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The plaintiff __________ [also] seeks to recover damages based upon a claim of fraud.
Conduct may be fraudulent because of [an intentional misrepresentation] [,] [concealment] [,] [a false promise] [or] [a negligent misrepresentation]. | TOP |
The essential elements of a claim of fraud by an intentional misrepresentation are:
1. The defendant must have made a representation as to a past or existing material fact;
2. The representation must have been false;
3. The defendant must have known that the representation was false when made [or must have made the representation recklessly without knowing whether it was true or false];
4. The defendant must have made the representation with an intent to defraud the plaintiff, that is, [he] [she] must have made the representation for the purpose of inducing the plaintiff to rely upon it and to act or to refrain from acting in reliance thereon;
5. The plaintiff must have been unaware of the falsity of the representation; must have acted in reliance upon the truth of the representation and must have been justified in relying upon the representation;
6. And, finally, as a result of the reliance upon the truth of the representation, the plaintiff must have sustained damage. | TOP |
Ordinarily, expressions of opinion are not treated as representations of fact upon which to base actionable fraud.
However, when one party possesses [or holds [himself] [herself] out as possessing] superior knowledge or special information regarding the subject of a representation, and the other party is so situated that [he] [she] may reasonably rely upon such supposed superior knowledge or special information, a representation made by the party possessing [or holding [himself] [herself] out as possessing] such knowledge or information will be treated as a representation of fact although if made by any other person it might be regarded as an expression of opinion.
When a party states an opinion as a fact, in such a manner that it is reasonable to rely and act upon it as a fact, it may be treated as a representation of fact. | TOP |
The essential elements of a claim of fraud by concealment are:
1. The defendant must have concealed or suppressed a material fact;
2. The defendant must have been under a duty to disclose the fact to the plaintiff;
3. The defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff;
4. The plaintiff must have been unaware of the fact and would not have acted as [he] [she] did if [he] [she] had known of the concealed or suppressed fact;
5. And, finally, the concealment or suppression of the fact caused the plaintiff to sustain damage. | TOP |
Except as you may otherwise be instructed, where material facts are known to one party and not to the other, failure to disclose them is not actionable fraud unless there is some relationship between the parties which gives rise to a duty to disclose such known facts.
A duty to disclose known facts arises where the party having knowledge of the facts is in a fiduciary or a confidential relationship.
A fiduciary or a confidential relationship exists whenever under the circumstances trust and confidence reasonably may be and is reposed by one person in the integrity and fidelity of another.
[A duty to disclose known facts arises [in the absence of a fiduciary or a confidential relationship] where one party knows of material facts and also knows that such facts are neither known nor readily accessible to the other party.] | TOP |
Intentional concealment exists where a party:
[(1) Knows of defects in a property and intentionally conceals them[.] [, or]
[(2) Actively prevents investigation and discovery of material facts by the other party[.] [, or]
[(3) While under no duty to speak, nevertheless does so, but does not speak honestly or makes misleading statements or suppresses facts which materially qualify those stated. | TOP |
The essential elements of a claim of fraud by a false promise are:
1. The defendant must have made a promise as to a material matter and, at the time it was made, [he] [she] must have intended not to perform it;
2. The defendant must have made the promise with an intent to defraud the plaintiff, that is, [he] [she] must have made the promise for the purpose of inducing plaintiff to rely upon it and to act or refrain from acting in reliance upon it;
3. The plaintiff must have been unaware of the defendant's intention not to perform the promise; [he] [she] must have acted in reliance upon the promise and must have been justified in relying upon the promise made by the defendant;
4. And, finally, as a result of reliance upon defendant's promise, the plaintiff must have sustained damage. | TOP |
You may consider the conduct of a party making a promise, either before or after the promise was made, in determining whether there was an intention not to perform the promise when made. | TOP |
The essential elements of a claim of fraud by a negligent misrepresentation are:
1. The defendant must have made a representation as to a past or existing material fact;
2. The representation must have been untrue;
3. Regardless of [his] [her] actual belief the defendant must have made the representation without any reasonable ground for believing it to be true;
4. The representation must have been made with the intent to induce plaintiff to rely upon it;
5. The plaintiff must have been unaware of the falsity of the representation; must have acted in reliance upon the truth of the representation and must have been justified in relying upon the representation;
6. And, finally, as a result of the reliance upon the truth of the representation, the plaintiff must have sustained damage. | TOP |
[The representation [alleged to have been a negligent misrepresentation,] must have been made with the intent to induce plaintiff, or a particular class of persons to which plaintiff belongs, to act in reliance upon the representation in a specific transaction, or a specific type of transaction, that defendant intended to influence. Defendant is deemed to have intended to influence [his] [her] [its] [client's] transaction with plaintiff whenever defendant knows with substantial certainty that plaintiff, or the particular class of persons to which plaintiff belongs, will rely on the representation in the course of the transaction. If others become aware of the representation and act upon it, there is no liability even though defendant should reasonably have foreseen such a possibility.]
[The representation [alleged to have been an intentional misrepresentation,] must have been made with the intent to defraud plaintiff, or a particular class of persons to which plaintiff belongs, whom defendant intended or reasonably should have foreseen would rely upon the representation.] [One who makes a representation with intent to defraud the public or a particular class of persons is deemed to have intended to defraud every individual in that category who is actually misled thereby.] | TOP |
[The [misrepresentation] [or] [false promise] [or] [concealment] must have been [made] [or] [done] with the intent to induce some person or persons to act in reliance upon it and the party [making the [representation] [or] [promise]] [concealing] is liable only to those persons [to whom the [representation] [or] [promise] has been made] [from whom a material fact was concealed] with such intent.]
