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1 of 138 DOCUMENTS
California Forms of Pleading and Practice--Annotated
Copyright 2011, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
Volume 13: Conspiracy thru Conversion-Chs. 126-159

Chapter 140 CONTRACTS
PART IV. PROCEDURAL CHECKLISTS
13-140 California Forms of Pleading and Practice--Annotated ß 140.90
ß 140.90 Plaintiff's Checklist for Action for Damages
NOTE:
Illustrative Procedures. This checklist is for use by the plaintiff in an action for
damages for breach of contract. It is illustrative of procedures commonly used. A
given case may require procedures not set forth here.
[1] Ascertain Relevant Facts
Facts relating to the plaintiff:
Name, address, and telephone number of the plaintiff.
Capacity of the plaintiff (e.g., minor, adult, trustee, conservator, guardian,

executor, partnership, domestic corporation, foreign corporation).
Additional facts as desired, relating to the plaintiff's stability and financial

solvency (e.g., employment status, prior residences, credit, bank, and
personal references).
Facts relating to the defendants:
Page 1 of 479
Name and address of each potential defendant, including all parties to the
contract and, depending on the case, their:
Assignees.
Successors in interest.
Personal representatives.
Heirs.
Capacity of each potential defendant (e.g., minor, adult, trustee, conservator, guardian,
PRACTICE TIP:
When the defendant is the state or a local public entity, the plaintiff must follow the claim
procedure prescribed in Gov. Code ß 810 et seq., the Government Claims Act (Tort
Claims Act) [ City of Stockton v. Superior Court (2007) 42 Cal. 4th 730, 734, 737-740,
68 Cal. Rptr. 3d 295, 171 P.3d 20 ; see ß 140.55[5]].
Facts relating to the cause of action:
Objective of the contract.
Names, capacities, and addresses of all parties to the contract.
Plaintiff's relationship to the contract or parties (e.g., third-party

beneficiary, assignee).
Whether the contract was oral, written, or implied by conduct.
Where the parties entered into the contract.
When the breach occurred.
Description of the defendant's obligations under the contract.
Page 2 of 479
Description of the plaintiff's obligations under the contract, or, if the

plaintiff is a third-party beneficiary, assignee, etc., the obligations of the
other party to the contract.
Whether these were the original obligations of the parties; if the original
obligations have been altered or modified, when, where, and in what respect.
What precisely the defendant failed or refused to do.
What reasons, if any, the defendant give for the failure or refusal to per-
form.
PRACTICE TIP:
Strategic Use of Defendant's Statements. Reasons, if any, the defendant gave for
failing or refusing to perform may suggest possible defenses the defendant could
raise in the breach of contract action and the kind of action the plaintiff should
bring. For example, the defendant's statements may indicate that the plaintiff
should sue for reformation of the contract, if the contract does not clearly reflect
the intention of the parties, and for breach of the contract as reformed, or for
declaratory relief if the parties dispute the meaning of an ambiguous provision in
the contract.
What the plaintiff said or did in response to the defendant's failure or refusal to perform,
possibly indicating grounds for the defendant to raise affirmative defenses of waiver,
estoppel, rescission of the contract, or others.
How the defendant's failure or refusal injured the plaintiff.
Whether there have there been any other disputes between the parties arising out of the
contract, what they were, and whether they led to litigation.
What obligations on the plaintiff's part remain to be performed under the contract.
[2] Obtain Relevant Documents
The contract, if it is in writing, including all documents that collectively make up the
contract.
NOTE:
Page 3 of 479
A written contract can be wholly or partially in electronic form, or one

or more of the parties can execute the contract by some type of elec-
tronic signature [see Civ. Code ß 1633.1 et seq.]. For discussion of
electronic contracts and signatures, see ß 140.22[7]. When this is the
case, printouts of the relevant electronic documents should be made,
and the originals should be preserved.
Actual or purported written modifications or alterations of the contract.
Memoranda or written communication between the parties relating to performance or

nonperformance of the contract.
Written notice of rescission.
Any document tending to show items or amounts of damages.
Documents filed in any prior action between the parties or others arising out of the
contract.
[3] Make Preliminary Determinations
Capacity of the plaintiff to sue, which may be governed by specific statutes for certain
plaintiffs:
Executor, administrator, or trustee, who may sue without joining persons

for whose benefit they are prosecuting the action [see Code Civ. Proc. ß
369].
Married person [see Code Civ. Proc. ß 370].
Minor, incompetent person, or person for whom a conservator has been

appointed, who, in each instance, lacks capacity to sue and must appear by a
guardian, conservator of the estate, or guardian ad litem [Code Civ. Proc. ß
372(a)].
Causes of action and counts, which may be or include:
Page 4 of 479
Reformation [see Civ. Code ßß 3399, 3402; Landis v. Superior Court

(1965) 232 Cal. App. 2d 548, 555, 42 Cal. Rptr. 893 ; see also Lemoge
Electric v. County of San Mateo (1956) 46 Cal. 2d 659, 663, 297 P.2d 638
(reformation only available to effectuate common, single intention of both
parties incorrectly reduced to writing); Bailard v. Marden (1951) 36 Cal.
2d 703, 708, 227 P.2d 10 ; for further discussion, procedures, and forms for
use in actions for reformation of contracts, see Ch. 488, Reformation of
Instruments ].
Cancellation [see Civ. Code ß 3412] and any monetary relief necessary to
do complete equity between the parties [ Matlin v. Crescent Commercial
Corp. (1949) 93 Cal. App. 2d 8, 11, 207 P.2d 873 ; for discussion and
forms for use in actions for cancellation, see Ch. 107, Cancellation of
Instruments ].
Unilateral rescission and restitution [see Civ. Code ßß 1689(a), 1691] if

any of the following is satisfied [Civ. Code ß 1689(b); for discussion,
procedures, and forms for use in an action for restitution based on
rescission, see Ch. 490, Rescission and Restitution ]:
The consent of the party rescinding, or of any party jointly contracting
with the rescinding party, was given by mistake, or obtained through duress,
menace, fraud, or undue influence, exercised by or with the connivance of
the party as to whom the party rescinds, or of any other party to the contract
jointly interested with such party; or
The consideration for the obligation fails, in whole or in part, through the
fault of the party as to whom the party rescinds; or
The consideration for the obligation of the rescinding party becomes

entirely void from any cause; or
The consideration for the obligation of the rescinding party, before ren-
dered to that party, fails in a material respect from anycause; or
The contract is unlawful for causes that do not appear in its terms or
conditions, and the parties are not equally at fault; or
The public interest will be prejudiced by permitting the contract to stand.
Unilateral rescission pursuant to any statute authorizing rescission [see Civ. Code ß
1689(b)(7)], including:
Page 5 of 479
Civ. Code ß 39 (contracts by incompetent persons before incompetence

judicially determined).
Civ. Code ß 1533 (grounds for rescission by creditor).
Civ. Code ß 1566 (rescission on ground that consent was not free).
Civ. Code ß 1930 (rescission by letter when hirer uses thing let for pur-
pose other than purpose for which it was hired).
Civ. Code ß 2314 (rescission of ratification of agency).
Ins. Code ß 331 (rescission of insurance policy by insured for conceal-

ment).
Ins. Code ß 338 (rescission by insurer for intentional and fraudulent

omission by insured to communicate information about falsity of warranty).
Ins. Code ß 359 (rescission by aggrieved party for representation that was
false in material point).
Ins. Code ß 447 (rescission for violation of material warranty or other

material provision of insurance policy).
Ins. Code ß 1904 (rescission for intentional misrepresentations involving

marine insurance).
Ins. Code ß 2030 (rescission of fire insurance contract for alteration in use
or condition of insured property).
Declaratory relief [see Code Civ. Proc. ß 1060; Fagerstedt v. Continental Ins. Co.
(1968) 266 Cal. App. 2d 370, 372, 72 Cal. Rptr. 126 ; for discussion, procedures, and
forms for use in actions for declaratory relief, see Ch. 182, Declaratory Relief ].
Specific performance [see Civ. Code ß 3384 et seq.], provided all the following
conditions are satisfied, unless a statute makes specific performance unavailable [see Civ.
Code ßß 3390, 3391; for discussion, procedures, and forms for use in actions for specific
performance, see Ch. 528, Specific Performance ].
Page 6 of 479
The terms of the contract are complete and certain in all particulars essen-
tial to its enforcement, and the agreement contains all the material terms
expressed in a reasonably definite manner [ Lawrence v. Shutt (1969) 269
Cal. App. 2d 749, 761, 75 Cal. Rptr. 533 ; White Point Co. v. Herrington
(1968) 268 Cal. App. 2d 458, 465, 73 Cal. Rptr. 885] ; and
The plaintiff has fully and fairly performed all conditions precedent on
plaintiff's part to the obligation of the other party, or the plaintiff has partially
failed to perform, but the failure was either entirely immaterial or capable of
being fully compensated [Civ. Code ß 3392]; and
The contract is fair and reasonable as to the defendant [Civ. Code ß 3391
(2)]; and
The defendant received adequate consideration [Civ. Code ß 3391(1)]; and
The defendant's assent was not obtained by misrepresentation [Civ. Code ß

