California Civil Jury Instructions (CACI) (2017)

4110. Breach of Duty by Real Estate Seller’s Agent—Inaccurate Information in Multiple Listing Service—Essential Factual Elements (Civ. Code, § 1088)

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4110.Breach of Duty by Real Estate Seller’s Agent—Inaccurate
Information in Multiple Listing Service—Essential Factual
Elements (Civ. Code, § 1088)
[Name of defendant], as the real estate [broker/salesperson/appraiser] for
[name of seller], listed the property for sale in a multiple listing service
(MLS). [Name of plaintiff] claims that [he/she] was harmed because
information in the MLS was false or inaccurate. [Name of defendant] is
responsible for this harm if [name of plaintiff] proves all of the following:
1. That [name of defendant] listed the property for sale in a MLS;
2. That information posted on the MLS was false or inaccurate;
3. That [name of defendant] knew, or reasonably should have
known, that the information was false or inaccurate;
4. That [name of plaintiff] reasonably relied on the false or
inaccurate information in the MLS;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New June 2015
Directions for Use
A real estate agent or appraiser has a duty to a buyer of real estate to post only
accurate information on a multiple listing service (MLS). The buyer has a right of
action against an agent or appraiser for harm caused by inaccurate information on
an MLS if the agent or broker knew or should have known that the information
was false or inaccurate. (Civ. Code, § 1088; see Furla v. Jon Douglas Co. (1998)
65 Cal.App.4th 1069, 1077 [76 Cal.Rptr.2d 911].)
The statute provides a remedy for anyone “injured by” the false or inaccurate
information. (Civ. Code, § 1088.) As a statutory remedy for a species of
misrepresentation, the plaintiff must show causation in the form of both actual and
justifiable reliance on the inaccurate information on the MLS (element 4). (See
Furla,supra, 65 Cal.App.4th at p. 1078; CACI No. 1907, Reliance, CACI No.
1908, Reasonable Reliance.)
Sources and Authority
• False or Inaccurate Information in Multiple Listing Service. Civil Code section
A real estate agent also has a statutory liability for negligence: ‘[i]f an agent
. . . places a listing or other information in the multiple listing service, that
agent . . . shall be responsible for the truth of all representations . . . of which
that agent . . . had knowledge or reasonably should have had knowledge to
anyone injured by their falseness or inaccuracy.’ ” (Furla,supra, 65
Cal.App.4th at p. 1077.)
• “A broker’s duties with respect to any listing or other information posted to an
MLS are specified in section 1088. Section 1088 states in relevant part that the
broker ‘shall be responsible for the truth of all representations and statements
made by the agent [in an MLS] . . . of which that agent . . . had knowledge or
reasonably should have had knowledge,’ and provides a statutory negligence
claim for ‘anyone injured’ by the ‘falseness or inaccuracy’ of such
representations and statements.” (Saffıe v. Schmeling (2014) 224 Cal.App.4th
563, 568 [168 Cal.Rptr.3d 766].)
• “There is nothing in section 1088, or any other source of law, imposing
responsibility on a seller’s broker to ensure that true statements in an MLS are
not misconstrued, or to make certain that the buyer and the buyer’s broker
perform the appropriate due diligence to evaluate the significance of such true
statements for the buyer’s particular purposes.” (Saffıe,supra, 224 Cal.App.4th
at p. 570.)
• “Defendants contend there is no triable issue of fact and as a matter of law
plaintiff did not reasonably rely upon the misrepresentations, and plaintiff
unreasonably failed to exercise due care for his own interest as buyer. They
contend plaintiff was repeatedly warned by language in the Multiple Listing
Service and the sales agreement that statements concerning square footage were
approximations only, and that plaintiff could obtain accurate determinations of
square footage by a professional pursuant to the buyer’s right to inspect the
property. But whether a plaintiff reasonably relied on a defendant’s
misrepresentations or failed to exercise reasonable diligence is also ordinarily a
question of fact for the trier of fact.” (Furla,supra, 65 Cal.App.4th at p. 1078.)
• “To be sure, an omission of information may sometimes render an otherwise
true statement false or inaccurate, in the meaning of section 1088.” (Saffıe,
supra, 224 Cal.App.4th at p. 570.)
• “Absent anything untrue or inaccurate about the statement seller’s broker
actually made in the MLS, and absent damage to buyer from such falsity or
inaccuracy, seller’s broker is not liable under section 1088.” (Saffıe,supra, 224
Cal.App.4th at pp. 571–572.)
Secondary Sources
12 Witkin, Summary of California Law (10th ed. 2010) Real Property, § 473.
3California Real Estate Law and Practice, Ch. 61, Employment and Authority of
Brokers, § 61.76 (Matthew Bender)
10 California Forms of Pleading and Practice, Ch. 103, Brokers, § 103.31 (Matthew
2A California Points and Authorities, Ch. 31, Brokers and Salespersons, § 31.147
(Matthew Bender)
4111–4119. Reserved for Future Use