California Dog Bite Law

§  3342.5.  Duty to remove danger presented from dog bites; Enforcement

   (a) The owner of any dog that has bitten a human being shall have the duty to take such reasonable steps as are necessary to remove any danger presented to other persons from bites by the animal.

   (b) Whenever a dog has bitten a human being on at least two separate occasions, any person, the district attorney, or city attorney may bring an action against the owner of the animal to determine whether conditions of the treatment or confinement of the dog or other circumstances existing at the time of the bites have been changed so as to remove the danger to other persons presented by the animal. This action shall be brought in the county where a bite occurred.  The court, after hearing, may make any order it deems appropriate to prevent the recurrence of such an incident, including, but not limited to, the removal of the animal from the area or its destruction if necessary.

   (c) Whenever a dog trained to fight, attack, or kill has bitten a human being, causing substantial physical injury, any person, including the district attorney, or city attorney may bring an action against the owner of the animal to determine whether conditions of the treatment or confinement of the dog or other circumstances existing at the time of the bites have been changed so as to remove the danger to other persons presented by the animal. This action shall be brought in the county where a bite occurred.  The court, after hearing, may make any order it deems appropriate to prevent the recurrence of such an incident, including, but not limited to, the removal of the animal from the area or its destruction if necessary.

   (d) Nothing in this section shall authorize the bringing of an action pursuant to subdivision (b) based on a bite or bites inflicted upon a trespasser, or by a dog used in military or police work if the bite or bites occurred while the dog was actually performing in that capacity.

   (e) Nothing in this section shall be construed to prevent legislation in the field of dog control by any city, county, or city and county.

   (f) Nothing in this section shall be construed to affect the liability of the owner of a dog under Section 3342 or any other provision of the law.

   (g) A proceeding under this section is a limited civil case. 

HISTORY:    Added Stats 1968 ch 1274 §  1. Amended Stats 1976 ch 470 §  1.

   Amended Stats 1984 ch 655 §  1, effective August 16, 1984; Stats 1998 ch 931 §  18 (SB 2139), effective September 28, 1998. 

NOTES:

AMENDMENTS:

   1976 Amendment:

   Amended the first sentence of subd (b) by (1) adding ", the district attorney, or city attorney" after "any person"; and (2) substituting "municipal" for "superior".

   1984 Amendment:

   (1) Generally eliminated "such", (2) added subd (c); (3) redesignated former subds (c), (d), and (e) to be subds (d), (e), and (g); and (4) amended subd (d) by (a) deleting "which is" after "subdivision (b)"; and (b) substituting "was" for "is" before "actually".

   1998 Amendment:

   (1) Amended the first sentence of subd (b) by (a) deleting "or in the municipal court" after 'bring an action"; and (b) substituting "the" for "such" after "presented by" at the end; (2) redesignated former subd (g) to be subd (f); and (3) added subd (g).

OFFICIAL COMMENT:

LAW REVISION COMMISSION COMMENTS:

   1998--Section 3342.5 is amended to accommodate unification of the municipal and superior courts in a county. Cal. Const. art. VI, §  5(e).

   A limited civil case is within the original jurisdiction of the municipal court or of the superior court in a county in which there is no municipal court. Cal. Const. art. VI, §  10 (superior court jurisdiction); Code Civ. Proc. § §  85, 85.1 (limited civil cases). See also Code Civ. Proc. § §  91, 904.2, 1085 (trial procedures and writ and appellate jurisdiction for limited civil cases).

CROSS REFERENCES:

   Killing or impounding dog: Fd & Ag C § §  30953, 31102 et seq.

   Prohibition of dogs running at large: Fd & Ag C § §  30954 et seq.

   Dogs as property: Pen C §  491.

   Injury to animals: Pen C § §  596 et seq.

COLLATERAL REFERENCES:

   Cal Forms Pl & Practice (Matthew Bender) ch 23 "Animals: Civil Liability" § §  23.34(1), (2).

   Witkin Summary (9th ed) Torts §  876.

   ANNOTATIONS:

      Modern status of rule of absolute or strict liability for dogbite.  51 ALR4th 446.

