California Dog Bite Law

CIVIL CODE

DIVISION 4. General Provisions

PART 1. Relief

TITLE 2. Compensatory Relief

CHAPTER 2. Measure of Damages

ARTICLE 2. Damages for Wrongs

Cal Civ Code § 3342.5 (2003)

§ 3342.5. Duty to remove danger presented from dog bites; Enforcement

(a) The owner of any dog that has bitten a human being shall have the duty to take such reasonable steps as are necessary to remove any danger presented to other persons from bites by the animal.

(b) Whenever a dog has bitten a human being on at least two separate occasions, any person, the district attorney, or city attorney may bring an action against the owner of the animal to determine whether conditions of the treatment or confinement of the dog or other circumstances existing at the time of the bites have been changed so as to remove the danger to other persons presented by the animal. This action shall be brought in the county where a bite occurred. The court, after hearing, may make any order it deems appropriate to prevent the recurrence of such an incident, including, but not limited to, the removal of the animal from the area or its destruction if necessary.

(c) Whenever a dog trained to fight, attack, or kill has bitten a human being, causing substantial physical injury, any person, including the district attorney, or city attorney may bring an action against the owner of the animal to determine whether conditions of the treatment or confinement of the dog or other circumstances existing at the time of the bites have been changed so as to remove the danger to other persons presented by the animal. This action shall be brought in the county where a bite occurred. The court, after hearing, may make any order it deems appropriate to prevent the recurrence of such an incident, including, but not limited to, the removal of the animal from the area or its destruction if necessary.

(d) Nothing in this section shall authorize the bringing of an action pursuant to subdivision (b) based on a bite or bites inflicted upon a trespasser, or by a dog used in military or police work if the bite or bites occurred while the dog was actually performing in that capacity.

(e) Nothing in this section shall be construed to prevent legislation in the field of dog control by any city, county, or city and county.

(f) Nothing in this section shall be construed to affect the liability of the owner of a dog under Section 3342 or any other provision of the law.

(g) A proceeding under this section is a limited civil case.

HISTORY: Added Stats 1968 ch 1274 § 1. Amended Stats 1976 ch 470 § 1.

Amended Stats 1984 ch 655 § 1, effective August 16, 1984; Stats 1998 ch 931 § 18 (SB 2139), effective September 28, 1998.

NOTES:
AMENDMENTS:

1976 Amendment:
Amended the first sentence of subd (b) by (1) adding ", the district attorney, or city attorney" after "any person"; and (2) substituting "municipal" for "superior".

1984 Amendment:
(1) Generally eliminated "such", (2) added subd (c); (3) redesignated former subds (c), (d), and (e) to be subds (d), (e), and (g); and (4) amended subd (d) by (a) deleting "which is" after "subdivision (b)"; and (b) substituting "was" for "is" before "actually".

1998 Amendment:
(1) Amended the first sentence of subd (b) by (a) deleting "or in the municipal court" after 'bring an action"; and (b) substituting "the" for "such" after "presented by" at the end; (2) redesignated former subd (g) to be subd (f); and (3) added subd (g).

OFFICIAL COMMENT:

LAW REVISION COMMISSION COMMENTS:

1998--Section 3342.5 is amended to accommodate unification of the municipal and superior courts in a county. Cal. Const. art. VI, § 5(e).

A limited civil case is within the original jurisdiction of the municipal court or of the superior court in a county in which there is no municipal court. Cal. Const. art. VI, § 10 (superior court jurisdiction); Code Civ. Proc. § § 85, 85.1 (limited civil cases). See also Code Civ. Proc. § § 91, 904.2, 1085 (trial procedures and writ and appellate jurisdiction for limited civil cases).

CROSS REFERENCES:
Killing or impounding dog: Fd & Ag C § § 30953, 31102 et seq.
Prohibition of dogs running at large: Fd & Ag C § § 30954 et seq.
Dogs as property: Pen C § 491.
Injury to animals: Pen C § § 596 et seq.

COLLATERAL REFERENCES:
Cal Forms Pl & Practice (Matthew Bender) ch 23 "Animals: Civil Liability" § § 23.34(1), (2).
Witkin Summary (9th ed) Torts § 876.

ANNOTATIONS:
Modern status of rule of absolute or strict liability for dogbite. 51 ALR4th 446.
Who "harbors" or "keeps" dog under animal liability statute. 64 ALR4th 963.
Liability for injuries inflicted by dog on public officer or employee. 74 ALR4th 1120.

SUGGESTED FORMS

COMPLAINT BY PARTY AGAINST OWNER OF DOG THAT HAS INFLICTED BITES ON TWO SEPARATE OCCASIONS--FOR DETERMINATION OF WHETHER DOG SHOULD BE REMOVED FROM AREA OR BE DESTROYED

[Title of Court and Cause]

1. Plaintiff resides at ----------- [address], in the City of -----------, County of -----------, State of California.

2. Defendant resides at ----------- [address], in the City of -----------, County of -----------, State of California, and is the owner of ----------- [specify breed of dog].

3. Defendant's dog has bitten a human being on at least ---- [two] separate and unrelated occasions.

4. On ----------- [date] , defendant's dog bit ------ [person] at ------ [location], in the County of -----------, State of California. On ------ [date] , defendant's dog bit ------ [person] at ------ [location], in the County of -----------, State of California.

5. ------ [If applicable, set forth facts supporting allegation of vicious nature of dog and defendant's knowledge of such nature and his inability or refusal to take reasonable steps to remove danger presented other persons].

Wherefore, plaintiff prays:

1. That defendant be cited to appear and answer this complaint;

2. That this court determine, in accordance with the provisions of Section 3342.5 of the Civil Code of the State of California, whether conditions of the treatment or confinement of the dog or other circumstances existing at the time of the ---- [two] bites have been changed so as to remove the danger to other persons presented by such animal;

3. ------ [If applicable, set forth any further specific relief requested];

4. For costs of suit; and

5. For such further relief as may be deemed just and equitable.

Dated -----------.

[Signature]

[For verification, see first form set out under § 3304.]

[Reminder: Rule 311(b) of The California Rules of Court provides that in all proceedings in civil law and motion in superior, municipal, and justice courts, the first page of each paper must specify immediately below the number of the case (1) the date, time, and location, if ascertainable, of any scheduled hearing; (2) the nature or title of any attached document other than an exhibit; and (3) the trial date, if set. Documents bound together must be consecutively paginated.]

CIVIL CODE

DIVISION 3. Obligations

PART 2. Contracts

TITLE 1. Nature of a Contract

CHAPTER 3. Consent

Cal Civ Code § 1572 (2003)

§ 1572. Actual fraud defined

Actual fraud, within the meaning of this chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:

1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

3. The suppression of that which is true, by one having knowledge or belief of the fact;

4. A promise made without any intention of performing it; or,

5. Any other act fitted to deceive.

HISTORY: Enacted 1872.

NOTES:
HISTORICAL DERIVATION:
Field's Draft NY CC § 757.

CROSS REFERENCES:
Contract not in writing due to fraud: CC § 1623.
Statue of frauds: CC § 1624; UCC § 2201.
Rescission of contracts for fraud: CC § 1689.
Fraudulent deceit: CC § § 1709, 1710.
Deceit upon the public: CC § 1711.
Involuntary trust resulting from fraud: CC § 2224.
Damages: CC § § 3288, 3343.
Exemplary damages in case of fraud: CC § 3294.
Fraudulent instruments and transfers: CC § § 3439 et seq.

COLLATERAL REFERENCES:
Witkin Summary (9th ed) Contracts § § 393-395, 397-399; Torts § § 657, 674, 688, 690, 705, 722, 723.
Cal Jur 3d (Rev) Criminal Law § 1281.
Calif Real Property Remedies Practice (CEB, 1982) § § 3.1-3.58.
Handling real property sales transactions. CEB Action Guide.
Drafting representations, guaranties, and indemnities for a sale transaction. 11 CEB Bus L Prac 189.
Trial court committed prejudicial error in failing to instruct jury on constructive fraud; burden of proof for oral modification of written contract is preponderance of evidence rather than clear and convincing evidence. CEB Civ Litig Rep (1986) Vol 8 No. 4 p 136.
Miller & Starr, Cal Real Estate 3d § § 1:124, 1:125, 1:126, 1:136, 1:146, 1:138, 1:137, 8:55, 8:57, 28:102, 28:103, 31:51.

LAW REVIEW ARTICLES:
Right of vendee to affirm contract and sue on fraud. 3 Cal LR 152.
Provision for remedy and compromise agreement: remedy for fraud inducing compromise. 10 Cal LR 263.
Remedy in tort where actual fraud is present. 36 Cal LR 138.
Admissibility of parol evidence to show that promise was made without intention to perform it. 38 Cal LR 535.
Rescission of contract for fraud. 39 Cal LR 309.
Oral employment contracts and equitable estoppel: The real estate broker as victim. 26 Hast LJ 1503.
Fraud begins at home, or at least with the loan applications. 34 Orange County Law No. 8 p 20.
Contractual liability of persons ignorant of, or not proficient in, the English language; fraud in the execution. 11 San Diego LR 427.
Tortious breach of the covenant of good faith and fair dealing in California since Foley:Opportunity or efficiency. 26 San Diego LR 73.
Damages for fraud. 14 Santa Clara Law 325.
Rescission for fraud. 25 SCLR 204.
Election of remedies in cases of fraudulent misrepresentation. 26 SCLR 157.
Prerequisite intent to deceive. 5 UCLA LR 583.

ANNOTATIONS:
Proceeding under executory contract after discovering fraud as waiver of right to recover damages for fraud. 13 ALR2d 807.
Contracting party's right of redress for fraud as affected by his own breach of the contract before discovering the fraud. 13 ALR2d 1248.
Misrepresentations as to matters of foreign law as actionable. 24 ALR2d 1039.
False representations as to income, profits, or productivity of property as fraud. 27 ALR2d 14.
Misrepresentation as to third person's present intention as to future act as actionable fraud. 40 ALR2d 971.
Tort liability for damages for misrepresentations as to area of real property sold or exchanged. 54 ALR2d 660.
Liability of vendor's real-estate broker or agent to purchaser or prospect for misrepresenting or concealing offer or acceptance. 55 ALR2d 342.
Right of action for fraud, duress, or the like, causing instant plaintiff to release or compromise a cause of action against third person. 58 ALR2d 500.
Necessity of showing damage to establish fraud as defense to action on contract. 91 ALR2d 346.
Civil liability of witness falsely attesting signature to document. 96 ALR2d 1346.
Obligee's concealment or misrepresentation concerning previous defalcation as affecting liability on fidelity bond or contract. 4 ALR3d 1197.
Fraud in connection with franchise or distributorship relationship. 64 ALR3d 6.
Claim of fraud in inducement of contract as subject to compulsory arbitration clause contained in contract. 11 ALR4th 774.
Claim of fraud in inducement of contract as subject to compulsory arbitration clause contained in contract. 11 ALR4th 774.

