California Civil Jury Instructions (CACI)

1903. Negligent Misrepresentation

[Name of plaintiff] claims [he/she/it] was harmed because [name of defendant] negligently misrepresented an important fact. 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 not true;

3. That [although [name of defendant] may have honestly believed that the representation was true,] [[name of defendant]/he/she] had no reasonable grounds for believing the representation was true when [he/she] made it;

4. That [name of defendant] intended that [name of plaintiff] rely on this 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; Revised December 2009

Directions for Use

If both negligent misrepresentation and intentional misrepresentation are alleged in the alternative, give both this instruction and CACI No.1900, Intentional Misrepresentation. If only negligent misrepresentation is alleged, the bracketed reference to the defendant’s honest belief in the truth of the representation in element 3 may be omitted. (See Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 407—408 [11 Cal.Rptr.2d 51, 834 P.2d 745].)

Sources and Authority

  • Civil Code section 1710 specifies four kinds of deceit. This instruction is based on the second one:

    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.

  • “Negligent misrepresentation is a separate and distinct tort, a species of the tort of deceit. ‘Where the defendant makes false statements, honestly believing that they are true, but without reasonable ground for such belief, he may be liable for negligent misrepresentation, a form of deceit.’ ” (Bily, supra, 3 Cal.4th at pp. 407, internal citations omitted.)
  • “This is not merely a case where the defendants made false representations of matters within their personal knowledge which they had no reasonable grounds for believing to be true. Such acts clearly would constitute actual fraud under California law. In such situations the defendant believes the representations to be true but is without reasonable grounds for such belief. His liability is based on negligent misrepresentation which has been made a form of actionable deceit. On the contrary, in the instant case, the court found that the defendants did not believe in the truth of the statements. Where a person makes statements which he does not believe to be true, in a reckless manner without knowing whether they are true or false, the element of scienter is satisfied and he is liable for intentional misrepresentation.” (Yellow Creek Logging Corp. v. Dare (1963) 216 Cal.App.2d 50, 57 [30 Cal.Rptr. 629], original italics, internal citations omitted.)
  • “Negligent misrepresentation is a form of deceit, the elements of which consist of (1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages.” (Fox v. Pollack (1986) 181 Cal.App.3d 954, 962 [226 Cal.Rptr. 532], internal citation omitted.)
  • “ ‘To be actionable deceit, the representation need not be made with knowledge of actual falsity, but need only be an “assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true” and made “with intent to induce [the recipient] to alter his position to his injury or his risk…’ ” The elements of negligent misrepresentation also include justifiable reliance on the representation, and resulting damage.” (B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823, 834 [64 Cal.Rptr.2d 335], internal citations omitted.)
  • “As is true of negligence, responsibility for negligent misrepresentation rests upon the existence of a legal duty, imposed by contract, statute or otherwise, owed by a defendant to the injured person. The determination of whether a duty exists is primarily a question of law.” (Eddy v. Sharp (1988) 199 Cal.App.3d 858, 864 [245 Cal.Rptr. 211], internal citations omitted.)
  • “ ‘ “Where the defendant makes false statements, honestly believing that they are true, but without reasonable ground for such belief, he may be liable for negligent misrepresentation, a form of deceit.” ’ If defendant’s belief ‘is both honest and reasonable, the misrepresentation is innocent and there is no tort liability.’ ” (Diediker v. Peelle Financial Corp. (1997) 60 Cal.App.4th 288, 297 [70 Cal.Rptr.2d 442], internal citations omitted.)
  • “Parties cannot read something into a neutral statement in order to justify a claim for negligent misrepresentation. The tort requires a ‘positive assertion.’ ‘An “implied” assertion or representation is not enough.’ ” (Diediker, supra, 60 Cal.App.4th at pp. 297—298, internal citations omitted.)
  • “Whether a defendant had reasonable ground for believing his or her false statement to be true is ordinarily a question of fact.” (Quality Wash Group V, Ltd. v. Hallak (1996) 50 Cal.App.4th 1687, 1696 [58 Cal.Rptr.2d 592], internal citations omitted.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 818—820, 823—826

3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts, § 40.10 (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, § 105.270 et seq. (Matthew Bender)

2 California Civil Practice: Torts (Thomson West) §§ 22:13—22:15