      Who "harbors" or "keeps" dog under animal liability statute.  64 ALR4th 963.

      Liability for injuries inflicted by dog on public officer or employee.  74 ALR4th 1120.

                              SUGGESTED FORMS

COMPLAINT BY PARTY AGAINST OWNER OF DOG THAT HAS INFLICTED BITES ON TWO SEPARATE OCCASIONS--FOR DETERMINATION OF WHETHER DOG SHOULD BE REMOVED FROM AREA OR BE DESTROYED

 [Title of Court and Cause]

 1. Plaintiff resides at -----------  [address],  in the City of -----------,

County of -----------, State of California.

 2. Defendant resides at -----------  [address],  in the City of -----------,

County of -----------, State of California, and is the owner of -----------

 [specify breed of dog].

 3. Defendant's dog has bitten a human being on at least ---- [two] separate

and unrelated occasions.

 4. On -----------  [date] , defendant's dog bit ------  [person]  at ------

 [location],  in the County of -----------, State of California. On ------

 [date] , defendant's dog bit ------  [person]  at ------  [location],  in the

County of -----------, State of California.

 5. ------  [If applicable, set forth facts supporting allegation of vicious

nature of dog and defendant's knowledge of such nature and his inability or

refusal to take reasonable steps to remove danger presented other persons].

Wherefore, plaintiff prays:

 1. That defendant be cited to appear and answer this complaint;

 2. That this court determine, in accordance with the provisions of Section

3342.5 of the Civil Code of the State of California, whether conditions of the

treatment or confinement of the dog or other circumstances existing at the time

of the ---- [two] bites have been changed so as to remove the danger to other

persons presented by such animal;

 3. ------  [If applicable, set forth any further specific relief requested];

 4. For costs of suit; and

 5. For such further relief as may be deemed just and equitable.

 Dated -----------.

                                                                 [Signature]   

 [For verification, see first form set out under § 3304.]

 [Reminder: Rule 311(b) of The California Rules of Court provides that in all

proceedings in civil law and motion in superior, municipal, and justice courts,

the first page of each paper must specify immediately below the number of the

case (1) the date, time, and location, if ascertainable, of any scheduled

hearing; (2) the nature or title of any attached document other than an

exhibit; and (3) the trial date, if set. Documents bound together must be

consecutively paginated.]

CIVIL CODE

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DIVISION 3. Obligations

PART 2. Contracts

TITLE 1. Nature of a Contract

CHAPTER 3. Consent

§  1572.  Actual fraud defined

   Actual fraud, within the meaning of this chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:

   1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

   2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

   3. The suppression of that which is true, by one having knowledge or belief of the fact;

   4. A promise made without any intention of performing it; or,

   5. Any other act fitted to deceive. 

HISTORY:    Enacted 1872. 

NOTES:

HISTORICAL DERIVATION:

   Field's Draft NY CC §  757.

CROSS REFERENCES:

   Contract not in writing due to fraud: CC §  1623.

   Statue of frauds: CC §  1624; UCC §  2201.

   Rescission of contracts for fraud: CC §  1689.

   Fraudulent deceit: CC § §  1709, 1710.

   Deceit upon the public: CC §  1711.

   Involuntary trust resulting from fraud: CC §  2224.

   Damages: CC § §  3288, 3343.

   Exemplary damages in case of fraud: CC §  3294.

   Fraudulent instruments and transfers: CC § §  3439 et seq.

COLLATERAL REFERENCES:

   Witkin Summary (9th ed) Contracts § §  393-395, 397-399; Torts § §  657, 674, 688, 690, 705, 722, 723.

   Cal Jur 3d (Rev) Criminal Law §  1281.

   Calif Real Property Remedies Practice (CEB, 1982) § §  3.1-3.58.

   Handling real property sales transactions. CEB Action Guide.

   Drafting representations, guaranties, and indemnities for a sale transaction. 11 CEB Bus L Prac 189.

   Trial court committed prejudicial error in failing to instruct jury on constructive fraud; burden of proof for oral modification of written contract is preponderance of evidence rather than clear and convincing evidence. CEB Civ Litig Rep (1986) Vol 8 No. 4 p 136.

