[00:00:00] Speaker 00:
If it please the court, I'm reserving two minutes for rebuttal.

[00:00:11] Speaker 00:
So I think what we have here is a situation with the district court was very focused on looking for aspects that in her view were not potentially covered and that the facts leading to a different view were viewed as an inconvenient truth.

[00:00:35] Speaker 00:
Specifically, the court didn't even contemplate the possibility that the distinct liability for misuse of proprietary information in advertising

[00:00:48] Speaker 00:
that would implicate offense F, use of another's advertising idea in your advertisement, or even possibly in play, simply because the phrases in some parts of the complaint use the words confidential, proprietary, and trade secret in a paragraph.

[00:01:09] Speaker 00:
There were ones in which only the proprietary information was at issue, and it's clearly a distinct basis for liability.

[00:01:17] Speaker 01:
And so does the word advertising appear or some variant of the word advertising appear anywhere in the Diakon complaint?

[00:01:25] Speaker 00:
No, and that's not relevant because what does appear is the actual websites which are advertising that are referenced.

[00:01:34] Speaker 00:
There's no magic formula.

[00:01:36] Speaker 00:
And the way the court's viewing it, it's like, is there a reasonable potential for coverage, which is in New York, not California standard, which is far more liberal than it's any potential for

[00:01:47] Speaker 01:
coverage.

[00:01:47] Speaker 01:
Was there ever any motion made in the DICOM case to amend the complaint to add anything

[00:01:58] Speaker 01:
beyond what was in the 7-2-21 complaint with the eight causes of action?

[00:02:05] Speaker 00:
Not yet, but the case is still in play, and we don't have the pretrial conference order, which would supersede the pleadings under Rule 14 as a matter of law.

[00:02:15] Speaker 00:
And it's the potential for coverage that is dispositive here.

[00:02:20] Speaker 00:
And if you look very carefully at the allegations and then marry them to the extrinsic evidence, the extrinsic evidence is very critical to view under California law because it can clarify and provide meat on the bones

[00:02:40] Speaker 00:
to what is in place previously.

[00:02:42] Speaker 00:
I direct the court's attention to a case cited in the opening brief, Lexington Insurance Co.

[00:02:48] Speaker 00:
v. MGA Enterprises, and that is a published decision at 9061 F sub-second 536, and specifically

[00:03:01] Speaker 00:
544 and 545 are of interest, and it distinguishes all the cases that the insurers relying on.

[00:03:11] Speaker 00:
It applies California law, and it dealt with one of the most expensive coverage cases in America, flowing out of the dispute between Mattel and Bratz.

[00:03:21] Speaker 00:
So there was a lot of very extensive lawyering.

[00:03:25] Speaker 00:
that went into the litigation of that set of cases, and the level of sophisticated analysis therein is very germane to what we have at issue here.

[00:03:36] Speaker 02:
One of the problems- Can I ask you, even if we agree with you that you can look at extrinsic evidence and the extrinsic evidence here showed a potential copyright violation,

[00:03:48] Speaker 02:
I'm having trouble figuring out how you get around the knowing violation exclusion because I think the theory that was described in the deposition was really intentional copying of one website onto the other.

[00:04:01] Speaker 02:
And if so, why isn't it barred by the exclusion?

[00:04:04] Speaker 00:
That's simple, Your Honor.

[00:04:06] Speaker 00:
Copyright infringement has no c-inter, zero, none.

[00:04:09] Speaker 00:
To infringe a copyright cannot, in other words, any c-inter is a claim in addition to that.

[00:04:16] Speaker 00:
So it's not a basis for the assertive liability.

[00:04:19] Speaker 00:
And that's proof.

[00:04:22] Speaker 02:
Sorry, can I stop you?

[00:04:23] Speaker 02:
Because I don't understand why we would look at the elements of copyright instead of looking at the language of the insurance policy, where it says that the

[00:04:31] Speaker 02:
It excludes injury caused by or at the direction of the insured with the knowledge that the act would violate the rights of another or would inflict personal and advertising injury.

[00:04:41] Speaker 02:
That talks about excluding acts taken with knowledge.

[00:04:46] Speaker 02:
It doesn't say whether the underlying claims elements have knowledge.

[00:04:50] Speaker 02:
I don't understand your answer.

[00:04:52] Speaker 00:
Well, if you look at the CGS decision from the Second Circuit applying the New York law to a similar situation and my treaties on knowing violation, you're looking at a distinction that's an indemnity one, as the court did in its analysis.

