Opinion
B189108
4-30-2007
YANZI LIN et al., Plaintiffs and Appellants, v. JOHN HANCOCK VARIABLE LIFE INSURANCE COMPANY, Defendant and Respondent.
Yanzi Lin and Marilyn Chen, in pro. per., for Plaintiffs and Appellants. Barger & Wolen, John C. Holmes and Richard B. Hopkins, II for Defendant and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
Plaintiffs Yanzi Lin (Lin) and Marilyn Chen (Chen) appeal from a summary judgment in favor of defendant John Hancock Variable Life Insurance Company. We agree in part with their challenges to the summary judgment and therefore reverse it, with directions as to how to proceed as to plaintiffs various causes of action.
FACTS
Lin and Chen, his wife, lived in Monterey Park. Lin operated an immigration consultation business in Monterey Park.
In early 2000, Jing Sun (Sun) approached Lin for assistance with her immigration status. During the course of assisting her, Lin and Sun became friends. Sun told him that after coming to the United States, she had become a licensed stockbroker and a life insurance agent. Sun urged Lin to purchase life insurance.
In May or June 2001, Lin called Sun, saying that he had made some money from his consulting business and was ready to do something. In meeting with Sun, he explained that his wife did not need life insurance, in that his retirement pension would cover her if something happened to him. Additionally, their daughter was grown with a graduate degree, so she did not need protection. Lin, who was then 57 years old, was interested in investing for retirement.
Sun recommended a variable life insurance policy from defendant. The policy would have a death benefit of $1 million. Sun said Lin would have to pay annual premiums of $30,000 for five years. She also said that age 70, he could borrow $500,000 against the policy, tax free, and he would not have to repay the loan. Sun did not tell him that the returns were not guaranteed and the policy would lapse if he did not continue paying after five years. She also did not tell him the cost of life insurance at his age or the commission that would be due.
Lin told Sun about his prior experience with MetLife. In 1988, an insurance agent whom he did not know approached him to sell him life insurance. At the time, he had just come to the United States as a student and understood nothing about insurance. The agent scared him by asking what would happen to his wife and daughter if he were in an accident. The agent said the monthly premium was $129.60, but he would only need to pay premiums for seven years. The dividend created from the premiums would be used to pay future premiums. In 1997, realizing that he had been paying premiums for over seven years, Lin had his daughter call MetLife to find out why he still had to pay on the policy. His daughter told him that MetLife said the dividend scale had changed and he had already withdrawn a dividend, so he would have to keep paying until 2001. He did not understand but kept paying.
Chen also spoke to Sun about a variable life insurance policy similar to Lins. Sun recommended a policy with a $14,000 annual premium which she would need to pay for six years only. Chen mentioned Lins experience with Metlife, but Sun assured her that she would need to pay for six years only.
Sun prepared the applications for Lin and Chen, and they signed the applications. When Lin got his policy, he checked to make sure that he would have to pay premiums for five years only. The premium section said that the planned premium was for five years, but after four years he needed to check the schedule for possible additional years of payment. The schedule just stated that he had to pay premiums for five years.
In the fall of 2001, Lin and Chen signed the contracts. They began paying the premiums for defendants policies. On March 28, 2003, Chen and her daughter met with Sun to review the policies. Sun said that Chen and Lin might have to keep paying the policy premium for 20 years or let the policy lapse and lose the money he had put into it—about $45,000. Sun said Lin could surrender the policy and get back $20,000. The following day, however, Sun said Lin could not surrender the policy, in that the charge would be higher than $20,000. Since Lin was close to retirement and would not be able to pay for another 20 years, he and Chen decided to let the policies lapse.
Lin was surprised, angry and distressed, believing that he had been defrauded by Sun and defendant. He tried for a year to get Sun or defendant to resolve the matter, but neither was willing to do anything for him.
The application for the policies contained an "Illustration Explanation" which stated: "How Much Will My Insurance Cost? While premiums are payable for the lifetime of the insured, your illustration may show reduced or discontinued premiums in future years. If actual investment performance is less than illustrated, additional premium may be required to keep the policy in force. John Hancock recommends that you review additional illustrations using various investment returns to understand how actual performance may affect policy values and premium payment schedule."
