss health not life in a letter brief to the arbitrator on may ten eight days later this was the result of the claimant litigation strategy in order to oppose and by health net of california and your honour's without telling tales out of school or infringing on my attorney client obligations i'm confident that you are aware these are two highly regulated companies health not like a california on one hand by the california department of managed health care under not life independently by the california department of insurance under the california insurance code they're reporting obligations and their other internal and external obligations provided a very compelling basis for them to appear and attempt to distinguish whose obligation and award to the partners might be indeed that fact alone under award refers to risk the some other place where he specifically did that that you had in mind there is your honor and i can tell you that there is a specific memo ruling your time inspired you thank you very much i have this site for your honour's it's our public record page fifty two and what that ruling by judge says is that state law contract right from the beginning i point you to page one seventy eight of the record which is the answer by health net in which it says quote these answering defending aunts and there was only one defen net allege that plaintiff and defendant entered into a written contract and plaintiff has failed to perform pursuant to the terms and conditions of that contract thereby depriving the defendant of the benefits of the bargain they always a the this was a dispute between health net and the carters it wasn't until six months after we filed this claim that they came up with the idea that they could get out of this liability by saying that it was underwritten by health net life we heard a whole r of incidents that supposedly represented their statement that they're not the right party you'd use it that's all none of that happened no what they did this is in their answer to the complaint about all the other stuff we heard about those were motions have a liability or not and that's what they did they argued asking the arbitrator to render a decision in favor of health net that they were not liable on the issue of arbiter ability we have the enrollment form but they were not  had a party that was their argument that they were not a party to the insurance contract let's be clear here there is an enrollment form in which the carters agreed that they would take any dispute to arbitration and it says they would arbitrate any dispute party to the contract that's a fair dispute that's no different than saying because they also did say we're not liable because under the terms of the policy we have no liability and that needs to be underscored they fought tooth and nail saying that the policy itself does not provide coverage for this treatment that katie carter received they lost on that the arbitrator said it clearly is covered under the policy and under the whole line of cases that we cited for the court where somebody where a party is not a party circuit case all of these cases say that when the dispute between the parties is in early related to a contract that provides for arbitration and where their defense relies on the contract itself then they're subject running running that i'll keep it brief never the last go ahead but don't feel pushed how much time is there left i think yes about ten minutes left how much go ok i'll take i arbitration and then and after they already participated in arbitration objected to the arbitration and the court said it's too late you waive the right to object to arbitration you participated in it and that's the same case as medic lad corporation which is the california case in two thousand and three in that case the arbitration clause was between two parties and not the person who objected but the person who was objecting to the arbitration had to invoke the language of the contract for its defense and for its of affirmative claims and the court said you can't use the contract as a sword and as a shield either subject to the contract or you're not here we have health not being subject to arbitration because of the enrollment form but we also have it subject to the arbitration because it's hol the fence at least part of its offense was under the health insurance policy where not liable because dental services are not covered that was its main argument and it lost if you have no further questions i submit thank you counsel