[00:05:07] Speaker 00:
You're assuming that liability as pled will necessarily be proven at trial.

[00:05:12] Speaker 00:
We're not there yet.

[00:05:13] Speaker 00:
This is a duty to defend its potential coverage.

[00:05:17] Speaker 02:
And if there's any possibility... Can you explain how, why any

[00:05:22] Speaker 02:
information gained from this deposition doesn't get excluded by this exclusion.

[00:05:28] Speaker 02:
I don't understand still life.

[00:05:29] Speaker 00:
It doesn't work that way.

[00:05:30] Speaker 00:
That information is evidences of potential for amendment.

[00:05:35] Speaker 00:
And the potential for amendment is another thing the court didn't look at.

[00:05:39] Speaker 00:
The basic problem is the court doesn't understand offense-based coverage.

[00:05:42] Speaker 02:
But if the amendment is something that's excluded, it doesn't help you.

[00:05:45] Speaker 02:
So I don't understand.

[00:05:46] Speaker 00:
that doesn't work that way.

[00:05:49] Speaker 00:
The amendment of the pleading in the underlying case may or may not happen.

[00:05:54] Speaker 00:
A pretrial conference order that supersedes the pleadings may not happen.

[00:05:58] Speaker 00:
But as pled right now, the extrinsic evidence reveals an element of recovery that are consistent with liability that don't necessarily implicate the knowing violation exclusion.

[00:06:12] Speaker 00:
And all the cases we cite are very analogous to those, because they suggest there's a pathway that doesn't implicate.

[00:06:20] Speaker 00:
It's a very rare case that the knowing violation bars at the defense stage.

[00:06:25] Speaker 00:
And the reason is Judge Krawski's thoughtful opinion in Atlantic mutual be jlam.

[00:06:32] Speaker 00:
And it basically points out that coverage is triggered by the offense, not the injury or damage.

[00:06:38] Speaker 00:
You're focusing on injury or damage in looking to the applicability of the exclusion.

[00:06:44] Speaker 02:
Excuse me, but I think we're trying to figure out whether this policy might have covered this claim.

[00:06:49] Speaker 02:
And I don't understand how any information that was extrinsically given to the insurer suggested

[00:07:01] Speaker 02:
conduct causing an injury that would not have been excluded.

[00:07:04] Speaker 02:
Do you think that the deposition describes negligent conduct instead of knowing conduct?

[00:07:09] Speaker 00:
That's not the test.

[00:07:11] Speaker 00:
And knowing conduct is covered by this policy.

[00:07:14] Speaker 00:
This policy covers malicious prosecution.

[00:07:17] Speaker 00:
So in other words, it's not the fact that they had some level of knowledge.

[00:07:21] Speaker 00:
They had to have a knowing violation, which is a higher level of C-inter.

[00:07:26] Speaker 00:
And the cases that are cited under the knowing violation exclusion analysis clarify that it's much more than just

[00:07:34] Speaker 00:
Did they know or did they suspect that the conduct they engaged in could be wrongful?

[00:07:41] Speaker 00:
That's not the test.

[00:07:42] Speaker 02:
And again, your focus- Okay, so what California case is your best case for that?

[00:07:46] Speaker 02:
Can you tell me?

[00:07:48] Speaker 00:
Well, et cetera.

[00:07:50] Speaker 00:
I suggest you read et cetera very careful.

[00:07:52] Speaker 00:
And the case applying California law that I just cited to you, which is Lexington, V.M.G.A.

[00:08:02] Speaker 02:
Talks about this knowing violation issue and not needing to... Right.

[00:08:09] Speaker 01:
Did the Lexington case involve a circumstance here where what the court was looking at was not the complaint, but extrinsic evidence?

[00:08:24] Speaker 00:
There was absolutely extrinsic evidence, and the court noted that it evidenced the potential for amendment.

[00:08:30] Speaker 00:
And what you realize you've got to focus on is it's not injury or damage.

[00:08:35] Speaker 00:
The court was focused on injury or damage.

[00:08:37] Speaker 00:
That's not the right analysis of offense-based policies.

[00:08:41] Speaker 00:
As the Third Circuit and fraud switch case stated many years ago,

[00:08:46] Speaker 00:
advertising injury cases have confounded courts for years.

[00:08:50] Speaker 00:
And with the district court, it claimed another victim.