NOTES OF DECISIONS

1. In General 2. Elements of Fraud or Deceit, Generally 3. Material Misrepresentation 4. Representations With Knowledge of Falsity--Generally 5. Representations With Knowledge of Falsity--Applications 6. Representations With No Reasonable Grounds to Believe True--Generally 7. Representations With No Reasonable Grounds to Believe True--Applications 8. Statements of Facts or Opinion, Generally 9. Opinions Not Honestly Entertained 10. Opinions Stated as Accomplished Facts 11. Opinions Stated to Persons Entitled To Rely 12. Statements of Value of Property 13. Statements of Fact--Applications 14. Matters of Opinion--Applications 15. Suppression of Fact--Generally 16. Suppression of Fact--Applications 17. Promise Made Without Intention to Perform--Generally 18. Promise Made Without Intention to Perform--Applications 19. Procedure--Generally 20. Pleading 21. Burden of Proof 22. Findings 23. Procedure--Other Matters

Concealment may constitute actionable fraud where seller knows of facts which materially affect desirability of property and which he knows was unknown to buyer. Kallgren v Steele (1955, 2nd Dist) 131 Cal App 2d 43, 279 P2d 1027.

A promise not to enforce one of terms of written contract, being directly at variance with terms of writing, cannot afford basis for action in deceit. Abbot v Stevens (1955, 2nd Dist) 133 Cal App 2d 242, 284 P2d 159.

Where any relation of confidence and trust exists between parties which demands that information communicated respecting the subject of their dealings be full and complete, any concealment or misrepresentation will amount to fraud sufficient to entitle injured party to an action. Kruse v Miller (1956, 4th Dist) 143 Cal App 2d 656, 300 P2d 855, 61 ALR2d 1231.

One who learns that his statements, even if thought to be true when made, have become false through change in circumstances, has duty before his statements are acted upon to disclose the new conditions to party relying on his original representations. Stevens v Marco (1956, 2nd Dist) 147 Cal App 2d 357, 305 P2d 669.

A representation need not be a direct falsehood to constitute fraud; it may be a deceptive answer or other indirect but misleading language. Brady v Carman (1960, 1st Dist) 179 Cal App 2d 63, 3 Cal Rptr 612.

Deceit may consist of suppression of facts which it is fiduciary's duty to reveal. Zikratch v Stillwell (1961, 4th Dist) 196 Cal App 2d 535, 16 Cal Rptr 660.

Deceit is tort action not requiring existence of any contract though one may coincide with tort. Hayman v Shoemake (1962, 5th Dist) 203 Cal App 2d 140, 21 Cal Rptr 519.

Deceit may arise from mere nondisclosure (Civ. Code, § § 1709, 1710). Massei v Lettunich (1967, 1st Dist) 248 Cal App 2d 68, 56 Cal Rptr 232.

2. Elements of Fraud or Deceit, Generally

Fraud may consist in the misrepresentation, or the concealment of material facts, and may be inferred from the circumstances and condition of the parties contracting. Belden v Henriques (1857) 8 Cal 87.; Kallgren v Steele (1955, 2nd Dist) 131 Cal App 2d 43, 279 P2d 1027.

One material misrepresentation justifiably relied on is sufficient to establish for fraud. Harris v Miller (1925) 196 Cal 8, 235 P 981.; Leary v Baker (1953) 119 Cal App 2d 106, 258 P2d 1090.; Mariani v Schonfeld (1954) 126 Cal App 2d 187, 271 P2d 940.; Ogier v Pacific Oil & Gas Dev. Corp. (1955, 1st Dist) 132 Cal App 2d 496, 282 P2d 574.

There is definite distinction between a fraudulent representation and a warranty; a fraudulent representation is an antecedent statement made as an inducement to the contract, but is not a part or element thereof. J. B. Colt Co. v Freitas (1926) 76 Cal App 278, 244 P 916.

Fraud and deceit which will impose a liability for damages must consist of representations known by the parties charged to be false, or which are not warranted by the information which they possess. Walker v Department of Public Works (1930) 108 Cal App 508, 291 P 907.

Truth or falsity of the representations must be determined as of time when they were relied and acted upon. United States Nat. Bank v Stiller (1931) 119 Cal App 442, 6 P2d 529.

Plaintiff seeking relief from fraud will not be denied relief because he reposed too much confidence in person who actually defrauded him, where it cannot be said that his conduct in light of his own intelligence and information was manifestly unreasonable. Anderson v Thacher (1946) 76 Cal App 2d 50, 172 P2d 533.

The elements of actionable fraud which must be pleaded and proved are a false representation of a material fact, made with knowledge of its falsity and with intent to induce reliance thereon, on which plaintiff justifiably relies to his injuries; and, normally, omission of a single one of these elements in an action for deceit will prevent recovery. Wishnick v Frye (1952) 111 Cal App 2d 926, 245 P2d 532.

There is no requirement, that to constitute ground for recovery, misrepresentations be made at any particular moment during negotiations. Nathanson v Murphy (1955, 1st Dist) 132 Cal App 2d 363, 282 P2d 174.

To be actionable deceit, representation need not be made with knowledge of actual falsity, but need only be assertion, as a fact, of that which is not true by one who has no reasonable ground for believing it to be true and made with intent to induce recipient to alter his position to his injury or his risk. Nathanson v Murphy (1955, 1st Dist) 132 Cal App 2d 363, 282 P2d 174.

Deceit may be negative as well as affirmative; it may consist in suppression of that which it is one's duty to declare, as well as in declaration of that which is false. Oldenburg v Brody (1956, 4th Dist) 139 Cal App 2d 543, 293 P2d 844.; Stevens v Marco (1956, 2nd Dist) 147 Cal App 2d 357, 305 P2d 669.; Agnew v Cronin (1957, 2nd Dist) 148 Cal App 2d 117, 306 P2d 527.

If facts clearly indicate that defendant, when making misstatements directly to plaintiff, had no intention of inducing reliance by plaintiff, there is no actionable fraud though plaintiff in fact relies to his detriment. Cohen v Citizens Nat. Trust & Sav. Bank (1956, 2nd Dist) 143 Cal App 2d 480, 300 P2d 14.

Existence of duty to tell truth to plaintiff is essential basic element of any valid claim of fraud and deceit, and unless it is intended that plaintiff rely and act on representation made by defendant, or unless plaintiff belongs to class to whom representation is made, no cause of action can arise therefrom. Hesse v Vinatieri (1956, 2nd Dist) 145 Cal App 2d 448, 302 P2d 699.

Scienter is not essential element of cause of action for deceit. Stone v Farnell (1956, CA9 Cal) 239 F2d 750.

"Actual fraud" and "deceit" are defined in similar terms by the code. Zinn v Ex-Cell-O Corp. (1957, 1st Dist) 148 Cal App 2d 56, 306 P2d 1017.

Elements of actionable deceit are false representation of material fact made with knowledge of its falsity, recklessly or without reasonable grounds for believing its truth, and with intent to induce reliance thereon, on which plaintiff justifiably relies to his injury. Regus v Schartkoff (1957, 2nd Dist) 156 Cal App 2d 382, 319 P2d 721.

General elements of cause of action for fraudulent misrepresentation are misrepresentation (false representation, concealment, or nondisclosure), knowledge of falsity (scienter), intent to induce reliance, justifiable reliance, and resulting damage. Lawson v Town & Country Shops, Inc. (1958, 2nd Dist) 159 Cal App 2d 196, 323 P2d 843.

Intent to defraud is not of essence of suit for deceit; it is intent to induce action by other person that counts. Ashburn v Miller (1958, 2nd Dist) 161 Cal App 2d 71, 326 P2d 229.

To constitute either actual or constructive fraud there must be false representation or promise as to material fact, knowledge of its falsity when made, or lack of reasonable ground to believe in its truth, intent to deceive, or suppression, and reliance with resulting damages. Pinney & Topliff v Chrysler Corp. (1959, DC Cal) 176 F Supp 801.

To establish cause of action for fraud or deceit, plaintiff must prove that material representation was made, that it was false and defendant either knew it to be untrue or did not have sufficient knowledge to warrant belief that it was true, that it was made with intent to induce plaintiff to act in reliance thereon, that plaintiff reasonably believed it to be true and did in fact rely thereon, and that he suffered damage thereby. Sixta v Ochsner (1960, 1st Dist) 187 Cal App 2d 485, 9 Cal Rptr 617.

Intent required in fraud and deceit is intent to induce action in reliance on false representations, not intent to deceive. Yellow Creek Logging Corp. v Dare (1963, 1st Dist) 216 Cal App 2d 50, 30 Cal Rptr 629.

In its broad, general sense the concept of fraud embraces anything which is intended to deceive, including all statements, acts, concealments and omissions involving breach of legal or equitable duty, trust or confidence which results in injury to one who justifiably relies thereon. Pearson v Norton (1964, 4th Dist) 230 Cal App 2d 1, 40 Cal Rptr 634.

Elements of actionable fraud are false representation, actual or implied, or the concealment of a matter of fact, material to the transaction, made falsely; knowledge of the falsity, or statements made with such disregard and recklessness that knowledge is inferred; intent to induce another into relying on the representation; reliance by one who has a right to rely; and resulting damage. Pearson v Norton (1964, 4th Dist) 230 Cal App 2d 1, 40 Cal Rptr 634.

Elements of fraud, giving rise to tort action for deceit are misrepresentation, knowledge of falsity, intent to defraud, justifiable reliance, and resulting damage. Norkin v United States Fire Ins. Co. (1965, 2nd Dist) 237 Cal App 2d 435, 47 Cal Rptr 15.

It is not essential to liability for fraud that the person charged have received any advantage from the fraud. Thus, a person may be liable for fraudulent misrepresentations even if he or she gains no benefit or profit of any kind from them. It is essential, however, that the person complaining of fraud actually have relied on the alleged fraud, and suffered damages as a result. What distinguishes actionable fraudulent deceit is the element of knowing intent to induce someone's action to his or her detriment with false representations of fact. Fraud is an intentional tort; it is the element of fraudulent intent, or intent to deceive, that distinguishes it from actionable negligent misrepresentation and from nonactionable innocent misrepresentation. It is the element of intent which makes fraud actionable, irrespective of any contractual or fiduciary duty one party might owe to the other. City of Atascadero v Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998, 1st Dist) 68 Cal App 4th 445, 481, 80 Cal Rptr 2d 329.

3. Material Misrepresentation

To recover in an action based upon fraud and deceit, it must first be made to appear that a false representation was made as to a material fact. Andrew v Bankers & Shippers Ins. Co. (1929) 101 Cal App 566, 281 P 1091.

To be material the false representation must be of such a character that, if it had not been made, the contract or transaction would not have been entered into. Andrew v Bankers & Shippers Ins. Co. (1929) 101 Cal App 566, 281 P 1091.

A fraudulent misrepresentation is one made with the knowledge that it is or may be untrue, and with the intention that the person to whom it is made act in reliance thereon. Seeger v Odell (1941) 18 Cal 2d 409, 115 P2d 977.

Although a person may be under no duty to speak as to another, if he undertakes to do so either voluntarily or in response to inquiries he is bound not only to state truly what he tells, but also not to suppress or conceal any facts within his knowledge which materially qualify those stated. Wice v Schilling (1954) 124 Cal App 2d 735, 269 P2d 231.

Concealment may constitute actionable fraud where seller knows of facts which materially affect desirability of property and which he knows are unknown to buyer. Kallgren v Steele (1955, 2nd Dist) 131 Cal App 2d 43, 279 P2d 1027.

Vendor's misrepresentation of acreage may be of material fact. Nathanson v Murphy (1955, 1st Dist) 132 Cal App 2d 363, 282 P2d 174.

