The Elements of Fraud

The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Conversely, to avoid summary judgment, the nonmovant need only designate specific facts showing that there is a genuine issue for trial.” Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1189 (9th Cir. 2013) (citation and quotation marks omitted). The court must view the evidence in the light most favorable to the nonmovant and draw all reasonable inferences in the nonmovant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Further, “[w]here conflicting inferences may be drawn from the facts, the case must go to the jury.” Pyramid Technologies, Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 818 (9th Cir. 2014) (citation and quotation marks omitted).

The elements of fraud 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. Lazar v. Superior Court, 12 Cal.4th 631, 638 (1996).

“Promissory fraud” is a subspecies of the action for fraudulent misrepresentation. 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. Ibid.

Similarly, the elements of a fraud claim for 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. Hahn v. Mirda, 147 Cal.App.4th 740, 748 (2007).

A misrepresentation may be a false representation of material fact or concealment or nondisclosure of material fact. Lazar, supra, 12 Cal.4th at 638 [Emphasis added.].

A fact is “material” if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “genuine” if the evidence is such that reasonable persons could disagree about whether the facts claimed by the moving party are true. Aydin Cor v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983).

False representations made recklessly and without regard for their truth in order to induce action by another are the equivalent of misrepresentations knowingly and intentionally uttered. Yellow Creek Logging Cor v. Dare, 216 Cal.App.2d 50, 55 (1963), Engalla v. Permanente Medical Group, Inc., 15 Cal.4th at 974.

A misrepresentation is material if a reasonable person would attach importance to its existence or nonexistence in determining their choice of action. Engalla, supra, 15 Cal.4th 951, 977 (1997) citing Rest.2d Torts, § 538, subd. (2)(a). As such materiality is a question of fact for the jury unless the “fact misrepresented is so obviously unimportant that the jury could not reasonably find that a reasonable [person] would have been influenced by it.” Id. [Emphasis added.].