   Miller & Starr, Cal Real Estate 3d § §  1:124, 1:125, 1:126, 1:136, 1:146, 1:138, 1:137, 8:55, 8:57, 28:102, 28:103, 31:51.

   LAW REVIEW ARTICLES:

      Right of vendee to affirm contract and sue on fraud. 3 Cal LR 152.

      Provision for remedy and compromise agreement: remedy for fraud inducing compromise. 10 Cal LR 263.

      Remedy in tort where actual fraud is present. 36 Cal LR 138.

      Admissibility of parol evidence to show that promise was made without intention to perform it. 38 Cal LR 535.

      Rescission of contract for fraud. 39 Cal LR 309.

      Oral employment contracts and equitable estoppel: The real estate broker as victim. 26 Hast LJ 1503.

      Fraud begins at home, or at least with the loan applications. 34 Orange County Law No. 8 p 20.

      Contractual liability of persons ignorant of, or not proficient in, the English language; fraud in the execution. 11 San Diego LR 427.

      Tortious breach of the covenant of good faith and fair dealing in California since Foley:Opportunity or efficiency. 26 San Diego LR 73.

      Damages for fraud. 14 Santa Clara Law 325.

      Rescission for fraud. 25 SCLR 204.

      Election of remedies in cases of fraudulent misrepresentation. 26 SCLR 157.

      Prerequisite intent to deceive. 5 UCLA LR 583.

   ANNOTATIONS:

      Proceeding under executory contract after discovering fraud as waiver of right to recover damages for fraud. 13 ALR2d 807.

      Contracting party's right of redress for fraud as affected by his own breach of the contract before discovering the fraud. 13 ALR2d 1248.

      Misrepresentations as to matters of foreign law as actionable. 24 ALR2d 1039.

      False representations as to income, profits, or productivity of property as fraud. 27 ALR2d 14.

      Misrepresentation as to third person's present intention as to future act as actionable fraud. 40 ALR2d 971.

      Tort liability for damages for misrepresentations as to area of real property sold or exchanged. 54 ALR2d 660.

      Liability of vendor's real-estate broker or agent to purchaser or prospect for misrepresenting or concealing offer or acceptance. 55 ALR2d 342.

      Right of action for fraud, duress, or the like, causing instant plaintiff to release or compromise a cause of action against third person. 58 ALR2d 500.

      Necessity of showing damage to establish fraud as defense to action on contract. 91 ALR2d 346.

      Civil liability of witness falsely attesting signature to document. 96 ALR2d 1346.

      Obligee's concealment or misrepresentation concerning previous defalcation as affecting liability on fidelity bond or contract. 4 ALR3d 1197.

      Fraud in connection with franchise or distributorship relationship. 64 ALR3d 6.

      Claim of fraud in inducement of contract as subject to compulsory arbitration clause contained in contract. 11 ALR4th 774.

      Claim of fraud in inducement of contract as subject to compulsory arbitration clause contained in contract. 11 ALR4th 774.

                            NOTES OF DECISIONS

 1. In General 2. Elements of Fraud or Deceit, Generally 3. Material Misrepresentation 4. Representations With Knowledge of Falsity--Generally 5. Representations With Knowledge of Falsity--Applications 6. Representations With No Reasonable Grounds to Believe True--Generally 7. Representations With No Reasonable Grounds to Believe True--Applications 8. Statements of Facts or Opinion, Generally 9. Opinions Not Honestly Entertained 10. Opinions Stated as Accomplished Facts 11. Opinions Stated to Persons Entitled To Rely 12. Statements of Value of Property 13. Statements of Fact--Applications 14. Matters of Opinion--Applications 15. Suppression of Fact--Generally 16. Suppression of Fact--Applications 17. Promise Made Without Intention to Perform--Generally 18. Promise Made Without Intention to Perform--Applications 19. Procedure--Generally 20. Pleading 21. Burden of Proof 22. Findings 23. Procedure--Other Matters

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 1. In General

   Concealment may constitute actionable fraud where seller knows of facts which materially affect desirability of property and which he knows was unknown to buyer.  Kallgren v Steele (1955, 2nd Dist) 131 Cal App 2d 43, 279 P2d 1027.

