There are different criteria for different types of fraud and fraudulent intent or conduct. Thus, for example, I have pasted below some of the California Civil Jury Instructions (“CACI”) relating to allegations of fraud, including CACI Nos. 1900-1908. You might not be aware that there are types of fraud in which intentional lying in the statement or representation is not a required element.
CACI No. 1900 pertains to intentional misrepresentation; however CACI Nos. 1901-1908, respectively, relate to concealment, false promise, negligent misrepresentation, opinions of statements of fact, definition of important fact/promise, misrepresentations made to persons other than the plaintiff, reliance, and reasonable reliance.
There are also other types and definitions or elements of fraud or fraudulent intent or conduct that might be applied depending on the specific facts of the case – such as, for example, scienter under the federal securities laws, or the Model Civil Jury Instructions for the District Courts of the Ninth Circuit, etc.
Briefly, on a related but different topic that is relevant and that will become more relevant – consider someone using AI to produce materials. Apparently, or at least I have read, that in its current development AI produced materials are or might be reliable but only to a certain extent, and they can contain entirely erroneous or unsupported materials or statements.
However, for the purpose of this post I have pasted below only CACI Nos. 1900-1908, as those instructions will provide you with a good introduction to this topic. The following are CACI Nos. 1900-1908, in which you can fill in the blanks for possible different types of fraud and fraudulent intent or conduct.
1900. Intentional Misrepresentation
[Name of plaintiff] claims that [name of defendant] made a false representation that harmed [him/her/nonbinary pronoun/it]. To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] represented to [name of plaintiff] that a fact was true;
2. That [name of defendant]’s representation was false;
3. That [name of defendant] knew that the representation was false when [he/she/nonbinary pronoun] made it, or that [he/she/nonbinary pronoun] made the representation recklessly and without regard for its truth;
4. That [name of defendant] intended that [name of plaintiff] rely on the representation;
5. That [name of plaintiff] reasonably relied on [name of defendant]’s representation;
6. That [name of plaintiff] was harmed; and
7. That [name of plaintiff]’s reliance on [name of defendant]’s representation was a substantial factor in causing [his/her/nonbinary pronoun/its] harm.
New September 2003; Revised December 2012, December 2013
1901. Concealment
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed because [name of defendant] concealed certain information. To establish this claim, [name of plaintiff] must prove all of the following:
[1. (a) That [name of defendant] and [name of plaintiff] were [insert type of fiduciary relationship, e.g., “business partners”]; and
[1. (b) That [name of defendant] intentionally failed to disclose certain facts to [name of plaintiff];]
[or]
[1. That [name of defendant] disclosed some facts to [name of plaintiff] but intentionally failed to disclose [other/another] fact[s], making the disclosure deceptive;]
[or]
[1. That [name of defendant] intentionally failed to disclose certain facts that were known only to [him/her/nonbinary pronoun/it] and that [name of plaintiff] could not have discovered;]
[or]
[1. That [name of defendant] prevented [name of plaintiff] from discovering certain facts;]
2. That [name of plaintiff] did not know of the concealed fact[s];
3. That [name of defendant] intended to deceive [name of plaintiff] by concealing the fact[s];
4. That had the omitted information been disclosed, [name of plaintiff] reasonably would have behaved differently;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s concealment was a substantial factor in causing [name of plaintiff]’s harm.
New September 2003; Revised October 2004, December 2012, June 2014, June 2015
1902. False Promise
[Name of plaintiff] claims [he/she/nonbinary pronoun] was harmed because [name of defendant] made a false promise. To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] made a promise to [name of plaintiff];
2. That [name of defendant] did not intend to perform this promise when [he/she/nonbinary pronoun] made it;
3. That [name of defendant] intended that [name of plaintiff] rely on this promise;
4. That [name of plaintiff] reasonably relied on [name of defendant]’s promise;
5. That [name of defendant] did not perform the promised act;
6. That [name of plaintiff] was harmed; and
7. That [name of plaintiff]’s reliance on [name of defendant]’s promise was a substantial factor in causing [his/her/nonbinary pronoun/its] harm.
