of saying the opposite which is if you have determined that you can insure against the trial court determined to stay in the declaratory belief claim that if there were similar reasons supporting abstentions from the other claim that you could abstain from the entire action the problem here is that by abstaining from one in keeping the other the very principles that underlie the of sanctions are true are not forward because the reason is that the trial court granted i do think that it's an extraordinary remedy in the cases of acknowledge that you don't just abstain on a whim and there has to be solid reasons for it if the judge decides not to exercise the discretion to abstain and deals with what amounts to just a breach of contract case your argument that the district judge can't then say i'm going to exercise my discretion not to entertain the declaratory judgment action  coverage obligations it's running through the declaratory relief cause of action and now if this decision stands on the specific performance claim there is the possibility of separate decisions state under state law and under of the underlying action of the claims are already under way before these claims were filed in federal court and now since after the district court's ruling the insurers have gone ahead and brought the declaratory relief cause of thought the dismissal should have been without prejudice yes correct yes without prejudice to refiling in state court an extension ruling we were to performance claim or cause of action in the pending state court action yes all right thank you for your pirro for roman catholic archbishop of los angeles i pleased the court i would like to start with the question about the timing of the underlying action and what's going on the sex abuse lawsuits which you refer to as clergy one were filed after the reviver statute in two thousand and two and coordinated in this rather massive single proceeding in which the insurance carriers including haiti companies have been participating  possibility of proving beforehand you know what it is they want you to do that if you're not doing absolutely they want to do want to stay court said we can't do in our view that's the long and short of it they were chaffing at the fact that we weren't taking certain deposition conferences for hearings for those kinds of things and that's what the declarations include in this book and again we're talking about was their participation they didn't like certain discovery one is innocent and i think what they were asking the trial court to do here is to come in and say ok we're going to direct the archdiocese to do cooperate by turning over what the state court said we couldn't do and shouldn't do to turn over stuff that was allegedly confidential like the christian files where there were battles going on in the state court about whether constitutional privileges were protecting those documents it's not clear that was what they wanted what is clear is that when they attempt to invoke as they did here some notion of civil code twenty eight sixty duty to cooperate and the answer to that one was no because it's not a duty it's a condition and in any event you can't show prejudice as a matter of law until the underlying lawsuit is concluded so even if you could assert some theory  take a look at why they're being administered by the state court in a very complicated proceeding as we suggested now by the way of response to the question of what's going on these cases are being released for trial in groups so there will be a whole series of trials th tell them nothing about it that's one of the frustrations about this is they have essentially the same access we do and their complaint is what you can't yet in state court because of the rules that have been administered by the judge presiding in terms of how things ha we have to proceed as this court has said has been very unfair to discovery there's no doubt about that we've not been able to do traditional discovery in many of these claims there's not even an answer to the can on file  so we're talking about a situation where claims of the pending now for four years for most of the claims with very limited discovery no answer to the point and now some cases being released for some version of trial where they'll be limited discovery and some other things we get access to and they gathered at the same time this is a very different proceeding and most cases because of how it's been mistreated coordination but they have the chance to be heard on that they have the chance to be heard in the settlement conferences in the mediation they spend  scores all the california cases but there you are i'm not aware of a single california case that says outright because i'm not aware of this ever having been tried before the closest we've found going back looking at it was a case from twenty five so the question is can you guess my specific performance what you can't get by the clever tory belief and that goes back to the notion of absolutely showing a prejudice and there is no basis to say anything about the duty to cooperate and there are california decisions that say for declar tory leaf on the duty to cooperate it's premature until the underlying lawsuits are over there is no cognizable cause of action for declaratory least for specific performance because as a matter of all you have to speculate about whether there was prejudice until the found that the real heart actor's way heavily in favor of abstention and the declaratory leave cause of action it's joined with another claim involving the same or similar fact overlapping issues of state law only separate course of claim that did not have the overlapping facts and often as as respondent argued section one hundred eighty three cases which involve federal issues that makes a lot more sense to keep that quiet in federal court but here we have no federal issues