CACI 1904 Opinions as Statements of Fact

California Civil Jury Instructions CACI

1904 Opinions as Statements of Fact

Ordinarily, an opinion is not considered a representation of fact. An opinion is a person’s belief that a fact exists, a statement regarding a future event, or a judgment about quality, value, authenticity, or similar matters. However, [name of defendant]’s opinion is considered a representation of fact if [name of plaintiff] proves that:

[[Name of defendant] claimed to have special knowledge about the subject matter that [name of plaintiff] did not have;] [or]

[[Name of defendant] made a representation, not as a casual expression of belief, but in a way that declared the matter to be true;] [or]

[[Name of defendant] had a relationship of trust and confidence with [name of plaintiff];] [or]

[[Name of defendant] had some other special reason to expect that [name of plaintiff] would rely on the defendant’s opinion.]

Directions for Use

This is not a stand-alone instruction. It should be read in conjunction with one of the elements instructions (CACI Nos. 1900–1903).

The second bracketed option appears to be limited to cases involving professional opinions. (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 408 [11 Cal.Rptr.2d 51, 834 P.2d 745].)

Alternative bracketed options that do not apply to the facts of the case may be deleted.

Sources and Authority

“Representations of opinion, particularly involving matters of value, are ordinarily not actionable representations of fact. A representation is an opinion ‘ “if it expresses only (a) the belief of the maker, without certainty, as to the existence of a fact; or (b) his judgment as to quality, value … or other matters of judgment.” ’ ” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606−607 [172 Cal.Rptr.3d 218], internal citations omitted.)

“Plaintiffs cite the exceptions to the general rule that, to be actionable, a misrepresentation must be of an existing fact, not an opinion or prediction of future events. They arise ‘(1) where a party holds himself out to be specially qualified and the other party is so situated that he may reasonably rely upon the former’s superior knowledge; (2) where the opinion is by a fiduciary or other trusted person; (3) where a party states his opinion as an existing fact or as implying facts which justify a belief in the truth of the opinion. [Citation.]’ ” (Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 769 [153 Cal.Rptr.3d 1], internal citation omitted.)

“[W]hen one of the parties possesses, or assumes to possess, superior knowledge or special information regarding the subject matter of the representation, and the other party is so situated that he may reasonably rely upon such supposed superior knowledge or special information, a representation made by the party possessing or assuming to possess such knowledge or information, though it might be regarded as but the expression of an opinion if made by any other person, is not excused if it be false.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 892 [153 Cal.Rptr.3d 546].)

“Since the appraisal is a value opinion performed for the benefit of the lender, there is no representation of fact upon which a buyer may reasonably rely.” (Grahamsupra, 226 Cal.App.4th at p. 607.)

“Whether a statement is nonactionable opinion or actionable misrepresentation of fact is a question of fact for the jury.” (Furla v. Jon Douglas Co. (1998) 65 Cal.App.4th 1069, 1080–1081 [76 Cal.Rptr.2d 911], internal citations omitted.)

“If defendants’ assertion of safety is merely a statement of opinion—mere ‘puffing’—they cannot be held liable for its falsity.” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 111 [120 Cal.Rptr. 681, 534 P.2d 377].)

“The alleged false representations in the subject brochures were not statements of ‘opinion’ or mere ‘puffing.’ They were, in essence, representations that the DC-10 was a safe aircraft. In Hauter, [supra,] the Supreme Court held that promises of safety are not statements of opinion—they are ‘representations of fact.’ ” (Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 424 [264 Cal.Rptr. 779].)

“Under certain circumstances, expressions of professional opinion are treated as representations of fact. When a statement, although in the form of an opinion, is ‘not a casual expression of belief’ but ‘a deliberate affirmation of the matters stated,’ it may be regarded as a positive assertion of fact. Moreover, when a party possesses or holds itself out as possessing superior knowledge or special information or expertise regarding the subject matter and a plaintiff is so situated that it may reasonably rely on such supposed knowledge, information, or expertise, the defendant’s representation may be treated as one of material fact.” (Bily, supra, 3 Cal.4th at p. 408, internal citations omitted.)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 892–896
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts, § 40.03[1][b] (Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 269, Fraud and Deceit, § 269.17 (Matthew Bender)
10 California Points and Authorities, Ch. 105, Fraud and Deceit, § 105.50 (Matthew Bender)
California Civil Practice: Torts, §§ 22:21–22:28 (Thomson Reuters)