Concealment is material where knowledge suppressed is so important and obviously so well in recollection of party withholding it that its mere repression amounts to fraud. Sanfran Co. v Rees Blow Pipe Mfg. Co. (1959, 1st Dist) 168 Cal App 2d 191, 335 P2d 995.

Property owner's representation that he was offering for sale property on which dwelling was located, when in fact he did not own that property, constitutes material misrepresentation, and if relied on is sufficient to establish that element in buyer's cause of action for fraud, regardless of whether or not owner knew exact location of his property. Sixta v Ochsner (1960, 1st Dist) 187 Cal App 2d 485, 9 Cal Rptr 617.

The conclusion that defendants were guilty of the tort of deceit was justified by findings, supported by the evidence, that they induced plaintiff to buy a subdivision of land by misrepresentations that part of its development was a going business and that the water rights and wells were adequate, and by promises, which they did not intend to perform, relating to the formation of, or arrangements with, a utility company to provide water, electricity, gas and telephone services, that the representations were known to be false, and that plaintiff was intended to, and did, rely on them to its detriment. Green Trees Enterprises, Inc. v Palm Springs Alpine Estates, Inc. (1967) 66 Cal 2d 782, 59 Cal Rptr 141, 427 P2d 805.

Generally an owner, by failing to impart its knowledge of difficulties to be encountered in a construction project will be liable for misrepresentation if the contractor is unable to perform according to contract provisions. Warner Constr. Corp. v Los Angeles (1970) 2 Cal 3d 285, 85 Cal Rptr 444, 466 P2d 996.

A misrepresentation or concealment of a known fill in a lot sold to another constitutes material inducement working fraud on a buyer who is ignorant of the fill. Snelson v Ondulando Highlands Corp. (1970, 2nd Dist) 5 Cal App 3d 243, 84 Cal Rptr 800.

The essential elements of a purchaser's cause of action to recover damages for the vendors' fraud based on nondisclosure and not involving a confidential relationship were not present in a case involving the purchase of a lot and dilapidated house, which was posted after the sale as dangerous and declared condemned, where it appeared that the purchaser was an engineer, skilled in realty transactions, with a knowledge of value and repair requirements and costs, that his associate in the transaction was a loan broker and appraiser, that there was no confidential relation between the parties, that no misinformation was given, that the vendors' broker fully advised the purchaser of the defective condition of the house, that representations as to the lack of pending condemnation proceedings was accurate, that the vendors' information was known or accessible to the purchaser, and that the purchaser chose not to obtain authorization to inspect the building department's records affecting the house. Driver v Melone (1970, 1st Dist) 11 Cal App 3d 746, 90 Cal Rptr 98.

In an action against a plastic surgeon arising out of scarring of plaintiff's abdomen following an operation intended to remove a previous scar, plaintiff's claim of fraud by defendant was not supported by evidence that after plaintiff had retained an attorney, defendant called her and offered either to correct her condition or to pay for the services of another physician, that he offered to pay her as much as $ 1,000 if she would drop the proceeding, and that he told her either that he was "judgment proof" or would become so in order to prevent her from recovering a judgment. There was no evidence that such representations were not true or of reliance by plaintiff, since she rejected the offer and continued the suit, and there was no showing of damage in any manner. Stone v Foster (1980, 3rd Dist) 106 Cal App 3d 334, 164 Cal Rptr 901.

4. Representations With Knowledge of Falsity--Generally

Where misrepresentations are made knowingly, it is immaterial whether there is intent to deceive. It is incumbent upon defendant to disclose facts to the plaintiff in order that latter may have opportunity to arrive at his own conclusion and make his decision upon facts as they existed, and not upon half truths. Pohl v Mills (1933) 218 Cal 641, 24 P2d 476.

When statement as to value is made as positive affirmation of fact, and is intended as such by party making it, and such statement is false and is known to be false by person making it, and such statement is relied upon by person to whom it is made, such statement is actionable. Willson v Municipal Bond Co. (1936) 7 Cal 2d 144, 59 P2d 974.

Where party makes representations of fact with knowledge that they were false, misrepresentation cannot be justified by an alleged belief wholly unwarranted by facts. Klutts v Rupley (1943) 58 Cal App 2d 560, 137 P2d 496.

A person who deliberately makes positive assertions that are untrue will not avoid responsibility therefor by saying that his adversary was not compelled to rely on them, but must go further and show that the adversary did not in fact rely on them. Sanders v Park Beverly Corp. (1952) 109 Cal App 2d 698, 241 P2d 597.

Expression of dishonest opinion to person entitled to rely thereon amounts to practice of deceit on him and an action will lie for resulting injury. Gillespie v Ormsby (1954) 126 Cal App 2d 513, 272 P2d 949.

5. Representations With Knowledge of Falsity--Applications

Where party to an exchange agreement expressly represents property which he is conveying is under present rental of given sum per month, and, though lease to tenant in possession provides for such rental, rental value of the property is lesser sum, and tenant has been paying only such lesser sum, this in effect amounts to a wilful misrepresentation and is actionable fraud. Sullivan v Helbing (1924) 66 Cal App 478, 226 P 803.

A vendor of land is guilty of actionable deceit where he knew the number of acres in the tract, and led the real estate agent with whom he listed the property for sale to believe that it contained a specified number of acres; where, acting upon such information, the agent so represented it to the vendee, and the latter believed such representation and relied upon it in his purchase of the property; and where the vendor knowing of such belief and knowing the actual acreage in the tract to be less than that specified, answered the vendee's inquiry as to the acreage by stating that he "did not know how many acres there were," that "it may be less, it may be a little more" than the number specified, and that the person from whom he purchased the tract told him it contained that number of acres. Odson v Swanson (1924) 70 Cal App 279, 233 P 354.

In connection with an exchange of lands, statements with reference to sufficiency of water supply, when made as accomplished facts by one of parties and accepted and relied upon by the other as such, may become basis of an action for fraudulent representations, and this is particularly so where known deficiency is water supply in past is shown. Dvorak v Latimer (1928) 91 Cal App 664, 267 P 578.

Where false statement that corporation will declare large dividend is designed by maker to create belief it is based upon facts within knowledge of maker, and is accepted by buying public as statement of fact, resulting in increased sales of stock of such corporation, maker will not be permitted to escape liability on ground that his fraudulent statement was not statement of fact. H. W. Smith, Inc. v Swenson (1930) 105 Cal App 60, 286 P 1050.

Where a vendor knew that his house was erected on filled in land over a creek bed, and could not have failed to understand from the conversation of his vendees that they had assumed otherwise, and knew that his answer that he did not blame them "for not wanting to buy a house over a creek, that he would not either," would tend to confirm them in their mistake and lead them away from inquiry, he, by this statement, and his further silence, misrepresented the fact as to the character of the land which constituted actionable fraud. Benner v Hooper (1931) 112 Cal App 53, 296 P 660.

Where a canal company induced the purchase of its stock by its representation that it was a mutual water company, whereas it was not operating freely as a bona fide mutual water company, but was nothing more than a corporate fiction, completely dominated by a power company, which was a public utility, such representation was a fraudulent deceit which entitled the aggrieved party to any damage caused thereby. Goodspeed v Great Western Power Co. (1939) 33 Cal App 2d 245, 91 P2d 623.

Representations of the value of corporate stock, profits to be counted on, and the condition of a business are not dealer's talk when made by one possessing or assuming to possess superior knowledge regarding the business which is not available to the other, and it amounts to an affirmation of fact and the suggestion as a fact of that which is not true by one who does not believe it to be true. Stallman v Schwartz (1946) 76 Cal App 2d 406, 173 P2d 388.

Where a purchaser's investigation of income property is limited to its physical features, and he is falsely informed that no income and expense records exist, he does not come within the rule that a purchaser who makes his own investigation and is allowed to proceed without hindrance is presumed to have relied exclusively on his own investigation and not vendor's representations. Sanders v Park Beverly Corp. (1952) 109 Cal App 2d 698, 241 P2d 597.

In action by purchasers for damages for false representations as to freedom of a building from termites, a judgment for defendant exterminator cannot be supported by findings that he was not sellers' agent and that there was no privity of contract between him and purchasers, where, notwithstanding he had been employed by sellers' predecessor in title, it appears that, when he gave escrow agent a copy of certificate given to predecessor in title, in which he asserted that to best of his knowledge the premises were free of termites, he knew that representation therein was false, and that purchasers would rely thereon. Wice v Schilling (1954) 124 Cal App 2d 735, 269 P2d 231.

In action by purchaser of realty against broker for fraud, false statement by broker as to monthly rental received from property is misrepresentation of material fact in view of court's finding that such statement was made by broker with knowledge that it was not true and was made for purpose and intent of deceiving plaintiff, and where plaintiff, in reliance on such statement, entered into agreement to purchase property. Barnes v Persson (1955, 2nd Dist) 131 Cal App 2d 515, 280 P2d 821.

Where defendant stated to plaintiff's representative his desires to obtain refrigerated showcase which would not be affected by condensation, representative replied that he did not know if certain kind of glass would effect desired result, defendant then requested that representative ascertain fact from his superiors, and representative returned with statement that he had consulted his superiors and had been told by them that such glass would be condensation free, after which he tendered to defendant for execution written proposal form without warning him that it contained provision contrary to representation, trial court could hold that this constituted representation that instrument contained nothing contrary to representations made. Cobbledick-Kibbe Glass Co. v Pugh (1958, 3rd Dist) 161 Cal App 2d 123, 326 P2d 197.

False representations by seller of business to buyers that he had obtained from lessor her oral consent to assignment of lease to premises and that lessor had promised to furnish written assignment were false affirmations of fact within meaning of subd 1, defining deceit to be suggestion as fact of that which is not true by one who does not believe it to be true. Civille v Bullis (1962, 2nd Dist) 209 Cal App 2d 134, 25 Cal Rptr 578.

The conclusion that defendants were guilty of the tort of deceit was justified by findings, supported by the evidence, that they induced plaintiff to buy a subdivision of land by misrepresentations that part of its development was a going business and that the water rights and wells were adequate, and by promises, which they did not intend to perform, relating to the formation of, or arrangements with, a utility company to provide water, electricity, gas and telephone services, that the representations were known to be false, and that plaintiff was intended to, and did, rely on them to its detriment. Green Trees Enterprises, Inc. v Palm Springs Alpine Estates, Inc. (1967) 66 Cal 2d 782, 59 Cal Rptr 141, 427 P2d 805.

A promoter of a corporation, formed for the express purpose of purchasing a particular piece of property, absent a disclosure to co-subscribers, may not legally profit at the expense of his associates, and where he is guilty of any misrepresentations of fact or suppression of truth in relation to his personal interest in the property, the corporation is entitled to set aside the transaction or recover damages for any loss it has suffered. Topanga Corp. v Gentile (1967, 2nd Dist) 249 Cal App 2d 681, 58 Cal Rptr 713.

An affirmative representation by a vendor to a vendee that land is "cut" when it is on a "fill" constitutes actionable fraud for either damages or rescission. Snelson v Ondulando Highlands Corp. (1970, 2nd Dist) 5 Cal App 3d 243, 84 Cal Rptr 800.