The section of Lins application setting forth the payment details reads as follows:
"2. Planned Premium
"(Check a or b, or Guaranteed Death Benefit Premium will be billed.)
"a. [x] $30,000____ annually for 5 year(s)[.]
"Additional first year Planned Premium $____."
A separate page in the application states that it "must be completed for all variable products." Section K on the page has a section which states that "[l]iquidity restrictions apply when allocating funds to the Fixed Account." The section contains four questions, for which the "yes" boxes were checked: "1. Have you received a prospectus for the policy applied for? (If YES, Prospectus Date: May 2001 .) [¶] 2. Do you understand that the amount of Death Benefit above any Guaranteed Minimum Death Benefit and the entire amount of the Account Value may increase or decrease depending on investment experience? [¶] 3. Is the policy and allocation of subaccounts in accord with your insurance objectives and your anticipated financial needs? [¶] Have you received an illustration of benefits based on your Planned Premium?" According to Lin, Sun checked the "yes" boxes and did not go over the questions with him.
The "agreement and signatures" page of the application has two provisions that "apply only to variable products." They provide: "All benefits, payments, and values, including the Death Benefit and Account Value, under any policy issued which is based upon the investment experience of a separate investment account may increase or decrease in accordance with investment experience of the separate investment account and are not guaranteed as to fixed dollar amount. The Account Value may even decrease to zero. . . . A prospectus for the policy applied for has been given to the Proposed Insured and/or the Applicant."
The policies themselves stated on the first page: "THE POLICY IS A LEGAL CONTRACT BETWEEN THE OWNER AND THE COMPANY. READ YOUR POLICY CAREFULLY." Page 3 of Lins policy sets forth the premium as follows:
---------------------------------------------------------------------------------------- | "Planned Premium | $30,000 for years 1 thru 4 thereafter according to | | | the schedule indicated in the application | | | | | "Target Premium | $28,090.00 per year | | | | | "5-Year Guaranteed Death | $1,077.50 per month | | Benefit Premium | | | | | | "Age 65 or 10 Years Guaranteed | $2,340.83 per month | | Death Benefit Premium | | | | | | "Age 100 Guaranteed Death | $3,089.17 per month | | Benefit Premium | | | | | | "Billing Interval | QUARTERLY |
"Notice: The actual premiums paid will affect the Account Value, the duration of insurance coverage, and the amount of Death Benefit as described in Section 4. Even if the Planned Premiums shown above are paid as scheduled, they may not be sufficient to continue the policy in force until the death of the insured. . . ."
An illustration attached to each policy states at the top of each page: "This illustration is hypothetical and may not be used to predict or project actual performance." On the bottom of each page, it states: "THIS IS AN ILLUSTRATION ONLY AND IS NOT INTENDED TO PREDICT ACTUAL PERFORMANCE." "Valuable Information About Your Life Insurance Illustration" includes illustrations showing an additional premium required after year 11 assuming a 12 percent rate of return, and maximum administrative charges. The illustrations also showed an additional premium required after eight years, assuming a zero percent rate of return and maximum administrative charges.
The "Valuable Information About Your Life Insurance Illustration" states that the policy "has an investment component which allows you to choose from several portfolios, each with its own investment objective." Further, "Certain aspects of the policy are based on investment performance and will vary depending on a number of factors, including the portfolios you have selected. Investment performance and term insurance premiums may vary from those shown on the attached illustration, and would affect . . . [t]otal outlay over the lifetime of the policy." "If actual performance is less than illustrated, additional premium may be required to keep the policy in force. John Hancock recommends that you review additional illustrations using various investment returns to understand how actual performance may affect the policy values and premium payment schedule."