[00:08:54] Speaker 00:
This is a very different kind of offense-based policy and knowing violation

[00:08:59] Speaker 00:
is an element that is very rarely found to bar any pleading at the defense stage because of that, because you're necessarily presuming that the allegations will be proven at trial.

[00:09:11] Speaker 00:
And if there's any possibility their claims that are outside the scope of those, that would not be based on conduct that would implicate knowing violation, that offenses do.

[00:09:21] Speaker 00:
The CGS case from the Second Circuit published deals with knowing violation, finds it inapplicable,

[00:09:27] Speaker 00:
facts that are not terribly distinct from these here and I would definitely recommend it because as a views knowing violation it's very analogous to California law on that issue.

[00:09:41] Speaker 00:
So the other point is that

[00:09:46] Speaker 00:
In addition to the Satara case and the EPS case, there's a number of other decisions that talk about, like Tetraview, like Elcomtech, Grandutech, Albers Medical, Lauren Spencer, that all involve offense F,

[00:10:07] Speaker 00:
implicated by unfair competition.

[00:10:10] Speaker 00:
And the court presumed that there was only a 17-200 claim.

[00:10:14] Speaker 00:
She forgot that the Lanham Act encompasses unfair competition claims.

[00:10:19] Speaker 00:
So there were unfair competition claims.

[00:10:21] Speaker 00:
And again,

[00:10:22] Speaker 00:
the liability necessary to prove that is not at play.

[00:10:26] Speaker 00:
Also, the Dobrin case and Hudson v. Colony are two cases that said sometimes the plaintiff hides in the weeds and doesn't want to articulate in a complaint grounds that might trigger coverage.

[00:10:39] Speaker 00:
But when extrinsic evidence

[00:10:42] Speaker 00:
such as deposition testimony suggests that there's more going on.

[00:10:47] Speaker 00:
That more going on precipitates the right to a defense because the plaintiff is in charge of the complaint allegations, but it can't hide in the weeds, wait till trial, say, aha, I can now prove this, eviscerate any

[00:11:03] Speaker 00:
possible liability, but also do so in a way that would have been excluded by the coverage if they'd properly followed it.

[00:11:15] Speaker 00:
And Dobrin's very helpful in that.

[00:11:17] Speaker 00:
It was cited by a Ninth Circuit published decision, Hudson v. Colling.

[00:11:22] Speaker 00:
So it's just that you really have to understand the nature of the difference between a focus on whether the offense elements are asserted per Atlantic Mutual B.J.

[00:11:33] Speaker 00:
Lamb and whether those elements in and of themselves implicate liability that would ask wouldn't be precluded as a matter of law.

[00:11:44] Speaker 00:
when the facts not only pled, but in the extrinsic evidence are taking into account in the full analysis of what's potentially covered under the suit.

[00:11:55] Speaker 00:
And it's just, that's the way the courts have looked at it when they spent a lot of time looking very carefully at the nature of that liability.

[00:12:05] Speaker 00:
Um, and it's, like I said, it's a very rare knowing violation case that has ever been held in a California court of cases following similar applications that have found to be in play in that context.

[00:12:19] Speaker 03:
Well, Counselor, you're down to about three minutes.

[00:12:22] Speaker 00:
Yes, thank you, Your Honor.

[00:12:23] Speaker 03:
Did you want to reserve time?

[00:12:25] Speaker 00:
I will, I'll reserve the three.

[00:12:28] Speaker 00:
Oh, I'll reserve whatever's left.

[00:12:31] Speaker 03:
Okay, thank you.

[00:12:32] Speaker 00:
Thank you.

[00:12:35] Speaker 03:
I'll hear from the appellee.

[00:12:37] Speaker 04:
Morning, Your Honors.

[00:12:38] Speaker 04:
This is Richard Bremer on behalf of Defendant and Appellee United States Liability Insurance Company.

[00:12:44] Speaker 04:
I'm sure I'm not the first appellee to tell you that the district court got things exactly right.

[00:12:50] Speaker 04:
But Judge Huff was not fooled by Aram's arguments.

[00:12:53] Speaker 04:
And she correctly found that not only that the underlying complaint alleged no potentially covered claim, but even if there had been, and the court didn't even need to get this far, but even if there had been a potentially covered claim, the exclusions applied.

[00:13:06] Speaker 04:
And we really only need one or the other to determine US law's duty to defend.

[00:13:11] Speaker 04:
What Aram is asking the court to do here is to find a duty to defend grounded entirely within the extrinsic evidence and entirely outside the underlying complaint.

