chastised the court of appeal for not reviewing second here by contrast expect to get into includes the deposition testimony of the claimants officers or see third or c's c e o acknowledge that they their allegations and deposition testimony to avoid triggering seat tuesday to fence rights in light of see to success in the last two lawsuits with them in securing defense of the reimbursement and this attack was manifested by the way in which conjunction with the facts revealed through experience and evidence which the district court selectively review but did not fully parse in its analysis of evidence  important differentiator real simple sheep are faster is what comes through is a message if you go to see two since the babylonians that's been deemed in a court differentiated consumers moreover what about the babylonian well generally if you told somebody a product was less expensive it can get more quickly that make that product a preferred one if there was war than one in the marketplace you have to play tablet right play tablets or maybe the best fish from the river  but the point is that there's a special position that stinson had when he joined c two because as the allegations the complaint reveal much like a only produce of this product he had knowledge of the particular needs of the customers to take rank what you back up because i didn't get your argument on how this is not a swift case with was a palming off case it specifically said this is only about products that replicate the same product that the claimant was selling there was no negative comparative fact allegations about communications made to consumers is are there any material difference between the policy provisions at issue here and the policy provisions in swept one key aspect is that we're also are going inferences are appropriately drawn from the allegations as understood in the tortious interference callup when looking at the extrinsic evidence that basically said that consumers understood they were going to a faster cheaper product if they went with c two and the actual statements where that was said were not articulated in the deposition testimony or the complaint but they don't need to be as long as they can be section three and docket eighteen page sixteen seventeen section two see three i articulate the extrinsic evidence which is a deposition testimony from a r c statements tell me where this what statements just made you say you are disparaging the statements or infer from the testimony of the executives arks explaining that they understood statements were the impact of those statements so in the miranda case as an example the court has said these are christie's couse that was enough for defamation and disparagement because it turned out that that led to a presumption that the cows had a certain quality when they didn't have that quality there was a disparagement of the cows and a defamation of the source was that's the kind of scenario we have here where the exact precise words are not stated which appears to be as the c e o of state for the reasons that this case is analogous to dover and and hudson and market offs situations where they the fact allegations behind the tortious interference counts to avoid trying to trigger coverage which doesn't eliminate the fact that they sought relief based on the same conduct can't just wouldn't when he declared the plane the insurance company defense were all of these implied allegations set forth for the benefit of the insurance company on numerous occasions because it was letter writing cancer and yes yes they are all there all there so and where in the record should we read exactly what was said on the two different tender occasions just look at the correspondence that was provided to the insurers that's why i'm asking you e rise to the jar laboratories approach to a mis stated and contested allegation of equivalence of the words where it was this deposition taken before the tender or after the time for the tender there was a it was incorporated and it's only present council who has decided that those fact allegations when parsed have to be evaluated in light of the other ones that the court focused on and the problem with that this is a serious mere pad issue with this case if you look at the extrinsic evidence that this record relied on and compare that with the actual testimony that is exerted on those pages in my reply brief look to the past statements that you have in the record at most it's an inference right which then brings us back into whether swift applies or not when you have a statement that has the level of specificity that would be required if we apply swe i think those the inferences for those statements do have the level of specificity when you look at what they say so top says they had done something that changed customer's perceptions regarding c two namely c value some for sort compared to a r c he doesn't say i heard them say that he says i understand that they advise people that there would be a offer a better value of the sort compared to  c now that's pretty close to him parroting the exact words he's parroting his understanding of what the words were that's what inferences are all about and forget you remember in california unlike maryland on like other jurisdictions facts that evidence of potential for men with a complaint are sufficient as are inferences derived not only from the facts and complaint but from mixed forensic evidence if you look at that statement opposition ok but it's ok so he's he's got the perception of what these statements were they just don't happen to know what they all were that happens in a lot of lawsuits but nonetheless you can be a victim of a disparagement claim when you learn the effect of statements that are misleading and or on true according to your understanding of the facts and inferences from what you do know suffice to evidence that there was sufficient statements to be failed to do in all of its briefing as well as an oral argument to the court is identify the false or misleading statement that specifically referred to arc business or product and clearly  the business for those products was i understand what your colleague on the other side says is we don't know how i got them i don't know that he's quite said this to me but he hasn't given me the statement but he said you can imply from these what was said and we have a witness who said that's what he implied he implied disparagement and so isn't that sufficient so when you say about that it's not under