California Civil Jury Instructions (CACI)

1906. Misrepresentations Made to Persons Other Than the Plaintiff

[Name of defendant] is responsible for a representation that was not made directly to [name of plaintiff] if [he/she/it] made the representation [to a group of persons including [name of plaintiff]] [or] [to another person, intending or reasonably expecting that it would be repeated to [name of plaintiff]].

New September 2003

Directions for Use

An instruction on concealment made to a person other than the plaintiff is not necessary; this point is covered by the third option of element 1 in CACI No. 1901, Concealment.

Sources and Authority

  • Civil Code section 1711 provides: “One who practices a deceit with intent to defraud the public, or a particular class of persons, is deemed to have intended to defraud every individual in that class, who is actually misled by the deceit.”
  • “It is true that in order for a defendant to be liable for fraud, he or she must intend that a particular representation (or concealment) be relied upon by a specific person or persons. However, it is also established that a defendant cannot escape liability if he or she makes a representation to one person while intending or having reason to expect that it will be repeated to and acted upon by the plaintiff (or someone in the class of persons of which plaintiff is a member). This is the principle of indirect deception described in section 533 of the Restatement Second of Torts (section 533): ‘The maker of a fraudulent misrepresentation is subject to liability for pecuniary loss to another who acts in justifiable reliance upon it if the misrepresentation, although not made directly to the other, is made to a third person and the maker intends or has reason to expect that its terms will be repeated or its substance communicated to the other, and that it will influence his conduct in the transaction or type of transaction involved.’ Comment d to section 533 makes it clear the rule of section 533 applies where the maker of the misrepresentation has information that gives him special reason to expect that the information will be communicated to others and will influence their conduct. Comment g goes on to explain that it is not necessary that the maker of the misrepresentation have the particular person in mind. It is enough that it is intended to be repeated to a particular class of persons.” (Shapiro v. Sutherland (1998) 64 Cal.App.4th 1534, 1548 [76 Cal.Rptr.2d 101], internal citations omitted; see also Geernaert v. Mitchell (1995) 31 Cal.App.4th 601, 605—606 [37 Cal.Rptr.2d 483].)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 802—806

3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts, § 40.05[3] (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) § 22:34