[00:13:20] Speaker 04:
And the parties agree there are authorities that say you need to look at, you know, you can look at remote facts buried in the complaint.

[00:13:26] Speaker 04:
You don't have to have labeled causes of action, but there needs to be some allegation in the complaint that you can tie the extrinsic evidence to.

[00:13:34] Speaker 04:
Gunderson and its progeny say you can't speculate as to unplanned claims.

[00:13:39] Speaker 01:
um and no matter what the extrinsic evidence is well there needs to be something that the extrinsic evidence ties to in the complaint that's actually being asserted and an example we'd use in our let me let me let me give you a hypothetical that is not this case let's say somebody writes let's say council writes a letter

[00:14:01] Speaker 01:
that says we've discovered some new evidence.

[00:14:04] Speaker 01:
We want to settle this case.

[00:14:06] Speaker 01:
If we don't settle this case, here's a copy of the amended complaint we're going to file, which adds these new claims.

[00:14:11] Speaker 01:
Does that count?

[00:14:12] Speaker 01:
That's still totally extrinsic evidence.

[00:14:15] Speaker 01:
Would that get you to something that could be considered even outside what's in the complaint?

[00:14:22] Speaker 04:
I don't think it would, and this actually ties into a point that I want to raise about this potential for amendment standard.

[00:14:29] Speaker 04:
Let's assume that DICON down the road does decide to amend its complaint.

[00:14:34] Speaker 04:
And at that time, it would be up to USI to analyze the amended complaint and determine if that complaint presents the duty to defend.

[00:14:43] Speaker 04:
But it would not create a retroactive duty to defend the prior pleading.

[00:14:47] Speaker 04:
There's no authority that would support that.

[00:14:51] Speaker 04:
And so in your hypothetical situation, I think it would be correct for USI or the insurer, I guess the hypothetical insurer,

[00:14:59] Speaker 04:
to look at the allegations of the new complaint and take a fresh analysis of those to see whether those allegations presented potential for coverage.

[00:15:06] Speaker 02:
But that doesn't mean that the- I'm having trouble understanding how what you're saying is consistent with cases from California like Montrose Chemical versus Superior Court, 6th, California 287 from the California Supreme Court.

[00:15:19] Speaker 02:
It seems like that case says even when the complaint doesn't reflect the potential for liability, extrinsic evidence can and also Hartford Casualty Insurance versus SWIFT.

[00:15:29] Speaker 02:
It seems like the California Supreme Court has said that extrinsic evidence can show a potential for coverage.

[00:15:36] Speaker 04:
I think that's right if the insurer has knowledge that the claimant is going to be asserting those claims in the action.

[00:15:42] Speaker 04:
But we don't have that here.

[00:15:43] Speaker 04:
And in fact, one of the cases we rely on, which I believe is the... I have to remember the name, I'm sorry.

[00:15:53] Speaker 04:
the Microtek case.

[00:15:57] Speaker 04:
In that case, the court said that the claimant can specifically plead around, it's in control of the allegations and the claims that it asserts in the action.

[00:16:07] Speaker 04:
And it's not for the court to presume what those allegations are.

[00:16:11] Speaker 04:
There may be strategic reasons why a claimant is not asserting claims, for example, to avoid insurance coverage for wrongful conduct.

[00:16:19] Speaker 04:
This case is very similar to Microtech.

[00:16:22] Speaker 04:
And while we're discussing some of the cases, I'll discuss the NGA case that Mr. Gauntlet has cited.

[00:16:28] Speaker 04:
That case is 100% the opposite of what we have here.

[00:16:32] Speaker 04:
The district court and NGA found the potential for coverage because it specifically noted the complaint alleged that NGA stole, copied, misappropriated, and used Mattel's advertising and marketing plans and strategies.

[00:16:44] Speaker 04:
That's not what we have here.

[00:16:46] Speaker 04:
A RAM keeps citing to proprietary information that's alleged in the DICON complaint.

[00:16:51] Speaker 04:
But as the district court noted, every time the phrase proprietary appears in the underlying complaint, it's in the context of one of two, excuse me, two phrases.

[00:17:01] Speaker 04:
The five or six times that it appears in the underlying complaint, it always refers to proprietary confidential and trade secret information or proprietary and trade secret information.

[00:17:10] Speaker 04:
Those are the two phrases that use proprietary.

[00:17:14] Speaker 04:
That can't be advertising.

[00:17:15] Speaker 04:
And as Judge Bennett noted, advertising's not referenced in the Diakon complaint.