3391(3)] or under the influence of mistake [Civ. Code ß 3391(4)]; and
The remedy at law (damages) would be inadequate [ Morrison v. Land

(1915) 169 Cal. 580, 586, 147 P. 259 ; see also Wilkison v. Wiederkehr
(2002) 101 Cal. App. 4th 822, 832-833, 124 Cal. Rptr. 2d 631 (plaintiff
could not maintain action for quasi-specific performance when he had
adequate legal remedy in form of claim for damages)].
PRACTICE TIP:
Injunction as Alternative or Additional Relief. An injunction may be sought as an

alternative or additional remedy to an action for breach of contract if the contract
would be specifically enforceable. Suing for an injunction does not waive the
plaintiff's right to assert a claim for damages in a subsequent action [ Ahlers v.
Smiley (1912) 163 Cal. 200, 206, 124 P. 827] . For discussion, procedures, and
forms for use in obtaining injunctive relief, see Ch. 303, Injunctions .
Unlawful interference with contractual relationship.
PRACTICE TIP:
Page 7 of 479
Tort Action Against Interfering Third Person in Lieu of Contract Action. If one
purposely and wrongfully induces another not to perform a contract by an act
either unlawful in itself, such as libel, slander, fraud, physical violence, or threats
of such an action [ Elsbach v. Mulligan (1943) 58 Cal. App. 2d 354, 366, 136 P.2d
651] , or lawful in itself but not justified, in that the breach was not induced to
protect an interest that has greater social value than insuring the stability of the
contract [ Imperial Ice Co. v. Rossier (1941) 18 Cal. 2d 33, 35, 112 P.2d 631] , a
party to the contract who is aggrieved may bring an action against the party that
induced the breach. For discussion and forms for use in an action for unlawful
interference with a contractual relationship, see Ch. 565, Unlawful Competition .
Determine whether another state's law might govern interpretation of the contract, based
on:
The contract's choice of law provision [see Gamer v. DuPont GloreFor-

gan, Inc. (1976) 65 Cal. App. 3d 280, 286-287, 135 Cal. Rptr. 230 ; see
also Frame v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1971) 20 Cal.
App. 3d 668, 673, 97 Cal. Rptr. 811 (contracting parties may specify what
law is to control contract if enforcement of contract in accordance with
specified foreign law does not result in evasion of settled public policy or
statute of California protecting its citizens); but see Hall v. Superior Court
(1983) 150 Cal. App. 3d 411, 416-417, 197 Cal. Rptr. 757 (agreement
designating foreign law will not be given effect if it would violate strong
California public policy or result in evasion of statute protecting California
citizens)]; or
The respective interests of the states or other jurisdictions involved (gov-

ernmental interest approach) [ Hurtado v. Superior Court (1974) 11 Cal.
3d 574, 579-580, 114 Cal. Rptr. 106, 522 P.2d 666] , considering the
following factors:
Character of the contract and purposes of the contract law under considera-
tion [ Dixon Mobile Homes, Inc. v. Walters (1975) 48 Cal. App. 3d 964,
972-973, 122 Cal. Rptr. 202] , disapproved on other grounds in Bullis v.
Security Pac. Nat'l Bank (1978) 21 Cal. 3d 801, 815 n.18, 148 Cal. Rptr.
22, 582 P.2d 109 ;
Where the parties entered into the contract [see Henderson v. Superior
Court (1978) 77 Cal. App. 3d 583, 592-593, 142 Cal. Rptr. 478] ;
Page 8 of 479
Where the negotiations for the contract took place;
Where the contract was performed or was to be performed [see Hender-

son v. Superior Court (1978) 77 Cal. App. 3d 583, 592-593, 142 Cal. Rptr.
478] ;
Where the subject matter of the contract was located;
Domiciles, residences, places of business, and places of incorporation of

the parties;
Nationality of the parties;
If any payments were made, where they were initiated;
If a loan was involved, where the security for the loan was located;
Where any acts relating to the breach occurred.
Determine the appropriate venue (county) for filing the complaint [see ß 140.100[3]
[d]].
Determine if case is a limited civil case [see Code Civ. Proc. ßß 85, 86(a)(1) (amount in
controversy, exclusive of interest, is $25,000 or less)].
If the action is a limited civil case, the caption must identify the case as a
limited civil case [Code Civ. Proc. ß 422.30(b)].
[4] Prepare the Complaint
Draft essential allegations:
Capacity or residence of the plaintiff (generally optional, unless plaintiff is

suing in a representative capacity or it is necessary to establish the plaintiff's
right to maintain the action).
Name, capacity, and residence of the defendant or each defendant. See the
form in ß 140.101[1] (Paragraph 1).
Page 9 of 479
Fictitious name allegations, if appropriate. See the form in ß 140.101[1]

(Paragraph 2). For other forms of fictitious name allegations, see Ch. 20,
Allegations Commonly Used .
The date and place of making the contract. See the form in ß 140.101[1]
(Paragraph 4).
Whether the contract was written or oral. See the form in ß 140.101[1]
(Paragraph 4).
If the defendant's performance is conditioned on an event, the happening of

the event on which the obligation depends.
Plaintiff's performance of all conditions, covenants, and promises under the

contract on plaintiff's part to be performed (or the excuse for nonperfor-
mance). See the form in ß 140.101[1] (Paragraph 5).
Defendant's breach of the contract. See the form in ß 140.101[1] (Para-

graph 7).
Plaintiff's damages as a result of the defendant's breach. See the form in ß

140.101[1] (Paragraph 8).
If the meaning of the contract is at issue, the meaning the plaintiff ascribed
to the contract and the particular customs and usages relating to the contract.
Produce an original complaint and copies as needed and as prescribed by rules of court.
Format, typing, paper, and style requirements are prescribed in the Califor-
nia Rules of Court. For discussion, see Ch. 123, Complaints and Cross
Complaints .
Copies to be prepared include:

Original for filing.
Copies for service on each defendant.
Copy for office file.
Page 10 of 479
Copy for client, if desired.
Sign the complaint, or have the plaintiff sign it [Code Civ. Proc.ß 446].
Add a verification if appropriate [see Code Civ. Proc. ßß 446, 2009, 2015.5].
Legal Topics:
For related research and practice materials, see the following legal topics:
Contracts LawFormationCapacity of PartiesAgeContracts LawFormationCapacity of PartiesMental
CapacityContracts LawRemediesRescission & RedhibitionContracts LawRemediesSpecific Perfor-
manceLabor & Employment LawWrongful TerminationBreach of ContractEmployer HandbooksTort-
sPublic Entity LiabilityLiabilityState Tort Claims ActsGeneral Overview
Page 11 of 479
2 of 138 DOCUMENTS

ß 140.91 Defendant's Checklist of Affirmative Defenses
NOTE:
For a table of affirmative defenses referring to forms of affirmative defenses

provided throughout this publication, see Ch. 26, Answers .
Disaffirmation of minor's contract [see Fam. Code ß 6710]. For discussion and forms of
affirmative defenses relating to contracts entered into by a minor, see Ch. 365, Minors :
contract Actions.
Defendant's entire lack of understanding [see Civ. Code ß 38; ß 140.133].
Defendant's incompetence before adjudication [see Civ. Code ßß 39, 1691; ß 140.134].
Defendant's incompetence after adjudication [see Civ. Code ß 40; Hellman Commercial
T. & S. Bk. v. Alden (1929) 206 Cal. 592, 604-605, 275 P. 794 ; ß 140.135].
Waiver of breach [see ß 140.136].
Impossibility of performance [see Civ. Code ßß 1441, 1511(2), 1596; ß 140.137].
Payment of the amount claimed [see Civ. Code ßß 1473-1475, 1478; ß 140.138].
Tender of payment [see Civ. Code ß 1485 et seq.; ß 140.139].
Page 12 of 479
Prevention of performance [see Civ. Code ß 1511(1) (requirement for notice); ß

