good morning i was a police the court my name is francis thirty and i'm here on behalf of robert pate the talent in this case i'd like to begin by saying that when one reviews the entire record and the arguments made by the defendants and the evidence that they used to support their motion for summary judgment you find that what we're dealing with is deeply disputed facts we're dealing about conflicting inferences about disputed assertions and we're dealing about the credibility of witnesses their points their counterpoint i pretty much a tale of two cities the defendants tell of court a simple case the plaintiff say it's really quite complex the defense tell the court they made no direct misrepresentations about profit but the plaintiffs produced tax returns that show miller multimillion dollar losses and individual monthly bank statements during the relevant period of time when representation is remain about the financial health of the company the fenton say that pay did not rely on the representation that they made to him the plaintiffs say it was concerned about the financial condition of the say the representation is were made a long time ago in one nine hundred sixty four i'm sorry ninety four sixty four really it would be a long time ago and therefore they're relevant but the plaintiff s nothing changed the same line was given through that entire period from one thousand nine hundred four right up until the collapse of that company  through all of that time berkeley had always represented that they own the company that they were behind the company and they were going to pay for the loans i mean for the for the shipments and the outstanding balances that were due and mr page shipped more these are factual issues right down to the core now with all and with no disrespect at all to the district court the district court size and suit and the court took sides with the defendant the court did not challenge many many instances of suspected conduct on the part of the defendants shredding evidence failing to produce minutes that the boards of directors for the catalina company alleged corporate transfers of the interest of the ninth at the eleventh hour without any cash changing hands for the same group from this channel  island and that i'm not critical of because that was the function of the courts judy when reviewing a summary judgment motion but in contrast when the district court weight then started to make way evidence the made eviden determinations when it came to pay seven was on the issue of did berkeley control catalina the court may never densher a conclusion and i quote this tape is unable to prove that that the berkeley defendants control catalina to the extent necessary to establish an agency relationship existed yet there was substantial evidence of the day to day activity and then takes part in the day to day activities and once those two separate task but once the all of those elements of those tests are there to be argued before the jury then we have an opportunity and a legal basis to make something more i do not disagree with that legal conclusion and that has never been disputed in fact there was not a lot of legal in my brief i specifically spent a lot of time setting forth the facts because there wasn't really much question about the representation as we know someone makes a misrepresentation and they rely on it and to their detriment except for that's a simple cause of action in california that we are all aware disagree they set forth the elements of negligent misrepresentation which is a species of fraud i do not disagree but we do have evidence of fraud and we do have these statements that were being made and for example what i wanted to say that the court says what you know berkeley didn't control catalina and if that page is unable to prove that the berkeley defendants control catalina to the necessary to the extent necessary to establish this relationship and that is to answer your question yes they have to do that but for the court on a motion for summary judgment and all due respect that decision goes beyond what the court should have looked at that we have evidence for that we have evidence against may or jury reasonably assume that what was going on constitutes control and they were like twenty one items that i put down with and these  just made up they were from documents letters new memos that came in to show that they did control business it was well known that burkley controlled that business that is the truth and then  again just to show how i think and i don't mean to be disrespectful in any regard but the court then finds makes an evidentiary finding for berkeley in that when they installed this in in june of ninety nine when they tried to divest themselves from their connection with catalina the question is well the oversight committee was insufficient but i mean why is that so why officer cindy beechwood who was the financier the chief financial officer was getting paid by berkeley kathleen they didn't have a president a c e o a vice president it didn't have anything it wasn't done by anyone but berkeley clearest statement showing that the court was resolving facts for the defendant was was the statement that even assuming that beechwood told the tape during those telephone calls that catalina was doing great it was rolling along everything was all right it was profitable the sales increased and that berkeley was back in catalina the court concluded paid has not proven those statements were in fact false not the job that summary judgment that's the the sale could not go through because of pension problems with the employees we have an executed  contracts that we found we find no not one penny one dollar money being transferred from this alleged new company to catalina no money