   A promise not to enforce one of terms of written contract, being directly at variance with terms of writing, cannot afford basis for action in deceit.  Abbot v Stevens (1955, 2nd Dist) 133 Cal App 2d 242, 284 P2d 159.

   Where any relation of confidence and trust exists between parties which demands that information communicated respecting the subject of their dealings be full and complete, any concealment or misrepresentation will amount to fraud sufficient to entitle injured party to an action.  Kruse v Miller (1956, 4th Dist) 143 Cal App 2d 656, 300 P2d 855, 61 ALR2d 1231.

   One who learns that his statements, even if thought to be true when made, have become false through change in circumstances, has duty before his statements are acted upon to disclose the new conditions to party relying on his original representations.  Stevens v Marco (1956, 2nd Dist) 147 Cal App 2d 357, 305 P2d 669.

   A representation need not be a direct falsehood to constitute fraud; it may be a deceptive answer or other indirect but misleading language.  Brady v Carman (1960, 1st Dist) 179 Cal App 2d 63, 3 Cal Rptr 612.

   Deceit may consist of suppression of facts which it is fiduciary's duty to reveal.  Zikratch v Stillwell (1961, 4th Dist) 196 Cal App 2d 535, 16 Cal Rptr 660.

   Deceit is tort action not requiring existence of any contract though one may coincide with tort.  Hayman v Shoemake (1962, 5th Dist) 203 Cal App 2d 140, 21 Cal Rptr 519.

   Deceit may arise from mere nondisclosure (Civ. Code, § §  1709, 1710).  Massei v Lettunich (1967, 1st Dist) 248 Cal App 2d 68, 56 Cal Rptr 232.

 2. Elements of Fraud or Deceit, Generally

   Fraud may consist in the misrepresentation, or the concealment of material facts, and may be inferred from the circumstances and condition of the parties contracting.  Belden v Henriques (1857) 8 Cal 87.; Kallgren v Steele (1955, 2nd Dist) 131 Cal App 2d 43, 279 P2d 1027.

   One material misrepresentation justifiably relied on is sufficient to establish for fraud.  Harris v Miller (1925) 196 Cal 8, 235 P 981.; Leary v Baker (1953) 119 Cal App 2d 106, 258 P2d 1090.; Mariani v Schonfeld (1954) 126 Cal App 2d 187, 271 P2d 940.; Ogier v Pacific Oil & Gas Dev. Corp. (1955, 1st Dist) 132 Cal App 2d 496, 282 P2d 574.

   There is definite distinction between a fraudulent representation and a warranty; a fraudulent representation is an antecedent statement made as an inducement to the contract, but is not a part or element thereof.  J. B. Colt Co. v Freitas (1926) 76 Cal App 278, 244 P 916.

   Fraud and deceit which will impose a liability for damages must consist of representations known by the parties charged to be false, or which are not warranted by the information which they possess.  Walker v Department of Public Works (1930) 108 Cal App 508, 291 P 907.

   Truth or falsity of the representations must be determined as of time when they were relied and acted upon.  United States Nat. Bank v Stiller (1931) 119 Cal App 442, 6 P2d 529.

   Plaintiff seeking relief from fraud will not be denied relief because he reposed too much confidence in person who actually defrauded him, where it cannot be said that his conduct in light of his own intelligence and information was manifestly unreasonable.  Anderson v Thacher (1946) 76 Cal App 2d 50, 172 P2d 533.

   The elements of actionable fraud which must be pleaded and proved are a false representation of a material fact, made with knowledge of its falsity and with intent to induce reliance thereon, on which plaintiff justifiably relies to his injuries; and, normally, omission of a single one of these elements in an action for deceit will prevent recovery.  Wishnick v Frye (1952) 111 Cal App 2d 926, 245 P2d 532.

   There is no requirement, that to constitute ground for recovery, misrepresentations be made at any particular moment during negotiations.  Nathanson v Murphy (1955, 1st Dist) 132 Cal App 2d 363, 282 P2d 174.

