California Jury Instruction CACI 1902 False Promise – Fraud

New September 2003; Revised December 2012, December 2013

Nakase Wade | California Business Lawyers & Corporate Lawyers

Give this instruction in a case in which it is alleged that the defendant made a promise without any intention of performing it. (See Civ. Code, § 1710(4).) If element 4 is contested, give CACI No. 1907, Reliance, and CACI No. 1908, Reasonable Reliance.

•Deceit. Civil Code section 1710.

•“ ‘ “Promissory fraud” is a subspecies of fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.’ ” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973–974 [64 Cal.Rptr.2d 843, 938 P.2d 903], internal citations omitted.)

•“Under Civil Code section 1709, one is liable for fraudulent deceit if he ‘deceives another with intent to induce him to alter his position to his injury or risk … .’ Section 1710 of the Civil Code defines deceit for the purposes of Civil Code section 1709 as, inter alia, ‘[a] promise, made without any intention of performing it.’ ‘ “The elements of fraud, which give rise to the tort action for deceit, are (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.” [Citations.]’ Each element must be alleged with particularity.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1059–1060 [141 Cal.Rptr.3d 142], internal citations omitted.)

•“A promise of future conduct is actionable as fraud only if made without a present intent to perform. ‘A declaration of intention, although in the nature of a promise, made in good faith, without intention to deceive, and in the honest expectation that it will be fulfilled, even though it is not carried out, does not constitute a fraud.’ Moreover, ‘ “something more than nonperformance is required to prove the defendant’s intent not to perform his promise.” … [I]f plaintiff adduces no further evidence of fraudulent intent than proof of nonperformance of an oral promise, he will never reach a jury.’ ” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 481 [55 Cal.Rptr.2d 225], internal citations omitted.)

•“[I]n a promissory fraud action, to sufficiently allege[] defendant made a misrepresentation, the complaint must allege (1) the defendant made a representation of intent to perform some future action, i.e., the defendant made a promise, and (2) the defendant did not really have that intent at the time that the promise was made, i.e., the promise was false.” (Beckwith, supra, 205 Cal.App.4th at p. 1060.)

•“[F]raudulent intent is an issue for the trier of fact to decide.” (Beckwith, supra, 205 Cal.App.4th at p. 1061.)

•“[T]here are two causation elements in a fraud cause of action. First, the plaintiff’s actual and justifiable reliance on the defendant’s misrepresentation must have caused him to take a detrimental course of action. Second, the detrimental action taken by the plaintiff must have caused his alleged damage.” (Beckwith, supra, 205 Cal.App.4th at p. 1062.)

•“An action for promissory fraud may lie where a defendant fraudulently induces the plaintiff to enter into a [written] contract. [Citations.] In such cases, the plaintiff’s claim does not depend upon whether the defendant’s promise is ultimately enforceable as a contract.” (Austin v. Medicis (2018) 21 Cal.App.5th 577, 588 [230 Cal.Rptr.3d 528].)