CACI 1902 False Promise

California Civil Jury Instructions CACI

1902 False Promise

[Name of plaintiff] claims [he/she/nonbinary pronoun] was harmed because [name of defendant] made a false promise. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of defendant] made a promise to [name of plaintiff];

2.That [name of defendant] did not intend to perform this promise when [he/she/nonbinary pronoun] made it;

3.That [name of defendant] intended that [name of plaintiff] rely on this promise;

4.That [name of plaintiff] reasonably relied on [name of defendant]’s promise;

5.That [name of defendant] did not perform the promised act;

6.That [name of plaintiff] was harmed; and

7.That [name of plaintiff]’s reliance on [name of defendant]’s promise was a substantial factor in causing [his/her/nonbinary pronoun/its] harm.

Directions for Use

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.

Sources and Authority

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].)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 899–904
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts, § 40.03[1][a] (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.12 (Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.30 et seq. (Matthew Bender)
California Civil Practice: Torts § 22:20 (Thomson Reuters)