   To be actionable deceit, representation need not be made with knowledge of actual falsity, but need only be assertion, as a fact, of that which is not true by one who has no reasonable ground for believing it to be true and made with intent to induce recipient to alter his position to his injury or his risk.  Nathanson v Murphy (1955, 1st Dist) 132 Cal App 2d 363, 282 P2d 174.

   Deceit may be negative as well as affirmative; it may consist in suppression of that which it is one's duty to declare, as well as in declaration of that which is false.  Oldenburg v Brody (1956, 4th Dist) 139 Cal App 2d 543, 293 P2d 844.; Stevens v Marco (1956, 2nd Dist) 147 Cal App 2d 357, 305 P2d 669.; Agnew v Cronin (1957, 2nd Dist) 148 Cal App 2d 117, 306 P2d 527.

   If facts clearly indicate that defendant, when making misstatements directly to plaintiff, had no intention of inducing reliance by plaintiff, there is no actionable fraud though plaintiff in fact relies to his detriment.  Cohen v Citizens Nat. Trust & Sav. Bank (1956, 2nd Dist) 143 Cal App 2d 480, 300 P2d 14.

   Existence of duty to tell truth to plaintiff is essential basic element of any valid claim of fraud and deceit, and unless it is intended that plaintiff rely and act on representation made by defendant, or unless plaintiff belongs to class to whom representation is made, no cause of action can arise therefrom.  Hesse v Vinatieri (1956, 2nd Dist) 145 Cal App 2d 448, 302 P2d 699.

   Scienter is not essential element of cause of action for deceit.  Stone v Farnell (1956, CA9 Cal) 239 F2d 750.

   "Actual fraud" and "deceit" are defined in similar terms by the code.  Zinn v Ex-Cell-O Corp. (1957, 1st Dist) 148 Cal App 2d 56, 306 P2d 1017.

   Elements of actionable deceit are false representation of material fact made with knowledge of its falsity, recklessly or without reasonable grounds for believing its truth, and with intent to induce reliance thereon, on which plaintiff justifiably relies to his injury.  Regus v Schartkoff (1957, 2nd Dist) 156 Cal App 2d 382, 319 P2d 721.

   General elements of cause of action for fraudulent misrepresentation are misrepresentation (false representation, concealment, or nondisclosure), knowledge of falsity (scienter), intent to induce reliance, justifiable reliance, and resulting damage.  Lawson v Town & Country Shops, Inc. (1958, 2nd Dist) 159 Cal App 2d 196, 323 P2d 843.

   Intent to defraud is not of essence of suit for deceit; it is intent to induce action by other person that counts.  Ashburn v Miller (1958, 2nd Dist) 161 Cal App 2d 71, 326 P2d 229.

   To constitute either actual or constructive fraud there must be false representation or promise as to material fact, knowledge of its falsity when made, or lack of reasonable ground to believe in its truth, intent to deceive, or suppression, and reliance with resulting damages.  Pinney & Topliff v Chrysler Corp. (1959, DC Cal) 176 F Supp 801.

   To establish cause of action for fraud or deceit, plaintiff must prove that material representation was made, that it was false and defendant either knew it to be untrue or did not have sufficient knowledge to warrant belief that it was true, that it was made with intent to induce plaintiff to act in reliance thereon, that plaintiff reasonably believed it to be true and did in fact rely thereon, and that he suffered damage thereby.  Sixta v Ochsner (1960, 1st Dist) 187 Cal App 2d 485, 9 Cal Rptr 617.

   Intent required in fraud and deceit is intent to induce action in reliance on false representations, not intent to deceive.  Yellow Creek Logging Corp. v Dare (1963, 1st Dist) 216 Cal App 2d 50, 30 Cal Rptr 629.

   In its broad, general sense the concept of fraud embraces anything which is intended to deceive, including all statements, acts, concealments and omissions involving breach of legal or equitable duty, trust or confidence which results in injury to one who justifiably relies thereon.  Pearson v Norton (1964, 4th Dist) 230 Cal App 2d 1, 40 Cal Rptr 634.