New September 2003; Revised December 2012, December 2013
1903. Negligent Misrepresentation
[Name of plaintiff] claims [he/she/nonbinary pronoun/it] was harmed because [name of defendant] negligently misrepresented a fact. To establish this claim, [name of plaintiff] must prove all of the following:
1. That [name of defendant] represented to [name of plaintiff] that a fact was true;
2. That [name of defendant]’s representation was not true;
3. That [although [name of defendant] may have honestly believed that the representation was true,] [[name of defendant]/he/she/nonbinary pronoun] had no reasonable grounds for believing the representation was true when [he/she/nonbinary pronoun] made it;
4. That [name of defendant] intended that [name of plaintiff] rely on this representation;
5. That [name of plaintiff] reasonably relied on [name of defendant]’s representation;
6. That [name of plaintiff] was harmed; and
7. That [name of plaintiff]’s reliance on [name of defendant]’s representation was a substantial factor in causing [his/her/nonbinary pronoun/its] harm.
New September 2003; Revised December 2009, December 2013
1904. Opinions as Statements of Fact
Ordinarily, an opinion is not considered a representation of fact. An opinion is a person’s belief that a fact exists, a statement regarding a future event, or a judgment about quality, value, authenticity, or similar matters. However, [name of defendant]’s opinion is considered a representation of fact if [name of plaintiff] proves that:
[[Name of defendant] claimed to have special knowledge about the subject matter that [name of plaintiff] did not have;] [or]
[[Name of defendant] made a representation, not as a casual expression of belief, but in a way that declared the matter to be true;] [or]
[[Name of defendant] had a relationship of trust and confidence with [name of plaintiff];] [or]
[[Name of defendant] had some other special reason to expect that [name of plaintiff] would rely on the defendant’s opinion.]
New September 2003; Revised April 2004, May 2020
1905. Definition of Important Fact/Promise Revoked December 2013 See CACI No. 1908, Reasonable Reliance (below).
1906. Misrepresentations Made to Persons Other Than the Plaintiff
[Name of defendant] is responsible for a representation that was not made directly to [name of plaintiff] if [he/she/nonbinary pronoun/it] made the representation [to a group of persons including [name of plaintiff]] [or] [to another person, intending or reasonably expecting that it would be repeated to [name of plaintiff]].
New September 2003
1907. Reliance
[Name of plaintiff] relied on [name of defendant]’s [misrepresentation/concealment/false promise] if:
1. The [misrepresentation/concealment/false promise] substantially influenced [him/her/nonbinary pronoun/it] to [insert brief description of the action, e.g., “buy the house”]; and
2. [He/She/Nonbinary pronoun/It] would probably not have [e.g., bought the house] without the [misrepresentation/concealment/false promise].
It is not necessary for a [misrepresentation/concealment/false promise] to be the only reason for [name of plaintiff]’s conduct.
New September 2003; Revised December 2013
1908. Reasonable Reliance
In determining whether [name of plaintiff]’s reliance on the [misrepresentation/concealment/false promise] was reasonable, [he/she/ nonbinary pronoun/it] must first prove that the matter was material. A matter is material if a reasonable person would find it important in deciding what to do.
If you decide that the matter is material, you must then decide whether it was reasonable for [name of plaintiff] to rely on the [misrepresentation/ concealment/false promise]. In making this decision, take into consideration [name of plaintiff]’s intelligence, knowledge, education, and experience.
However, it is not reasonable for anyone to rely on a [misrepresentation/ concealment/false promise] that is preposterous. It also is not reasonable for anyone to rely on a [misrepresentation/concealment/false promise] if facts that are within [his/her/nonbinary pronoun] observation show that it is obviously false.
New September 2003; Revised October 2004, December 2013, May 2020
* * * * *
Regards, and best to you,
David Tate, Esq.
Thank you for reading. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved.
David Tate, Esq. (and inactive CPA)
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- Mediator and facilitating dispute resolution:
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- Business, breach of contract/commercial, owner, shareholder, investor, etc.
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- Other: workplace and employment, environmental, trade secret.
Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.
Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that doesn’t mean that I don’t or might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.
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http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com
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David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.
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David W. Tate, Esq. (and inactive CPA) 