140.140].
Novation [see Civ. Code ß 1530; ß 140.141].
Lack of consideration [see Civ. Code ß 1550; ß 140.142].
Statute of frauds [see Civ. Code ß 1624; ß 140.143].
Contract contrary to an express provision of law [see Civ. Code ß 1667(1); ß 140.144].
Contract contrary to public policy [see Civ. Code ß 1667(2), (3); ß 140.145].
Contract or clause is unconscionable [see Civ. Code ß 1670.5; ß 140.146].
Rescission by mutual consent [see Civ. Code ß 1689(a); ß 140.147].
Failure of consideration [see Civ. Code ß 1689(b)(2); ß 140.148].
Modification of oral contract by writing [see Civ. Code ß 1697; ß 140.149].
Modification of written contract by written agreement or by oral agreement supported by

new consideration [see Civ. Code ß 1698(a), (c); ß 140.150].
Modification of written contract by executed oral agreement [see Civ. Code ß 1698(b); ß
140.151].
Alteration of written contract without consent [see Civ. Code ß 1700; ß 140.152].
Execution of contract under menace by threat of confinement of or injury to person or

property of defendant, defendant's spouse, or defendant's or defendant's spouse's
ancestor, descendant, or adopted child [see Civ. Code ßß 1569, 1570].
Fraud in the inducement to execute the contract by [see Civ. Code ß 1572]:
Suggestion as a fact of that which was not true by the plaintiff, who did not
believe it to be true; or
Positive assertion of that which was not true, in a manner not warranted by
information, by the plaintiff although the plaintiff believed it to be true; or
Page 13 of 479
Suppression of that which was true by the plaintiff, who had knowledge or
belief of the fact; or
A promise made without any intention of performing it; or
Any other act intended to deceive.
Execution of contract under undue influence.
Mistake of fact [see Civ. Code ß 1577] that was material to the contract and not the result
of neglect of legal duty, if enforcement of the contract would be unconscionable and if the
other party can be placed in "status quo ante" [see Donovan v. RRL Corp. (2001) 26
Cal. 4th 261, 271, 294, 109 Cal. Rptr. 2d 807, 27 P.3d 702 (construing Civ. Code ß
1577 and determining that defendant satisfied requirements for rescission of contract on
ground of unilateral mistake of fact); M.F. Kemper Constr. Co. v. Los Angeles (1951)
37 Cal. 2d 696, 701, 235 P.2d 7 (rescission is available remedy); California Packing
Corp. v. Larsen (1921) 187 Cal. 610, 612, 203 P. 102 (reformation is available remedy);
Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal. App. 4th
1306, 1343, 96 Cal. Rptr. 3d 813 (rescission was justified because of both parties'
mistake of fact regarding one party's ability to qualify for status that was essential to
achieving contract's purpose); Appalachian Ins. Co. v. McDonnell Douglas Corp.
(1989) 214 Cal. App. 3d 1, 18 n.8, 262 Cal. Rptr. 716 ; see generally Civ. Code ß 1688
et seq. (rescission); Civ. Code ß 3399 et seq. (reformation)].
Mistake of law [see Civ. Code ß 1578] that affected execution and material elements of
the contract, if enforcement would be materially harmful or more onerous to the defen-
dant than it would have been had the law been as believed [ Guthrie v. Times-Mirror
Co. (1975) 51 Cal. App. 3d 879, 886, 124 Cal. Rptr. 577 ; see Civ. Code ß 1688 et seq.
(rescission)].
Prevention by superhuman cause [see generally Ryan v. Rogers (1892) 96 Cal. 349,
353, 31 P. 244 (natural cause whose effect could not have been prevented by exercise of
prudence, diligence, and care)] or enemy act.
Accord and satisfaction. For discussion, see Ch. 6, Accord and Satisfaction .
Failure to follow the claim procedure prescribed in Gov. Code ß 810 et seq., the
Government Claims Act (Tort Claims Act), when the defendant is the state or a local
public entity [see City of Stockton v. Superior Court (2007)42 Cal. 4th 730, 734,
737-740, 68 Cal. Rptr. 3d 295, 171 P.3d 20 ; see also ß 140.55[5]].
Page 14 of 479
Defenses or claims that can be asserted by the defendant against an assignee-plaintiff

[see Civ. Code ß 1457; Royal Bank Export Finance Co. v. Bestways Distributing Co.
(1991) 229 Cal. App. 3d 764, 767-768, 280 Cal. Rptr. 355] .
Legal Topics:
Contracts LawDefensesFraud & MisrepresentationGeneral OverviewContracts LawDefensesUncon-
scionabilityGeneral OverviewContracts LawPerformanceDischarges & TerminationsContracts
LawPerformanceNovationContracts LawRemediesRescission & RedhibitionGeneral Overview
Page 15 of 479
3 of 138 DOCUMENTS

13-140 California Forms of Pleading and Practice--Annotated ßß 140.92-140.99
[Reserved]
ßß 140.92[Reserved]
Page 16 of 479
4 of 138 DOCUMENTS

PART V. FORMS
A. Complaints and Allegations
ß 140.100 Judicial Council Trial Court Pleading Form--Complaint for Damages [Civ. Code ß
3300] for Breach of Contract [Cal. Rules of Ct., Rule 1.45(a), (b); Judicial Council Forms
PLD-C-001, PLD-C-001(1)]
[1] FORM Judicial Council Trial Court Pleading Form--Complaint for Damages [Civ. Code ß
3300] for Breach of Contract [Cal. Rules of Ct., Rule 1.45(a), (b); Judicial Council Forms PLD-
C-001, PLD-C-001(1)]
Click here to view image.
[2] Use of Form
This form is a complaint that may be used in any action for breach of contract. It consists of the
Judicial Council contract complaint with an attached Judicial Council breach of contract cause of
action [see Code Civ. Proc. ß 425.12; Cal. Rules of Ct., 1.45; Judicial Council Forms PLD-C-001,
PLD-C-001(1)].
Use of these forms is optional [see Code Civ. Proc. ß 425.12; Cal. Rules of Ct., Rule 1.45]. For
discussion and forms for complaints that can be used in lieu of the Judicial Council forms, see ßß
140.101 -140.106.
For reproduction and discussion of the Judicial Council form for a cause of action for common counts
[Judicial Council Form PLD-C-001(2)], see Ch. 121, Common Counts, ß 121.50. If a fraud cause of
action is being asserted in conjunction with the breach of contract claim, Judicial Council Form PLD-
C-001(3) may be attached. For an illustration of the latter form, see Ch. 269, Fraud and Deceit, ß
269.90.
Page 17 of 479
This form is available in an interactive, electronic format in LexisNexis(R) Automated California

