California Civil Jury Instructions (CACI)

1901. Concealment

[Name of plaintiff] claims that [he/she] was harmed because [name of defendant] concealed certain information. To establish this claim, [name of plaintiff] must prove all of the following:

[1. (a) That [name of defendant] and [name of plaintiff] were [insert type of fiduciary relationship, e.g., “business partners”]; and

(b) That [name of defendant] intentionally failed to disclose an important fact to [name of plaintiff];]


[1. That [name of defendant] disclosed some facts to [name of plaintiff] but intentionally failed to disclose [other/another] important fact(s), making the disclosure deceptive;]


[1. That [name of defendant] intentionally failed to disclose an important fact that was known only to [him/her/it] and that [name of plaintiff] could not have discovered;]


[1. That [name of defendant] actively concealed an important fact from [name of plaintiff] or prevented [him/her/it] from discovering that fact;]

2. That [name of plaintiff] did not know of the concealed fact;

3. That [name of defendant] intended to deceive [name of plaintiff] by concealing the fact;

4. That [name of plaintiff] reasonably relied on [name of defendant]’s deception;

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

6. That [name of defendant]’s concealment was a substantial factor in causing [name of plaintiff]’s harm.

New September 2003; Revised October 2004

Directions for Use

Under the second, third, and fourth bracketed instructions under element 1, if the defendant asserts that there was no relationship based on a transaction giving rise to a duty to disclose, then the jury should also be instructed to determine whether the requisite relationship existed. Regarding the fourth bracketed instruction, the parties may wish to research whether active concealment alone is sufficient to support a cause of action for fraud in tort or whether it is merely grounds for voiding a contract under Civil Code section 1572. (See Williams v. Graham (1948) 83 Cal.App.2d 649, 652 [189 P.2d 324].)

Element 2 may be deleted if the third alternative bracketed instruction under element 1 is used.

Sources and Authority

  • Civil Code section 1710 specifies four kinds of deceit. This instruction is derived from the third kind:

    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;

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

    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; or,

    4. A promise, made without any intention of performing it.

  • “[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248 [129 Cal.Rptr.3d 874].)
  • “There are ‘four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts… Each of the [three nonfiduciary] circumstances in which nondisclosure may be actionable presupposes the existence of some other relationship between the plaintiff and defendant in which a duty to disclose can arise… [ΒΆ] . . . [S]uch a relationship can only come into being as a result of some sort of transaction between the parties… Thus, a duty to disclose may arise from the relationship between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement.’ All of these relationships are created by transactions between parties from which a duty to disclose facts material to the transaction arises under certain circumstances.” (Limandri v. Judkins (1997) 52 Cal.App.4th 326, 336—337 [60 Cal.Rptr.2d 539], internal citations, italics, and footnote omitted.)
  • “Ordinarily, failure to disclose material facts is not actionable fraud unless there is some fiduciary relationship giving rise to a duty to disclose . . . [however,] ‘[t]he duty to disclose may arise without any confidential relationship where the defendant alone has knowledge of material facts which are not accessible to the plaintiff.’ ” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 482 [55 Cal.Rptr.2d 225], internal citations omitted.)
  • “In transactions which do not involve fiduciary or confidential relations, a cause of action for non-disclosure of material facts may arise in at least three instances: (1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff.” (Warner Construction Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294 [85 Cal.Rptr. 444, 466 P.2d 996], footnotes omitted.)
  • “[A]ctive concealment of facts and mere nondisclosure of facts may under certain circumstances be actionable without [a fiduciary or confidential] relationship. For example, a duty to disclose may arise without a confidential or fiduciary relationship where the defendant, a real estate agent or broker, alone has knowledge of material facts which are not accessible to the plaintiff, a buyer of real property.” (La Jolla Village Homeowners’ Assn. v. Superior Court (1989) 212 Cal.App.3d 1131, 1151 [261 Cal.Rptr. 146], internal citations omitted.)
  • “Even if a fiduciary relationship is not involved, a non-disclosure claim arises when the defendant makes representations but fails to disclose additional facts which materially qualify the facts disclosed, or which render the disclosure likely to mislead.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 666 [51 Cal.Rptr.2d 907], internal citations omitted.)
  • “ ‘[T]he rule has long been settled in this state that although one may be under no duty to speak as to a matter, “if he undertakes to do so, either voluntarily or in response to inquiries, he is bound not only to state truly what he tells but also not to suppress or conceal any facts within his knowledge which materially qualify those stated. If he speaks at all he must make a full and fair disclosure.” ’ ” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 613 [7 Cal.Rptr.2d 859].)
  • “Contrary to plaintiffs’ assertion, it is not logically impossible to prove reliance on an omission. One need only prove that, had the omitted information been disclosed, one would have been aware of it and behaved differently.” (Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1093 [23 Cal.Rptr.2d 101, 858 P.2d 568].)
  • “The fact that a false statement may be obviously false to those who are trained and experienced does not change its character, nor take away its power to deceive others less experienced. There is no duty resting upon a citizen to suspect the honesty of those with whom he [or she] transacts business. Laws are made to protect the trusting as well as the suspicious. [T]he rule of caveat emptor should not be relied upon to reward fraud and deception.” (Boschma, supra, 198 Cal.App.4th at p. 249, original italics.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 793—799

3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts, § 40.03[2][b] (Matthew Bender)

23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.26 (Matthew Bender)

10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.70 et seq. (Matthew Bender)

2 California Civil Practice: Torts § 22:16 (Thomson Reuters West)