PROVING FRAUD and or MISREPRESENTATION:

14 Sep

PROVING FRAUD and or MISREPRESENTATION:

DECEIT OR INTENTIONAL FRAUD

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

“(a) misrepresentation (false representation, concealment, or nondisclosure);

(b) knowledge of falsity (or ‘scienter’);

(c) intent to defraud, i.e., to induce reliance;

(d) justifiable reliance; and

(e) resulting damage.”

(Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974; See also Gonsalves v. Hodgson (1951) 38 Cal.2d 91, 100-101; Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 512.)

The representation must normally state a fact rather than an opinion. Puffing or sales talk is generally considered an opinion (unless dealing with product safety). (Hauter v. Zogarts (1975) 14 Cal.3d 104, 112).

A misrepresentation may be verbal, written or implied by conduct.” (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1567.)

“…false representations made recklessly and without regard for their truth in order to induce action by another are the equivalent of misrepresentations knowingly and intentionally uttered.” (Yellow Creek Logging Corp. v. Dare (1963) 216 Cal.App.2d 50, 55.)

“Causation requires proof that the defendant’s conduct was a ‘substantial factor’ in bringing about the harm to the plaintiff.” (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132.)

 

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