that deals with insureds duty after a property damage loss on september twenty sixth two thousand and thirteen another a spouse who is a dentist by trade not to any construction business comes home and discovers of there is a water event that took place she in subsequent deposition she describes as she feels of the floor squishy and she thinks there is something wrong four days later she calls allstate insurance and reports the loss during that conversation she describes to the best of her ability what occurred now at this point it's important to point out that under th feels water she reported the loss of allstate insurance in response does absolutely nothing it doesn't send anybody out of doesn't investigate this response he says she intends to call the plumber and also tells her well after you do let us invest to investigate the loss and i believe that duty cannot be delegated to the church and respectful it only makes sense and when you have a balancing the needs to take place on one hand you have a very unsophisticated insure who like most people has never read her policy shell if she does is pick up the phone and holler there is no there is normally why minima she doesn't have to call the plumber she doesn't have to expend money under the contract it's almost like a binary formula if you have a loss and you reported to the curia the duties shifts to the carrier just to go forward with it so what she does is she reports the loss then she calls the plumber and she describes what the plumber describes and she punitive damage claims on i believe the person's name is touma to most statement to i'm just going to say the first names nida that need to had to ascertain the cause of the loss before we're this was a summary judgment right wrecked so you presented some expert opinions which i believe the court disallowed or so besides your expert's opinion is what is your best number one wasn't there the day before when she and then she this is an entryway into her house it's a three level house she enters from the second floor she goes through there all the time if there is no water there is no water this is the only thing she can needs to do to show that this is a sudden and accidental discharge there's two cases that are primary on this subject one of one is the brown case another one is the a c l technologies cases the both cases are easily distinguish e from this case and brown case there is an agreement that the leak has been going on for months an a c l deals with temporal issues of sudden and accidental is being too does jointed but here not only that we have to pursue putin wit sherman as well right well howard's expert report is this somewhat short and seems to provide little reason for his conclusion that the leak in question did not exist for a long period of time and the district court rejected it correct so why wasn't the district court justified in rejecting it based on that analysis or was that just a court weighing the evidence well we believe th to determine this is not a long term lease allstate does not have the benefit allstate is using photographs without reference how they were taken what kind of lighting things like that and even in those during the existence of a house a water event took place without going further ok but what about the recent one was of a sudden an accidental and these are common sense things these are not things that even require expertise what declarations of mr sherman and mr howard based on the fact that they don't address a particular point in that all state expert declaration but all states experts version didn't really quite to be addressed because it's an opposite the fact that there is and the plaintiff expert to explain what their meaning by this so in that particular subject we believe that the court went too far i have it having said this then we kind of go through the steps and with our position is that also you should be enjoined actually for him in making the arguments they're making for a very basic reason they did not investigate the loss there they the experts that are being relied on came on the opportunity it does not negate the finding the mistress knows he did not need the primary goal of demonstrating that the loss occurred within the policy provisions and we respectfully submit that that is not the case she said  may please court morning good morning gregory michael mcgregor appearing on behalf of all state the happily a lot in this case depends on which foot you get started on this  policy i would say it's unique it's unusual but it's agreed that this is what the policy says it requires for a loss to be covered that it be a sudden an accidental event many of the cases that discuss sudden accidental including the whole raft of environmental cases have a provision that covers and then there is a an exclusion that is triggered and then an exception to the exclusion of a classic swearing match between experts and mr mcgregor isn't that  how i don't see how we can't send it back well your honor then i don't see how the court i'm struggling with how the court could have done that without wayne the quality of those witnesses what what the judge decided what i believe are what i don't  but you can't go on summary judgment i don't believe he was weighing credibility what i think and i think he took pains to do this if you look at his order he separated out each piece of evidence that was proffered by the plaintiff and the experts and evaluated it in terms of whether or not it was sufficient evidence to establish the threshold issue in order to get in the policy which is a sudden an accidental loss and he looked at just as he is required as the gatekeeper counsel made some reference to gatekeeper as if that's that's not what he is that's exactly what what evidence will seven o two requires him to do be a gatekeeper especially with respect to expert reports the expert report must be based on and understand the whole methodology it must be based on science that's provable data that's provable and what what the judge did in this order you can look at it storing it how did howard see it before you did see the last see that yes you know the scene of the crime as it were before allstate then yes i believe so ok and what wasn't said here because i don't and i think that the judge also agreed this wasn't relevant at this stage was that when the claim was reported all state it was also reported that a plumber had been there and said the plumber says he doesn't know what happened until he opens the wall and allstate said well if you open the wall call us and then we'll come out by the time the wall was opened and the call was made this is all in the record the undisputed facts remediation had been begun by bob by the insured and he could and the inspector couldn't access the last to see so he went by the photographs many of which were taken by mr howard that you didn't send anyone out to investigate because the wall wasn't open well under california law can sure  says i