CACI No. 1901. Concealment

Judicial Council of California Civil Jury Instructions (2020 edition)

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1901.Concealment
[Name of plaintiff] claims that [he/she/nonbinary pronoun] 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
[1. (b) That [name of defendant] intentionally failed to disclose certain
facts to [name of plaintiff];]
[1. [or]
[1. That [name of defendant] disclosed some facts to [name of plaintiff]
but intentionally failed to disclose [other/another] fact[s], making
the disclosure deceptive;]
[1. [or]
[1. That [name of defendant] intentionally failed to disclose certain
facts that were known only to [him/her/nonbinary pronoun/it] and
that [name of plaintiff] could not have discovered;]
[1. [or]
[1. That [name of defendant] prevented [name of plaintiff] from
discovering certain facts;]
2. That [name of plaintiff] did not know of the concealed fact[s];
3. That [name of defendant] intended to deceive [name of plaintiff] by
concealing the fact[s];
4. That had the omitted information been disclosed, [name of
plaintiff] reasonably would have behaved differently;
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, December 2012, June 2014, June
2015
Directions for Use
Give this instruction if it is alleged that the defendant concealed certain information
to the detriment of the plaintiff. (See Civ. Code, § 1710(3).) Element 2 may be
deleted if the third option for element 1 is selected.
Regarding element 1, before there can be liability for concealment, there must
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usually be a duty to disclose arising from a fiduciary or confidential relationship
between the parties. However, in transactions that do not involve fiduciary or
confidential relations, a duty to disclose material facts may arise in at least three
instances: (1) the defendant makes representations but does not disclose facts that
materially qualify the facts disclosed, or that render his disclosure likely to mislead
(option 2); (2) the facts are known or accessible only to defendant, and defendant
knows they are not known to or reasonably discoverable by the plaintiff (option 3);
(3) the defendant actively conceals discovery from the plaintiff (option 4). (See
Warner Constr. Corp. v. L.A. (1970) 2 Cal.3d 285, 294 [85 Cal. Rptr. 444, 466 P.2d
996].) For the second, third, and fourth options, if the defendant asserts that there
was no relationship based on a transaction giving rise to a duty to disclose, the jury
should also be instructed to determine whether the requisite relationship existed.
(See Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1187 [175
Cal.Rptr.3d 820].)
If element 4 is contested, give CACI No. 1907, Reliance, and CACI No. 1908,
Reasonable Reliance. To avoid any possible confusion created by using “rely on the
concealment” (see Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1093 [23
Cal.Rptr.2d 101, 858 P.2d 568].), CACI Nos. 1907 and 1908 may be modified to
replace the words “rely,” “relied,” and “reliance” with language based on “behave
differently” from element 4. It must have been reasonable for the plaintiff to have
behaved differently had the omitted information been disclosed. (See Hoffman,
supra, 228 Cal.App.4th at p. 1194 [concealment case].)
Sources and Authority
• Concealment. Civil Code section 1710(3).
• “[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].)
• “A duty to speak may arise in four ways: it may be directly imposed by statute
or other prescriptive law; it may be voluntarily assumed by contractual
undertaking; it may arise as an incident of a relationship between the defendant
and the plaintiff; and it may arise as a result of other conduct by the defendant
that makes it wrongful for him to remain silent.” (SCC Acquisitions, Inc. v.
Central Pacific Bank (2012) 207 Cal.App.4th 859, 860 [143 Cal.Rptr.3d 711].)
• “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
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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., supra, 2 Cal.3d at p. 294, footnotes omitted.)
• “[O]ther than the first instance, in which there must be a fiduciary relationship
between the parties, ‘the other three circumstances in which nondisclosure may
be actionable: presuppose[] the existence of some other relationship between the
plaintiff and defendant in which a duty to disclose can arise. . . . “[W]here
material facts are known to one party and not to the other, failure to disclose
them is not actionable fraud unless there is some relationship between the parties
which gives rise to a duty to disclose such known facts.” [Citation.]’ A
relationship between the parties is present if there is ‘some sort of transaction
between the parties. [Citations.] 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.’ ”
(Hoffman, supra, 228 Cal.App.4th at p. 1187, original italics, 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].)
• “While a reasonable jury could, and in this case did, find these warnings
inadequate for product liability purposes given [defendant]’s knowledge of the
risk of NFCI’s, these statements are not ‘misleading “half-truths” ’ that give rise
to a duty to disclose in the absence of an otherwise sufficient relationship or
transaction. To hold otherwise would unduly conflate two distinct areas of law,
products liability and fraud, and transform every instance of inadequate product
warning into a potential claim for fraud.” (Bigler-Engler v. Breg, Inc. (2017) 7
Cal.App.5th 276, 313-314 [213 Cal.Rptr.3d 82].)
• “[F]raudulent intent is an issue for the trier of fact to decide.” (Beckwith v. Dahl
(2012) 205 Cal.App.4th 1039, 1061 [141 Cal.Rptr.3d 142].)
• “[T]here are two causation elements in a fraud cause of action. First, the
plaintiff’s actual and justifiable reliance on the defendant’s misrepresentation
must have caused him to take a detrimental course of action. Second, the
detrimental action taken by the plaintiff must have caused his alleged damage.”
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(Beckwith, supra, 205 Cal.App.4th at p. 1062.)
• “[P]laintiffs argue that actual reliance cannot logically be an element of a cause
of action for deceit based on an omission because it is impossible to demonstrate
reliance on something that one was not told. In support of the argument,
plaintiffs cite Affıliated Ute Citizens v. United States, supra, 406 U.S. 128
(Ute) . . . , Interpreting Rule 10b-5, the high court held that ‘positive proof of
reliance is not a prerequisite to recovery’ in a case ‘involving primarily a failure
to disclose . . . .’ [¶] 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, supra, 5 Cal.4th at p. 1093.)
• “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 (11th ed. 2017) Torts, §§ 912-919
Greenwald et al., California Practice Guide: Real Property Transactions, Ch. 11-E,
Damages For Fraud, ¶ 11:354 (The Rutter Group)
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)
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