Monday, October 26, 2009

Fourth District Orders Publication of Opinion in Kaldenbach v. Mutual of Omaha Life Insurance Co.

On October 26, 2009, the Fourth District (Division Three) ordered its opinion upholding denial of certification in Kaldenbach v. Mutual of Omaha Life Insurance Co., __ Cal.App.4th___ (2009) be published.  This decision was previously discussed here.

In this case, the plaintiff asserted claims under the UCL and CLRA predicated upon the sale of alleged “vanishing premium” life insurance policies. With regard to the UCL claim, the plaintiff asserted that reversal was required under Tobacco II because the trial court improperly premised its order denying certification on each class member having to establish reliance and injury.  However, the Court disagreed, concluding that even if the trial court improperly premised its order denying class certification on such grounds, the trial court’s denial was also based on its finding that individualized inquiry would be required to establish defendant's liability:
There were myriad other individualized issues the court found to predominate including whether any given agent took Mutual’s training, read its manuals, and routinely followed the training and materials; and what materials, disclosures, representations, and explanations were given to any given purchaser. These individualized issues go not to the injury suffered by a purchaser, but to whether there was in fact an unfair business practice by Mutual. Neither In re Tobacco II Cases, supra, 46 Cal.4th 298, nor Massachusetts Mutual, supra, 97 Cal.App.4th 1282, compel a different result.
See Kaldenbach, at 21.

As reasoned by the Court, this justification supported the trial court’s denial of certification, as “there was no evidence linking those common tools to what was actually said or demonstrated in any individual sales transaction[,]” but rather, “[t]he record demonstrates Mutual’s training materials and methods were not uniform throughout the class period of 1988 through 1995.” See id., at 18, 22-23.

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