Campanelli

dissenting.

OSCANNLAIN, Judge.

“In order to establish intentional fraud under California law, appellants must *161 prove (1) a false representation or concealment of fact; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) damages.” 1 Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1016 (9th Cir.2000). Concealment, then, goes only to the first element of the claim, 2 id., and is not relevant to the distinct and required element of damage. This is because damage may only be established at the time payment was due. See Cal. Ins.Code § 2051 (stating that the “measure of indemnity” in this context is “the expense to the insured of replacing the thing lost or injured in its condition at the time of the injury, such expense being computed at the time of the commencement of the [accident].” (emphasis added)). In other words, whether or not an underpayment was fraudulently concealed, the fact of the underpayment must still be demonstrated.

In this case, even if the engineering reports were fraudulent, and even if Allstate concealed this fact, the appellants would still have to prove damage, i.e., that their 1994…

MEMORANDUM **

The district court erred in concluding that there were no genuine issues of material fact presented below. Fed.R.Civ.P. 56(c). The declarations of Jeffrey Sjobring and Charles Randle raise triable issues of fact as to the amount of damage to plaintiffs’ homes and the corresponding costs of repairing those damages. Viewed in the light most favorable to plaintiffs Rosenblatt and Ecung, the Sjobring and Randle declarations show that plaintiffs’ homes suffered damage for which they were undercompensated. The reasons given by the district court for disregarding the declarations go to their weight, not their admissibility. For example, the district court rejected Sjobring’s repair estimate because it was calculated using a 2002 cost-estimating guide. However, it is plaintiffs’ theory of the case that the damage sustained in 1994 was fraudulently concealed and not discovered until many years later. Whatever uncertainty was caused by plaintiffs’ delay in obtaining a damages estimate must redound to the detriment of defendants for having caused the concealment. Taking the plaintiffs’ allegations in the light most favorable to them, it remains to be seen whether it was…