FILED
NOT FOR PUBLICATION
AUG 22 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEDA RASCHKOVSKY, an individual; No. 16-55093
RICARDO RASCHKOVSKY, an
individual, D.C. No.
2:15-cv-00216-RGK-JPR
Plaintiffs-Appellants,
v. MEMORANDUM*
ALLSTATE INSURANCE COMPANY,
an Illinois Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted August 8, 2017
Pasadena, California
Before: CALLAHAN and OWENS, Circuit Judges, and FABER,** District Judge.
Neda and Ricardo Raschkovsky (collectively, “the Raschkovskys”) appeal
the district court’s grant of summary judgment to Allstate Insurance Company
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Faber, United States District Judge for the
Southern District of West Virginia, sitting by designation.
(“Allstate”) on their breach-of-contract and bad-faith claims. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we reverse and remand.1
The district court abused its discretion when determining what evidence to
consider during the summary-judgment stage. The Raschkovskys’ experts’
opinions regarding the nature of the leak should not have been excluded. These
opinions are sufficiently reliable because they are based on “the knowledge and
experience of the [experts’] discipline[s].” Pyramid Techs. Inc. v. Hartford Cas.
Ins. Co., 752 F.3d 807, 816 (9th Cir. 2014) (citation omitted); see also Living
Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 368 n.14 (9th Cir.
2005). While the opinions do not address every fact raised by Allstate’s experts,
this deficiency goes to weight, not admissibility. See Primiano v. Cook, 598 F.3d
558, 564 (9th Cir. 2010) (“Shaky but admissible evidence is to be attacked by cross
examination, contrary evidence, and attention to the burden of proof, not
exclusion.”). Additionally, Neda Raschkovsky’s declaration should not have been
excluded because there was not a “clear and unambiguous” inconsistency between
it and her earlier sworn testimony. Van Asdale v. Int’l Game Tech., 577 F.3d 989,
998–99 (9th Cir. 2009). The plumber’s statement about not seeing mold also
1
The facts are familiar to the parties and are restated here only as
necessary to resolve the legal issues of the appeal.
2
should not have been excluded, as it does not contradict other sworn statements
that he made. See Leslie v. Grupo ICA, 198 F.3d 1152, 1157–59 (9th Cir. 1999)
(declaring that a witness’s testimony can be rejected only if it contradicts other
sworn statements made by that witness, not merely because it is inconsistent with
other evidence).
When the improperly excluded evidence is considered, it is sufficient to
raise a genuine issue of material fact as to whether the leak in question was
“sudden and accidental,” and whether any of the insurance policy’s exclusions are
applicable. Accordingly, summary judgment should not have been granted on the
Raschkovskys’ breach-of-contract claim. See Aydin Corp. v. First State Ins. Co.,
959 P.2d 1213, 1215 (Cal. 1998).
Summary judgment also should not have been granted on the Raschkovskys’
bad-faith claim. As noted above, a genuine issue of material fact exists as to
whether Allstate breached the terms of the parties’ contract. Furthermore, the
Raschkovskys’ evidence is sufficient to raise a genuine issue of material fact as to
whether Allstate acted “unreasonably or without proper cause.” Bosetti v. U.S. Life
Ins. Co. in the City of N.Y., 96 Cal. Rptr. 3d 744, 769 n.20 (Ct. App. 2009)
(emphasis omitted). Viewing the Raschkovskys’ evidence in the light most
favorable to them, see, e.g., T.W. Electrical Service, Inc. v. Pacific Electrical
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Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987), a reasonable jury could find
that Allstate “was not pursing the adjustment of th[e Raschkovskys’] claim with
any degree of diligence,” Fleming v. Safeco Insurance Co. of America, Inc., 206
Cal. Rptr. 313, 315 (Ct. App. 1984), and that Allstate did not “thoroughly
investigate the circumstances to determine” if the Raschkovskys’ claim was
covered, Mariscal v. Old Republic Life Insurance Co., 50 Cal. Rptr. 2d 224, 227
(Ct. App. 1996). Contrary to Allstate’s claim otherwise, this is sufficient for the
Raschkovsky’s bad-faith claim to survive summary judgment.
Because the district court did not address the Raschkovskys’ punitive-
damages request, we leave it to the district court, on remand, to determine in the
first instance whether the Raschkovskys have presented clear and convincing
evidence that Allstate’s conduct was “oppressive, fraudulent, or malicious,” and,
thus, are deserving of punitive damages. Amadeo v. Principal Mut. Life Ins. Co.,
290 F.3d 1152, 1164 (9th Cir. 2002) (citation omitted).
REVERSED and REMANDED.
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