California Civil Jury Instructions (CACI)

1900. Intentional Misrepresentation

[Name of plaintiff] claims that [name of defendant] made a false representation that harmed [him/her/it]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] represented to [name of plaintiff] that an important fact was true;

2. That [name of defendant]’s representation was false;

3. That [name of defendant] knew that the representation was false when [he/she] made it, or that [he/she] made the representation recklessly and without regard for its truth;

4. That [name of defendant] intended that [name of plaintiff] rely on the representation;

5. That [name of plaintiff] reasonably relied on [name of defendant]’s representation;

6. That [name of plaintiff] was harmed; and

7. That [name of plaintiff]’s reliance on [name of defendant]’s representation was a substantial factor in causing [his/her/ its] harm.

New September 2003

Directions for Use

If it is disputed that a representation was made, the jury should be instructed that “a representation may be made orally, in writing, or by nonverbal conduct.”

Sources and Authority

  • “Fraud” and “deceit” are defined in Civil Code sections 1572, 1709, and 1710. Courts appear to refer to the terms interchangeably, though technically “fraud” applies to only contract actions.
  • Civil Code section 1709 defines “deceit” generally: “One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.”
  • Civil Code section 1710 specifies four kinds of deceit. This instruction applies to the first:

    A deceit, within the meaning of [section 1709], is either:

    1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true [intentional misrepresentation of fact];

    2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true [negligent misrepresentation of fact];

    3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact [concealment or suppression of fact]; or,

    4. A promise, made without any intention of performing it [promissory fraud].

  • Civil Code section 1572, dealing specifically with fraud in the making of contracts, restates these definitions in slightly differing language, with the addition of a fifth kind of deceit, described generally as “[a]ny other act fitted to deceive.” Fraud in the context of contract formation is covered by other instructions.
  • The tort of deceit or fraud requires: “ ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974 [64 Cal.Rptr.2d 843, 938 P.2d 903], internal quotation marks omitted; see also Molko v. Holy Spirit Ass’n (1988) 46 Cal.3d 1092, 1108 [252 Cal.Rptr. 122, 762 P.2d 46].)
  • Sometimes this tort is stated with four elements instead of five: “(1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.” (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816 [52 Cal.Rptr.2d 650].)
  • The representation must ordinarily be an affirmation of fact, as opposed to an opinion. Under the Restatement Second of Torts section 538A, a representation is an opinion “if it expresses only (a) the belief of the maker, without certainty, as to the existence of a fact; or (b) his judgment as to quality, value, authenticity, or other matters of judgment.” Opinions are addressed in CACI No. 1904, Opinions as Statements of Fact.
  • “Puffing,” or sales talk, is generally considered opinion, unless it involves a representation of product safety. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 112 [120 Cal.Rptr. 681, 534 P.2d 377].)
  • “Fraud is an intentional tort; it is the element of fraudulent intent, or intent to deceive, that distinguishes it from actionable negligent misrepresentation and from nonactionable innocent misrepresentation. It is the element of intent which makes fraud actionable, irrespective of any contractual or fiduciary duty one party might owe to the other.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith (1998) 68 Cal.App.4th 445, 482 [80 Cal.Rptr.2d 329], internal citations omitted.)
  • “A misrepresentation need not be oral; it may be implied by conduct.” (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1567 [54 Cal.Rptr.2d 468], internal citations omitted.)
  • “ ‘[F]alse representations made recklessly and without regard for their truth in order to induce action by another are the equivalent of misrepresentations knowingly and intentionally uttered.’ ” (Engalla, supra, 15 Cal.4th at p. 974, quoting Yellow Creek Logging Corp. v. Dare (1963) 216 Cal.App.2d 50, 55 [30 Cal.Rptr. 629].)
  • “Actual reliance occurs when a misrepresentation is “ ‘an immediate cause of [a plaintiff’s] conduct, which alters his legal relations,’ ” and when, absent such representation, “ ‘he would not, in all reasonable probability, have entered into the contract or other transaction.’ ” ‘It is not . . . necessary that [a plaintiff’s] reliance upon the truth of the fraudulent misrepresentation be the sole or even the predominant or decisive factor in influencing his conduct… It is enough that the representation has played a substantial part, and so has been a substantial factor, in influencing his decision.’ ” (Engalla, supra, 15 Cal.4th at pp. 976—977, internal citations omitted.)
  • “Justifiable reliance is an essential element of a claim for fraudulent misrepresentation, and the reasonableness of the reliance is ordinarily a question of fact.” (Guido v. Koopman (1991) 1 Cal.App.4th 837, 843 [2 Cal.Rptr.2d 437] internal citations omitted.)
  • “A ‘complete causal relationship’ between the fraud or deceit and the plaintiff’s damages is required… Causation requires proof that the defendant’s conduct was a “ ‘substantial factor’ ” in bringing about the harm to the plaintiff.” (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132 [39 Cal.Rptr.2d 658], internal citations omitted.)
  • “In order to recover for fraud, as in any other tort, the plaintiff must plead and prove the ‘detriment proximately caused’ by the defendant’s tortious conduct. Deception without resulting loss is not actionable fraud.” (Service by Medallion, Inc., supra, 44 Cal.App.4th at p. 1818, internal citations omitted.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 243, 767—817, 821, 822, 826

3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts, §§ 40.02, 40.05 (Matthew Bender)

23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit (Matthew Bender)

10 California Points and Authorities, Ch. 105, Fraud and Deceit (Matthew Bender)

2 California Civil Practice: Torts (Thomson West) § 22:12