In an action against a plastic surgeon arising out of scarring of plaintiff's abdomen following an operation intended to remove a previous scar, plaintiff's claim of fraud by defendant was not supported by plaintiff's testimony that prior to her consent to the operation defendant told her that he would lower her scar and make her abdomen as "smooth as a baby's," where there was no evidence by which it could be inferred that defendant did not intend to accomplish the exact result he stated, where, in fact, except for complications, the operation accomplished that result, and where the evidence disclosed that the risks inherent in the proposed operation were low probability. Where a physician fails to disclose low probability inherent risks and subsequent complications arise due to those risks, the resulting cause of action is one for negligence. Stone v Foster (1980, 3rd Dist) 106 Cal App 3d 334, 164 Cal Rptr 901.

6. Representations With No Reasonable Grounds to Believe True--Generally

It is not necessary, to constitute fraud, that man who makes false statement should know precisely that it is false; it is enough if it be false, and if he made it recklessly, and without an honest belief in its truth, or without reasonable grounds for believing it to be true, and be made deliberately and in such a way as to give person to whom it is made reasonable ground for supposing that it was meant to be acted upon and has been acted upon by him accordingly. Schwinn v United States (1940, CA9 Cal) 112 F2d 74, affd 311 US 616, 85 L Ed 390, 61 S Ct 70.; Cooper v Schlesinger (1884) 111 US 148, 28 L Ed 382, 4 S Ct 360.

If a person asserts that a thing is true within his personal knowledge, or makes a statement as of his own knowledge or such as implies knowledge on his part when in fact he has no knowledge as to whether his assertion is true or false, and his statement is false, he is as culpable as if he had wilfully asserted that to be true which he knew to be false, and is equally guilty of fraud. Lerner v Riverside Citrus Asso. (1953) 115 Cal App 2d 544, 252 P2d 744.

To be actionable deceit, representation need not be made with knowledge of actual falsity, but need only be assertion, as fact, of that which is not true, by one who has no reasonable ground for believing it to be true. Gagne v Bertran (1954) 43 Cal 2d 481, 275 P2d 15.

To be actionable deceit, representation need not be made with knowledge of actual falsity, but need only be assertion as fact of that which is not true by one who has not reasonable ground for believing it to be true, and made with intent to induce recipient to alter his position to his injury or risk. Stowe v Fritzie Hotels, Inc. (1955) 44 Cal 2d 416, 282 P2d 890.

Representation of law by layman not occupying confidential relationship toward one to whom it is addressed and based on facts equally known or accessible to both does not ordinarily justify reliance on representation. Regus v Schartkoff (1957, 2nd Dist) 156 Cal App 2d 382, 319 P2d 721.

Under subd 2 of this section and under § 1572 intent to deceive is not necessarily part of cause of action for fraud, and negligent misrepresentation made with intent to induce other party to enter into contract, if other elements of fraud exist is actionable. Clar v Board of Trade (1958, 1st Dist) 164 Cal App 2d 636, 331 P2d 89.

If one makes material false statements to another to induce him to buy an article and which do induce him to buy to his injury, defrauding party, either knowing them to be untrue, or believing them to be true, but having no sufficient ground for such belief, will not be protected from his liability for his fraudulent conduct by fact that he did not intend to deceive other party. Nichandros v Real Estate Div. of Dept. of Invest. (1960, 1st Dist) 181 Cal App 2d 179, 5 Cal Rptr 274.

To be actionable deceit, representation need not be made with knowledge of actual falsity, but need only be assertion, as fact, of that which is not true, by one who has no reasonable ground for believing it to be true. Nichandros v Real Estate Div. of Dept. of Invest. (1960, 1st Dist) 181 Cal App 2d 179, 5 Cal Rptr 274.; Sixta v Ochsner (1960, 1st Dist) 187 Cal App 2d 485, 9 Cal Rptr 617.

In view of definition of "deceit" in subd 2, knowledge of actual falsity on part of defendant is not essential element of every cause of action for fraud. Merchants Fire Assur. Corp. v Retail Credit Co. (1962, 2nd Dist) 206 Cal App 2d 55, 23 Cal Rptr 544.

Requirement of scienter in fraud case is satisfied where it is established either that defendant had actual knowledge of untruth of his statements, or lacked honest belief in their truth, or made them carelessly and recklessly in manner not warranted by information available to him. Yellow Creek Logging Corp. v Dare (1963, 1st Dist) 216 Cal App 2d 50, 30 Cal Rptr 629.

Under Civ. Code, § § 1572, subd. (2), 1710 subd. (2), negligent misrepresentation is a form of fraud. Tijsseling v General Acci. Fire & Life Assur. Corp. (1976, 1st Dist) 55 Cal App 3d 623, 127 Cal Rptr 681.

7. Representations With No Reasonable Grounds to Believe True--Applications

A salesman is not jointly responsible with an owner for damages for a false representation made by the salesman and the owner respecting the amount of encumbrance upon the property sold, where the salesman believed the statement to be true and had reasonable ground for such belief and, in making the statement, was relying upon the representations made to him by the owner. Graham v Ellmore (1933) 135 Cal App 129, 26 P2d 696.

Whether representations of seller to purchaser that all improvements, including paved streets, curbing and sidewalks and electric lines, would be installed upon tract adjacent to lots within reasonable time without expense to purchaser, be considered as promise of seller to do these things or to procure them to be done, or merely as statement of fact of course of action which would be followed by other persons, not warranted by information at command of person making such representations, they were equally actionable and would justify rescission of the contract of purchase. Graham v Los Angeles First Nat. Trust & Sav. Bank (1935) 3 Cal 2d 37, 43 P2d 543.

Cause of action for fraud and deceit was stated by complaint which alleged that defendant landlord obtained from Office of Price Administration a certificate authorizing eviction proceedings on sole condition that premises were to be used by landlord's son and daughter-in-law, that defendant landlord served on plaintiff tenant a notice to quit stating that he required property for purpose specified in certificate, that representation in that notice concerning intended immediate use was false and fraudulent, in that landlord had no daughter-in-law and did not intend to have his son occupy premises, and that plaintiff tenant believed and relied on representations and was induced thereby to deliver possession of premises to landlord. Nyulassie v Mozer (1948) 85 Cal App 2d Supp 827, 193 P2d 167.

Where broker's representation as to monthly rental received from property sold plaintiff is false and induces plaintiff to enter into contract for its purchase, exact amount of rent that is received from rental of premises is immaterial. Barnes v Persson (1955, 2nd Dist) 131 Cal App 2d 515, 280 P2d 821.

Judgment for plaintiff in action for deceit is proper under evidence that defendants without sufficient knowledge to warrant belief, falsely represented acreage in farm with intent to induce plaintiff's decedent to rely on representation, that in reasonable reliance thereon he advanced part of purchase price to defendants for benefit of corporation to be formed to purchase farm, and that he was damaged when corporation failed to complete purchase on discovery of acreage deficiency. Nathanson v Murphy (1955, 1st Dist) 132 Cal App 2d 363, 282 P2d 174.

In action to recover damages from pledgee of corporation's shares for fraud in falsely representing authority to transfer certain corporate assets to plaintiff, even conceding pledgee's lack of knowledge as to falsity of his representations, such representations remained basis for findings of fraud where he made such representations with positiveness not warranted by his knowledge. Beraksa v Stardust Records, Inc. (1963, 2nd Dist) 215 Cal App 2d 708, 30 Cal Rptr 504.

A magazine publisher may be liable for negligent misrepresentation of either fact or opinion, where it held itself out as a disinterested third party which had examined a certain brand of shoes, found them satisfactory, and gave its indorsement, thus representing to the public that it possessed superior knowledge and special information concerning the product it indorsed, and inducing and encouraging them to buy the shoes. Hanberry v Hearst Corp. (1969, 4th Dist) 276 Cal App 2d 680, 81 Cal Rptr 519.

In an action for damages by a husband and wife against the manufacturer of fruit drinks and one of its distributors, for the breach by a separate corporation of its agreement to deliver to plaintiffs vending machines for dispensing the canned drinks and for failure to return the purchase price, in which plaintiffs asserted that defendants were guilty of negligent misrepresentation, in that the manufacturer permitted the corporation to use its name in advertising its business, and that the distributor represented to plaintiffs that the corporation was a financially responsible firm, without either the manufacturer or distributor having investigated the corporation, defendants were entitled to a summary judgment, where the corporation had no connection with defendants except that it purchased canned drinks manufactured by one defendant from the other defendant; where the manufacturer had refused to authorize the corporation to use its name in the corporation's advertising; where the only representations made by the distributor to plaintiffs were that the corporation was a "new company," and "just getting started," that it had paid for the canned drinks purchased, that an investment in the corporation was not an investment in the manufacturer or distributor, all of which statements were true; and where the distributor's opinion that the corporation enjoyed a good reputation had some basis in fact, since it had paid for the drinks purchased from the distributor. Thus, nothing t he manufacturer or distributor did was closely related to the corporation's fraud or breach of contract, and neither the distributor nor manufacturer made any significant false or fraudulent representations which resulted in plaintiffs' loss of investment, and, therefore, neither had a duty to investigate the corporation. Hale v George A. Hormel & Co. (1975, 4th Dist) 48 Cal App 3d 73, 121 Cal Rptr 144.

8. Statements of Facts or Opinion, Generally

What amounts to an expression of an opinion as compared to a positive statement of fact depends upon all the circumstances of case. J. B. Colt Co. v Freitas (1926) 76 Cal App 278, 244 P 916.; White v Financial Guarantee Corp. (1936) 13 Cal App 2d 93, 56 P2d 550.; Laraway v First Nat. Bank (1940) 39 Cal App 2d 718, 104 P2d 95.

An expression of opinion or belief, if not more, and if so understood and intended, is not a representation of fact, and, although false, does not amount to actionable fraud. Davis v Monte (1927) 81 Cal App 164, 253 P 352.

Statement of mere opinion, though false, may not form basis of an action by which recovery of damages or remedy of rescission on ground of fraud is sought. McElliott v Freeland (1934) 139 Cal App 143, 33 P2d 430.

Determination as to whether particular statement is expression of an opinion or an affirmation of fact is often difficult, and frequently is dependent upon facts and circumstances existing at time statement is made; when there is reasonable doubt as to whether particular statement is expression of an opinion or affirmation of a fact, determination rests with trier of facts. Lee v Pacific Gas & Electric Co. (1936) 7 Cal 2d 114, 59 P2d 1005.

Representee may not recover for alleged fraudulent misrepresentations where such representations were made by one occupying no confidential relations towards him, and were but expressions of opinion, or statements of law, based upon facts known to both alike. Smith v Brown (1943) 59 Cal App 2d 836, 140 P2d 86.

Expressions of opinion, to avoid an action for deceit or fraud, must be of an opinion honestly entertained by person making the statement. Anderson v Thacher (1946) 76 Cal App 2d 50, 172 P2d 533.

9. Opinions Not Honestly Entertained

An expression of opinion which is untrue and not honestly entertained and which, when considered with other inducements proves to be false, is material to transaction, and may constitute fraud. Dyke v Zaiser (1947) 80 Cal App 2d 639, 182 P2d 344.

Rule that actionable false representation must be of present or past fact, rather than opinion, does not apply where party expressing opinion does not honestly entertain it or has superior knowledge or special information. Ogier v Pacific Oil & Gas Dev. Corp. (1955, 1st Dist) 132 Cal App 2d 496, 282 P2d 574.

