“The circumstance in which nondisclosure may be actionable presupposes the existence of some other … in which a duty to disclose can arise…. A duty to disclose may arise from the relationship between … employer and employee … or parties entering into any kind of contractual agreement.’ These relationships are created by transactions between parties from which a duty to disclose facts material to the transaction arises under certain circumstances.” Civil Code section 1710 specifies four kinds of deceit. A deceit, within the meaning of section 1709, is either: 1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true; 2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be; 3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or, 4. A promise, made without any intention of performing it. • “The elements of an action for fraud and deceit based on a 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 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.” • “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 [three nonfiduciary] 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.” • “Ordinarily, failure to disclose material facts is not actionable fraud unless there is some fiduciary relationship giving rise to a duty to disclose . . . [however,] ‘[t]he duty to disclose may arise without any confidential relationship where the defendant alone has knowledge of material facts which are not accessible to the plaintiff.’ ” • “In transactions which do not involve fiduciary or confidential relations, a cause of action for non-disclosure of material facts may arise in at least three instances: (1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff.” • “Active concealment of facts and mere nondisclosure of facts may under certain circumstances be actionable without [a fiduciary or confidential] relationship. For example, a duty to disclose may arise without a confidential or fiduciary relationship where the defendant, a real estate agent or broker, alone has knowledge of material facts which are not accessible to the plaintiff, a buyer of real property.” • “Even if a fiduciary relationship is not involved, a non-disclosure claim arises when the defendant makes representations but fails to disclose additional facts which materially qualify the facts disclosed, or which render the disclosure likely to mislead.” • “‘The rule has long been settled in this state that although one may be under no duty to speak as to a matter, “if he undertakes to do so, either voluntarily or in response to inquiries, he is bound not only to state truly what he tells but also not to suppress or conceal any facts within his knowledge which materially qualify those stated. If he speaks at all he must make a full and fair disclosure.” ’” • “Contrary to plaintiffs’ assertion, it is not logically impossible to prove reliance on an omission. One need only prove that, had the omitted information been disclosed, one would have been aware of it and behaved differently.” • “The fact that a false statement may be obviously false to those who are trained and experienced does not change its character, nor take away its power to deceive others less experienced. There is no duty resting upon a citizen to suspect the honesty of those with whom he transacts business. Laws are made to protect the trusting as well as the suspicious. • The rule of caveat emptor should not be relied upon to reward fraud and deception.” https://youtube/watch?v=lG_lsWw-cmY Limandri v. Judkins (1997) 52 Cal.App.4th 326, 336-337. Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248. Limandri v. Judkins (1997) 52 Cal.App.4th 326, 336-337. Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 482. Warner Construction Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294. La Jolla Village Homeowners’ Assn. v. Superior Court (1989) 212 Cal.App.3d 1131, 1151. Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 666 (internal citations omitted.) Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 613. Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1093. Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, at page 249. Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, at page 249.
Posted on: Mon, 05 Jan 2015 17:08:49 +0000