[00:17:21] Speaker 04:
The substance of the website's not referenced in the Diakon complaint.

[00:17:24] Speaker 04:
The only time the website is mentioned is to tie Aram to a predecessor company.

[00:17:29] Speaker 04:
There's simply no allegation of advertising injury here.

[00:17:35] Speaker 04:
And as USLA points out in its moving papers, based on the claims asserted in the complaint, they can't be.

[00:17:40] Speaker 04:
We have claims for misappropriation of trade secrets, unfair competition,

[00:17:45] Speaker 04:
intentional interference with perspective of economic advantage, none of which can fit an advertising claim and all of which imply intentional conduct.

[00:17:55] Speaker 02:
Well, once you get the deposition that talks about copying this website, and that's advertising, why don't you have an advertising injury that supports unfair competition or supports one of these other claims?

[00:18:11] Speaker 02:
It seems like there could be potential coverage

[00:18:14] Speaker 02:
based on this advertising or copyright type injury to support a claim that is in the complaint.

[00:18:21] Speaker 02:
So I guess I'd like you to address that, but then also, can you respond about how it works to think about this not knowing exclusion, because that's where I think you might have a better argument.

[00:18:32] Speaker 04:
Right, and so let me address that first, because I have some thoughts on that.

[00:18:36] Speaker 04:
So as we pointed out in our papers,

[00:18:40] Speaker 04:
All of the claims that are asserted in the underlying complaint are premised in intentional conduct.

[00:18:44] Speaker 04:
It's an element of the claims asserted.

[00:18:45] Speaker 04:
The complaint is complete, replete with references to intentional conduct.

[00:18:50] Speaker 04:
And we're not asking, we didn't, in our motion for summary judgment, we didn't ask the district court to rule on the merits of the underlying claim.

[00:18:56] Speaker 04:
We just asked it to look at what was alleged.

[00:19:00] Speaker 04:
Because the court can't find a potential for coverage as to claims which, if proven, would be excluded under the knowing violation exclusion.

[00:19:09] Speaker 02:
And the cases that opposing counsel cited, you disagree with the idea that we only look at how the elements of the claims.

[00:19:18] Speaker 02:
I mean, I guess you're saying if these are the claims instead of copyright, they do have knowing is the point.

[00:19:22] Speaker 04:
Right.

[00:19:23] Speaker 04:
And kind of the classic situation where you see there may be a duty to defend is where there's a corresponding negligence claim that's also asserted, where there may be a factual question about whether the conduct was intentional or whether it was merely negligent.

[00:19:36] Speaker 04:
But based on the causes of action that are alleged here, we don't have that potential.

[00:19:39] Speaker 04:
There is no negligence cause of action.

[00:19:41] Speaker 04:
There's no alternative basis.

[00:19:43] Speaker 04:
All of the actions that ARM is alleged to have undertaken that support the claims asserted in the underlying complaint are based on intentional and wanton conduct.

[00:19:57] Speaker 02:
So what if they could, let's just hypothetically say they amended to, that there was a copyright claim based on this conduct that is in the deposition.

[00:20:06] Speaker 02:
Do you think that then would trigger coverage or would it not because the underlying conduct of the copyright would be intentional?

[00:20:13] Speaker 04:
Well, we would have to look at the amended complaint to see how it was put and undertake a fresh analysis.

[00:20:17] Speaker 04:
But as I said before, that wouldn't create a retroactive analysis to the original complaint and maybe

[00:20:23] Speaker 04:
maybe we're back here in a year or two if there is an amended complaint and we still have a disagreement, but that's a new analysis.

[00:20:30] Speaker 01:
But to add on to Judge Friedland's question, even in that circumstance, if the allegations were founded upon, for example, intentionally acting and copying with knowledge that it's someone else's,

[00:20:47] Speaker 01:
that in your view then, if that were the hypothetical allegation, it would be excluded by the intentional acts exclusion.

[00:20:57] Speaker 04:
Yes, I think that's right.

[00:20:58] Speaker 04:
I'm sorry.

[00:20:59] Speaker 04:
I think that's right, because if the condom that's being alleged is what's proven, it would be excluded.

[00:21:05] Speaker 04:
You can't create a potential for coverage based on something that would be excluded if proven.

[00:21:19] Speaker 04:
I know I have some time remaining, but unless the court has specific questions, I don't know that I have anything else to argue.

[00:21:26] Speaker 03:
Yeah, I have no question, but just free lunch has been.