Judicial Council Forms, which may be accessed at www.lexisone.com for an individual or monthly
charge. A noninteractive version in PDF format also is available at www.lexisone.com at no charge.
[3] Filling Out Contract Complaint Form
[a] Heading
Counsel should fill in the name, address, and telephone number of the attorney for the plaintiff, the
name, post office and street address of the court, and the names of the plaintiff and the defendant. The
appropriate box should be checked and the number completed if the complaint is filed against
defendants unknown at the time of filing. In addition, counsel should check the appropriate box to
designate the pleading as a complaint or a cross complaint.
The superior court has jurisdiction of the action, which will be classified as an unlimited civil case
unless the amount in controversy, exclusive of interest, is $25,000 or less, in which case it will be
classified as a limited civil case [Cal. Const., art. VI, ß 10; Code Civ. Proc. ßß 85, 86(a)(1)].
In limited civil cases, the caption must identify the case as a limited civil case [Code Civ. Proc. ß
422.30(b); Cal. Rules of Ct., Rule 2.111(10)], and the first page of the paper must state whether or not
the demand exceeds $10,000 [Gov. Code ß 70613(b)]. The statement regarding the demand must use
the following language: "Amount demanded ___________________ [exceeds or does not exceed]
$10,000" [see Cal. Rules of Ct., Rule 2.111(9) (statement regarding amount of demand must appear
"below the character of the action or proceeding")]. The caption of the Judicial Council form contains
space for the preceding information, as well as a box that may be checked if the action is being
reclassified as a limited or unlimited civil case as the result of filing of the form as an amended
complaint or cross-complaint.
[b] Number of Pages (Paragraph 2)
The blank with the number of pages contained in the pleading, including attachments and exhibits,
must be filled in.
[c] Action Involving Installment or Automotive Sales or Consumer Obligations (Para-
graph 6)
The appropriate boxes in Paragraph 6 must be checked when the action is subject to the provisions of
the Unruh Retail Installment Act [see Civ. Code ß 1801 et seq.] or the Rees-Levering Motor Vehicle
Sales and Finance Act [see Civ. Code ß 2981 et seq.]. If the action arises from an offer or provision of
goods, services, loans or extensions of credit intended primarily for personal, family or household
use, other than an obligation described in Civ. Code ßß 1812.10 or 2984.4, or arises from a transac-
tion consummated as a proximate result of either an unsolicited telephone call made by a seller
engaged in the business of consummating transactions of that kind or a telephone call or electronic
transmission made by the buyer or lessee in response to a solicitation by the seller, then Code Civ.
Proc. ß 395(b) applies [see Fontaine v. Superior Court (CashCall, Inc.) (2009) 175 Cal. App. 4th
Page 18 of 479
830, 838-840, 96 Cal. Rptr. 3d 607 (statute applies to action by or against consumer, and if any
defendant in consumer's action is individual, that is irrelevant to application of statute)], and the
plaintiff should check the first box and insert "Code of Civil Procedure Section 395(b)" in lieu of the
printed alternatives [see Code Civ. Proc. ß 396a(a)].
In any action under these provisions, the plaintiff must file an affidavit (or declaration under penalty of
perjury [Code Civ. Proc. ß 2015.5]) concurrently with the complaint, stating facts showing that the
action has been commenced in the proper court for the trial of the action, and that the action is subject
to the provisions of Civ. Code ß 1812.10 or Civ. Code ß 2984.4 or Code Civ. Proc. ß 395(b). When
the plaintiff files an affidavit or declaration with the complaint, plaintiff must serve a copy with the
summons [Civ. Code ßß 1812.10(c), 2984.4(c); Code Civ. Proc. ß 396a(a)]. In lieu of an affidavit or
declaration, the plaintiff may state the required facts in a complaint verified by the oath of the plaintiff
or plaintiff's attorney [Civ. Code ßß 1812.10(c), 2984.4(c); Code Civ. Proc. ß 396a(a)]. In cases
subject to Civ. Code ß 1812.10 or Civ. Code ß 2984.4, however, the plaintiff may not state facts on
information or belief when they are stated in a verified complaint [Civ. Code ßß 1812.10(c), 2984.4
(c)].
If the plaintiff fails to file an affidavit or declaration or state the required facts in a verified complaint,
there may be no further proceedings. The court must, on its own motion or the motion of a party,
dismiss the action without prejudice. The court, however, on such terms as may be just, may permit
the plaintiff to file an affidavit or declaration after the complaint. In that case, the plaintiff must serve a
copy of the affidavit on the defendant. The defendant's time to answer orotherwise plead dates from
the service [Civ. Code ßß 1812.10(c), 2984.4(c); see Code Civ. Proc. ß 396a(a)].
For further discussion, see Ch. 20, Allegations Commonly Used , Ch. 89 Automobiles: Sales and
Financing Under the Rees-Levering Act , and Ch. 501, Sales: Retail Installment Sales .
[d] Venue (Paragraph 7)
Paragraph 7 provides allegations relating to venue of the action, which may be determined by the
following rules:
Subject to Code Civ. Proc. ß 395(b) (see the next rule), if a defendant has contracted to
perform an obligation in a particular county, the superior court in the county where the
obligation is to be performed, or where the contract in fact was entered into, or where the
defendant or any defendant resides at the commencement of the action, is a proper court
for the trial of an action founded on that obligation, and the county where the obligation is
incurred is the county where it is to be performed, unless there is a special contract in
writing to the contrary [Code Civ. Proc. ß 395(a)].
In an action arising from an offer or provision of goods, services, loans, or extensions of