went in it just took a note out and they're all up the channel island but all the court had to work on was a letter from someone in the channel islands and off england and that was it and why why is that evidence so much better than everything else and even after that the control still went on with this oversight committee and then on the friday issue of the lesson was that the fraud issue we don't even have to show agency because the correctly that in one place judge nelson perhaps shows a chose a word that you might not normally have chosen to use in the summary judgment opinion that is fine to fail to prove i think it's clear throughout the opinion and we do cite to page eighty one of the excerpts of record in our break one should infer that the statement allegedly made in september of one thousand nine hundred ninety that the company was profitable might be false the undisputed documentary evidence shows that the company was profit on a cash flow basis but even of reliance defendants ason enron or tories for evidence of reliance none was forthcoming defendants asked for evidence of reliance in the deposition none was forthcoming defendants argued at length in the summary judgment  if there was no evidence of reliance none was forthcoming no declaration was submitted in opposition to the motion for summary judgment saying i am robert page i relied upon these allegedly false statements and deciding to make the sales planes had multiple opportunities to present that evidence which of course is not evidence that is within the purview only of defendant i mean the evidence is in his own mind if it existed he could have written a declaration saying i consider these statements if it were not for these statements i would not have made those sales the case law that we set our brief is very clear that the plaintiff must show that the challenge statements were an immediate cause of the decision to make the sales there is no evidence that is true and i think that it's instructive to consider the reason there is no evidence that's from the last of these purported statements was made supposedly on september one thousand nine hundred ninety nine the first of these challenge sales was almost five months later for the idea that mr paid relied five months later on these purported statements made they statements made a long time ago with no follow up no request for current information no request for documentation nothing that a normal commercial business person would ask for in this kind of situation if they were going to rely on those statements there was none of that but the point is that is not to say that this court or the co a owns catalina and b had taken over the day to day operations of catalina and had purposely disregarded the corporate entity and if those two things were true the snorer diamond court held liability could be and the purposeful disregard and what judge nelson did in her opinion was to compare the evidence of plans presented with the evidence that was before the court and snored diamond which the court in sonora diamond held was insufficient to avoid summ parent corporation and from canada there was virtually no separation at all here there was undisputed evidence that to are different officers there were different directors there was no co mingling the funds catalina was a six hundred fifty employee company in southern california that made furniture berkeley international as a financial services sort of turnaround takeover company there was no evidence all of the chaps that paid for the words of mr pay slant catalina liability on a rule of reason basis because in the court below they had only argued that there was a section one violation on a per se basis and what the court's analysis shows there and in the other cases that we cite is that it's not enough to presen was sufficient for berkeley say although the agent but the berkeley is liable because berkeley said that they were standing behind catalina that is they would pay for them or the catalina had the authority to bind  statement there were  and the one thing i did want to say that and when you look back at this and there was so much made about reliance and it wasn't even something that even dawned on me that this would be a big deal because i mean have to stay there saying he forgot to say we didn't say no when i asked him to say i relied on it but of course we gave you the evidence is even better than just somebodies opinion i relied on it he showed instances why he did it the statements that were made the three twelve and three thirteen this is one of many contracts that were inserted into the records that are titled is titled on one page which appears to be the first page umbrella liability policy but on the next page is called a schedule of underlying  insurance and there it list church mutual as having as as offering the underlying insurance on comprehensive general liability including personal injury did did was church offering both politics and the underlying general liability policy there is and there was obviously a scheduled underlying church mutual policy that was not at issue at any point through today but why isn't it an issue i believe it's the definitions  policies is by definition general principle as umbrellas are intended he kind of the last resort there the extra coverage one purchases above and over other coverages other coverage available but generally speaking an umbrella policy is more like a true access policy intended to be the one of last resort so if we were to if we were just focusing on the umbrella policy that we have to construe the other insurance loss yes your honor you while you have to apply and look to the other insurance class because we have another carrier who was defending and that's ne policy doesn't apply