10. Opinions Stated as Accomplished Facts

General rule is that when representation concerning the subject matter of transaction which might, ordinarily, be only expression of opinion is asserted as an existing fact, material to transaction, and which has reasonable tendency to induce one of parties to transaction to consider and rely upon such representation as a fact, statement then becomes assertion of an existing fact within meaning of general rule as to fraudulent representations. Harris v Miller (1925) 196 Cal 8, 235 P 981.

When expression of opinion is asserted as existing fact material to transaction and has reasonable tendency to induce one of parties to transaction to rely on it as fact, it falls within definition of fraudulent representation. Denson v Pressey (1936) 13 Cal App 2d 472, 57 P2d 522.

Bare statement as to value is ordinarily deemed opinion, but statement may be a positive affirmation of fact intended as such by party making it and reasonably regarded as such by party to whom it is made, and it is then like any other representation of fact. Ogier v Pacific Oil & Gas Dev. Corp. (1955, 1st Dist) 132 Cal App 2d 496, 282 P2d 574.

If opinion is expressed under circumstances such that it may be regarded as amounting to positive affirmation of fact, it will be treated as representation of fact for purposes of action for deceit. Mercer v Elliott (1962, 2nd Dist) 208 Cal App 2d 275, 25 Cal Rptr 217.

Wherever a party states a matter which might otherwise be only an opinion, and does not state it as the mere expression of his own opinion, but affirms it as an existing fact material to the transaction, so that the other party may reasonably treat it as a fact and rely and act on it as such, the statement becomes an affirmation of fact, and may be a fraudulent misrepresentation. Harazim v Lynam (1968, 2nd Dist) 267 Cal App 2d 127, 72 Cal Rptr 670.

11. Opinions Stated to Persons Entitled To Rely

Mere expressions of opinions honestly made are not actionable, but false statements of opinion or false opinion expressed to one entitled to rely upon it may form the basis of action for deceit, like any other representation of fact. Phelps v Grady (1914) 168 Cal 73, 141 P 926.; Stockton v Hind (1921) 51 Cal App 131, 196 P 122.

When one of parties possesses, or assumes to possess, superior knowledge or special information regarding subject matter of representation, and other party is so situated that he may reasonably rely upon such supposed superior knowledge or special information, a representation made by party possessing or assuming to possess such knowledge or information, though it be regarded as but expression of opinion if made by any other person, is not excused if it be false. Haserot v Keller (1924) 67 Cal App 659, 228 P 383.

Mere expressions of opinion honestly made are not actionable, but a false statement of opinion expressed to one entitled to rely on it and professedly based upon alleged facts known to party stating them, may form the basis of an action just like any other misrepresentation of fact. Neff v Engler (1928) 205 Cal 484, 271 P 744.

Misrepresentations of opinion are actionable when the declarant holds himself out to be specially qualified; thus, a representation by a party possessing or assuming to possess superior knowledge or special information regarding the subject matter of the representation, made to a party situated so that he may reasonably rely on such supposed superior knowledge or special information, will not be excused if it be false, though it might be regarded as but the expression of an opinion if made by another person. Harazim v Lynam (1968, 2nd Dist) 267 Cal App 2d 127, 72 Cal Rptr 670.

A fraudulent misrepresentation is one made with knowledge that it is or may be untrue, and with the intention that the person to whom it is made act in reliance thereon, but it must appear, not only that the plaintiff acted in reliance on the misrepresentation but that he was justified in his reliance, and he may not justifiably rely on mere statements of opinion, including legal conclusions drawn from a true state of facts, unless the person expressing the opinion purports to have expert knowledge concerning the matter or occupies a position of confidence and trust, but an opinion or legal conclusion which misrepresents the facts on which it is based or implies the existence of facts which are nonexistent constitutes an actionable misrepresentation. Harazim v Lynam (1968, 2nd Dist) 267 Cal App 2d 127, 72 Cal Rptr 670.

"Superior knowledge" in the context of fraudulent misrepresentation is a term of art which contemplates more than the possession by one party to a bargain of a greater acumen than is possessed by the other party; the concept is applied primarily in situations where assumed knowledge possessed by the party expressing the fraudulent opinion is a motivation to the other to enter into the transaction, or where the defendant has held himself out as particularly knowledgeable. Pacesetter Homes, Inc. v Brodkin (1970, 2nd Dist) 5 Cal App 3d 206, 85 Cal Rptr 39.

In an action involving alleged fraud on the part of the seller of duplexes, the record disclosed no facts of a special nature establishing as a matter of law that the disparity in the knowledge of the buyer and the seller was so great as to call into operation the doctrine of superior knowledge, where it was shown only that the seller was engaged in a large development of single family and multiple residential units and that the buyer had at least some minimal experience in purchasing investment real property, where the seller had not developed other properties in the area, and where the asserted fraudulent expression of opinion was given with respect to potential rentals from buildings not yet constructed. Pacesetter Homes, Inc. v Brodkin (1970, 2nd Dist) 5 Cal App 3d 206, 85 Cal Rptr 39.

12. Statements of Value of Property

Statement as to value of land may be expression of opinion or it may be positive affirmation of fact, intended as such by the party making it, and reasonably regarded as such by party to whom it is made. Williams v Myers (1930) 110 Cal App 265, 294 P 61.

Misrepresentation of value may be misrepresentation of matter of fact, and not mere expression of opinion. Thus where broker positively states that notes and deed of trust were guaranteed for specified sum, that they were as good as cash, and that encumbered property was worth stated sum, such misrepresentations of value constitute misrepresentation of fact and not mere opinion. Yeoman v Sherry (1935) 10 Cal App 2d 567, 52 P2d 555.

When a confidential relation exists between a principal and his agent, false representations by the agent as to the value of the principal's property, which induce the principal to sell it at a grossly inadequate price, amounts to actionable fraud. Anglo California Nat. Bank v Lazard (1939, CA9 Cal) 106 F2d 693.

Representations as to value of corporate stock may form basis of action for fraud where certain qualifications placed on such representations did not necessarily show that they were mere expressions of opinion but may be intended to show difficulty of ascertaining true value and of discouraging further investigation by person to whom representations were made. Hobart v Hobart Estate Co. (1945) 26 Cal 2d 412, 159 P2d 958.

While statement as to value of property may under some circumstances be regarded as representation of fact, it will not be so regarded where representation is understood to be mere statement of opinion. Cox v Westling (1950) 96 Cal App 2d 225, 215 P2d 52.

While misrepresentations as to value of property are usually considered "trade talk" and do not furnish ground for action for fraud, definite statements as to value of property made under such circumstances as would indicate reliance on speaker's knowledge and statements may constitute actionable fraud. Salvati v Cusolito (1950) 98 Cal App 2d 582, 220 P2d 800.

13. Statements of Fact--Applications

Representations made to plaintiff by defendant's agent that product in question would kill scale and that it would not injure fruit or trees or buds, which representations were supplemented by positive statement that spray had been used in other groves with "good results" and without injury, were statements of fact and not mere expressions of opinion. Kolberg v Sherwin-Williams Co. (1928) 93 Cal App 609, 269 P 975.

Representations of agent of seller of land that land was deep alluvial soil, well drained and free from hardpan and clay, and capable of producing peaches profitably, which induced purchaser to enter into contract of purchase, were statements of fact and not mere expressions of opinion, and when fraudulently made, justify rescission of contract and recovery for plaintiff. McMahon v Grimes (1929) 206 Cal 526, 275 P 440.; Millar v Grimes (1929) 206 Cal 798, 275 P 446.

A statement by a vendor of a leasehold interest to the effect that the tenants of the leased premises were permanent tenants and would remain as tenants during the remainder of the term of the lease is a material statement of a matter of fact, and is actionable, where, at the time of the assignment of the leasehold interest, the vendor knew that all the tenants were "navy folk" and that on departure of the fleet they would vacate the premises. Mitchell v Tuttle (1929) 102 Cal App 16, 282 P 534.

Representations whereby plaintiff was induced to exchange his property for property in a sister state, concerning description, value, location and quality of the land, which defendant many times assured plaintiff were true and could be relied upon, were held not merely matters of opinion, but statements of fact. Roloff v Hundeby (1930) 105 Cal App 645, 288 P 702.

Representation of defendant, owner of a catering company for approximately two years and active in its management, to plaintiff who was young man with limited experience in life and totally without business experience of any kind and wholly ignorant of value of business in which he purchased one-quarter interest, that such interest was worth specified sum of money was representation of fact, and not mere expression of opinion. Russell v Roscoe (1930) 106 Cal App 293, 289 P 185.

Lessor's statement to lessee of auto court or motel that they could keep motel rented all time, though pertaining to future, may be construed as representation of fact, where it is coupled with his representation of fact known only to him that motel was then being rented to capacity, where evidence sustains finding that such latter representation was false. Daniels v Oldenburg (1950) 100 Cal App 2d 724, 224 P2d 472.

Actionable affirmations of material facts rather than statements of opinions are made by hotel owners where they make positive statements as to the income of the hotel which are not warranted by their information. Wilson v Shultz (1951) 102 Cal App 2d 345, 227 P2d 524.

Statements by seller of business that it was profitable business and that operators employed therein would remain and work on same basis as they had while they were employed by seller are statements of existing facts, not merely opinions. Leary v Baker (1953) 119 Cal App 2d 106, 258 P2d 1090.

False statement by test-hold driller to prospective purchaser, made after drilling holes and examining soil, that fill was only 12-16 inches in depth, is statement of fact and not mere expression of opinion; his assertion was not a casual expression of belief, but was a deliberate affirmation of the matter stated and was within subd 2. Gagne v Bertran (1954) 43 Cal 2d 481, 275 P2d 15.

Representation concerning past income from property is representation of fact. Mariani v Schonfeld (1954) 126 Cal App 2d 187, 271 P2d 940.

14. Matters of Opinion--Applications

Statements of owner of property being exchanged with another that building in question was first class structure equal to best building of type in city, that it would withstand shocks of earthquake, and that it was worth specified amount, were held mere expressions of opinion which did not furnish grounds for damages for fraud and deceit. Finch v McKee (1936) 18 Cal App 2d 90, 62 P2d 1380.

Statement by the seller of a truck that "it should be in good condition," based on recent expenditures for repairs, is merely his opinion and is not actionable as a fraudulent representation. Carter v Seaboard Finance Co. (1949) 33 Cal 2d 564, 203 P2d 758.

In an action involving alleged fraud in the sale of duplexes, the trial court was justified in construing statements made by the seller to the purchaser as those of opinion concerning future estimated rentals and not as an unqualified representation of what those rentals would be, where, though the seller's agents told the purchaser that the units to be constructed would rent for specified amounts, they also stated to him that the buildings would be an excellent investment, "If you receive the rents as we contemplate, . . ." Pacesetter Homes, Inc. v Brodkin (1970, 2nd Dist) 5 Cal App 3d 206, 85 Cal Rptr 39.

For purposes of negligent misrepresentation, certain 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. Anderson v Deloitte & Touche (1997, 1st Dist) 56 Cal App 4th 1468, 66 Cal Rptr 2d 512.

15. Suppression of Fact--Generally

Concealment of material fact and misrepresentation as to such fact is in effect the same thing, that is, fraud. General Acci., Fire & Life Assur. Corp. v Industrial Acci. Com. (1925) 196 Cal 179, 237 P 33.

A person does not become liable to another for deceit through concealment of a fact unless he occupies a fiduciary relation to the other. Fink v Weisman (1933) 132 Cal App 724, 23 P2d 438.