Lin and Chen each signed a "Policy and Illustration Acknowledgement Receipt." This stated: "I have received my new John Hancock Life Insurance policy. I have carefully reviewed the illustration that accompanied the policy with my Marketing Representative. I understand that some of the values and benefits shown in the illustration are not guaranteed and may change." Lin and Chen did not read their policies or carefully review the illustrations. They simply relied on Suns representations that Lin would have to pay premiums for five years and Chen would have to pay for six years.
DISCUSSION
I
The Trial Courts Ruling on Summary Judgment
Plaintiffs brought this action for fraud, fraudulent concealment, negligent misrepresentations, constructive fraud, breach of fiduciary duty, unsuitability under section 10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10(b)-5 and negligence.
In granting summary judgment in defendants favor, the trial court explained that defendants evidence established as a matter of law that plaintiffs could not show justifiable reliance on Suns alleged misrepresentations. "Specifically, given (i) the written disclosures and warnings John Hancock provided to Plaintiffs, including clear and unambiguous warnings and disclosures contained in the policies, applications and illustrations . . . , and (ii) Plaintiffs previous negative experience with a similar policy issued by a different insurer (in which Plaintiffs believe the insurers agent induced them to buy the policy by misrepresenting the length of time over which premiums would have to be paid contrary to the written terms of that policy) . . . , Plaintiffs cannot establish that they reasonably relied on any oral representations by Jing Sun, which differed so materially from the written warnings, disclosures and provisions John Hancock set forth in the policies and elsewhere. [See Hadland v. NN Investors Life Insurance Co. (1994) 24 Cal.App.4th 1578.] Plaintiffs did not submit any evidence to show that the written warnings and disclosures were not given by John Hancock or received by them, or that those warnings and disclosures were not clear and unambiguous."
As to plaintiffs previous negative experience with the MetLife policy, the trial court found that plaintiffs presented no evidence "tending to show that their previous experience with the other insurers similar policy was not such as to negate the reasonableness of any reliance on any oral representations of Jing Sun concerning the length of time over which premiums would have to be paid on the subject policies."
Based on the findings that plaintiffs presented no evidence supporting a finding of justifiable reliance, and defendant provided plaintiffs with clear and unambiguous warnings and disclosures, the trial court found that plaintiffs could not establish, and defendant had refuted, a necessary element of plaintiffs causes of action for fraud, misrepresentation, constructive fraud, nondisclosure and concealment claims.
The trial court also found that plaintiffs had no cause of action against defendant for breach of fiduciary duty, in that, "as a matter of law, no fiduciary relationship exists between insurer and insured. As such, an insurers agent cannot, while acting on behalf of the insurer within the course and scope of the agency, owe or breach any fiduciary duty based on the acts of its agent. Further, John Hancock cannot be vicariously liable for the conduct of a person who acts in a fiduciary capacity outside the scope of that persons insurance agency with John Hancock."
As to plaintiffs cause of action for unsuitability, the trial court explained that defendant presented evidence that it was not a member of the National Association of Securities Dealers (NASD). Therefore, it did not owe duties to plaintiffs under the NASDs rules concerning suitability. In any event, it fulfilled the duties under the NASD rules by obtaining the appropriate information from plaintiffs to determine their suitability for the policies.
II
Fraud, Misrepresentation, Constructive Fraud and Concealment
A. Whether Plaintiffs Had a Duty to Read the Insurance Policies
Plaintiffs first contend that, as a matter of law, there is no duty to read insurance policies when there is a claim of misrepresentation and concealment. They contend that the claim of misrepresentation and concealment negates the "`"general rule that the receipt of a policy and its acceptance by the insured without an objection binds the insured as well as the insurer and he [or she] cannot thereafter complain that he [or she] did not read it or know its terms. It is the duty of the insured to read his [or her] policy." [Citation.] [Citation.]" (Hadland v. NN Investors Life Ins. Co., supra, 24 Cal.App.4th at p. 1586.) The insured will be "`"bound by clear and conspicuous provisions in the policy,"" even if the insured did not read or understand those provisions. (Ibid.)
