Moreno

MEMORANDUM **

Walter Harvey appeals the district court’s decisions to: (1) grant in part Scottsdale Insurance Company’s motion to strike affidavits submitted by Joseph Countryman; (2) grant Scottsdale’s motion for summary judgment; and (3) deny Harvey’s motion for summary judgment. We reverse the decisions to strike Countryman’s affidavits and grant summary judgment on Scottsdale’s motion, and remand the remaining issues to the district court.

The district court’s decision to strike portions of Countryman’s affidavits is an evidentiary decision made in the context of a summary judgment motion, and thus is reviewed for an abuse of discretion. Wong v. Regents of Univ. of Cal., 379 F.3d 1097, 1103 (9th Cir.2004). The district court’s decisions to grant Scottsdale’s motion for summary judgment and deny Harvey’s motion for summary judgment, however, are reviewed de novo. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc).

A party cannot create a material issue of fact on a motion for summary judgment by offering an affidavit that “flatly contradicts” the affiant’s prior testimony. Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266-67 (9th Cir.1991); Radobenko v. Automated…