Deceit may be negative as well as affirmative. Daily v Superior Court of Monterey County (1935) 4 Cal App 2d 127, 40 P2d 936.

Regardless of whether or not one is under a duty to disclose facts one who does speak must speak the whole truth, and not by partial suppression or concealment make the utterance untruthful and misleading. American Trust Co. v California Western States Life Ins. Co. (1940) 15 Cal 2d 42, 98 P2d 497.

Where one not under duty to speak as to matter nevertheless undertakes to do so, he is bound not only to state truly what he tells but also not to conceal facts within his knowledge which materially qualify those stated. Rogers v Warden (1942) 20 Cal 2d 286, 125 P2d 7.

Where there is a duty to disclose, disclosure must be full and complete, and any material concealment or misrepresentation will amount to fraud sufficient to entitle party injured thereby to an action. Pashley v Pacific E. R. Co. (1944) 25 Cal 2d 226, 153 P2d 325.

While vendor is not under obligation to speak concerning thing which he proposes to sell, yet, if he undertakes to do so he must speak truth in all he says, tell every material fact, and not conceal any fact within his knowledge which might materially qualify his statements as made. Dyke v Zaiser (1947) 80 Cal App 2d 639, 182 P2d 344.; Milmoe v Dixon (1950) 101 Cal App 2d 257, 225 P2d 273.; De Spirito v Andrews (1957, 1st Dist) 151 Cal App 2d 126, 311 P2d 173.; Sanfran Co. v Rees Blow Pipe Mfg. Co. (1959, 1st Dist) 168 Cal App 2d 191, 335 P2d 995.

Where seller is under no duty to speak, but undertakes to do so, either voluntarily or in response to inquiry, he must make full and fair disclosure and conceal no facts within his knowledge which materially qualify those stated, including any facts which affect desirability of property to be sold. Kuhn v Gottfried (1951) 103 Cal App 2d 80, 229 P2d 137.

Deceit may be negative as well as affirmative and may consist in suppression of that which it is one's duty to declare, as well as in declaration of that which is false. Gillespie v Ormsby (1954) 126 Cal App 2d 513, 272 P2d 949.; Lingsch v Savage (1963, 1st Dist) 213 Cal App 2d 729, 29 Cal Rptr 201, 8 ALR3d 537.

Action for deceit lies for vendor's failure to make full disclosure on all material facts relating to realty, when fair conduct demands such disclosure. Cohen v Citizens Nat. Trust & Sav. Bank (1956, 2nd Dist) 143 Cal App 2d 480, 300 P2d 14.

Mere nondisclosure of facts is ordinarily not enough to constitute fraud but may be actionable under certain circumstances, such as where defendant, who has no duty to speak, does so. Zinn v Ex-Cell-O Corp. (1957, 1st Dist) 148 Cal App 2d 56, 306 P2d 1017.

Fraud is complete when vendor knowingly suppresses serious vice of property which vendee has no reason to suspect. Burkett v J. A. Thompson & Son (1957, 2nd Dist) 150 Cal App 2d 523, 310 P2d 56.

One who speaks is bound not to suppress or conceal any facts within his knowledge which materially qualify those stated. Harkins v Fielder (1957, 2nd Dist) 150 Cal App 2d 528, 310 P2d 423.

Suppression of fact by one who gives information of other facts likely to mislead for want of fact concealed is fraud. Harkins v Fielder (1957, 2nd Dist) 150 Cal App 2d 528, 310 P2d 423.

Concealment by lessor of facts concerning current rentals which he should disclose and of conditions of property known to be in violation of law constitutes actionable fraud. Pearson v Allen (1957, 2nd Dist) 150 Cal App 2d 638, 310 P2d 688.

Where material facts are accessible to vendor only and he knows them not to be within reach of diligent attention and observation of vendee, he is bound to disclose such facts to vendee. Sanfran Co. v Rees Blow Pipe Mfg. Co. (1959, 1st Dist) 168 Cal App 2d 191, 335 P2d 995.

16. Suppression of Fact--Applications

A holder of a promissory note secured by a chattel mortgage, with knowledge that the maker is insolvent and that by reason of prior encumbrances against the property covered by said mortgage the security is valueless, who endorses on said note the payment of installments of principal and interest, which are not in fact paid, and places the note in the hands of a broker for sale, thereby seeking to pass the paper on to some uninformed person, and thereby gain something for nothing, is guilty of fraud upon an uninformed purchaser of such note. Spiegelman v Eastman (1928) 95 Cal App 205, 272 P 761.

Concealment by a real estate broker of true amount of lien on property exchanged for plaintiff's property, and representation that it was worth $ 1,000 in excess of true amount, constitutes fraud. McPhetridge v Smith (1929) 101 Cal App 122, 281 P 419.

The vendors of a tract of land are liable for damages for fraud where they falsely stated that the land adjoining, constituting a flood hazard if not carefully kept, had been deeded by them to the county which would take due care of the flood dangers, when in fact they had not, and this misrepresentation was persuasive in effecting the sale. Grady v Luy (1931) 117 Cal App 292, 3 P2d 577.

A real estate broker could be held liable for failure to disclose to a purchaser the true purchase price of the property only if he occupied a fiduciary relation to the purchaser in the transactions. Fink v Weisman (1933) 132 Cal App 724, 23 P2d 438.

A brokerage firm to which a principal's agent transferred a margin account without authority is not liable in an action for deceit by reason of its mere failure to detect the fraud of the principal's agents and report it to the principal, inasmuch as it is merely the agent of the principal's agents, and has no connection with, and is not responsible as agent to, the principal. Kavanagh v Wade (1940) 42 Cal App 2d 92, 108 P2d 475.

If a vendor of realty is under a duty to disclose to a prospective vendee that the land is filled, and fails to do so, such failure would constitute actionable deceit. Rothstein v Janss Invest. Corp. (1941) 45 Cal App 2d 64, 113 P2d 465.

Real estate broker acting for owners in sale of property violates his duty by not informing them of false representations he made to purchasers, thereby perpetrating fraud on confidence bestowed on him by owners. Kruse v Miller (1956, 4th Dist) 143 Cal App 2d 656, 300 P2d 855, 61 ALR2d 1231.

Misrepresentation or concealment of known facts of fill in lot sold to another constitutes material inducement that works fraud on buyer who is ignorant of fact. Ashburn v Miller (1958, 2nd Dist) 161 Cal App 2d 71, 326 P2d 229.

With respect to duty of disclosure of directors to stockholders of facts affecting value of their stock, partial disclosure was faulty for not disclosing offer of third party to purchase all of corporate assets, because, even when there is no duty to make disclosure, one who does undertake to inform must speak whole truth. Low v Wheeler (1962, 1st Dist) 207 Cal App 2d 477, 24 Cal Rptr 538.

Where employee was injured in accident while working on project, portion of which was supervised by independent contractor who also furnished some of equipment, and where, following accident, oil company's safety engineer, whose duty it was to investigate accident and make report, visited injured employee in hospital and expressed opinion that another oil company employee was at fault, though failure to use proper equipment was also part of causation, such statement was neither false nor misleading, nor could such statement be construed as indicating that independent contractor was not legally liable so as to make employer liable for fraudulently concealing employee's cause of action against independent contractor. Ramey v Socony Mobil Oil Co. (1962, 2nd Dist) 211 Cal App 2d 441, 27 Cal Rptr 191.

Failure of vendor to deliver to purchasers of realty copy of Real Estate Division report, though material to issue of concealment, does not constitute fraudulent suppression of fact. McCue v Bruce Enterprises, Inc. (1964, 4th Dist) 228 Cal App 2d 21, 39 Cal Rptr 125.

Though vendor of real property may not have duty to speak on subject affecting desirability of sale to which he is party, where he speaks, whether voluntarily or in response to inquiry, he must make full disclosure. McCue v Bruce Enterprises, Inc. (1964, 4th Dist) 228 Cal App 2d 21, 39 Cal Rptr 125.

Because of real property vendor's legal duty to make complete disclosure when he speaks, in speaking he represents, in substance, that all facts within his knowledge material to subject are disclosed. If he withholds material information, his representation is false. McCue v Bruce Enterprises, Inc. (1964, 4th Dist) 228 Cal App 2d 21, 39 Cal Rptr 125.

In action for fraud based on vendor's alleged false representations that properties purchased by plaintiffs were connected with city sewer, where plaintiffs did not know that plans and specifications mentioned in sales contract provided for septic tank-leach line sewage disposal system when vendor told them properties were "on city utilities," and vendor was aware of plaintiffs' ignorance in this regard, information within vendor's knowledge with respect to type of sewage disposal system to be installed, or that had been installed, was not within reach of diligent attention and observation of plaintiffs within meaning of rule requiring vendor who speaks to subject to speak whole truth. McCue v Bruce Enterprises, Inc. (1964, 4th Dist) 228 Cal App 2d 21, 39 Cal Rptr 125.

Generally, an owner failing to impart knowledge of difficulties to be encountered in a building project will be liable for misrepresentation if the contractor is unable to perform according to contract provisions. Salinas v Souza & McCue Constr. Co. (1967) 66 Cal 2d 217, 57 Cal Rptr 337, 424 P2d 921 (ovrld on other grounds by Helfend v Southern California Rapid Transit Dist. (1970) 2 Cal 3d 1, 84 Cal Rptr 173, 465 P2d 61, 77 ALR3d 398).

A promoter of a corporation, formed for the express purpose of purchasing a particular piece of property, absent a disclosure to co-subscribers, may not legally profit at the expense of his associates, and where he is guilty of any misrepresentations of fact or suppression of truth in relation to his personal interest in the property, the corporation is entitled to set aside the transaction or recover damages for any loss it has suffered. Topanga Corp. v Gentile (1967, 2nd Dist) 249 Cal App 2d 681, 58 Cal Rptr 713.

Simple negligence is no bar to recovery based on intentional concealment; thus in an action for damages resulting from earth movement under plaintiffs' lot and home bought as original purchasers in a subdivision against the real estate tract developer based on fraud, defendant's intent to conceal a fill could be inferred where its sales personnel were instructed to tell prospective purchasers about the filled ground if inquiry were made, but to remain silent in the absence of customer inquiry; and plaintiffs' notice of possible fills was a jury question where it was undisputed that plaintiffs made no inquiry as to the ground being filled and that defendant's sales personnel did not inform plaintiffs of the existence of the fill. Oakes v McCarthy Co. (1968, 2nd Dist) 267 Cal App 2d 231, 73 Cal Rptr 127.

17. Promise Made Without Intention to Perform--Generally

While a mere promise is not a representation, a promise made with the intention of not performing it constitutes a fraud. California Credit & Collection Corp. v Carpenter (1926) 77 Cal App 18, 246 P 126.

A promise made without any intention of performing it, by party to contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into contract, is actionable fraud. Benson v Hamilton (1932) 126 Cal App 331, 14 P2d 876.

In action predicated on making by defendant of promise without any intention of performing it, essence of fraud is existence of an intent at time of promise, and existence of such intent at such time is always question of fact. Benson v Hamilton (1932) 126 Cal App 331, 14 P2d 876.

Intention not to perform a promise is matter of inference from facts, and subsequent conduct may be sufficient to show such intention. Wilson v Rigali & Veselich (1934) 138 Cal App 760, 33 P2d 455.