Haynes v. Farmers Ins. Exchange (2004) 32 Cal.4th 1198, on which plaintiffs rely, does not stand for the proposition that plaintiffs are absolved of the duty to read their insurance policy if they claim misrepresentation and concealment. In Haynes, the question was whether the plaintiff was bound by an endorsement limiting coverage for a permissive user of an insured automobile to an amount smaller than that provided in the policy for an insured driver. (Id. at p. 1203.)
The court noted that while an insurer may rely on an endorsement to modify the terms of the policy, "`the notice of noncoverage of the policy, in a situation in which the public may reasonably expect coverage, must be conspicuous, plain and clear." (Haynes v. Farmers Ins. Exchange, supra, 32 Cal.4th at p. 1208.) The court acknowledged the general rule that "`an insured has a duty to read his policy" and "`is bound by contract provisions and cannot complain of unfamiliarity." (Id. at p. 1210.) However, "the duty to read `is insufficient to bind a party to unusual or unfair language unless it is brought to the attention of the party and explained." (Ibid.)
The court observed that "[f]or nearly a hundred years we have recognized that `"the rule [presuming parties are familiar with contract terms] should not be strictly applied to insurance policies. It is a matter of almost common knowledge that a very small percentage of policy-holders are actually cognizant of the provisions of their policies . . . . The insured usually confides implicitly in the agent securing the insurance, and it is only just and equitable that the company should be required to call specifically to the attention of the policy-holder such provisions as the one before us." [Citation.]" (Haynes v. Farmers Ins. Exchange, supra, 32 Cal.4th at pp. 1210-1211.) The court concluded that because the limitation of coverage in the endorsement was not conspicuous, plain or clear, the insurer could not rely on it. (Id. at p. 1215.)
In sum, the plaintiff in Haynes was not absolved of the duty to read the insurance policy based on a claim of misrepresentation and concealment. The court rather held that the plaintiffs duty to read the insurance policy was not sufficient to bind the plaintiff to a limitation of coverage that was not conspicuous, plain or clear.
Balistreri v. Nevada Livestock Production Credit Assn. (1989) 214 Cal.App.3d 635 held that the general rule that a party is bound by a contract he or she executes, even if he or she did not read the contract, did not apply where the party "reasonably relied upon mistaken representations by [the other party] concerning the subject matter of the contract." (Id. at p. 642.) Rather, rescission or reformation would be permitted based on mutual mistake. (Id. at p. 643.) There is no claim of mutual mistake as to the subject matter of the insurance policy in the instant case.
In Clement v. Smith (1993) 16 Cal.App.4th 39, the court declined to hold, as a matter of law, that an insured could never rely on an agents representations as to coverage. It stated that "[a]bsent some notice or warning, an insured should be able to rely on an agents representations of coverage without independently verifying the accuracy of those representations by examining the relevant policy provisions. This is particularly true in view of the understandable reluctance of an insured to commence a study of the policy terms where even the courts have recognized that few if any terms of an insurance policy can be clearly and completely understood by persons untrained in insurance law." (Id. at p. 45.)
The trial court here did not hold that, as a matter of law, plaintiffs could not rely on Suns representations. Rather, it held that, under the facts of this case, plaintiffs did not, as a matter of law, justifiably rely on Suns representations. It must be "`reasonable that [plaintiffs] would accept [Suns] representations as to [policy premiums] and not read the policy." (Clement v. Smith, supra, 16 Cal.App.4th at p. 45.)
Butcher v. Truck Ins. Exchange (2000) 77 Cal.App.4th 1442, which cited Clement v. Smith and similar cases, reached a similar result. Again, the court did not hold that there is no duty to read an insurance policy where misrepresentation and concealment are alleged. It just held that under certain circumstances, an insurer may be liable for misrepresentation or failure to deliver agreed-upon coverage where the agent misleads the insured as to the extent of coverage, even though the insured did not read the policy and discover the actual extent of the coverage. (See id. at pp. 1461-1465.)