credit intended primarily for personal, family, or household use, other than an obligation
Page 19 of 479
described in Civ. Code ßß 1812.10 or 2984.4 (see the next rule), or in an action arising
from a transaction consummated as a proximate result of either an unsolicited telephone
call made by a seller engaged in the business of consummating transactions of that kind
or a telephone call or electronic transmission made by the buyer or lessee in response to a
solicitation by the seller, the superior court in the county where the buyer or lessee in fact
signed the contract, or where the buyer or lessee resided at the time the contract was
entered into, or where the buyer or lessee resides at the commencement of the action, is
the proper court for the trial of the action [Code Civ. Proc. ß 395(b); see Fontaine v.
Superior Court (CashCall, Inc.) (2009) 175 Cal. App. 4th 830, 838-840, 96 Cal. Rptr.
3d 607 (statute applies to action by or against consumer, and if any defendant in con-
sumer's action is individual, that is irrelevant to application of statute)].
Venue provisions relating to an action under the Unruh Retail Installment Sales Act [Civ.
Code ß 1801 et seq.; see Ch. 501, Sales: Retail Installment Sales ] or the Rees-Levering
Motor Vehicle Sales and Finance Act [Civ. Code ß 2981 et seq.; see Ch. 89,
Automobiles: Sales and Financing Under the Rees-Levering Act ] are set out in Civ.
Code ßß 1812.10(a) and 2984.4(a).
A corporation or association may be sued in the county where the contract is made or is
to be performed, or where the obligation or liability arises, or where the breach occurs, or
where the principal place of business of the corporation or association is situated [Code
Civ. Proc. ß 395.5].
[e] Causes of Action Attached (Paragraph 8)
Counsel should check the appropriate box in Paragraph 8 for each cause of action attached. The form
contains specific boxes for breach of contract and common counts, and a general category labeled
"Other." "Other" may include a Judicial Council approved cause of action form or a form prepared by
counsel for a cause of action for which the Judicial Council has not yet approved a form [Cal. Rules of
Ct., Rule 1.45(b), (c)]. Counsel should specify the title of the cause of action when checking "Other."
[f] Other Allegations (Paragraph 9)
Paragraph 9 provides space for other allegations. This space may be used for stating facts that do not
fit within one of the specified paragraphs.
[g] Prayer (Paragraph 10)
In Paragraph 10, counsel should check the appropriate boxes for requesting damages, interest on
damages, and attorney's fees. When plaintiff requests damages, counsel should fill in the amount.
When attorney's fees are requested, counsel should check the "attorney fees" box and fill in a specific
amount, or check the box asking for fees according to proof. Counsel should check "Other" and state
the relief requested when seeking relief not specified on the form.
Page 20 of 479
When seeking prejudgment interest from the date of breach at a rate stipulated by the contract [see Civ.
Code ß 3289(a)], counsel should insert the stipulated rate, state the date of breach, and check all three
boxes. If the contract does not stipulate a legal rate of interest, the obligation bears interest at 10
percent per year after the breach [Civ. Code ß 3289(b)] (except note secured by deed of trust on real
property). Counsel should specify 10 percent per year, state the date of breach, and check all three
boxes. When seeking prejudgment interest on damages not certain at the time of filing the complaint,
and if the parties entered into the contract before 1986 and the contract contains no provision for
interest on damages following a breach, counsel should check the first two boxes on the line referring
to interest.
When seeking prejudgment interest at the legal rate from the date damages were certain or capable of
being made certain [see Civ. Code ß 3287(a)], counsel should insert the date damages became certain,
substitute "legal rate" for "rate of ____________________ percent per year," and check all three
boxes [see Civ. Code ß 3302 (detriment caused by breach of obligation to pay money only is amount
due with interest)].
[h] Pleading on Information and Belief (Paragraph 11)
If plaintiff alleges any matters on information and belief, counsel should check the box for Paragraph
11 and specify the appropriate paragraph numbers. Allegations as to matters peculiarly within the
defendant's knowledge, which the plaintiff can learn only from statements made by the defendant to
others, may properly be based on information and belief. The plaintiff may not allege on information
and belief facts presumptively within plaintiff's knowledge [ Hall v. James (1926) 79 Cal. App. 433,
435-436, 249 P. 876 ; Seamen's Bank v. Superior Court (1987) 190 Cal. App. 3d 1485, 1495, 236
Cal. Rptr. 31] , such as facts that are public record [ People v. Birch Securities Co. (1948) 86 Cal.
App. 2d 703, 708, 196 P.2d 143 ].
[4] Filling Out Breach of Contract Attachment
[a] Heading
Counsel should fill in the breach of contract cause of action heading with the short title of the case and
the number of the cause of action. In addition, counsel should fill in the page number of the cause of
action and check the appropriate box stating whether the cause of action is attached to a complaint or
cross complaint.
[b] Nature of Contract (Paragraph BC-1)
Counsel should specify the plaintiff's name, the date the parties made the contract, the parties to the
agreement, and the nature of the contract. The form contains boxes to indicate whether the contract
was written, oral, or other. If counsel selects the "other" box, counsel should specify the type of
agreement involved, such as an implied contract. The defendant may object by demurrer or answer to
a complaint founded on a contract when defendant cannot ascertain from the complaint whether the
contract iswritten, oral, or implied by conduct [Code Civ. Proc. ß 430.10(g)].
Page 21 of 479
Counsel should also check a box indicating that a copy of the agreement is attached as Exhibit A, or
that the essential terms are stated in an attachment (Attachment BC-1) or specified in the space
following Paragraph BC-1. Apparently, an attachment should be used when the essential terms cannot
be alleged within the space provided on the form. All attachments to the cause of action must have
numbers that correspond to the form's appropriate paragraph number.
[c] Defendant's Acts in Breach of Contract (Paragraph BC-2)
Counsel should specify the dates of breach and the defendant's acts in breach of the contract [see
Reichert v. General Ins. Co. (1968) 68 Cal. 2d 822, 830, 69 Cal. Rptr. 321, 442 P.2d 377] in the
space provided in Paragraph BC-2 or in an attachment labeled Attachment BC-2. Counsel should set
out the facts showing the defendant's breach in an attachment to Paragraph BC-2 when the complaint
form does not contain sufficient space.
A complaint based on breach of a contract to pay a sum of money must allege nonpayment of the
money to state a cause of action [ Davanay v. Eggenhoff (1872) 43 Cal. 395, 397 ; Marshall v. Von
Zumwalt (1953) 120 Cal. App. 2d 807, 810, 262 P.2d 363] , superseded by statute as stated in 178
Cal. App. 4th 506 (2009) .
[d] Performance of Conditions Precedent (Paragraph BC-3)
Counsel need not state facts showing performance of conditions precedent in a contract. The form
may state generally, as in Paragraph BC-3, that the plaintiff duly performed all conditions on plaintiff's
part. If defendant controverts the allegation, however, the plaintiff must establish at the trial the facts
showing performance [Code Civ. Proc. ß 457]. To recover actual damages, the plaintiff must prove
that but for the defendant's breach, the plaintiff would have had the ability to perform [ Ersa Grae
Corp. v. Fluor Corp. (1991) 1 Cal. App. 4th 613, 625, 2 Cal. Rptr. 2d 288 ; see McDorman v.
Moody (1942) 50 Cal. App. 2d 136, 140-141, 122 P.2d 639 ; Dickey v. Kuhn (1930) 106 Cal. App.
300, 303-304, 289 P. 242] .
[e] Plaintiff's Damages (Paragraph BC-4)
The complaint must specify the damages proximately caused by the defendant's breach [see Reichert
v. General Ins. Co. (1968) 68 Cal. 2d 822, 830, 69 Cal. Rptr. 321, 442 P.2d 377] . The plaintiff's
damages may be stated in the space on the cause of action form for Paragraph BC-4 or in an
attachment labeled Attachment BC-4.
An essential element of a cause of action for breach of contract is the sustaining of damages. The
plaintiff is entitled to recover nominal damages for breach of contract, since the defendant's failure to
perform a contractual duty is by itself a legal wrong that is fully distinct from the actual damages
[ Sweet v. Johnson (1959) 169 Cal. App. 2d 630, 632, 337 P.2d 499] .
Unless a statute specifically provides otherwise, the proper measure of damages for breach of contract
is the amount that will compensate the plaintiff for all the detriment proximately caused by the breach
Page 22 of 479
or that, in the ordinary course of things, would be likely to result from the breach [Civ. Code ß 3300;
see generally Civ. Code ß 3300 et seq. (damages in action based on breach of contract); Civ. Code ß
3287 et seq. (interest as damages)].
[f] Attorney's Fees (Paragraph BC-5)
Counsel may check the box in Paragraph BC-5 stating that the plaintiff is entitled to attorney's fees by
agreement or by statute. Except as provided by statute, the measure and mode of compensation of
attorneys is left to the express or implied agreement of the parties [Code Civ. Proc. ß 1021].
When the contract specifically provides that attorney's fees and costs incurred to enforce the provi-
sions of the contract will be awarded to one of the parties or to the prevailing party, in an action for
breach of the contract, the party determined to be the prevailing party, whether that party is the party
specified in the contract or not, is entitled to reasonable attorney's fees in addition to other costs [Civ.
Code ß 1717(a); see Scott Co. of California v. Blount, Inc. (1999) 20 Cal. 4th 1103, 1108-1109, 86
Cal. Rptr. 2d 614, 979 P.2d 974] (although contract's attorney fees provision was unilateral, giving
only defendant and not plaintiff right to attorney fees, Civ. Code ß 1717 rendered provision mutual,
giving prevailing party right to attorney fees on any claims based on contract); International Billing
Services, Inc. v. Emigh (2000) 84 Cal. App. 4th 1175, 1182-1183, 101 Cal. Rptr. 2d 532 (employees
were entitled to attorney fees under reciprocity statute, Civ. Code ß 1717, notwithstanding fact that
employment agreement fee provision contained following atypical language: "You promise to
reimburse Company for any legal fees, liability, or loss which Company incurs as a result of any
unauthorized disclosure or use of Confidential Information by You"); Sears v. Baccaglio (1998) 60
Cal. App. 4th 1136, 1154-1155 (reviewing legislative history of Civ. Code ß 1717 and finding that
party can fail to recover net monetary judgment and still prevail for purposes of collecting fees in
action founded on contract); see also Gilbert v. Master Washer & Stamping Co., Inc. (2001) 87 Cal.
App. 4th 212, 214, 104 Cal. Rptr. 2d 461 (attorney represented by other members of his or her law
firm is entitled to recover reasonable attorney fees under Civ. Code ß 1717 when representation
involves attorney's personal interests and not those of the firm)].
A court may deny a contractual claim for attorneys' fees by a defendant who has been voluntarily
dismissed from a suit prior to trial [see Santisas v. Goodin (1998) 17 Cal. 4th 599, 602, 608, 71 Cal.
Rptr. 2d 830 ; Silver v. Boatwright Home Inspection, Inc. (2002) 97 Cal. App. 4th 443, 446, 118
Cal. Rptr. 2d 475 (holding that defendant was not prevailing party when plaintiffs obtained their
litigation objective through settlement with other defendants); see also Jackson v. Homeowners
Association Monte Vista Estates-East (2001) 93 Cal. App. 4th 773, 779-780, 782, 113 Cal. Rptr. 2d
363 (parties who agreed on record and in written settlement agreement that trial court would determine
prevailing party in action and amount of attorney fee award before dismissal of action could and did
waive provisions of Civ. Code ß 1717(b)(2), which provides there will be no prevailing party when
an action is dismissed pursuant to settlement)].
One appellate decision holds that when the plaintiff sues for breach of contract and wins, and the
plaintiff's claim is based on proof of a written contract not containing aprovision for attorney's fees,
Page 23 of 479
the plaintiff cannot be entitled, under Civ. Code ß 1717, to an award of attorney's fees based on a
provision for attorney's fees found in a document that the defendant contended, unsuccessfully, was
part of the parties' contract. In other words, a successful plaintiff's claim for attorney's fees under that
statute must rest on the contract on which the plaintiff obtained judgment; the plaintiff's claim cannot
rest on the discredited contract for which the defendant contended, even though (1) the plaintiff
prevailed against the defendant's contention based on that contract and (2) the defendant could have
claimed attorney's fees if the defendant had prevailed [ Brittalia Ventures v. Stuke Nursery Co.
(2007) 153 Cal. App. 4th 17, 31, 62 Cal. Rptr. 3d 467] .
The court will construe the provision for attorney's fees as applying to the entire contract unless each
party was represented by counsel in the negotiation and execution of the contract and the fact of that
representation was specified in the contract [Civ. Code ß 1717(a)]. For further discussion of attorney's
fees, see Ch. 174, Costs and Attorney's Fees, 174.50 et seq.
Attorney's fees may be recovered by the prevailing party in certain contract actions based on a book
account as defined in Code Civ. Proc. ß 337a, entered into after 1986 [see Civ. Code ß 1717.5; see
also Civ. Code ß 1717]. For further discussion, see Ch. 8, Accounts Stated and Open Accounts .
Counsel has the option of checking a box and filling in a specific amount requested or checking a box
asking for attorney's fees according to proof. Note that under Civ. Code ß 1717, reasonable attorney's
fees are fixed by the court, on notice and motion of a party, and the fees are an element of the costs of
suit. Thus, a request for attorney's fees in the prayer would appear to be sufficient. To avoid
ambiguity, however, counsel should state the appropriate information in Paragraph BC-5.
[g] Other Allegations (Paragraph BC-6)
Counsel may use the space marked "Other" in Paragraph BC-6 to allege facts for which no space has
been provided in the form, such as an allegation on information and belief that the fictitiously named
defendants are liable for the occurrences alleged in the complaint.
[5] Limitation of Action
The limitation period for an action on a contract in writing, except as provided in Code Civ. Proc. ß
336a (corporation bonds, notes, or debentures), is four years [Code Civ. Proc. ß 337(1); see Code
Civ. Proc. ß 337(2) (actions on book accounts); see also Filet Menu, Inc. v. Cheng (1999) 71 Cal.
App. 4th 1276, 1282-1284, 84 Cal. Rptr. 2d 384 (statute may be tolled by plaintiff's out-of-state travel
unrelated to interstate commerce pursuant to Code Civ. Proc. ß 351)]. Actions on oral contracts are
barred after two years [Code Civ. Proc. ß 339(1)]. For a more detailed discussion, see Ch. 345,
Limitation of Actions .
An action on a contract for the sale of goods, whether oral or written, is subject to the limitation period
set forth in Com. Code ß 2725 [see Code Civ. Proc. ß 339(1)].
[6] Verification
Page 24 of 479
Counsel may attach a verification to the complaint, if desired. For discussion and a form for verifica-
tion of the complaint, see ß 140.101[1], [5].
Page 25 of 479
5 of 138 DOCUMENTS