Making of promise without intent to perform it constitutes fraud. Cutler v Bowen (1935) 10 Cal App 2d 31, 51 P2d 164.; Cox v Klatte (1938) 29 Cal App 2d 150, 84 P2d 290.; Union Flower Market, Ltd. v Southern California Flower Market, Inc. (1938) 10 Cal 2d 671, 76 P2d 503.; Bedell Engineering Co. v Rouse (1943) 57 Cal App 2d 734, 135 P2d 404.; O'Melia v Adkins (1946) 73 Cal App 2d 143, 166 P2d 298.; Gillespie v Ormsby (1954) 126 Cal App 2d 513, 272 P2d 949.

To be fraudulent as having been made without intention to perform, a promise must be specific and definite, and if there is an alternative promise, no actionable fraud can result unless it is alleged that it also was made without intent to perform. Blake v Paramount Pictures, Inc. (1938, DC Cal) 22 F Supp 249.

Promises relating to matters as to which a contract is silent may amount to actionable fraud if made without intention to perform. Oxnard Theatres, Inc. v Paramount Pictures, Inc. (1938, DC Cal) 24 F Supp 44.

False promises to perform can provide foundation of a civil action for deceit, but in such actions something more than nonperformance is required to prove defendant's intent not to perform his promise. People v Ashley (1954) 42 Cal 2d 246, 267 P2d 271.

Mere failure to perform promise made in good faith does not constitute fraud. Church of Merciful Saviour v Volunteers of America, Inc. (1960, 4th Dist) 184 Cal App 2d 851, 8 Cal Rptr 48.

Essence of action for fraud based on alleged promise as to future performance is existence of intent at time of making promise not to perform it. Church of Merciful Saviour v Volunteers of America, Inc. (1960, 4th Dist) 184 Cal App 2d 851, 8 Cal Rptr 48.

A promise to do something necessarily implies the intention to perform, and, where such intention is absent, there is an implied misrepresentation of fact, which is actionable fraud (Civ. Code, § 1710, subd. 4). Harazim v Lynam (1968, 2nd Dist) 267 Cal App 2d 127, 72 Cal Rptr 670.

Where, in bad faith and without intent to perform, one makes a promise touching a substantive part of the consideration moving to the party with whom he is dealing, it constitutes fraud. Harazim v Lynam (1968, 2nd Dist) 267 Cal App 2d 127, 72 Cal Rptr 670.

Certain broken promises of future conduct may be actionable. Civ. Code, § 1710, subd. (4), defines one type of deceit as "A promise, made without any intention of performing it." A false promise is actionable on the theory that a promise implies an intention to perform, that intention to perform or not to perform is a state of mind, and that misrepresentation of such a state of mind is a misrepresentation of fact. The allegation of a promise, which implies a representation of intention to perform, is the equivalent of the ordinary allegation of a representation of fact. To maintain an action for deceit based on a false promise, one must specifically allege and prove, among other things, that the promisor did not intend to perform at the time he or she made the promise and that it was intended to deceive or induce the promisee to do or not do a particular thing. Given this requirement, an action based on a false promise is simply a type of intentional misrepresentation, i.e., actual fraud. The specific intent requirement precludes pleading a false promise claim as a negligent misrepresentation. Tarmann v State Farm Mutual Auto. Ins. Co. (1991, 6th Dist) 2 Cal App 4th 153, 2 Cal Rptr 2d 861.

18. Promise Made Without Intention to Perform--Applications

A promise to pay for goods purchased without an intention to do so is a fraud. Sampsell v Anches (1939, CA9 Wash) 108 F2d 945.

The element of damage must be established to recover under § 1709 and this section, and assuming that at the time of a complainant's enlistment in the armed forces, a restaurant manager promised to take the complainant back into the restaurant's employ after the latter's discharge from the service without intending to do so, the complainant was not damaged thereby where it did not appear that he joined the army because of any such promise. Tsang v Kan (1947) 78 Cal App 2d 275, 177 P2d 630.

The identity of persons from whom defendant-vendor intended to buy engines, which he had contracted to sell to plaintiff, was relevant, for if defendant had no anticipated source of supply, such fact would tend to prove he made promises to plaintiff without intention of performing them. I. E. S. Corp. v Superior Court of Los Angeles County (1955) 44 Cal 2d 559, 283 P2d 700.

In action to recover money obtained by fraud in which complaint alleged that plaintiff husband twice withdrew money from his savings account and delivered it to defendant, his wife, and that defendant induced him to do this by representing that she would invest money for him when, in fact, her intention was to convert it to her own use, a case of actionable deceit, under subd 4, was made out, though evidence was conflicting, where plaintiff's testimony established promises made and his reliance, defendant's intent was reasonably inferred from her conduct, and bank records showed that defendant had received money and plaintiff had ended with nothing. Santos v Santos (1963, 2nd Dist) 222 Cal App 2d 231, 35 Cal Rptr 101.

In a fraud action by an insured against her insurer, letters and telegrams sent by the insured to the insurer were improperly admitted on the issue of the insurer's bad faith in the absence of limiting instructions to the jury as to the purpose for which they were to be considered, where the letters contained self-serving statements which tended to show the insurer's unwillingness to fulfil its prior representations to the insured and the terms of its policies and were thus inadmissible as evidence of the facts stated therein. Wetherbee v United Ins. Co. (1968, 1st Dist) 265 Cal App 2d 921, 71 Cal Rptr 764.

Individual borrowed money from bank posting stock as security. Subsequently bank released stock on his promise, which he did not intend to keep, that he would sell stock and apply proceeds to bank loan. He sold stock, invested the proceeds in a home which he almost immediately homesteaded, thereafter filed voluntary bankruptcy. This is actionable fraud, permeating the entire homestead, and the trustee, as successor to the bank, may attack it. Bankrupt is not entitled to claim the property as exempt. Miguel v Walsh (1971, CA9 Cal) 447 F2d 724.

Although the statutes pertaining to the tort of deceit (Civ. Code, § § 1709, 1710) do not expressly require a showing of actual reliance, actual reliance is an element of the tort. The law of deceit in California is not purely statutory; it is a mixture of statute and common law. Civ. Code, § 5, provides that provisions of the Civil Code that are substantially the same as the common law must be construed as continuations thereof, and not as new enactments. Civ. Code, § § 1709, 1710, are recognized as continuations of the common law. Thus, it is entirely consistent with those statutes to require plaintiffs in actions for deceit to plead and prove the common law element of actual reliance. Also, although reliance may be viewed as a mechanism of causation, a plaintiff must still plead reliance, since specific pleading is necessary to establish a complete causal relationship between the alleged misrepresentations and the harm claimed to have resulted therefrom. Further, Civ. Code, § 1711 (fraud upon the public), merely demonstrates that one who makes false representations need not have a particular victim in mind; it does not obviate a plaintiff's need to plead reliance. Mirkin v Wasserman (1993) 5 Cal 4th 1082, 23 Cal Rptr 2d 101, 848 P2 568.

19. Procedure--Generally

Sections 1708-1710 adopt the rule that to hold a person liable for fraudulent deceit proof must be introduced not merely of a falsehood, but also of fraud or deceit. Williams v Spazier (1933) 134 Cal App 340, 25 P2d 851.

In state law tort action by former flight attendant against airlines, flight attendant's claims for negligent and intentional misrepresentation, concealment, and promise without intent to perform were preempted by Railway Labor Act, 45 USC § § 151 et seq. Melanson v United Air Lines, Inc. (1991, CA9 Cal) 931 F2d 558.

20. Pleading

To state a cause of action based upon actual fraud, a plaintiff must allege an intention on the part of the defendant to induce the particular action which resulted in the damage. Carlson v Murphy (1935) 8 Cal App 2d 607, 47 P2d 1100.

It is essential in pleading fraud consisting of a false promise, to allege elements of fraud. Maynes v Angeles Mesa Land Co. (1938) 10 Cal 2d 587, 76 P2d 109.

In action against owner of premises for injuries sustained by occupant as result of fall of top-heavy lamp, allegation that owner represented to plaintiff that lamp was safe, that such statement was relied upon by plaintiff, and that owner "knew or could have known" of lamp's unsafe condition sufficiently pleads cause of action based on representation. Stowe v Fritzie Hotels, Inc. (1955) 44 Cal 2d 416, 282 P2d 890.

Cause of action for fraud is stated by complaint alleging that, with intent to induce purchase by plaintiff, defendant made a representation falsely, or without information justifying the representation, as to oil potentialities of land, that plaintiff relied thereon, made purchase and was thereby damaged. Ogier v Pacific Oil & Gas Dev. Corp. (1955, 1st Dist) 132 Cal App 2d 496, 282 P2d 574.

Cause of action for fraud is stated by complaint alleging that, with intent to induce purchase by plaintiff, defendant made representations falsely, or without information justifying representation, as to oil potentialities of land, that plaintiff relied thereon, made purchases, and was thereby damaged. Ogier v Pacific Oil & Gas Dev. Corp. (1955, 1st Dist) 132 Cal App 2d 496, 282 P2d 574.

Pleadings in action for damages for fraud must show fraudulent representations, that they were known by defendant to be false or were made under circumstances not warranted by his knowledge, that they were actually false, that they were made with intent to deceive plaintiff, or with intent to induce him to enter into transaction; that plaintiff relied upon representations, believing them to be true; and that he was injured. Ogier v Pacific Oil & Gas Dev. Corp. (1955, 1st Dist) 132 Cal App 2d 496, 282 P2d 574.

Confidential relationship in action for fraud is pleaded by alleging that plaintiff was of advanced age, suffered from failing eyesight and impaired faculties, stood in advisor-advisee relationship to defendant and purchased every security he recommended. Ogier v Pacific Oil & Gas Dev. Corp. (1955, 1st Dist) 132 Cal App 2d 496, 282 P2d 574.

In action for personal injury resulting from dog bite, complaint alleging that defendant insurance adjuster, having knowledge superior to plaintiff's and knowing plaintiff's claim would be barred in one year, represented that plaintiff had three years before her claim would be barred and that she could bring suit at any time within three years from date of dog bite was sufficient to bring cause of action within exception to rule that misrepresentation of law is not actionable fraud. Regus v Schartkoff (1957, 2nd Dist) 156 Cal App 2d 382, 319 P2d 721.

A complaint did not state a cause of action predicated on false and fraudulent representations of a defendant union and its codefendant employee allegedly chargeable to defendants on grounds that the conduct, direction or advice given by the defendant employee caused plaintiff to omit filing a lawsuit against a third party whose negligence allegedly caused plaintiff's industrial injury for which he received the workmen's compensation award, where none of the allegations were an adequate base to show that plaintiff was justified in relying on the alleged representation or opinion of defendant union employee. Bland v Reed (1968, 2nd Dist) 261 Cal App 2d 445, 67 Cal Rptr 859.

In a fraud action, the trial court improperly sustained, without leave to amend, a general demurrer to plaintiffs' amended complaint where, despite ambiguities in allegations of ultimate fact, it was clear that plaintiffs claimed that defendants' misrepresentations, made pursuant to a conspiracy to defraud, induced plaintiffs to pay money for interests in an enterprise known by defendants to be merely a sham or pretended business, and that as a result of reliance on such false representations plaintiffs received nothing for their money except a fraudulent promissory note, and where plaintiffs' brief indicated that they could amend their pleadings to allege reliance on defendants' representations that they were experts or persons with superior knowledge whose statements were made as material facts, and to allege that defendants promised to invest plaintiffs' money in a specified manner and failed to do so because at the time they made the statements they had no intention to perform. Harazim v Lynam (1968, 2nd Dist) 267 Cal App 2d 127, 72 Cal Rptr 670.