swift and that's because what's with the louse is you can make an inference from a statement but there's still has to be a statement so you can make an inference from a statement but you can't infer a statement so what councils asking us to do is to actually infer evidence and that goes against where i want to go i think in fairness what he's saying is that the witness could remember exactly what was said but what the witness thought was said was something that was disparaging right and swift addresses that and what's with swift says is that the specific reference requirement limits the right of action for injurious false would granting it to those who are the direct object of criticism and denying it to those who merely complain of a nonspecific statement that they believe caused them some sort hearse some sort of hurt that's what we have we have a nonspecific statement that they believe may have caused them some sort of and by the way it's not tied to actually anything that was brought in the our complaint didn't allege any facts that would support disparagement claim they didn't have a cause of action denominated as as as disparagement there was nothing there and so when golden eagle gets the returned or the look at deposition testimony where you have an arc employee saying well you know i think they may have said something and then if you look at the the rest of the transcript which is before the court and excerpted almost entirely in our brief there's follow up what was said i don't know who would know i don't know the particulars i don't know what was i don't know actually was it will who would know i'm not sure maybe maybe stenson what are you saying that they're disparaging you know the quality you know i'm not saying that so there's no there's no there there there's no there's no false or misleading statement where we can actually even draw some sort of inference and in swift was important there is the court the court explained that you know that this is the requirement the specificity requirements must be satisfied by express mention we don't here we're clear implication and when talking about clear implication what the courts say the court said that disparagement by reasonable implication requires more than a statement that may conceivably be construed as derogatory to a specific product or business a reasonable implication in this context means a clear or necessary inference and it only gave an example of one instance where this works one and it cited two  and in those cases you had a competitor who again was making a statement and they were saying that i have the superior feature to the exclusion of my competitors my competitors don't have this i'm the only one i'm the only one that has the source code i'm the only one that has th we're going to see that works here because that's specific enough to say that what you're saying that you've got this to the exclusion of everyone else well that means your competitor doesn't have it in your in your disparaging them by doing so by saying you're the you're the one we don't have and then speculate about a cause of action that was never brought it muted lee never brought your will or tied to any any cause of action actually or in the facts actually alleged in the complaint but without these critical without these before we had even answered or appeared to the case they asked for some adjudication on the duty to defend we responded by opposing it so you know that there is no duty and also cited to the cases including cases from you know from the ninth circuit which allows  get to court couldn't do it but what i was just curious about is why didn't you just move cross move for someone just because they felt they filed a motion two weeks after service before we had even appeared into the case and this is i mean i could go into more but it's outside the record what is in the record you know it is that is that you thought there was a timing issue well correct i mean there was no ability for me to to oppose it and file across motion at the same time you know now if the court has been granted sue a sponsor of course i arguments that this court as well as california courts have repeatedly rejected you know time and time again at most what they say is they raise an argument of acquittal and zoomer equivalence me that sounds plaintiff's accomplishments process as its own they were trying to say hey you know you know we're doing the same thing and these accomplishments are accomplishments and they actually had statements though and this was actually alleged in the complaint which again we don't have here and this court not trigger coverage know you have some one time so if the court looks at those pages where i reply brief i think what you'll find there's a disconnect with the way that they've represented what the facts allegations are what the district court focused on and what is actually included so there's statements that in deposition testimony that misinformation was given to the consumer with respect or c in order to entice the customer to provide business to  that this representation led them to understand that c two was if not equivalent in fact better because it was faster and cheaper and if you look at those testimony was taken which was made known to the insurer and they simply only look at that aspects of it when there's a spectrum of possibilities and one is the statements were disparaging and the other is they were not that we did meet analytics in camps for teaching evidence you don't have to have all elements of the claims for defamation to establish potential coverage and that you can readily infer on the facts here what the statements were that would have necessarily been requisite to have had the assumptions about what must have been said by the parties and that's what the potential for met him and the doctrine in california has been out also if you look at the very last of two ninety nine to three hundred of swift you'll see that there's a specific reference to an important differentiator it doesn't have to be i have a better product it can be this person who has all my secret information knows who i am knows what i'm going on has access to a better products and a quicker product and that positioning makes it analogous to the situation where you have the only source of supply meeting the important differentiator quite serious which is an element to meet the inferences required under swift for you thank you counsel for your argument thanks to both counsel because just argue to submit