                                                                            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                           NOT FOR PUBLICATION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


                                           3
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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