Massachusetts Mutual Life Ins. Co. v. Superior Court (Karges) (2002)

MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; WILLIAM A. KARGES, JR., et al., Real Parties in Interest.

[Modification fn. * of opinion ( 97 Cal.App.4th 1282) on denial of petition for rehearing.]

THE COURT.-

Petitioner seeks modification of the court's opinion by way of a pleading styled as a petition for rehearing. Otherwise than as indicated below, the petition is denied.

The opinion filed April 29, 2002, is modified as follows:

On page 2, the second paragraph under Summary, last sentence [97 Cal. App. 4th 1286, advance report, 2d par., last sentence] beginning with "Mass Mutual" is deleted and replaced with the following sentence:

"Mass Mutual offered its customers what it called an N-Pay premium payment plan."

On page 4, the last paragraph preceding Discussion II [97 Cal. App. 4th 1286, advance report, 3d par.], after the citation beginning with "(Ibid." add two spaces and insert the following text and citation:

"In its order granting certification the trial court made no specific findings and no request for findings appears in the record. Thus we may also resort to the familiar rule that permits us to imply any findings which are necessary to support the trial court's order, so long as any such implied findings are themselves supported by substantial evidence. (See In re Marriage of Cohn (1998) 65 Cal. App. 4th 923, 928.)"

On page 9, the paragraph beginning with "Given the wide variety" first sentence succeeding footnote 4 reference [97 Cal. App. 4th 1291, advance report, line 8] "Here the plaintiffs" replace the word "proof" with "evidence" so that the text reads: [98 Cal. App. 4th 933e]

"Here the plaintiffs have presented evidence Mass Mutual withheld from its"

On page 10, the paragraph beginning with "In this regard the record" [97 Cal. App. 4th 1291, advance report, 1st par.] delete the phrase "In this regard" and capitalize the letter T in the word "the" so that the text reads:

"The record here"

On page 10, the paragraph beginning with "The record here" last sentence [97 Cal. App. 4th 1291, advance report, 1st par.] "Unlike the record in" replace the word "premiums" with the word "dividends" so that the sentence reads:

"Unlike the record in South Bay, here there is not yet any factual finding members of the class were aware of Mass Mutual's assessment of its discretionary dividends and its determination to lower them."

On page 11, the paragraph preceding Discussion III [97 Cal. App. 4th 1292, advance report, 1st par.] beginning with "Given the evidence" first sentence is replaced with the following sentence:

"Similarly, evidence Mass Mutual made annual dividend decisions based on advice it received from its actuaries and evidence that prospective purchasers received differing representations from Mass Mutual's agents will not satisfy the requirements of the UCL."

On page 13, the paragraph beginning with "Like the circumstances discussed" last word of the second sentence [97 Cal. App. 4th 1293, advance report, 3d par., line 5] "policy" is replaced with the words "premium payment plan" so that the text reads:

"N Pay premium payment plan."

On page 16, the paragraph beginning with "Here, unlike the situation" the last word of the first sentence [97 Cal. App. 4th 1295, advance report, 1st par., line 3] "policies" is replaced with the words "premium payment plans" so that the text reads:

"N-Pay premium payment plans."

On page 16, the paragraph beginning with "Here, unlike the situation" the word "premiums" in the second sentence [97 Cal. App. 4th 1295, advance report, 1st par., line 5] is replaced with the word "dividends" so that the text reads:

"discretionary dividends was disclosed"

There is no change in the judgment.

FN *. This modification requires the movement of text affecting pages 1287-1292 of the bound volume report.