have a plumber the plumbers looked at it and he said he can't tell nobody can tell what happened until he opens the wall so what that's point is perfectly appropriate it is done all the time the standard in the industry is to allow the wall to be opened and then you get a call you get notification keep us posted that's what it says in the in the in the document in the claim file and will come out what happened was they had arranged to come out they got a call to the plumbers but out here they made an appointment then they were called by mrs busk offkey also on the record and she said i need you to wait a week before you come out they waited a week and when they got there the containment was up the remediation was underway and they could not access the part of the of the pipe which we now learned was faulty which is called a shower arm which is the the part that comes through the wall the reason this is the way the case and the proceeds and the whole discussion about bad faith and and punitive damages is premature is because the trial judge correctly understood that in order to get anywhere with this case you need to have a claim that falls within the four corners of the policy and in order to do that the only kind of loss that is covered under this policy is a sudden and accidental loss which howard says was just a part was a roni a sin excluding that then you're there well i think you have to go further than that you have to find that not only was the judge eroni us in drawing that conclusion but that he abused his discretion meaning in the words of the boy the case from this this is not this panel but this ninth circuit court an abuse of discretion will be found only if the appellate court is firmly convinced that the review decision lies beyond the pale of reasonable justification under the circumstances and that has held that abuse of discretion is a very high barrier and there is nothing in opinion written this ten page opinion that goes through every piece of evidence that was proffered that can be considered an abuse of discretion the judge says he's the gate can't read more like a bench trial though that's the problem it was a summary judgment motion i know but it's not a summary judgment having been a law in motion judge there are a lot of cases that come in front of you and you might say well hey this dog don't hunt and but that doesn't mean there's not a triable issues here and it when you read it it reads more like well there was this there was that i'm taking this now this and therefore i come to the conclusion that summary judgment was appropriate ok i understand that you see it that way i  believe that if you carefully review the opinion that was written by the district judge he obviously he knows how he's going to be reviewed he's been around a very long time he knows how he's going to be reviewed and he knows expert opinions and demands that expert testimony relate to scientific technical or other special specialized knowledge and does not include unsubstantiated speculation and subjective beliefs now the court's determination that mr sherman's report like mr howard's report was full of speculation after all mr howard said well it couldn't have been going on for very long because somebody would have noticed well that's not very scientific according to the trial judge and he pointed that out and under seven o two he is in a position to manage and control what expert testimony gets before the jury and in each of these cases when he analyzes the sherman report and he analyzes that howard report in the also had before him the daily report and the quoting byrd report submitted by all state which are in the words of the court meticulously prepared analyses of what happened here what he would was not that he didn't believe howard or sherman but that howard or sherman did not meet the threshold requirement under seven zero two to establish that there was a sudden in an accidental loss another words that the policy was even trigger therefore you don't get the bad faith you don't get to breach of contract you don't get to whether or not allstate move quickly enough this is about the plaintiff's burden and the judge who's and they chose to make their burden by relying on expert reports and the judge went through the expert reports and determined they were based on speculate they were internally inconsistent they were inconsistent with the stat was fact for example that the shower arm which was where the leak was is not under constant press report and decision from the trial judge and i don't think you can find anything in here that you can point to and say this is an abuse of discretion this is a judge who was  justification for his report it's all in the report and that's what we have to go by so the notion of anything else about the case where the claim is premature and tilt this court sends it back to judge clausen and says you abused your discretion and you sort of let in some of these reports i believe and i've defended many cases of this kind in many decisions and before this court that this is an unusually well thought out and written opinion that was written by a judge who knew that the three of you would be here to decide whether or not he was abusing his discretion that's all i can tell you if it goes back it goes back but i feel that this determination that they never got within the policy is not trying the case it is weighing the sufficiency of the offering that was made by the plaintiff who had the burden below the appellant here and i believe this with his decision was the correct decision the water goes through the legal curves but at the same time that explains multiple evidence of water permeation every single time somebody shows up just turns on the shower there is a spray abus discretion standard on the court's decision if you turn to page belief seven and i just wanted to read from line decision now does deposition testimony however belies her declaration contrary to not as a declaration the she observed a sudden accidental escape of water her deposition testimony mr macgregor indicated that the standard in the industry is essentially not to investigate the laws just because it's this is what insurance companies do regularly doesn't mean it's right doesn't mean it's in accordance with the california law they chose not to come out they informed the insured of the duty under the policy don't remember if i may i believe that her declaration was excluded because i don't have it in the record so i don't know the answer to that question but the concept is if they don't investigat position that's not what i didn't case requires i mean case required demonstrated the loss occurred when the policy confines and what happened is she should call the insurance company said hey the wasn't water there the day before it came and now there is water if they disagree with her conclusions they need to investigate it not wait for her to do now when you're standing is that they didn't take action in december of tw