PART V. FORMS
ß 140.101 Complaint for Damages [Civ. Code ß 3300] for Breach of Written Contract--
General Form
[1] FORM Complaint for Damages [Civ. Code ß 3300] for Breach of Written Contract--General
Form
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF ___________________
______________________ [name], )
Plaintiff, ) NO. _____
vs. ) COMPLAINT FOR DAMAGES
______________________ [names], ) (Breach of Contract)
Defendants. ) [Amount demanded ____________________ (ex-
) ceeds or does not exceed) $10,000]
) [LIMITED CIVIL CASE]
__________________________________________________
Plaintiff alleges:
1. Defendant ___________________ [name] is, and at all times mentioned was, a resident of
___________________ County, California[, in the ___________________ (name) Judicial District].
[2. Plaintiff is ignorant of the true names and capacities of defendants sued as DOES I-
____________________, inclusive, and therefore sues these defendants by such fictitious names.
Plaintiff will amend this complaint to allege their true names and capacities when ascertained.]
[3. This action is subject to the provisions of ___________________ (Section 1812.10 of the Civil
Page 26 of 479
Code or Section 2984.4 of the Civil Code or Section 395(b) of the Code of Civil Procedure).]
4. On or about ___________________ [date], at ___________________ [city],

___________________ County, California, plaintiff and defendant entered into a written agreement,
___________________ [a copy of which is attached as Exhibit _____ and made a part of this
pleading or plead contract according to its legal effect or set it forth in its exact words].
5. Plaintiff has performed all conditions, covenants, and promises required on his/her/its part to be
performed in accordance with the terms and conditions of the contract [except ___________________
(specify conditions not performed). Plaintiff did not perform ___________________ (this or these)
condition(s) because ___________________ (specify facts showing excuse for nonperformance)].
[6. On or about ___________________ (date), plaintiff requested that defendant perform his/her/its
obligations under the contract.]
7. On or about ___________________ [date], defendant breached the contract by

___________________ [specify acts or omissions constituting breach].
8. As a result of defendant's breach of the contract, plaintiff has ___________________ [specify items
of damage], to his/her/its damage in the sum of $____________________.
WHEREFORE, plaintiff prays judgment against defendant[s, and each of them,] as follows:
1. For compensatory damages in the sum of $____________________;
2. For interest on the sum of $____________________ from and after ___________________

[date];
[3. For reasonable attorney's fees ___________________ (of $____________________ or according