We could review other cases cited by plaintiffs, but the result would be the same. Plaintiffs were not excused, as a matter of law, from reading their policies based on their claims of misrepresentation and concealment by Sun. Under these cases, plaintiffs failure to read their policies will not preclude imposition of liability on defendant if (1) the provisions on which defendant relies were not conspicuous, plain or clear (Haynes v. Farmers Ins. Exchange, supra, 32 Cal.4th at p. 1215); or (2) plaintiffs reasonably relied on Suns representations as to the contents of the policies (Clement v. Smith, supra, 16 Cal.App.4th at p. 45).
B. Whether There are Triable Issues of Fact as to Misrepresentation and Justifiable Reliance
Plaintiffs contend there are triable issues of fact as to whether Sun misrepresented or concealed facts concerning their policies and whether their previous experience with their MetLife policies precluded their justifiable reliance on Suns representations. Therefore, they contend, the trial court erred in granting summary judgment based on a finding that their reliance on Suns representations was not justifiable.
Summary judgment properly is granted if there is no question of fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) To secure summary judgment, a moving defendant may show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at p. 849.) Once the moving defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of fact exists as to the cause of action or the defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at p. 849.) All doubts as to the propriety of granting the motion are resolved in favor of the opposing party. (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)
On appeal, we exercise our independent judgment in determining whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334-335.) Inasmuch as the grant or denial of a motion for summary judgment strictly involves questions of law, we must reevaluate the legal significance and effect of the parties moving and opposing papers. (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, disapproved on another ground in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1245.) We must uphold the judgment if it is correct on any ground, regardless of the reasons the trial court gave. (Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419.)
Whether reliance is justifiable ordinarily is a question of fact. (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239; Hadland v. NN Investors Life Ins. Co., supra, 24 Cal.App.4th at p. 1586.) It may be decided as a matter of law under certain circumstances, however. (Ibid.)
In Hackethal v. National Casualty Co. (1987) 189 Cal.App.3d 1102, plaintiff purchased a "Defendants Reimbursement Policy." The promotional brochure stated that the policy would pay the insured for time spent in court as a defendant and would cover any suit involving professional acts. It also cautioned that complete details of the insurance were contained in the policy. (Id. at p. 1106.) Defendants agent made various representations about the policy but never said that it would provide coverage for time spent in administrative hearings before a disciplinary agency. (Id. at pp. 1106-1107.) The policy itself specified that it would only pay for time spent in court for "the trial of a civil suit for damages against the insured alleged to have been caused by malpractice in the practice of the profession of the insured." (Id. at p. 1107, italics omitted.) Plaintiff was charged with misconduct and required to attend administrative hearings before the Board of Medical Quality Assurance. He made a claim for time spent at the hearings, and defendant denied coverage. (Id. at p. 1108.)
The court upheld a directed verdict on plaintiffs fraud cause of action. It noted that nothing in the promotional brochure or the representations of defendants agent as to the policy was in direct conflict with the policy or misleading as to the terms of the policy. The brochure also cautioned the insured to read the policy. Under these circumstances, the court held, any reliance plaintiff might have had on the agents statements in forming a belief that attendance at administrative hearings was covered "was unjustifiable as a matter of law." (Hackethal v. National Casualty Co., supra, 189 Cal.App.3d at p. 1111.)
In Hadland v. NN Investors Life Ins. Co., supra, 24 Cal.App.4th 1578, plaintiffs sought to replace their health insurance policy with a less expensive one. They contacted an agent, who told them defendants policy was "`as good if not better" than their old policy. They purchased the policy without reading it. As it turned out, while defendants policy was less expensive, it did not cover certain medical bills that plaintiffs thought would be covered. (Id. at p. 1581.)
The court noted that had plaintiffs read their policy, they would have discovered its limitations. The representation that defendants policy was "`as good if not better" than their old policy was "patently at odds with the express provisions" of the policy. (Hadland v. NN Investors Life Ins. Co., supra, 24 Cal.App.4th at p. 1589.) The court concluded that plaintiffs, "having failed to read the policy and having accepted it without objection, cannot be heard to complain it was not what they expected. Their reliance on representations about what they were getting for their money was unjustified as a matter of law." (Ibid., fn. omitted.)
