California Civil Jury Instructions (CACI) (2017)

1904. Opinions as Statements of Fact

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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
Sources and Authority
• “Representations of opinion, particularly involving matters of value, are
ordinarily not actionable representations of fact. A representation is an 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 . . . or other matters
of judgment.” ’ ” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th
594, 606−607 [172 Cal.Rptr.3d 218], internal citations omitted.)
• “Plaintiffs cite the exceptions to the general rule that, to be actionable, a
misrepresentation must be of an existing fact, not an opinion or prediction of
future events. They arise ‘(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; (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. [Citation.]’ ”
(Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 769 [153
Cal.Rptr.3d 1], internal citation omitted.)
• “[W]hen one of the parties possesses, or assumes to possess, superior
knowledge or special information regarding the subject matter of the
representation, and the other party is so situated that he may reasonably rely
upon such supposed superior knowledge or special information, a representation
made by the party possessing or assuming to possess such knowledge or
information, though it might be regarded as but the expression of an opinion if
made by any other person, is not excused if it be false.” (Jolley v. Chase Home
Finance, LLC (2013) 213 Cal.App.4th 872, 892 [153 Cal.Rptr.3d 546].)
• “Since the appraisal is a value opinion performed for the benefit of the lender,
there is no representation of fact upon which a buyer may reasonably rely.”
(Graham,supra, 226 Cal.App.4th at p. 607.)
• “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.)
• “If defendants’ assertion of safety is merely a statement of opinion—mere
‘puffing’—they cannot be held liable for its falsity.” (Hauter v. Zogarts (1975)
14 Cal.3d 104, 111 [120 Cal.Rptr. 681, 534 P.2d 377].)
• “The alleged false representations in the subject brochures were not statements
of ‘opinion’ or mere ‘puffing.’ They were, in essence, representations that the
DC-10 was a safe aircraft. In Hauter, [supra,] the Supreme Court held that
promises of safety are not statements of opinion—they are ‘representations of
fact.’ ” (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
3Levy 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, § 269.17
(Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.50
(Matthew Bender)
2 California Civil Practice: Torts, §§ 22:21–22:28 (Thomson Reuters)