to proof).]
4. For costs of suit and
5. For such other and further relief as the court may deem proper.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
Attorney for Plaintiff ______________________ [name]
VERIFICATION
Page 27 of 479
I, ___________________ [name], am the plaintiff in the above-entitled action. I have read the
foregoing complaint and know the contents thereof. The same is true of my own knowledge, except as
to those matters that are therein alleged on information and belief, and as to those matters, I believe it
to be true.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true
and correct.
___________________ [date]
______________________ [signature]
______________________ [typed name]
[2] Use of Form
The complaint in [1], above, is for use in an action for damages for breach of a written contract.
[3] Allegations
[a] In General
This complaint alleges the following elements of a cause of action for breach of contract [see
Reichert v. General Ins. Co. (1968) 68 Cal. 2d 822, 830, 69 Cal. Rptr. 321, 442 P.2d 377 ; FPI
Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 383, 282 Cal. Rptr. 508 ; Acoustics,
Inc. v. Trepte Constr. Co. (1971) 14 Cal. App. 3d 887, 916, 92 Cal. Rptr. 723 ; Lortz v. Connell
(1969) 273 Cal. App. 2d 286, 290, 78 Cal. Rptr. 6] :
The existence of the contract (Paragraph 4). Attaching a copy of a written contract and
incorporating it by reference are not essential for pleading the contract, which may be
properly pleaded by alleging the making of the contract and the substance of the relevant
terms [ Perry v. Robertson (1988) 201 Cal. App. 3d 333, 341, 247 Cal. Rptr. 74] .
PRACTICE TIP:
Tactical Advantage in Setting Out Contract. When a complaint sets out a written
contract in full, a general demurrer is deemed to admit the contents of the contract and any
pleaded meaning to which the contract is reasonably susceptible [ Martinez v. Socoma
Companies, Inc. (1974) 11 Cal. 3d 394, 400, 113 Cal. Rptr. 585, 521 P.2d 841 ;
Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal. App. 3d 232, 239,
282 Cal. Rptr. 233 (although plaintiff's interpretation of contract may prove invalid,
resolution of issue on demurrer improper if plaintiff pleaded meaning to which contract is
Page 28 of 479
reasonably susceptible)].
The performance of all conditions on the plaintiff's part or the plaintiff's excuse for
nonperformance (Paragraph 5) [cf. Careau & Co. v. Security Pacific Business Credit,
Inc. (1990) 222 Cal. App. 3d 1371, 1390-1391, 272 Cal. Rptr. 387 (statements of
defendant's representatives, who said conditions precedent were satisfied, were evidence
but not sufficient as allegations in pleading)].
The breach by the defendant (Paragraph 7).
The resulting damage to the plaintiff (Paragraph 8).
The complaint alleges that the agreement was written (Paragraph 4). In an action founded on a
contract, the defendant may object by demurrer [see ß 140.130] or answer, on the ground that
defendant cannot ascertain from the pleading whether the contract is written or oral or implied by
conduct [Code Civ. Proc. ß 430.10(g)].
When the contract is ambiguous, the complaint may allege the plaintiff's construction. On demurrer,
the court must accept the plaintiff's construction as correct, as long as it is not clearly erroneous
[ Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal. App. 3d 232, 239, 282 Cal.
Rptr. 233 ; Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal. App. 3d
122, 128, 132, 226 Cal. Rptr. 321] .
[b] Conditions Precedent
In pleading the performance of conditions precedent in the contract [see generally Civ. Code ß 1436
(condition precedent defined)] (Paragraph 6), it is not necessary to state the facts showing perfor-
mance. The complaint may state generally that the plaintiff duly performed all the conditions on
plaintiff's part. If the defendant controverts the allegation, the plaintiff must establish at trial the facts
showing performance [Code Civ. Proc. ß 457].However, an allegation that the defendant breached the
contract does not indicate that the plaintiff performed all that the plaintiff was obligated to perform or
that the defendant prevented the plaintiff from rendering performance [ Lortz v. Connell (1969) 273
Cal. App. 2d 286, 291, 78 Cal. Rptr. 6] .
If a condition precedent imposed by the contract must happen before the defendant's duty of
performance arises, a specific allegation of the happening of the event is a necessary part of pleading
the defendant's breach [ Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal. App.
3d 1371, 1389-1390, 272 Cal. Rptr. 387 (agreement for loan in which six of eight conditions were
events and not acts to be performed by plaintiff)]. For example, if the defendant's promise to pay
money is conditioned on defendant's ability to pay or on the existence of a fund from which payment
Page 29 of 479
is to be made, the plaintiff must allege that the condition has been satisfied [ Byrne v. Harvey (1962)
211 Cal. App. 2d 92, 112-113, 27 Cal. Rptr. 110 ; see Clack v. State of California ex rel. Dept. Pub.
Wks. (1969) 275 Cal. App. 2d 743, 748, 80 Cal. Rptr. 274] . Similarly, whenever it is essential to the
cause of action that the plaintiff request that the defendant perform, the plaintiff must allege the request
in the complaint and prove it at trial [ California Canneries Co. v. Great Western Lumber Co.
(1919) 44 Cal. App. 69, 71, 185 P. 1008] .
A general allegation of due performance will not suffice if the plaintiff also sets forth what actually
occurred and the specific facts do not constitute due performance. If the plaintiff alleges due perfor-
mance as a permissible conclusion of law, but also avers specific additional facts that do not support
the conclusion or are inconsistent with it, the specific allegations control. A complaint that might have
been sufficient with general allegations alone becomes defective [ Careau & Co. v. Security Pacific
Business Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1389-1390, 272 Cal. Rptr. 387] .
[c] Concurrent Conditions
Concurrent conditions are like conditions precedent, but are mutually dependent. The only important
difference between a concurrent condition and a condition precedent is that the condition precedent
must be performed before another duty arises, while a tender of performance is sufficient in the case
of a concurrent condition. Failure of both parties to perform concurrent conditions does not leave the
contract open for an indefinite period so that either party can tender performance at that party's leisure.
Failure of both parties to perform concurrent conditions during the time for performance results in
discharge of each party's duty to perform. Thus, when a contract makes time of the essence, if the time
expires without tender by either party, both parties are discharged [ Pittman v. Canham (1992) 2
Cal. App. 4th 556, 559-560, 3 Cal. Rptr. 2d 340] .
[d] Ability to Perform
To establish damages, the plaintiff must prove that but for the defendant's breach, the plaintiff would
have had the ability to perform. Plaintiff must make this proof in any action for breach of contract,
even one based on repudiation or anticipatory breach in which the plaintiff need not allege tender of
performance [ Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal. App. 4th 613, 625, 2 Cal. Rptr. 2d
288 ; McDorman v. Moody (1942) 50 Cal. App. 2d 136, 140-141, 122 P.2d 639] .
[e] Consideration
A written instrument is presumptive evidence of consideration [Civ. Code ß 1614]. The plaintiff need
not plead the existence and character of the consideration if the complaint states that the contract was
in writing or sets forth the written contract in full [ Henke v. Eureka Endowment Asso. (1893) 100
Cal. 429, 433, 34 P. 1089] .
The presumption shifts the burden of producing evidence, not the burden of proof [ Rancho Santa
Fe Pharmacy, Inc. v. Seyfert (1990) 219 Cal. App. 3d 875, 884, 268 Cal. Rptr. 505] . Once the court
has admitted evidence sufficient to call into question the presumed fact (consideration), the plaintiff
Page 30 of 479
has the burden of proving consideration [ Rancho Santa Fe Pharmacy, Inc. v. Seyfert (1990) 219
Cal. App. 3d 875, 883, 268 Cal. Rptr. 505] .
[f] Damages
General damages (those that directly and inevitably flow from breach of any similar agreement) do not
need to be itemized in a complaint, but special damages (secondary or derivative losses arising from
circumstances that are particular to the contract or to the parties) must be pled with particularity
[ Lewis Jorge Construction Management, Inc. v. Pomona Unified School District (2004) 34 Cal.
4th 960, 969, 975, 22 Cal. Rptr. 3d 340, 102 P. 3d 257 (defining general and special damages and
requiring specific pleading of special damages); Colvig v. RKO Gen., Inc. (1965) 232 Cal. App. 2d
56, 69, 42 Cal. Rptr. 473 (no specificity required for pleading of general damages)].
[4] Actions Involving Installment or Automotive Sales or Consumer Obligations
Counsel should cite the appropriate statute, Civ. Code ß 1812.10 or Civ. Code ß 2984.4, in Paragraph
3 when the action is subject to the provisions of the Unruh Retail Installment Act [Civ. Code ß 1801 et
seq.] or the Rees-Levering Motor Vehicle Sales and Finance Act [Civ. Code ß 2981 et seq.]. If the
action arises from an offer or provision of goods, services, loans, or extensions of credit intended
primarily for personal, family, or household use, other than an obligation described in Civ. Code ßß
1812.10 or 2984.4, or arises from a transaction consummated as a proximate result of either an
unsolicited telephone call made by a seller engaged in the business of consummating transactions of
that kind or a telephone call or electronic transmission made by the buyer or lessee in response to a
solicitation by the seller, then Code Civ. Proc. ß 395(b) applies [see Fontaine v. Superior Court
(CashCall, Inc.) (2009) 175 Cal. App. 4th 830, 838-840, 96 Cal. Rptr. 3d 607 (statute applies to
action by or against consumer, and if any defendant in consumer's action is individual, that is
irrelevant to application of statute)], and the complaint should cite that statute [see Code Civ. Proc. ß
396a(a)].
Concurrently with the complaint, the plaintiff must file an affidavit (or declaration under penalty of
perjury [Code Civ. Proc. ß 2015.5]) stating facts showing that the action has been commenced in the
proper court for the trial of the action, and that the action is subject to the provisions of Civ. Code ß
1812.10 or Civ. Code ß 2984.4 or Code Civ. Proc. ß 395(b). In lieu of an affidavit or declaration, the
complaint may state the required facts if the complaint is verified by the oath of the plaintiff or of
plaintiff's attorney [Civ. Code ßß 1812.10(c), 2984.4(c); Code Civ. Proc. ß 396a(a)]. In cases subject
to Civ. Code ß 1812.10 or Civ. Code ß 2984.4, the plaintiff may not state facts on information or
belief in a verified complaint [Civ. Code ßß 1812.10(c), 2984.4(c)].
When an affidavit or declaration is filed with the complaint, a copy must be served with the summons
[Civ. Code ßß 1812.10(c), 2984.4(c); Code Civ. Proc. ß 396a(a)].
[5] Verification
Verification of a complaint for damages for breach of contract generally is not required. However,
Page 31 of 479
verification will require any answer to be verified in an unlimited civil case [Code Civ. Proc. ßß 92(b),
446]. Verification will also preclude the defendant from using a general denial in an unlimited civil
case, and will preclude a general denial in a limited civil case if the action is a claim assigned to a third
party for collection [Code Civ. Proc. ß 431.30(d)]. For further discussion, see Ch. 26, Answers .
[6] Jurisdiction
"below the character of the action or proceeding")].
[7] Attorney's Fees
In an action based on a contract that provides for an award of attorney's fees, the plaintiff need not
plead or prove the contract provision for attorney's fees or the amount of attorney's fees incurred [see
Civ. Code ß 1717]. It is sufficient to make the contract part of the complaint [ Ganey v. Doran
(1987) 191 Cal. App. 3d 901, 911-912, 236 Cal. Rptr. 787] (Paragraph 4). However, no election or
waiver results from pleading a contractual right to attorney's fees [ Lanyi v. Goldblum (1986) 177 Cal.
App. 3d 181, 188, 223 Cal. Rptr. 32] . The prayer in the form in [1], above, contains a specific
request for attorney's fees.
For further discussion of attorney's fees, see Ch. 174, Costs and Attorney's Fees . For discussion of
attorney's fees under Civ. Code ß 1717.5 in contract actions based on a book account as defined in
Code Civ. Proc. ß 337a, see Ch. 8, Accounts Stated and Open Accounts .
[8] Cross References
For alternative allegations for agency, capacity, and residence of parties, see Ch. 20, Allegations
Commonly Used
For alternative forms for captions and introductions, see Ch. 108, Captions and Introductions
For discussion and forms relating to the format of complaints, see Ch. 123, Complaints and Cross
Complaints
For discussion and forms relating to damages and pleading damages, see Ch. 177, Damages
Page 32 of 479
For discussion and forms relating to fax service and filing of papers, see Ch. 264, Fax Service and
Filing of Papers
For discussion of jurisdiction in California courts in general, see Ch. 323, Jurisdiction: Personal
Jurisdiction, Inconvenient Forum, and Appearances , and Ch. 324, Jurisdiction: Subject Matter
Jurisdiction
For alternative forms for prayers, see Ch. 420, Prayers
For discussion and forms relating to service of summons generally, see Ch. 518, Service of Summons
and Papers
For alternative allegations of venue, see Ch. 571, Venue
For alternative forms for verification, see Ch. 572, Verification
Page 33 of 479
6 of 138 DOCUMENTS