   Elements of actionable fraud are false representation, actual or implied, or the concealment of a matter of fact, material to the transaction, made falsely; knowledge of the falsity, or statements made with such disregard and recklessness that knowledge is inferred; intent to induce another into relying on the representation; reliance by one who has a right to rely; and resulting damage.  Pearson v Norton (1964, 4th Dist) 230 Cal App 2d 1, 40 Cal Rptr 634.

   Elements of fraud, giving rise to tort action for deceit are misrepresentation, knowledge of falsity, intent to defraud, justifiable reliance, and resulting damage.  Norkin v United States Fire Ins. Co. (1965, 2nd Dist) 237 Cal App 2d 435, 47 Cal Rptr 15.

   It is not essential to liability for fraud that the person charged have received any advantage from the fraud. Thus, a person may be liable for fraudulent misrepresentations even if he or she gains no benefit or profit of any kind from them. It is essential, however, that the person complaining of fraud actually have relied on the alleged fraud, and suffered damages as a result. What distinguishes actionable fraudulent deceit is the element of knowing intent to induce someone's action to his or her detriment with false representations of fact. Fraud is an intentional tort; it is the element of fraudulent intent, or intent to deceive, that distinguishes it from actionable negligent misrepresentation and from nonactionable innocent misrepresentation. It is the element of intent which makes fraud actionable, irrespective of any contractual or fiduciary duty one party might owe to the other.  City of Atascadero v Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998, 1st Dist) 68 Cal App 4th 445, 481, 80 Cal Rptr 2d 329.

 3. Material Misrepresentation

   To recover in an action based upon fraud and deceit, it must first be made to appear that a false representation was made as to a material fact.  Andrew v Bankers & Shippers Ins. Co. (1929) 101 Cal App 566, 281 P 1091.

   To be material the false representation must be of such a character that, if it had not been made, the contract or transaction would not have been entered into.  Andrew v Bankers & Shippers Ins. Co. (1929) 101 Cal App 566, 281 P 1091.

   A fraudulent misrepresentation is one made with the knowledge that it is or may be untrue, and with the intention that the person to whom it is made act in reliance thereon.  Seeger v Odell (1941) 18 Cal 2d 409, 115 P2d 977.

   Although a person may be under no duty to speak as to another, 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.  Wice v Schilling (1954) 124 Cal App 2d 735, 269 P2d 231.

   Concealment may constitute actionable fraud where seller knows of facts which materially affect desirability of property and which he knows are unknown to buyer.  Kallgren v Steele (1955, 2nd Dist) 131 Cal App 2d 43, 279 P2d 1027.

   Vendor's misrepresentation of acreage may be of material fact.  Nathanson v Murphy (1955, 1st Dist) 132 Cal App 2d 363, 282 P2d 174.

   Concealment is material where knowledge suppressed is so important and obviously so well in recollection of party withholding it that its mere repression amounts to fraud.  Sanfran Co. v Rees Blow Pipe Mfg. Co. (1959, 1st Dist) 168 Cal App 2d 191, 335 P2d 995.

   Property owner's representation that he was offering for sale property on which dwelling was located, when in fact he did not own that property, constitutes material misrepresentation, and if relied on is sufficient to establish that element in buyer's cause of action for fraud, regardless of whether or not owner knew exact location of his property.  Sixta v Ochsner (1960, 1st Dist) 187 Cal App 2d 485, 9 Cal Rptr 617.

   The conclusion that defendants were guilty of the tort of deceit was justified by findings, supported by the evidence, that they induced plaintiff to buy a subdivision of land by misrepresentations that part of its development was a going business and that the water rights and wells were adequate, and by promises, which they did not intend to perform, relating to the formation of, or arrangements with, a utility company to provide water, electricity, gas and telephone services, that the representations were known to be false, and that plaintiff was intended to, and did, rely on them to its detriment.  Green Trees Enterprises, Inc. v Palm Springs Alpine Estates, Inc. (1967) 66 Cal 2d 782, 59 Cal Rptr 141, 427 P2d 805.

