think it's maybe the most critical issue of policy interpretation in this case and that has to do with a policy like year that on one hand excludes harm resulting from intentional or criminal acts and on the other hand covers harm resulting from an accident occurrence to negligence on the short and what is the situation the question this case is what happens if both operate independently to cause harm to a third person now the policy does not address that it is dresses that in other sections of the policy in the property coverage section where there's twenty two items of exclusion and there's an item twenty three that if pressed is what happens if there's multiple causes often covered seat of the property policy section of the policy similarly fourteen  only says well it isn't written for this situation where you have all used the term an innocent spouse to differentiate it from the finding of fact that we have from the referee or the judge on reference whatever we're calling the l a county superior court judge who found that the spouse in this case was forty nine percent negligent but isn't that clause written to cover a situation where the marital community is sued for the tortious acts of one of the spouses and the other spouse is either covered or not covered depending upon the conduct of the acting out am i correct if you are i believe provision in i think very rich with your petition this provision as this applies to things like obligations to deal with the insurance company in this policy for example the duty to cooperate with the insurance purposes of the terms of this policy and that's what i'm saying why couldn't that be any follow up under thomas question of the little why couldn't that be read to mean it will be binding in the sense that she can't claim that with the husband he was other than intentional no one disputes that it was intentional but right right now it's binding in the sense that it's it's attentional she can't claim it wasn't that's fine but that doesn't address whether she didn't have some independent negligence with that b that's one way to interpret this absolutely that's that's another i mean have is a possible interpretation i think this clause is so generally written and they say that it can mean a lot of things now doesn't mean what i'll state now against the insurer or because it wrote the way well certainly that my reading of the policy is one way that you could read that language is that correct well i wouldn't i don't concede that but i think that there are the case of the teacher who was convicted of molestation and the wife is how do you deal with that well it's very close to know as a matter of fact that they're not in point at all and for the simple reason none of those teachers dealt with what we have in this arguably is negligence was dependent upon the criminal act in achieving its ultimate harm and that it's not dependent meaning you know they combine to cause because that's not the test the test is and partridge makes this clear on the gun that it didn't cause the negligent driving but they both separately and independently combined to cause harm that's what we have in this case and the reason we have that in this case and why we don't have that  castro in the other cases is the simple reason that we are not alleging and there are no facts suggesting that the law gross negligence was only and had anything to do with the failure to control a supervisor  husband we except the fact that he acted intentionally and he she had nothing to do with his harboring that intent and doing the act wasn't fair to control or supervise or protect it had to do with her making affirmative where the wife of the abuser it didn't have anything to do with her controlling supervising husband had everything to do with encouraging the children to come to the house and so she was lee making an active negligence that was independent of his own criminal intent and act and i think that is a critical distinction in this case and something that you haven't castro didn't have to deal with so  didn't deal with that guilt and castro are also different the reasons my co counsel explained but that is the for my purposes here today that's the fundamental difference and and that's why those cases aren't good authority for this case because they didn't consider property fraud cases which it's important to point out because like gilbert castro those involved cases where he thought is sure why did something intentionally good friday and try to get benefits then the because there's no question in those cases like overton castro and unlike here that the that the spouse did anything that was a covered risk of the policies so in other words the whole evolution of the any ensured discussion rests upon principles and facts that are not clickable here we have a different kind of case here and that's not as in a community property state don't we have to acknowledge the fact that the marital community is essentially the insured person under this policy the question is does the innocent spouse get any kind of coverage or does she have any legal responsibility for the acts of her husband no not for the acts of her husband but for her own acts absolutely you don't you don't deny that if she had done nothing and he had been found one hundred percent responsible for shooting officers she would not be entitled to coverage under the terms of  fact that you might have temporal questions about right does it mean that joined up occasionally clive is all we need really to win this appeal because it must be strictly construed against insured means that if one insure it connects a criminal act even if the other insured is negligent at the same time independently negligent and it can curse to cause harm nobody has coverage if they  that any rain and can read that and understand it and then you can say that's what it means and five times and everything they say that's what it means and that's what the joint obligations pas needs but it doesn't say that in the policy and even if it did alternatively they can't do that they can't do it for two reasons one is also a matter of a policy term a contractual promise that they automatically amend their policy to conform to state  have state law that says you can't do that it would be illusory you must provide has marriage for every independent insurer including if they're married we don't discriminate against married couples here's where there is concur causation and one of them is a covered peril that's one thing if they could they could make it not a covered peril couldn't they say if one insured commits an intentional act there is no insurance