CACI No. 1922. Seller’s Damages for Sale or Exchange of Property
Judicial Council of California Civil Jury Instructions (2023 edition)
Download PDF
1922.Seller’s Damages for Sale or Exchange of Property
If you decide that [name of plaintiff] has proved [his/her/nonbinary
pronoun/its] claim against [name of defendant], you also must decide how
much money will reasonably compensate [name of plaintiff] for the harm.
This compensation is called “damages.”
[Name of plaintiff] must prove the amount of [his/her/nonbinary pronoun/
its] damages. However, [name of plaintiff] does not have to prove the
exact amount of damages that will provide reasonable compensation for
the harm. You must not speculate or guess in awarding damages.
The following are the specific items of damages claimed by [name of
plaintiff]:
1. The difference between the fair market value of the property at
the time of sale and [the amount that [name of plaintiff] received]
[or] [the fair market value of what [name of plaintiff] received in
exchange for the property];
2. Amounts that [name of plaintiff] reasonably spent in reliance on
[name of defendant]’s [false representation/failure to
disclose/promise] if those amounts would not otherwise have been
spent in the sale or exchange of the property;
3. Loss of use and enjoyment of the property from [insert beginning
date] to [insert end date], to the extent that [name of defendant]’s
[false representation/failure to disclose/promise] was a substantial
factor in causing that loss of use and enjoyment of the property;
4. Profits or other gains from [insert beginning date] to [insert end
date], that [name of plaintiff] might reasonably have earned by use
of the property if [he/she/nonbinary pronoun] had kept it; and
5. Any additional damage arising from the particular transaction.
New September 2003
Directions for Use
This instruction should be tailored to fit the facts and evidence in the particular
case: “If the seller parts with title and elects to forego his right of rescission and sue
for damages only, then of course subdivisions (a)(2) and (a)(3) of section 3343 do
not apply and should not be given by the trial court (unless, as here, the contract
itself creates such rights). In each case in which a seller of property is defrauded by
a buyer, the trial court will have to examine the circumstances of the particular case
and decide whether the questioned portions of section 3343 do or do not apply.”
(Channell v. Anthony (1976) 58 Cal.App.3d 290, 317 [129 Cal.Rptr. 704].)
1201
The first element of this instruction should be modified in cases involving
promissory fraud: “In cases of promissory fraud, the damages are measured by
market value as of the date the promise was breached because that is the date when
the damage occurred.” (Glendale Fed. Sav. & Loan Assn. v. Marina View Heights
Dev. Co. (1977) 66 Cal.App.3d 101, 145-146 [135 Cal.Rptr. 802].)
For an instruction on lost profits, see CACI No. 3903N, Lost Profits (Economic
Damage).
Sources and Authority
• Fraud in Sale of Property: Seller’s Damages. Civil Code section 3343.
• “As they apply to damages for fraud, subdivisions (a)(2) and (a)(3) of section
3343 are limited to recovery of damages by sellers of real property, while
subdivision (a)(4) deals with purchasers of real property.” (Channell, supra, 58
Cal.App.3d at p. 309, footnote omitted.)
• “Before 1935 the California courts had no statutory mandate on the measure of
damages for fraud. While the ‘benefit of the bargain’ measure of damages was
generally employed, on occasion California courts sometimes applied the ‘out of
pocket’ rule when the ‘loss of bargain’ rule was difficult to apply or would work
a hardship on plaintiff or defendant.” (Channell, supra, 58 Cal.App.3d at p. 309,
footnote omitted.)
• “The 1971 amendment to section 3343 took the form of an addition to the ‘out
of pocket’ rule. The statute had previously permitted recovery of ‘additional
damages,’ but the 1971 amendment enumerated specific types of consequential
damages which are included within the term ‘additional damages.’ ” (Channell,
supra, 58 Cal.App.3d at p. 312, footnote omitted.)
• “[T]he legislature clearly ruled out by the 1971 amendment any recovery of
damages for fraud measured by the traditional ‘loss of bargain’ formula.”
(Channell, supra, 58 Cal.App.3d at p. 313, footnote omitted.)
• “[O]ut of pocket” loss under section 3343 is “the difference between what
[plaintiffs] received for their property and the fair market value of the same at
the time of the transfer.” (Channell, supra, 58 Cal.App.3d at p. 314.)
• “[N]othing in section 3343 as amended . . . requires that a plaintiff show ‘out-
of-pocket’ loss (i.e., an amount by which the consideration paid exceeded the
value of the property received) in order to be entitled to any recovery for fraud
in a property transaction.” (Stout v. Turney (1978) 22 Cal.3d 718, 730 [150
Cal.Rptr. 637, 586 P.2d 1228].)
• “In the absence of a fiduciary relationship, section 3343 governs the measure of
damages in fraudulent property transactions.” (Croeni v. Goldstein (1994) 21
Cal.App.4th 754, 759 [26 Cal.Rptr.2d 412].)
• “In the case of a seller . . . the defrauded victim is entitled to recover not only
the difference between the actual value of that with which he parted and the
actual value of that which he received (out-of-pocket) but also any additional
CACI No. 1922 FRAUD OR DECEIT
1202
damage arising from the particular transaction including any of the following: 1.
amounts expended in reliance upon the fraud; 2. amounts compensating for loss
of use and enjoyment of the property due to the fraud; and 3. an amount which
would compensate him for the profits or other gains by the use of the property
had he retained it.” (Channell, supra, 58 Cal.App.3d at p. 312, internal citation
omitted.)
• “What that time span [for damages for lost use and lost profits] should be would
be determined by the peculiar circumstances of the particular case before the
court and should present no insurmountable difficulty for a court in fixing a
reasonable period contemplated by the statute.” (Channell, supra, 58 Cal.App.3d
at p. 317, footnote omitted.)
• “To recover damages for fraud, a plaintiff must have sustained damages
proximately caused by the misrepresentation. A damage award for fraud will be
reversed where the injury is not related to the misrepresentation.” (Las Palmas
Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1252
[1 Cal.Rptr.2d 301], internal citations omitted.)
• “Mental distress is not an element of damages allowable under Civil Code
section 3343.” (Channell, supra, 58 Cal.App.3d at p. 315, internal citations
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1897-1899
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.23 (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)
FRAUD OR DECEIT CACI No. 1922
1203
© Judicial Council of California.