   Generally an owner, by failing to impart its knowledge of difficulties to be encountered in a construction project will be liable for misrepresentation if the contractor is unable to perform according to contract provisions.  Warner Constr. Corp. v Los Angeles (1970) 2 Cal 3d 285, 85 Cal Rptr 444, 466 P2d 996.

   A misrepresentation or concealment of a known fill in a lot sold to another constitutes material inducement working fraud on a buyer who is ignorant of the fill.  Snelson v Ondulando Highlands Corp. (1970, 2nd Dist) 5 Cal App 3d 243, 84 Cal Rptr 800.

   The essential elements of a purchaser's cause of action to recover damages for the vendors' fraud based on nondisclosure and not involving a confidential relationship were not present in a case involving the purchase of a lot and dilapidated house, which was posted after the sale as dangerous and declared condemned, where it appeared that the purchaser was an engineer, skilled in realty transactions, with a knowledge of value and repair requirements and costs, that his associate in the transaction was a loan broker and appraiser, that there was no confidential relation between the parties, that no misinformation was given, that the vendors' broker fully advised the purchaser of the defective condition of the house, that representations as to the lack of pending condemnation proceedings was accurate, that the vendors' information was known or accessible to the purchaser, and that the purchaser chose not to obtain authorization to inspect the building department's records affecting the house.  Driver v Melone (1970, 1st Dist) 11 Cal App 3d 746, 90 Cal Rptr 98.

   In an action against a plastic surgeon arising out of scarring of plaintiff's abdomen following an operation intended to remove a previous scar, plaintiff's claim of fraud by defendant was not supported by evidence that after plaintiff had retained an attorney, defendant called her and offered either to correct her condition or to pay for the services of another physician, that he offered to pay her as much as $ 1,000 if she would drop the proceeding, and that he told her either that he was "judgment proof" or would become so in order to prevent her from recovering a judgment. There was no evidence that such representations were not true or of reliance by plaintiff, since she rejected the offer and continued the suit, and there was no showing of damage in any manner.  Stone v Foster (1980, 3rd Dist) 106 Cal App 3d 334, 164 Cal Rptr 901.

 4. Representations With Knowledge of Falsity--Generally

   Where misrepresentations are made knowingly, it is immaterial whether there is intent to deceive. It is incumbent upon defendant to disclose facts to the plaintiff in order that latter may have opportunity to arrive at his own conclusion and make his decision upon facts as they existed, and not upon half truths.  Pohl v Mills (1933) 218 Cal 641, 24 P2d 476.

   When statement as to value is made as positive affirmation of fact, and is intended as such by party making it, and such statement is false and is known to be false by person making it, and such statement is relied upon by person to whom it is made, such statement is actionable.  Willson v Municipal Bond Co. (1936) 7 Cal 2d 144, 59 P2d 974.

   Where party makes representations of fact with knowledge that they were false, misrepresentation cannot be justified by an alleged belief wholly unwarranted by facts.  Klutts v Rupley (1943) 58 Cal App 2d 560, 137 P2d 496.

   A person who deliberately makes positive assertions that are untrue will not avoid responsibility therefor by saying that his adversary was not compelled to rely on them, but must go further and show that the adversary did not in fact rely on them.  Sanders v Park Beverly Corp. (1952) 109 Cal App 2d 698, 241 P2d 597.

   Expression of dishonest opinion to person entitled to rely thereon amounts to practice of deceit on him and an action will lie for resulting injury.  Gillespie v Ormsby (1954) 126 Cal App 2d 513, 272 P2d 949.

 5. Representations With Knowledge of Falsity--Applications

   Where party to an exchange agreement expressly represents property which he is conveying is under present rental of given sum per month, and, though lease to tenant in possession provides for such rental, rental value of the property is lesser sum, and tenant has been paying only such lesser sum, this in effect amounts to a wilful misrepresentation and is actionable fraud.  Sullivan v Helbing (1924) 66 Cal App 478, 226 P 803.