period nothing's covered well i guess the point is that negligence in a liability policy has got to be covered how could you say here's the liability policy pay your premiums but either way negligent the covered that's the whole point of a liability policy is we're going to defend you for your mortgage and need to try to figure out how five thirty and five thirty two interplay because the california supreme court has already done at about five decades ago in the sabella case and in her tridge hartridge applied to bellow it was a first party property ca marshaled to defend her my client milagro me there in the underlying case which i pray that they would have done because you know what i don't know that had they given her a proper defense she would have lost the case i don't supreme court which again my opponent doesn't even cite let alone distinguish did exactly what she's allowed to do when her insurance company abandons her she assigned her rights i understand all that  afraid i'm sorry i didn't mean to hurt anybody that was what her underlying deposition says but that's not before this court because what we have is the highest state court stating unequivocally that this judicial procedure is acceptable she didn't even have to hire a lawyer and defend it all she could have allowed a default prove that where it really would have been one sided and that would have been acceptable that is not evidence of collusion in any way she's entitle here of the insured all stake provided the defense from a lot of role rivera right up until her husband pled guilty right up to the point where there was a conviction and then you advance with advice of counsel and with notice yes the excludes coverage for bodily injury or property damage intended viral or which may reasonably be expected to be to result from the intentional or criminal acts or emissions of any insured person it's significant that the exclusion is not triggered by conduct or triggered by theory of liability it's triggered by the harm the harm is what triggers this exclusion in this case that's the same exclusion that was with the harm from the husband right i mean what you know maybe you can answer the question that i successfully tried to try to get an answer to you and that is you know what were the facts with regard to mrs revere necklace ok let me jump he was told by her at the site that her husband was asleep and he wasn't dangerous he testified he never spoke to her he testified that she wasn't there he testified that his partner officer sillies said he reached her on a cell phone and told officer boone that the husband was there she didn't know how many guns he had and officer boone testified under oath that he was in fear of his life that he showed up with his bad faith case that none of this was presented to the judge who tried to reference he was not told that mulago was not at the premises he was not told that she did not speak to officer bone furthermore  he was not told that philip stansbury a mental health worker for the for the county had dealt with rinaldo rivera and was on route to the scene to intervene in the hostage situation he wasn't told that the judge wasn't told that he wasn't told that within the week preceding this event the same l a p d had appeared at the rivera residence and had confiscated five assault rifles and he wasn't told that the belief was in in the mental health worker that mr rivera was extremely dangerous and was definitely armed now the reason that it all becomes important is because the question was raised well it was a solution of course it was collusion both sides controlled the proceeding jerry ramsey the hot lawyer hired to represent the laager rivera stood up in his entire defense consisted of i'm standing under the case of trans america versus sampson which is the case that basically sticks the insurance company who doesn't defend with the results he sat down he did not cross examine a witness he gave no posing argument the only argument he made to the court was that mul assessed at no more than forty nine percent now i would like to address this issue of culpability there is a reason that the gilbert case and the castro came and one more recent case called farmer versus all state at three harm where there's one harm and that harm is intended by or reasonably to be expected by the criminal act of any insured there's no coverage there's no coverage there's no defense in this case they can say forty nine percent if they want but the facts tell you the story was there and parker is just one harm somebody got shot partridge yes but there was this exclusion wasn't involved in parker's and it's a very good case to distinguish that case was about whether which policy provision covered in a particular set of facts and the court determined there that we were dealing with two independent completely independent causes of action or or a the negligence of driving off the road negligently and the negligence of filing down a hair trigger and creating a risk that did not deal with the situation you're on or where the exclusion was governed by the harm if we had a second   is not an independence of those two those two conduct a person is entirely dependent isn't all state found by the factual determination by the reference judge though since you that there was an independent a process whereby the facts were independently adjudicated and the process was free of fraud abuse or collusion we would argue but your your opponent says you know what what can you expect mrs river she doesn't have the assets to go out and hire good legal counsel defend her i mean she's basically left to her to progress your honor she assigned her claim before the proceeding happened but she didn't but that's a perfectly legitimate i mean it between a stipulated judgment which clearly doesn't pass muster and i fully litigated a jury trial where every side is represented by counsel with a good faith attempt just to ferret out the facts that's the far other end of the  not there was collusion because those facts that were found by that judge and that determination are so what odds with what we now know to be the truth and we know why it sure is left defenseless what what is so wrong as a matter of public policy with entering into a stipulated judgment in securing as consideration a promise from the plaintiff that it won't execute judgment against the insurer the former i would defer to the courts of california which have the side of that that does not have that that that that is exactly what doesn't pass muster i suppose what's going on is the notion of fundamental fairness because as judge cry he mentioned in the pru in