California Civil Jury Instructions (CACI)

1904. Opinions as Statements of Fact

Ordinarily, an opinion is not considered a representation of fact. An opinion is a person’s belief that a fact exists, a statement regarding a future event, or a judgment about quality, value, authenticity, or similar matters. However, [name of defendant]’s opinion is considered a representation of fact if [name of plaintiff] proves that:

[[Name of defendant] claimed to have special knowledge about the subject matter that [name of plaintiff] did not have;] [or]

[[Name of defendant] made a representation, not as a casual expression of belief, but in a way that declared the matter to be true;] [or]

[[Name of defendant] had a relationship of trust and confidence with [name of plaintiff];] [or]

[[Name of defendant] had some other special reason to expect that [name of plaintiff] would rely on his or her opinion.]

New September 2003; Revised April 2004

Directions for Use

This is not a stand-alone instruction. It should be read in conjunction with one of the elements instructions (CACI Nos. 1900—1903).

The second bracketed option appears to be limited to cases involving professional opinions. (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 408 [11 Cal.Rptr.2d 51, 834 P.2d 745].)

Alternative bracketed options that do not apply to the facts of the case may be deleted.

Sources and Authority

  • Restatement of Torts, section 542 states:

    The recipient of a fraudulent misrepresentation solely of the maker’s opinion is not justified in relying upon it in a transaction with the maker, unless the fact to which the opinion relates is material, and the maker

    (a) purports to have special knowledge of the matter that the recipient does not have, or

    (b) stands in a fiduciary or other similar relation of trust and confidence to the recipient, or

    (c) has successfully endeavored to secure the confidence of the recipient, or

    (d) has some other special reason to expect that the recipient will rely on his opinion.

  • Restatement Second of Torts, section 538A states: “A representation is one of 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.”
  • Restatement Second of Torts, section 539 states:

    (1) A statement of opinion as to facts not disclosed and not otherwise known to the recipient may, if it is reasonable to do so, be interpreted by him as an implied statement

    (a) that the facts known to the maker are not incompatible with his opinion; or

    (b) that he knows facts sufficient to justify him in forming it.

    (2) In determining whether a statement of opinion may reasonably be so interpreted, the recipient’s belief as to whether the maker has an adverse interest is important.

  • “Generally, actionable misrepresentation must be one of existing fact; ‘predictions as to future events, or statements as to future action by some third party, are deemed opinions, and not actionable fraud …’ But there are exceptions to this rule: ‘(1) where a party holds himself out to be specially qualified and the other party is so situated that he may reasonably rely upon the former’s superior knowledge; (2) where the opinion is by a fiduciary or other trusted person; [and,] (3) where a party states his opinion as an existing fact or as implying facts which justify a belief in the truth of the opinion.’ ” (Cohen v. S&S Construction Co. (1983) 151 Cal.App.3d 941, 946 [201 Cal.Rptr. 173], internal citations omitted.)
  • “A statement couched as an opinion, by one having special knowledge of the subject, may be treated as an actionable misstatement of fact. Whether a statement is nonactionable opinion or actionable misrepresentation of fact is a question of fact for the jury.” (Furla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1080—1081 [76 Cal.Rptr.2d 911], internal citations omitted.)
  • “Puffing,” or sales talk, is generally considered opinion, unless it involves a representation that a product is safe. (Hauter v. Zogarts (1975) 14 Cal.3d 104 [120 Cal.Rptr. 681, 534 P.2d 377]; see also Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 424 [264 Cal.Rptr. 779].)
  • “Under certain circumstances, expressions of professional opinion are treated as representations of fact. When a statement, although in the form of an opinion, is ‘not a casual expression of belief’ but ‘a deliberate affirmation of the matters stated,’ it may be regarded as a positive assertion of fact. Moreover, when a party possesses or holds itself out as possessing superior knowledge or special information or expertise regarding the subject matter and a plaintiff is so situated that it may reasonably rely on such supposed knowledge, information, or expertise, the defendant’s representation may be treated as one of material fact.” (Bily, supra, 3 Cal.4th at p. 408, internal citations omitted.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 774—778

3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts, § 40.03[1][b] (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) §§ 22:21—22:28