Pleading and proving Concealment Fraud

14 Sep

 

CONCEALMENT FRAUD:

The tort of deceit or fraud by concealment requires that each and all of the following elements be proved:

“(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 did if he had known of the concealed or suppressed fact, and

(5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.”

Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248; see also Mosier v. Southern California Physicians Ins. Exchange (1995) 63 Cal.App.4th 1022, 1045.)

“There are ‘four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts… Each of the circumstances in which nondisclosure may be actionable presupposes the existence of some other relationship between the plaintiff and defendant in which a duty to disclose can arise…

….such a relationship can only come into being as a result of some sort of transaction between the parties… Thus, a duty to disclose may arise from the relationship between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement.’ All of these relationships are created by transactions between parties from which a duty to disclose facts material to the transaction arises under certain circumstances.”

(Limandri v. Judkins (1997) 52 Cal.App.4th 326, 336-337.)

 

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