   A vendor of land is guilty of actionable deceit where he knew the number of acres in the tract, and led the real estate agent with whom he listed the property for sale to believe that it contained a specified number of acres; where, acting upon such information, the agent so represented it to the vendee, and the latter believed such representation and relied upon it in his purchase of the property; and where the vendor knowing of such belief and knowing the actual acreage in the tract to be less than that specified, answered the vendee's inquiry as to the acreage by stating that he "did not know how many acres there were," that "it may be less, it may be a little more" than the number specified, and that the person from whom he purchased the tract told him it contained that number of acres.  Odson v Swanson (1924) 70 Cal App 279, 233 P 354.

   In connection with an exchange of lands, statements with reference to sufficiency of water supply, when made as accomplished facts by one of parties and accepted and relied upon by the other as such, may become basis of an action for fraudulent representations, and this is particularly so where known deficiency is water supply in past is shown.  Dvorak v Latimer (1928) 91 Cal App 664, 267 P 578.

   Where false statement that corporation will declare large dividend is designed by maker to create belief it is based upon facts within knowledge of maker, and is accepted by buying public as statement of fact, resulting in increased sales of stock of such corporation, maker will not be permitted to escape liability on ground that his fraudulent statement was not statement of fact.  H. W. Smith, Inc. v Swenson (1930) 105 Cal App 60, 286 P 1050.

   Where a vendor knew that his house was erected on filled in land over a creek bed, and could not have failed to understand from the conversation of his vendees that they had assumed otherwise, and knew that his answer that he did not blame them "for not wanting to buy a house over a creek, that he would not either," would tend to confirm them in their mistake and lead them away from inquiry, he, by this statement, and his further silence, misrepresented the fact as to the character of the land which constituted actionable fraud.  Benner v Hooper (1931) 112 Cal App 53, 296 P 660.

   Where a canal company induced the purchase of its stock by its representation that it was a mutual water company, whereas it was not operating freely as a bona fide mutual water company, but was nothing more than a corporate fiction, completely dominated by a power company, which was a public utility, such representation was a fraudulent deceit which entitled the aggrieved party to any damage caused thereby.  Goodspeed v Great Western Power Co. (1939) 33 Cal App 2d 245, 91 P2d 623.

   Representations of the value of corporate stock, profits to be counted on, and the condition of a business are not dealer's talk when made by one possessing or assuming to possess superior knowledge regarding the business which is not available to the other, and it amounts to an affirmation of fact and the suggestion as a fact of that which is not true by one who does not believe it to be true.  Stallman v Schwartz (1946) 76 Cal App 2d 406, 173 P2d 388.

   Where a purchaser's investigation of income property is limited to its physical features, and he is falsely informed that no income and expense records exist, he does not come within the rule that a purchaser who makes his own investigation and is allowed to proceed without hindrance is presumed to have relied exclusively on his own investigation and not vendor's representations.  Sanders v Park Beverly Corp. (1952) 109 Cal App 2d 698, 241 P2d 597.

   In action by purchasers for damages for false representations as to freedom of a building from termites, a judgment for defendant exterminator cannot be supported by findings that he was not sellers' agent and that there was no privity of contract between him and purchasers, where, notwithstanding he had been employed by sellers' predecessor in title, it appears that, when he gave escrow agent a copy of certificate given to predecessor in title, in which he asserted that to best of his knowledge the premises were free of termites, he knew that representation therein was false, and that purchasers would rely thereon.  Wice v Schilling (1954) 124 Cal App 2d 735, 269 P2d 231.

   In action by purchaser of realty against broker for fraud, false statement by broker as to monthly rental received from property is misrepresentation of material fact in view of court's finding that such statement was made by broker with knowledge that it was not true and was made for purpose and intent of deceiving plaintiff, and where plaintiff, in reliance on such statement, entered into agreement to purchase property.  Barnes v Persson (1955, 2nd Dist) 131 Cal App 2d 515, 280 P2d 821.

   Where defendant stated to plaintiff's representative his desires to obtain refrigerated showcase which would not be affected by condensation, representative replied that he did not know if certain kind of glass would effect desired result, defendant then requested that representative ascertain fact from his superiors, and representative returned with statement that he had consulted his superiors and had been t