California Civil Jury Instructions (CACI) (2017)

1902. False Promise

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1902.False Promise
[Name of plaintiff] claims [he/she] was harmed because [name of
defendant] made a false promise. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of defendant] made a promise to [name of plaintiff];
2. That [name of defendant] did not intend to perform this promise
when [he/she] made it;
3. That [name of defendant] intended that [name of plaintiff] rely on
this promise;
4. That [name of plaintiff] reasonably relied on [name of defendant]’s
5. That [name of defendant] did not perform the promised act;
6. That [name of plaintiff] was harmed; and
7. That [name of plaintiff]’s reliance on [name of defendant]’s
promise was a substantial factor in causing [his/her/its] harm.
New September 2003; Revised December 2012, December 2013
Directions for Use
Give this instruction in a case in which it is alleged that the defendant made a
promise without any intention of performing it. (See Civ. Code, § 1710(4).) If
element 4 is contested, give CACI No. 1907, Reliance, and CACI No. 1908,
Reasonable Reliance.
Sources and Authority
• Deceit. Civil Code section 1710.
“ ‘ “Promissory fraud” is a subspecies of fraud and deceit. A promise to do
something necessarily implies the intention to perform; hence, where a promise
is made without such intention, there is an implied misrepresentation of fact
that may be actionable fraud. [¶] An action for promissory fraud may lie where
a defendant fraudulently induces the plaintiff to enter into a contract.’ ”
(Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973–974
[64 Cal.Rptr.2d 843, 938 P.2d 903], internal citations omitted.)
• “Under Civil Code section 1709, one is liable for fraudulent deceit if he
‘deceives another with intent to induce him to alter his position to his injury or
risk . . . .’ Section 1710 of the Civil Code defines deceit for the purposes of
Civil Code section 1709 as, inter alia, ‘[a] promise, made without any intention
of performing it.’ ‘ “The elements of fraud, which give rise to the tort action for
deceit, are (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.”
[Citations.]’ Each element must be alleged with particularity.” (Beckwith v. Dahl
(2012) 205 Cal.App.4th 1039, 1059–1060 [141 Cal.Rptr.3d 142], internal
citations omitted.)
• “A promise of future conduct is actionable as fraud only if made without a
present intent to perform. ‘A declaration of intention, although in the nature of a
promise, made in good faith, without intention to deceive, and in the honest
expectation that it will be fulfilled, even though it is not carried out, does not
constitute a fraud.’ Moreover, ‘ “something more than nonperformance is
required to prove the defendant’s intent not to perform his promise.” . . . [I]f
plaintiff adduces no further evidence of fraudulent intent than proof of
nonperformance of an oral promise, he will never reach a jury.’ ” (Magpali v.
Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 481 [55 Cal.Rptr.2d 225],
internal citations omitted.)
• “[I]n a promissory fraud action, to sufficiently allege defendant made a
misrepresentation, the complaint must allege (1) the defendant made a
representation of intent to perform some future action, i.e., the defendant made
a promise, and (2) the defendant did not really have that intent at the time that
the promise was made, i.e., the promise was false.” (Beckwith, supra, 205
Cal.App.4th at p. 1060.)
• “[F]raudulent intent is an issue for the trier of fact to decide.” (Beckwith, supra,
205 Cal.App.4th at p. 1061.)
• “[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.”
(Beckwith, supra, 205 Cal.App.4th at p. 1062.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 781–786
3Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.03[1][a] (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.12
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.30 et seq.
(Matthew Bender)
2 California Civil Practice: Torts § 22:20 (Thomson Reuters)