                                                                             FILED
                            NOT FOR PUBLICATION                               JAN 05 2010

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



GARY KURTZ; STARR TAXMAN,                         No. 08-55781

              Plaintiffs - Appellants,            D.C. No. 2:07-cv-03369-MMM-
                                                  FMO
  v.

ALLSTATE INSURANCE COMPANY,                       MEMORANDUM *

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                   Margaret M. Morrow, District Judge, Presiding

                      Argued and Submitted November 2, 2009
                               Pasadena, California

Before: SCHROEDER, SILER,** and IKUTA, Circuit Judges.


       The district court erred in ruling that the spreadsheets included in the Kurtz

declaration were inadmissible under Rule 1006 of the Federal Rules of Evidence.

The spreadsheets did not seek to prove the “contents” of underlying receipts but

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Eugene E. Siler, Jr., Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.
rather to establish the fact of damages; therefore, Rule 1002, to which Rule 1006

operates as an exception, was not applicable. See United States v. Bennett, 363

F.3d 947, 953 (9th Cir. 2004) (citing Fed. R. Evid. 1002 Advisory Committee’s

note); see also United States v. Gonzales-Benitez, 537 F.2d 1051, 1053–54 (9th

Cir. 1976). Furthermore, because Kurtz had first-hand knowledge of the

expenditures and actions to which he testified, his declaration was sufficient to

demonstrate such expenditures and the submission of claims to Allstate for

purposes of summary judgment, even though his declaration was uncorroborated.

United States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999). In addition,

the district court erred in determining that the parties’ statement of undisputed facts

constituted an admission that they had resolved all claims relating to personal

property losses associated with the water damage. Taking the facts in the light

most favorable to Kurtz, the statement of undisputed facts indicated that most but

not all such claims had been resolved. Because the spreadsheets and Kurtz

declaration were admissible, and the personal property losses had not been fully

resolved, Kurtz created a genuine issue of material fact with respect to damage

caused by submitted and unpaid claims related to structural repairs, personal

property loss, and additional living expenses.

       The district court also erred in determining that Kurtz had failed to create a

genuine issue of material fact with respect to Allstate’s failure to fulfill its
contractual obligations relating to damage allegedly caused by IRSCO. Viewing

the evidence in the light most favorable to Kurtz, Allstate hired IRSCO as an agent

pursuant to the insurance policy’s “right of repair” provision. Under these

circumstances, IRSCO’s negligence in connection with the fire-related structural

repairs and personal property loss may constitute a breach of the insurance

agreement, and Allstate may be held liable for such a breach.

      Finally, the district court based its conclusion that Kurtz had failed to create

a genuine issue of material fact with respect to Allstate’s alleged breach of the

covenant of good faith and fair dealing on its erroneous holding that there was no

material evidence that a breach of the insurance contract had occurred. The grant

of summary judgment on these claims was thus also erroneous.

      REVERSED AND REMANDED.