In an action for damages arising out of a breach of an oral employment agreement predicated upon a promise made without any intention of performing it, the trial court erred in sustaining a demurrer to such cause of action, where the complaint, gauged by the standards applicable with respect to the essential elements required to be shown in such an action by the facts pleaded, was sufficient to state a cause of action sounding in fraud. Bondi v Jewels by Edwar, Ltd. (1968, 2nd Dist) 267 Cal App 2d 672, 73 Cal Rptr 494.

A cause of action for deceit was set forth where the complaint alleged, in effect, that in reliance on representations by defendant and codefendant, stockholders in a national bank, defendant had acquired a controlling interest in the bank by buying codefendant's stock, plaintiff had left his former employment to become president of the bank, and where the complaint further alleged that such representations were known by both to be false and were intended to deceive, that codefendant at all times retained the controlling interest and did not intend to retain plaintiff as president unless defendant acquired control, that codefendant's group discharged plaintiff less than two months after he had assumed his duties as president, and that plaintiff thereby suffered damage. Kozlowsky v Westminster Nat. Bank (1970, 2nd Dist) 6 Cal App 3d 593, 86 Cal Rptr 52.

In an action against a surety for fraud in the giving of an undertaking to release an attachment, an allegation that, in reliance on the surety's false promise, plaintiff took no further action to secure any judgment he might obtain was insufficient to bring plaintiff within the provisions of Civ. Code, § § 1709, 1710, relating to detrimental reliance on false promises, where there was nothing in the complaint to indicate what plaintiff might have done to "secure" any judgment he might obtain or to put himself in a better position had he known the falsity of the surety's promise. Bezaire v Fidelity & Deposit Co. (1970, 2nd Dist) 12 Cal App 3d 888, 91 Cal Rptr 142.

Although the statutes pertaining to the tort of deceit (Civ. Code, § § 1709, 1710) do not expressly require a showing of actual reliance, actual reliance is an element of the tort. The law of deceit in California is not purely statutory; it is a mixture of statute and common law. Civ. Code, § 5, provides that provisions of the Civil Code that are substantially the same as the common law must be construed as continuations thereof, and not as new enactments. Civ. Code, § § 1709, 1710, are recognized as continuations of the common law. Thus, it is entirely consistent with those statutes to require plaintiffs in actions for deceit to plead and prove the common law element of actual reliance. Also, although reliance may be viewed as a mechanism of causation, a plaintiff must still plead reliance, since specific pleading is necessary to establish a complete causal relationship between the alleged misrepresentations and the harm claimed to have resulted therefrom. Further, Civ. Code, § 1711 (fraud upon the public), merely demonstrates that one who makes false representations need not have a particular victim in mind; it does not obviate a plaintiff's need to plead reliance. Mirkin v Wasserman (1993) 5 Cal 4th 1082, 23 Cal Rptr 2d 101, 848 P2 568.

21. Burden of Proof

Where cause of action set out by defendant in his cross-complaint is founded on fraud and deceit, it is not only necessary for defendant to prove representations alleged where made but also to show he solely relied upon and was induced by them. Beckley v Archer (1925) 74 Cal App 598, 241 P 422.

Generally, to establish cause of action for fraud or deceit plaintiff must prove that material representation was made, that it was false, that the defendant knew it to be untrue or did not have sufficient knowledge to warrant belief that it was true, that it was made with intent to induce plaintiff to act in reliance thereon, that he reasonably believed it to be true, that it was relied on by him, and that he suffered damage thereby. Hobart v Hobart Estate Co. (1945) 26 Cal 2d 412, 159 P2d 958.

To establish cause of action for fraud or deceit plaintiff must generally prove that material representation was made; that it was false; that defendants knew it to be untrue or did not have sufficient knowledge to warrant a belief that it was true; that it was made with intent to induce plaintiff to act in reliance thereon; that plaintiff reasonably believed it to be true; that it was relied on by plaintiff; and that plaintiff suffered damage thereby. Nathanson v Murphy (1955, 1st Dist) 132 Cal App 2d 363, 282 P2d 174.; Bank of America Nat. Trust & Sav. Asso. v Vannini (1956, 1st Dist) 140 Cal App 2d 120, 295 P2d 102.; Cohen v Citizens Nat. Trust & Sav. Bank (1956, 2nd Dist) 143 Cal App 2d 480, 300 P2d 14.; Zinn v Ex-Cell-O Corp. (1957, 1st Dist) 148 Cal App 2d 56, 306 P2d 1017.

To establish fraud or deceit, plaintiff must prove that material representation was made; that it was false, that defendant knew it to be untrue or did not have sufficient knowledge to warrant belief that it was true, that it was made with intent to induce plaintiff to act in reliance thereon, that plaintiff reasonably believed it to be true, that plaintiff relied thereon, and that plaintiff suffered damage thereby. Corbett v Otts (1962, 1st Dist) 205 Cal App 2d 78, 22 Cal Rptr 849.

22. Findings

Finding that selling real estate connected with septic tank and leach line without obtaining percolation test constituted fraudulent conduct was without foundation where evidence established that vendor did obtain percolation test deemed sufficient by government authorities concerned. McCue v Bruce Enterprises, Inc. (1964, 4th Dist) 228 Cal App 2d 21, 39 Cal Rptr 125.

In action for fraud based on vendor's alleged false representation that properties purchased by plaintiffs were connected with city sewer, trial court was entitled to find that vendor's reference to properties being on "city utilities" was directed to services furnished by city and concerned subject requiring disclosure that sewage disposal services incident to properties offered for sale were not furnished by city, but were supplied by use of septic tank-leach line system. McCue v Bruce Enterprises, Inc. (1964, 4th Dist) 228 Cal App 2d 21, 39 Cal Rptr 125.

In an action for damages for the fraudulent failure of defendant to perform his promise to plaintiff to "record" an assignment of a third person's interest in an estate given plaintiff as security by that person for a loan made to him, an award to plaintiff of punitive damages was proper where the trial court accepted plaintiff's view of the fraudulent representation made by defendant that he would record the assignment, where plaintiff's position was corroborated by the debtor, and where plaintiff placed faith and confidence in the representations of defendant, an old acquaintance, who in securing the loan and making assurances as to the recordation of plaintiff's security, abused the trust imposed upon him. Wilkenson v Linnecke (1967, 2nd Dist) 251 Cal App 2d 291, 59 Cal Rptr 290.

In an action arising out of the sale and purchase of duplexes, the record supported the trial court's determination that the purchaser had not established the elements necessary to sustain his cause of action in fraud, where, though the seller's agents told the purchaser that the units to be constructed would rent for specified amounts, they also stated to him that the buildings would be an excellent investment, "If you receive the rents, as we contemplate,. . .", where the purchaser did not contend that the statements with respect to future rents expressed an opinion not entertained by the seller, and where the seller did not occupy such a position of superior knowledge that as a matter of law its expression of opinion was actionable misrepresentation. Pacesetter Homes, Inc. v Brodkin (1970, 2nd Dist) 5 Cal App 3d 206, 85 Cal Rptr 39.

In an action involving alleged fraud on the part of the seller of duplexes, the trial court's findings of fact were sufficient to support its judgment in favor of the seller, where assertedly indispensable findings were immaterial in view of the court's finding that the seller made no actionable misrepresentation of fact or opinion; moreover, any error as to other findings was not prejudicial in view of the findings of the trial court on factual issues which defeated the purchaser's claim. Pacesetter Homes, Inc. v Brodkin (1970, 2nd Dist) 5 Cal App 3d 206, 85 Cal Rptr 39.

In an action for damages for delay caused an earth-moving contractor in commencing a construction contract, resulting from defendants' failure to deliver a purchased truck scale on the agreed date, being one for breach of contract, the court's findings as to negligent misrepresentation and breach of warranty were not supported by the evidence and lent no support to the judgment, where no attempt was made to show that but for entering into the contract plaintiff could have obtained a similar scale elsewhere for the desired delivery date, and where it was not claimed that reliance upon the claimed misrepresentation induced plaintiff to enter into its construction contract. A. A. Baxter Corp. v Colt Industries, Inc. (1970, 4th Dist) 10 Cal App 3d 144, 88 Cal Rptr 842.

23. Procedure--Other Matters

When misrepresentation is intentional rather than negligent, plaintiff's failure to discover falsity of statement is no defense, and fact that investigation would have revealed falsity will not always bar recovery. Salvati v Cusolito (1950) 98 Cal App 2d 582, 220 P2d 800.

Defendant's intent to induce plaintiffs to alter their position can be inferred from fact that defendant made representations with knowledge that plaintiffs would act in reliance on them. Nathanson v Murphy (1955, 1st Dist) 132 Cal App 2d 363, 282 P2d 174.

Where defendant's misstatements are directed to plaintiff under circumstances that do not negative intent by defendant to induce reliance, such intent will be supplied by law. Cohen v Citizens Nat. Trust & Sav. Bank (1956, 2nd Dist) 143 Cal App 2d 480, 300 P2d 14.

Defendants were not prejudiced by jury's knowledge that court permitted plaintiffs to amend their complaint to seek higher damages after introduction of their evidence, in action for damages for fraud and deceit. Lawson v Town & Country Shops, Inc. (1958, 2nd Dist) 159 Cal App 2d 196, 323 P2d 843.

Where deceit was not pleaded in complaint to recover money paid under contract, trial court properly excluded evidence of deceit. Lloyd v Williams (1964, 4th Dist) 227 Cal App 2d 646, 38 Cal Rptr 849.

In action for fraud based on vendor's alleged false representation that properties purchased by plaintiffs were connected with city sewer, whether vendor's statement that properties were on "city utilities" referred to all services ordinarily incident to use of dwelling, including sewage disposal service, was question of fact for trial court determination. McCue v Bruce Enterprises, Inc. (1964, 4th Dist) 228 Cal App 2d 21, 39 Cal Rptr 125.

In an action involving alleged negligent misrepresentation as to the quality of a pair of shoes, whether the material used in the soles of the shoes was so slick and slippery as to create an unreasonable and foreseeable risk of injury, and whether the buyer of such a shoe who is injured should anticipate the condition are questions of fact which should be addressed to the trier of fact, and which cannot be decided at the pleading stage. Hanberry v Hearst Corp. (1969, 4th Dist) 276 Cal App 2d 680, 81 Cal Rptr 519.

An action by the purchaser of an automobile against the seller, a car dealer, was one for the tort of deceit (Civ. Code, § 1710) and thus general damages of plaintiff's mental pain and suffering were recoverable (Civ. Code, § § 1709, 3333), despite the fact that such damages are not recoverable in an action on a contract by a person defrauded in the purchase, sales or exchange of property (Civ. Code, § 3343). Both the complaint and the proof demonstrated that the action was not on the contract. Plaintiff did not seek, because of defects in the automobile, to rescind the contract, or to recover damages for breach of contract. The complaint did not allege a breach of warranty, but rather alleged that despite repeated representations by defendant that certain defects and difficulties with the automobile had been repaired and corrected, such defects had not in fact been repaired. Sprague v Frank J. Sanders Lincoln Mercury, Inc. (1981, 5th Dist) 120 Cal App 3d 412, 174 Cal Rptr 608.

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