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Title Rosalie Vaccarino v. Midland National Life

June 25, 2012

TITLE ROSALIE VACCARINO
v.
MIDLAND NATIONAL LIFE INSURANCE, CO.



The opinion of the court was delivered by: Present: The Honorable Christina A. Snyder

CIVIL MINUTES - GENERAL

CATHERINE JEANG Anne Kielwasser N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Lotte Colbert

Robert Gianelli

Kathy Huang

Robert Phillips, Jr.

Proceedings: DEFENDANT'S MOTION TO DISMISS (filed May 25, 2012)

INTRODUCTION AND BACKGROUND

On June 17, 2011, plaintiff Rosalie Vaccarino ("Vaccarino") filed this putative class action against defendant Midland National Life Insurance Company ("Midland") in the Los Angeles County Superior Court alleging claims for violation of California Business and Professions Code § 17200, et seq. ("Unfair Competition Law" or "UCL"), fraud, breach of contract, and requesting a declaration of rights under the annuities contracts. On July 15, 2011, defendant removed the action to federal court pursuant to 28 U.S.C. 1441 and the Class Action Fairness Act, 28 U.S.C. § 1332.*fn1 The gravamen of Vaccarino's complaint was that Midland made representations regarding premium bonuses and other benefits in its deferred annuities products,*fn2 while failing to adequately disclose that the costs of bonuses and exorbitant agent commissions were shifted back to purchasers, and that purchasers were subject to surrender charges and interest adjustments.

In an order dated November 14, 2011, the Court granted Midland's motion to dismiss Vaccarino's complaint in its entirety with leave to amend. The Court found, inter

, that Vaccarino had failed to affirmatively plead facts sufficient to avoid the effect of the applicable statutes of limitation.

Vaccarino filed her first amended complaint on December 14, 2011. Midland stipulated to permit Vaccarino to file a second amended complaint ("SAC"), which was filed on January 13, 2012. The SAC ...


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