[If others [become aware of the [representation] [or] [promise] [or] [are misled by the concealment] and act upon such, there is no liability.]]
[One who [makes a [misrepresentation] [or] [false promise]] [or]] [conceals a material fact] is subject to liability if [he] [she] intends [or] [has reason to expect] that the [misrepresentation] [or] [false promise] [concealment of material fact] will be passed on to another person and influence such person's conduct in the [type of] transaction involved.
[A person has reason to expect that a [misrepresentation] [false promise] [nondisclosure of material fact] will be passed on to [a] [other] person[s] and influence that [person's] [persons'] conduct if [he] [she] has information that would lead a reasonable person to conclude that there is a likelihood that it will reach such [person] [persons] and will influence [him] [her] [them] or [his] [her] [their] conduct in the [type of] transaction involved.]
[Subject to liability means that the defendant is liable if all of the other essential elements of the claim of fraud are established.]
[One who [makes a [misrepresentation] [or] [false promise]] [or] [conceals a material fact] with the intent to defraud the public or a particular class of persons is deemed to have intended to defraud every individual in that category who is actually misled thereby.] | TOP |
A party claiming to have been defrauded by a false [representation] [or] [promise] must have relied upon the [representation] [or] [promise]; that is, the [representation] [or] [promise] must have been a cause of plaintiff's conduct in entering into the transaction and without such [representation] [or] [promise] plaintiff would not have entered into such transaction.
The fraud, if any, need not be the sole cause if it appears that reliance upon the [representation] [or] [promise] substantially influenced such party's action, even though other influences operated as well. | TOP |
A party claiming to have been defrauded by a false [representation] [or] [promise] must not only have acted in reliance on it but must have been justified in such reliance, that is, the situation must have been such as to make it reasonable in the light of the circumstances and plaintiff's intelligence, experience and knowledge, to accept the [representation] [or] [promise] without making an independent inquiry or investigation. | TOP |
If a party claiming to have been defrauded makes an independent investigation of the subject matter of the alleged false [representation] [or] [promise] and the decision to engage in the transaction is the result of [his] [or] [her] independent investigation and not [his] [or] [her] reliance upon the [representation] [or] [promise], [he] [or] [she] is not entitled to recover. | TOP |
If you find that plaintiff is entitled to a verdict against defendant, you must then award plaintiff damages, if any, caused by the fraud upon which you base your finding of liability.
The amount of such award shall include:
1. The difference, if any, between the actual value of that with which the plaintiff parted and the actual value of that which was received. This is sometimes referred to as the "out of pocket loss."
Actual value means market value. Market value means the highest price for which real or personal property would sell on the open market; the seller having a reasonable time within which to sell, and being willing to sell but not forced to do so; the buyer being ready, willing and able to buy but not forced to do so, and having a reasonable time and full opportunity to investigate the property in question and to determine its condition, suitability for use, and all of the things about the property that would naturally and reasonably affect its market value.
2. In addition to "out of pocket loss," if any, plaintiff is entitled to recover any additional damage arising from the particular transaction, including any of the following:
[a.] [Amounts actually and reasonably expended in reliance upon the fraud.]
[b.] [An amount which would compensate the plaintiff for loss of use and enjoyment of the property to the extent that any such loss was caused by the fraud.]
[c.] [An amount which will compensate the plaintiff for profits or other gains which might reasonably have been earned by use of the property had the plaintiff retained it.]
[d.] [An amount which will compensate the plaintiff for any loss of profits or other gains which were reasonably anticipated and would have been earned by the plaintiff from the use or sale of the property had it possessed the characteristics fraudulently attributed to it by the party committing the fraud, provided that lost profits from the use or sale of the property shall be recoverable only if and only to the extent that all of the following apply:
(i) The plaintiff acquired the property for the purpose of using or reselling it for a profit.
(ii) The plaintiff reasonably relied on the fraud in entering into the transaction and in anticipating profits from the subsequent use or sale of the property.
(iii) Any loss of profits for which damages are sought under this paragraph have been caused by the fraud and the plaintiff's reliance on it.] | TOP |
If you find that plaintiff is entitled to a verdict against the defendant, you must then award plaintiff damages in an amount that will reasonably compensate for all the loss suffered by plaintiff and caused by the fraud upon which you base your finding of liability.
The amount of such award shall be the difference between the actual value of that which the plaintiff received and the value which it would have had if the fraudulent representation had been true. This is sometimes referred to as the "benefit of the bargain." | TOP |
__________ (Indemnitee) has filed a [complaint] [cross-
complaint] for indemnity against __________ (Indemnitor).
Indemnity is the right of one person to be compensated for a loss sustained or which will be sustained for the legal consequences of the conduct of another person.
[If you reach a verdict in favor of plaintiff and against [both] __________ (Indemnitee) [and __________ (Indemnitor)], you must then decide whether __________ (Indemnitee) is entitled to be indemnified by __________ for a (Indemnitor) loss __________ (Indemnitee) has sustained or will sustain as a result of your verdict in favor of plaintiff.] | TOP |
A [plaintiff] [cross-complainant] who is liable to pay damages for injury to the person or property of another caused by the breach of a contractual duty owed to such party by a [defendant] [cross-defendant] is entitled to comparative indemnity from that [defendant] [cross-defendant]. | TOP |
In deciding whether __________ (indemnitee) is entitled to be indemnified by __________ (indemnitor), you must first determine whether there was an agreement between __________ (indemnitee) and __________ (indemnitor) to __________.
If you find that __________ (indemnitee) and __________ (indemnitor) did enter into such an agreement, written or oral, you are instructed that: | TOP |
It is admitted that _______________ (indemnitee) and _______________ (indemnitor) entered into an agreement to _______________.
You are instructed that: | TOP |