case  you don't just because the insurance company has made its decision not not to provide the defense does not mean the insurance company loses its right to due process now you're absolutely right there's a risk to be involved and that's to be litigated but the notion that we now will our very close call because there is some causation some remote notion that mulago rivera was aggressively negligent as opposed to pa negligent like the way things go over the life of the the mother in castro and negligent supervision that somehow that triggers coverage which of course is counterintuitive the notion that the more culpable she is the more coverage she gets doesn't make a lot of sense that the function by the way of the joint liability provision getting ahead of myself but if we end up going back down there deaf what we will litigate i would like to address also the notion of a strong liability the suggestion that it has to do with a duty to cooperate and showing up for an examination under oath but not what it but not the conduct that is within the parameters of the ensuring provision is nonsensical it says in part x or omissions of you or your are binding upon any other person described as you or you or and every what does it mean binding doesn't it just as binding it doesn't say disqualifies you from coverage well if you read it in conjunction with the exclusion your honor i would or i would urge that the  the fact that the bodily injury and property damage was intended by a reasonably expected from rinaldo rivera's conduct means there is not the exclusion is triggered it's also triggered as from a law grow because she is bound by his action and that is in fact what the gilbert court found what the castro court found and what the farmer court found and they all went through the same analysis to get there indeed this joint liability provision i would argue is a direct response so this court's invitation in one in the one nine hundred eighty seven case of borger in that case we had a situation where the word and insured was used in the court said that's not clear enough now i'm not we're not going to bind the so called innocent co insurance and the quote was had american states intended that the wrongful act of any insured with void policy it could have unambiguously drafted and fluted such language in the contract now it is true your honor that in every provision where this might apply in the contract all the state might have written a policy that said that repeated the joint liability mentioned in each of those exclusions but that's not the way an insurance policy is written and it is written to give effect to each provision  throughout the entire policy if at all possible and finally your honor i would like to deal with these notion of the finding in the court of appeal mulago rivera her conduct was independent for purposes of firefighters rule much has been made of this because what you do is you take that ruling and then you grafted onto the first party   well look here's a determination that hurt in the negligence was a an operative cause of the damage here well it's independent only in the firefighters rule sense and we've read this and i just want to touch on it briefly the firefighters rule is a public policy rule that says that if you're a firefighter or a police officer by extension you can't sue in negligence of the person who caused the fire basically it's a notion of fairness you can't sue the person whose act basically is the reason you have a job in the first place you're a first responder and that's what you're supposed to respond to and all the court found was in the underlying kate in in milan rivera in the way it was alleged because it's not the way turned out to be the fact that the way it was alleged mulago repair allegedly was at the site after the summoning of the police officers she committed negligence by misrepresenting the level of risk or the threat level posed by her husband and the court as pleaded on those facts which she did was a little it was different it happened after the summoning of the first responders for one thing and it was different from from what caused them so in that sense it was independent there's no would you to cation nor can there be that what she did was independent of the shooting by or husband because as we pointed out in the brief but for that shooting there is no she could have made every misrepresentation conceivable and told the trigger was pulled there was no action there  lawsuit there was no class even if she had stood on this on the sidewalk in front of the house and assured officer boom my husband is dead drunk passed out inside and there isn't a single weapon in the house so please don't shoot him and that caused officer boone and his partners to go in with their weapons holstered in without their care of our vast i wouldn't she couldn't possibly be covered even under those or i would argue that that is exactly the function of exclusion the harm was the shooting the shooting that's criminal everyone stipulated to that in this case no one is coming here suggesting that mr a verisign titles with the fans the way that policy works and unless with all due respect this court is prepared to overrule goldberg or to rule as a matter of public policy that that provision should be stricken from the policy i don't think this case can be suppose we said well we're not going to reverse my circuit cases we're going to follow the california case what do you think of my suggestion that this may be one of those circumstances where we got to certify to the california supreme court i don't think it's necessary i think that this court is armed with everything it needs to resolve this case just as the gold record was over coffee when a rock and a hard spot i mean we we involving this exclusion it isn't a case involving the criminal exclusion so if you're a california case involving this exclusion that goes your way is there a california exclusion wouldn't that suggest maybe certifying a case is called for your honor it's it's certainly a route you can go i don't think based on the cases that you have that it's necessary if your honour's wanted to certify this to this of the california supreme court i think it would go our way but i don't think you have a need to expand those statutes have been in place for many decades the california supreme court cases have been in place for many lot of pies and a third party case construes five hundred thirty gilbert never addresses insurance co five thirty gratian or the facts that are similar in this case there's no need to overrule it i think it was properly decided on what was presented to