Facts

Plaintiff Gregory Ruff alleged that in June 2000, he entered an oral agreement with the defendant Apostolic Assembly of the Faith in Christ Jesus Inc. [hereinafter referred to as "Apostolic Assembly"] to sell memorial life insurance policies to the church's pastors. A memorial policy is a life insurance policy that is tailored to pay the funeral and cemetery expenses of the policyholder at the time of their death.

At the time of the alleged oral agreement in 2000, the plaintiff was a general agent for the Forethought Life Insurance Company. It was anticipated that all memorial policies that would be written by plaintiff would be through Forethought Life Insurance Company.

The plaintiff claimed that he put together a "plan" of funeral benefits using the Forethought Life memorial policies that the policyholder was to choose from when applying for the policy.

Defendants Vincent Alvarez Jr. and Vincent Alvarez were his subagents, also writing memorial policies under plaintiff's agency agreement with Forethought Life Insurance Company.

On July 23, 2001, Forethought Life Insurance Company removed plaintiff as their general agent and appointed Vincent Alvarez Jr. as his replacement. After the plaintiff was removed as Forethought Life's general agent, he could no longer write the subject memorial policies for the pastors of the Apostolic Assembly.

When plaintiff was removed in 2001 as the agent of Forethought Life Insurance Company, he knew that Vincent Alvarez Jr. was replacing him.

PLAINTIFF'S CONTENTIONS:
The plaintiff alleged that the defendants did not intend to honor the oral agreement to purchase memorial policies through plaintiff and intended to breach that agreement once the operation got going. The plaintiff's theory of fraud was based upon an alleged "False Promise." Plaintiff argued that the trier of fact could infer that the defendant did not intend to go through with the contract at the time it was made based upon evidence that the alleged agreement was subsequently breached.

DEFENDANTS' CONTENTIONS:
False promise fraud requires that that plaintiff have evidence that the defendant did not intend to go through with the contract at the time it was entered. An inference that the defendant did not intend to go through with the contract because the contract was not performed is insufficient. Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18. See CACI 1902.

Defendant Apostolic Assembly denied that plaintiff had an exclusive contract to sell memorial policies. The plaintiff, as an insurance agent for Forethought Life Insurance Company, was compensated by Forethought Life for this work through the payment of commissions. The more policies he sold, the more commissions he received. When Forethought Life terminated his services, he no longer was entitled to receive commissions from the sale of Forethought Life's policies.

Even if plaintiff had an enforceable agreement with defendants, once he had been terminated as Forethought Life's general agent he could no longer sell the subject memorial policies.

Settlement Discussions

The defendants made a C.C.P. section 998 offer for $5,001. No demand was ever made by plaintiff. Counsel for plaintiff indicated that no amount of money would be accepted.

Damages

The plaintiff claimed over $700,000 in damages in opening statement.

Result

Nonsuit for defendants Apostolic Assembly of the Faith in Christ Jesus Inc., Vincent Alvarez Jr., and Vincent Alvarez III. The defendants' motion for summary judgment and summary adjudication was denied by the trial court. A writ of mandamus was filed and the Court of Appeal reversed the trial court as to the breach of contract claim. The only remaining claim at trial was for false promise. Motion for nonsuit was granted because plaintiff had no evidence that the defendants did not intend to go through with the alleged agreement at the time it was made.

Other Information

The plaintiff's counsel indicates he plans to appeal. FILING DATE: July 13, 2006.