Broberg

The Guardian Life Insurance Company of America (Guardian Life) allegedly sold Dr. David C. Powell a whole life insurance policy in 1993 by falsely promising through its agent John A. Davidson that earnings from the policy would be sufficient to pay the premium costs after the 11th year and by providing misleading marketing materials that similarly represented out-of-pocket premium costs would be eliminated in the 12th year of the policy’s life — sometimes referred to as a “vanishing premium” policy. In a complaint for fraud, negligent misrepresentation and related *916 statutory violations, Dr. Powell and Kirk Broberg as trustees of the Powell Irrevocable Trust (Powell) alleged they did not discover they had been deceived until Guardian Life billed them for additional out-of-pocket premium payments in September 2004. Notwithstanding these allegations, the trial court sustained without leave to amend Guardian Life’s and Davidson’s demurrers to the first amended complaint, concluding the claims accrued when Powell purchased the policy in 1993 and were time-barred. The court also found, as a matter of law, Powell would be unable to establish justifiable reliance on the…

Dissenting. — The majority determination that the trial court properly sustained the demurrer to David C. Powell’s CLRA (Consumers Legal Remedies Act; Civ. Code, § 1750 et seq.) claim, in light of California Supreme Court precedent Civil Service Employees Ins. Co. v. Superior Court (1978) 22 Cal.3d 362, 376 [ 149 Cal.Rptr. 360 , 584 P.2d 497 ], is correct in my view. I concur in the analysis.

Nonetheless, I respectfully disagree with the majority’s conclusion that the trial court erred in sustaining the demurrer to the other causes of action. As I shall explain, in my view the trial court correctly concluded Powell’s claims *926 were barred by the statutes of limitation because the disclaimers in the illustration and the policy language were sufficient, as a matter of law, to give Powell actual, if not at least inquiry, notice that the cash values were not “guaranteed” as of August 1993 and that the complaint failed to establish the element of justifiable reliance.

Preliminarily, however, I note my agreement with the opinion’s analysis on a number of other points. First, I agree with the description of when the various statutes of limitation begin to run and of the delayed…

The Guardian Life Insurance Company of America (Guardian Life) allegedly sold Dr. David C. Powell a whole life insurance policy in 1993 by falsely promising through its agent John A. Davidson that earnings from the policy would be sufficient to pay the premium costs after the 11th year and by providing misleading marketing materials that similarly represented out-of-pocket premium costs would be eliminated in the 12th year of the policy's life—sometimes referred to as a "vanishing premium" policy. In a complaint for fraud, negligent misrepresentation and related statutory violations, Dr. Powell and Kirk Broberg as trustees of the Powell Irrevocable Trust (Powell) alleged they did not discover they had been deceived until Guardian Life billed them for additional out-of-pocket premium payments in September 2004. Notwithstanding these allegations, the trial court sustained without leave to amend Guardian Life's and Davidson's demurrers to the first amended complaint, concluding the claims accrued when Powell purchased the policy in 1993 and were time-barred. The court also found, as a matter of law, Powell would be unable to establish justifiable reliance on the…