Plaintiffs argue that this case is distinguishable, based on their preexisting relationship with Sun. It has been held that the failure to read a contract may be excusable where a fiduciary or confidential relationship exists between the parties. (Strotz v. Dean Witter Reynolds, Inc. (1990) 223 Cal.App.3d 208, 218-219, disapproved on another ground in Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 407; 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 301, p. 327.)
For example, in Greenfield v. Insurance Inc. (1971) 19 Cal.App.3d 803, the court found that the insured reasonably relied on his agents representations as to coverage and not read his policy where the insured had relied on the agent for many years for his insurance needs. (Id. at p. 811.) Similarly, in Strotz v. Dean Witter Reynolds, Inc., supra, 223 Cal.App.3d 208, plaintiff had a longstanding business relationship with defendants before she signed without reading the documents at issue. (Id. at p. 219.)
A confidential relationship "may be founded on a moral, social, domestic, or merely personal relationship as well as on a legal relationship." (Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 382.) It exists when "the parties do not deal on equal terms, because the person in whom trust and confidence is reposed and who accepts that trust and confidence is in a superior position to exert unique influence over the dependent party." (Id. at p. 383.) In general, the existence of a confidential relationship is a question of fact. (Ibid.)
Plaintiffs presented evidence here of a confidential relationship with Sun which led them to trust her and rely on her representations rather than read their insurance policy and other documents. Lin met Sun in 2000 in the course of his business, but thereafter they became friends. When he purchased defendants policy he did so in reliance on her recommendation: "I was not experienced or familiar with life insurance. I relied on Ms. Suns representation because she was my friend. She had superior knowledge regarding variable life insurance while I did not. I trusted her and had confidence in her as a friend and professional financial advisor." Lin thought that because he had helped Sun with her immigration matters, she was doing him a favor by finding him a good life insurance policy.
Additionally, Lin told Sun about his prior experience with MetLife, seeking reassurance that the same thing would not happen to him with defendants policy. Thereafter, she reassured him that he would have to pay premiums for five years only, and Chen would have to pay for six years only.
Based on the evidence plaintiffs presented, this is not "`the rare case where the undisputed facts leave no room for a reasonable difference of opinion, [therefore the question of whether a confidential relationship existed between them and Sun and] the question of whether . . . plaintiff[s] reliance [was] reasonable is a question of fact." (Alliance Mortgage Co. v. Rothwell, supra, 10 Cal.4th at p. 1239; Barbara A. v. John G., supra, 145 Cal.App.3d at p. 383.) Summary judgment therefore was not properly granted. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 843, 849.)
III
Unsuitability under NASD Rules
Plaintiffs point to no evidence that defendant is a member of the NASD. They assert that "it is well-known that John Hancock sells the variable products through its subsidiary Signator Investors, Inc. which is a member of NASD." The evidence plaintiffs cite in support of this assertion shows that Signator Investors, Inc. is an "affiliate" of defendant. In the absence of additional evidence as to the relationship between the two companies or authority and argument demonstrating that defendant was thereby bound by NASD rules, plaintiffs have failed in their burden of demonstrating error in the trial courts determination that defendant was not a member of the NASD and therefore did not owe duties to plaintiffs under the NASDs rules concerning suitability. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
Plaintiffs assert that even if defendant "is not governed by the NASD rules, it owes other duties of reasonable care" to plaintiffs. They cite no authority, however, for their assertions that defendant owed them a duty to observe suitability rules because variable life insurance policies are governed by the Securities Litigation Uniform Standards Act of 1998 (15 U.S.C. §§ 77p(c), 78bb(f); 28 U.S.C. §§ 1331, 1367, 1441, 1446), that defendant owed them a duty to follow the policies set forth in its Market Conduct Manual, and that defendant owed them a duty to follow NASD rules under section 10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission rule 10(b)-5 (15 U.S.C. § 78j(b); 17 C.F.R. § 240.10b-5). Again, plaintiffs have failed to demonstrate error. (Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546.)