[00:21:32] Speaker 01:
No, thank you for asking Judge Cool.

[00:21:35] Speaker 03:
Okay, then.

[00:21:36] Speaker 03:
Appellate will submit.

[00:21:38] Speaker 03:
Thank you.

[00:21:39] Speaker 03:
This case will be submitted.

[00:21:41] Speaker 03:
The parties will hear from us.

[00:21:45] Speaker 03:
We didn't have

[00:21:47] Speaker 03:
Sorry, I said that.

[00:21:50] Speaker 03:
Let's go back to the appellants case.

[00:22:00] Speaker 01:
I think your mic is off, counsel.

[00:22:03] Speaker 00:
Right now, there are facts that evidence copyright infringement, which is not an intentional tort, that could have been established.

[00:22:13] Speaker 00:
So liability for infringing copyright in your advertisement is evident.

[00:22:17] Speaker 00:
Once that's in play, that's it.

[00:22:20] Speaker 00:
We're done.

[00:22:20] Speaker 00:
You don't get to see inter until there's indemnity.

[00:22:24] Speaker 00:
And there's a case from Judge Snyder, a thoughtful district court judge,

[00:22:28] Speaker 00:
KM Strategic Manufacturing LLC be American Casualty of Reading that's in the materials, and I urge the court to look carefully at the reply brief in this respect, and ensure it does not meet the burden of establishing an exclusions application talking about knowing violations

[00:22:47] Speaker 00:
by pointing to unproven and disputed allegations, and the very complaint is called upon to defend.

[00:22:53] Speaker 00:
If there's a fact dispute under a line, A-L-I-G-N, we win, a defense arises.

[00:22:59] Speaker 00:
You also don't get to look at grounds for denial that are not implicated by the exclusion per waller fee, truck, and insurance exchange before considering exclusions.

[00:23:10] Speaker 00:
The court must examine the coverage provision to determine whether a claim falls within the policy terms, so if you've found

[00:23:17] Speaker 00:
potential coverage for copyright infringement from a combination of in fact allegations in the complaint, which include breach of fiduciary duty and unfair competition the court utterly ignored in the opinion, find that they raise potential coverage either for a misuse of an advertising idea under offence F or infringing copyright in offence G.

[00:23:38] Speaker 00:
You have to establish that an exclusion eviscerates any possibility of coverage as to those offenses.

[00:23:45] Speaker 00:
If you do not, there's still a duty to defend.

[00:23:48] Speaker 00:
And there is no, no intentional acts of exclusion in this policy.

[00:23:53] Speaker 00:
And so asserting it and treating the knowing violation as if it was inconsistent.

[00:23:58] Speaker 00:
In CGS, the court stated, and that's the Second Circuit case, despite the Boyle-Claude allegations of willful misconduct, 5-4's Lanham Act actions for a 43A claim do not require it to prove that CGS intended to infringe on its trademark as such a claim

[00:24:19] Speaker 00:
does not require proof of intent to deceive.

[00:24:22] Speaker 00:
Our inquiry ends here, as at least one of the claims in the underlying action did not require intent based on implication of knowing falsity.

[00:24:34] Speaker 00:
Charter was required to defend the entire action.

[00:24:38] Speaker 00:
This is a very nuanced area of law.

[00:24:40] Speaker 00:
Offense-based policy analysis has troubled courts for years.

[00:24:45] Speaker 00:
As the Third Circuit Chief Judge stated, you really have to look very carefully at the interaction of all these elements.

[00:24:52] Speaker 00:
I urge you to look very carefully at the reply brief.

[00:24:55] Speaker 00:
And what you're going to find is the district judge and counsel didn't understand the nature of this coverage.

[00:25:02] Speaker 00:
They attacked issues in a way that are not germane or not good law in California.

[00:25:08] Speaker 00:
And I therefore believe that defense was owed and that the extrinsic evidence is key to analyze in this context.

[00:25:21] Speaker 03:
Okay, counsel, thank you.

[00:25:23] Speaker 03:
I think your time is... It is up, Your Honor.

[00:25:25] Speaker 00:
That's correct.

[00:25:27] Speaker 03:
Okay.

[00:25:28] Speaker 03:
We will therefore...

[00:25:30] Speaker 03:
in this case now submitted and the parties will hear from us in due course.

[00:25:37] Speaker 03:
Again, I want to thank both council on both sides for their excellent arguments and also for being willing to show up for remote arguments at this time.

[00:25:56] Speaker 03:
when there's been so much devastation in your communities.