California Civil Jury Instructions (CACI) (2017)

1906. Misrepresentations Made to Persons Other Than the Plaintiff

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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
• Intent to Defraud Class. Civil Code section 1711.
• “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].)
• “[L]iability for a fraud worked on an agent is imposed where it is the agent
who not only places reliance on the misrepresentations, but also makes the
decision and takes action based upon the misrepresentations.” (Hasso v. Hapke
1095
0019
(2014) 227 Cal.App.4th 107, 129 [173 Cal.Rptr.3d 356].)
• “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 transactions involved.” (Hasso, supra,
227 Cal.App.4th at p. 130.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 802–806
3Levy 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, § 269.14
(Matthew Bender)
2 California Civil Practice: Torts, § 22:34 (Thomson Reuters)
CACI No. 1906 FRAUD OR DECEIT
1096
0020