IV
Breach of Fiduciary Duty
The trial court found as a matter of law that no fiduciary relationship exists between insurer and insured, thus defendant could not be liable for breach of fiduciary duty based on Suns acts. Additionally, to the extent Sun acted in a fiduciary capacity outside the scope of her employment with defendant, defendant could not be vicariously liable for her breach of her fiduciary duty.
It is well established that an insurer is not a fiduciary of an insured. (Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1158.) Plaintiffs acknowledge that defendant does not owe them any fiduciary duties. What they seem to be asserting, however, is that Sun owed them a fiduciary duty, and there is a triable issue of fact as to whether her actions as a fiduciary were within the scope of her employment, making defendant liable for her breach of her fiduciary duty.
Plaintiffs "claim that as a life insurance agent, a friend and a financial advisor, [Sun] cumulatively owed them a fiduciary duty." They cite no authority in support of this claim, however. As noted in Barbara A. v. John G., supra, 145 Cal.App.3d at page 382, "[t]echnically, a fiduciary relationship is a recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client [citation], whereas a `confidential relationship may be founded on a moral, social, domestic, or merely personal relationship as well as on a legal relationship." Plaintiffs evidence creates a triable issue of fact as to whether they had a confidential relationship with Sun, but they presented no evidence of a fiduciary relationship. In the absence of evidence or authority establishing that Sun owed a fiduciary duty to plaintiffs, there is no triable issue of fact as to breach of fiduciary duty or defendants liability for that breach. (Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 843, 849.)
V
Negligence
Plaintiffs seventh cause of action for negligence was based on Suns negligence as their friend and financial advisor in advising them to purchase defendants policies. Their eighth cause of action for negligence was based on defendants use of deceptive language in the policies and other materials and noncompliance with NASD rules.
Plaintiffs cite no authority supporting a claim that defendant may be held liable for actions Sun undertook as a friend and financial advisor, rather than as defendants agent. They make no argument specifically addressing their eighth cause of action. Accordingly, any challenge to the trial courts rulings on these two causes of action is waived. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19; Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546.)
VI
Additional Contentions
Plaintiffs contend the trial court abused its discretion in sustaining defendants objections to their declarations. While defendant made a number of objections to plaintiffs declarations, the trial court sustained those objections only "to the extent that those declarations seek to prove the contents of a writing." That ruling was absolutely correct. (Evid. Code, § 1523, subd. (a); Code Civ. Proc., § 437c, subd. (d).) Plaintiffs point to no specific portions of their declarations that the trial court erroneously failed to consider and thus have failed to demonstrate error in the trial courts ruling. (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115; Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546.) Neither do plaintiffs demonstrate that the claimed error would have any effect on our resolution of this case on appeal. (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971; Mohn v. Kohlruss (1987) 196 Cal.App.3d 595, 598.)
Plaintiffs further contend the trial court erred in basing summary judgment on a ground never raised by defendant, namely, their belief that MetLifes agent induced them to buy the MetLife policy by misrepresenting the amount of time over which premiums would have to be paid on the policy. In essence, plaintiffs are quibbling about the language used in the order granting summary judgment, which defendant prepared. The trial court did not grant summary judgment on a ground not raised by defendant. Again, plaintiffs have failed to show that the claimed error in any way affects our resolution of this case on appeal. (Fundamental Investment etc. Realty Fund v. Gradow, supra, 28 Cal.App.4th at p. 971; Mohn v. Kohlruss, supra, 196 Cal.App.3d at p. 598.)
DISPOSITION
The summary judgment is reversed. The trial court is directed to vacate its order granting defendants motion for summary judgment and to enter a new and different order, granting summary adjudication as to plaintiffs causes of action for breach of fiduciary duty, unsuitability and both causes of action for negligence, and denying summary adjudication as to plaintiffs causes of action for fraud, fraudulent concealment, negligent misrepresentation and constructive fraud. Plaintiffs are to recover costs on appeal.
We concur:
MALLANO, Acting P. J.
ROTHSCHILD, J. --------------- Notes: Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.