because there's an exclusion that couldn't be clearer in saying that the policy doesn't cover any wrongful act related to the paradise valley estates and this entire underlying action was paid something like two million church which were paid like two million in some bond holder litigation that predated this particular policy so when they came around to issue this d o t policy they said is a type of what i would call kind of a professional i believe policy issued to cover counseling activities it's intended to cover situations where people sustain emotional harm in the course of weren't specifically decided by the district court but there is authority in this in this circuit for the proposition that in certain circumstances it's ok to do that and this is certainly one of those circumstances because it's really t things the issues we're all exhaustively presented to the lower court and they involve questions of law are there no facts here counselor that that that any pastor may have counsel parishioners to to be you know that's good enough for me but that's not counseling activity by any stretch went through and said these are the provisions in the policy that are relevant and that the court should look to the there was never any specific reservation of the other insurance issue or the umbrella issue there was a blanket there will go on to the d o t policy if there's nothing there will brief the bella policies it was set up this is a motion for summary judgment to decide whether going on though two to th specifics of relevant these two insurance companies insure different time periods and so if if the church mutual policy was an umbrella policy it was an umbrella to whatever coverage existed at  that time and those are listed in there in their policy as the underlying insurance well none of that is brotherhood because brotherhood in short a different time period the allegations in the lawsuits spread over t time periods and what the district court said on the merits in response to that in object rejecting their argument in the context of deciding approving the judgment was you both had a duty to defend pay they agreed to pay for damages emotional distress mental anguish that occurred during that time period that they ensure any excess a million dollars in excess of a million dollars  of the underlying there is a provision because we did not breach this i don't have it but there is a provision in the a policy that says if there is no underlying coverage that applies to a particular claim company's you know if you look at the list of the underlying policies brotherhood isn't there brotherhood insured a completely different time period no mention whatsoever of that is true there is just the very last thing says we reserve the right to to raise other issues and the district court concluded i mean the district court did not approve that the district resolved the motion for summary judgment in churches favor that would have resolved all issues wouldn't it isn't that what churches sanctions that there are no other issues that would ever need to come before this court no matter how you resolve this question saying if you resolve the motion for summary judgment in our favor that will conclude the lawsuit if it had said that to the judge and said that we i would like we want to consider this partial or we want to bifurcate the issues the judge may have said ok the judge when faced with it afterwards said that's not it was there any order issued from the judge saying i want i want motions for summary judgment this will be everything only afterwards when a new issue was raised in response substantive issue was raised in response to the judgement but the district court went on to say that both of them had an obligation to defend and therefore we don't need to get to this this other issue and the reason that there was an obligation to defend was because we're talking about two completely separate time periods and you don't relish policy cannot be brought over a policy that has not yet been insurance then this becomes primary insurance relevant provisions these are the relevant provisions we did that with all of the other policies and i stipulated statement of fact we never get that with the on the other insurance questions or the broader questions because it was not at issue in the motions for summary judgment so it has there is no factual basis we presented this on stipulated statement of facts there's nothing in the stipulated statement of facts that address this question and so therefore the and i it may make a difference there may be there may be provisions on those even numbered pages that would be relevant to this issue i didn't it didn't matter at the time was that we made the record because this issue was absolutely if if this court either this court intends to make a ruling on it or send it back to the district court for a a ruling there absolutely should be some kind of briefing because there never ha o paradise valley estates exclude the o t policy i pointed to a letter that extent i but we believe explains what it was intended to do and it was not intended to reach situations like this umbrella coverage for the the occurrence and the mental is the court have any questions on that would you like me to address that i mean that's what the district court analyzed and that's where the district court  interests units in a residential retirement community and their statement is we fully intended that these units would increase in value we fully intended to be able to provide all of the services that we promised to provide but question the question of the timing is found she's not overlapping but being at different time periods would not be relevant to a defense question which insurer has to defend the action that might be relevant