PART V. FORMS
ß 140.102 Complaint for Damages [Civ. Code ß 3300] for Breach of Written Contract--Based
on Correspondence Between Parties
[1] FORM Complaint for Damages [Civ. Code ß 3300] for Breach of Written Contract--Based
[Caption and introduction. See ß 140.101[1].]
1. [Capacity and residence of defendant. See ß 140.101[1], Paragraph 1.]
2. [Fictitious name allegation. See ß 140.101[1], Paragraph 2.]
3. On or about ___________________ [date], plaintiff and defendant entered preliminary negotia-

tions regarding ___________________ [specify, e.g., the sale of plastic tubing, manufactured by
plaintiff, to defendant and the quantities and prices for the sale].
4. By exchange of letters from ___________________ [date], to ___________________ [date],

plaintiff and defendant agreed in writing that ___________________ [allege legal effect of contract].
The written contract of the parties is contained in their letters, copies of which are attached as Exhibits;
_____-_____ and incorporated by reference.
5. The letters from defendant to plaintiff were received by plaintiff in the ordinary course of the mail
and the letters from plaintiff to defendant were sent in the ordinary course of mail, postage prepaid,
addressed to defendant at ___________________ [mailing address].
Page 34 of 479
6. [Performance of conditions, covenants, and promises. See ß 140.101[1], Paragraph 5.]
7. [Defendant's breach. See ß 140.101[1], Paragraph 7.]
8. [Damages. See ß 140.101[1], Paragraph 8.]
[Prayer. See ß 140.101[1].]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
[Verification, if desired. See ß 140.101[1].]

[2] Use of Form
The complaint in [1], above, is for use in an action for damages for breach of a contract entered into
by correspondence between the parties.
[3] Allegations
The complaint alleges the following elements of the cause of action:
Negotiations by the parties (Paragraph 3).
A resulting agreement (Paragraphs 4 and 5).
The plaintiff's performance of all conditions or the excuses for nonperformance (Para-
graph 6).
The damages suffered by the plaintiff (Paragraph 8).

[4] Contract by Correspondence
Correspondence between the parties does not necessarily constitute a contract [ Tibbs v. Smart &
Final Iris Co. (1957) 152 Cal. App. 2d 618, 624, 313 P.2d 636 (no binding and enforceable
agreement of sale existed between parties when numerous letters exchanged but last letter constituted
new and conditional offer abrogating previous offers and was rejected); Azevedo v. Davidson (1920)
Page 35 of 479
49 Cal. App. 443, 446, 193 P. 594 (letter did not constitute contract because correspondence indicated
negotiations not to be considered closed until certain investigations made)]. However, when
correspondence contains an offer and an absolute, unqualified acceptance, a contract may result. Some
applicable statutory rules include the following:
Consent is communicated when the party accepting a proposal has put the acceptance in
the course of transmission to the proposer [Civ. Code ß 1583].
Acceptance must be absolute and unqualified [Civ. Code ß 1585].
A letter correctly addressed and properly mailed is presumed to have been received in the
ordinary course of the mail [Evid. Code ß 641].
Parol evidence is admissible to explain an incomplete contract entered into through correspondence
[ Amco Plastic Pipe Co. v. Jet Specialties Co. (1961) 194 Cal. App. 2d 32, 37, 14 Cal. Rptr. 712] .
A signed letter expressly referring to and adopting a contract is sufficient to bind the signing party to a
written contract executed only by the plaintiff [ Bartlett v. Rogers (1951) 103 Cal. App. 2d 250, 254,
229 P.2d 434] .
Page 36 of 479
7 of 138 DOCUMENTS

PART V. FORMS
ß 140.103 Complaint for Damages [Civ. Code ß 3300] for Breach of Written Contract--By
Third-Party Beneficiary [Civ. Code ß 1559]
[1] FORM Complaint for Damages [Civ. Code ß 3300] for Breach of Written Contract--By
3. On or about ___________________ [date], ___________________ [name] and defendant entered

into a written contract, a copy of which is attached as Exhibit _____ and made a part of this pleading.
4. By the terms of the contract, ___________________ [name] agreed to ___________________

[specify performance], and defendant agreed to ___________________ [specify performance]. The
contract was made for the plaintiff's benefit in that ___________________ [specify facts showing
intent to benefit plaintiff].
[Prayer. See ß 140.101[1].]
Page 37 of 479
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
The complaint in [1], above, is for use in an action for damages for breach of contract by a third-party
beneficiary to the contract.
[3] Allegations
The existence of the contract (Paragraph 3).
The parties' intent that the contract be for the plaintiff's benefit (Paragraph 4).
The defendant's breach of the contract (Paragraph 5).
The plaintiff's damages caused by the breach (Paragraph 6).

[4] Third-party Beneficiary's Right
[a] Requirements to Enforce Contract
A third party may enforce a contract expressly for the benefit of that party at any time before the
parties to the contract rescind it [Civ. Code ß 1559]. Civ. Code ß 1559 excludes enforcement of a
contract by third parties who are only incidentally or remotely benefited by it. However, the contract
need not be exclusively for the benefit of the third party, and the third party need not be named and
identified in the contract [ COAC, Inc. v. Kennedy Engineers (1977) 67 Cal. App. 3d 916, 919-920,
136 Cal. Rptr. 890] . California law generally classifies parties having enforceable rights under
contracts to which they are not parties as creditor beneficiaries [see [b], below] or donee beneficiaries
[see [c], below].
Intent to benefit the third party is important in determining the third party's right to bring an action
under a contract. It is sufficient that the promisor understood that the promisee had that intent
[ Lucas v. Hamm (1961) 56 Cal. 2d 583, 591, 15 Cal. Rptr. 821, 364 P.2d 685 , cert. denied, 368
U.S. 987 (1962) ; Schauer v. Mandarin Gems of California, Inc. (2005) 125 Cal. App. 4th 949, 958,
Page 38 of 479
23 Cal. Rptr. 3d 233 (jeweler must have understood that husband intended to give ring he was buying
to wife because they shopped together, wife chose the ring, and husband bought it for the purpose of
giving it to wife); see Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal. App.
4th 713, 724, 77 Cal. Rptr. 2d 1 (developer whose proposed project was denied after consultant hired
by county prepared EIR could not sue county for damages caused by county's alleged failure to
prepare proper EIR, as developer was not third-party creditor beneficiary of county's contract with
consultant; written terms of contract showed intent that developer was not intended beneficiary),
disapproved on another point in Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.
4th 1106, 1123, 81 Cal. Rptr. 2d 471, 969 P.2d 564 ; Dateline Builders, Inc. v. City of Santa Rosa
(1983) 146 Cal. App. 3d 520, 526, 194 Cal. Rptr. 258 (developer holding option on real property
beyond city limits and wanting to connect proposed project with city sewer lines not third-party
beneficiary under contract between city and county to coordinate property development standards and
avoid proliferation of fragmented sewer districts and systems)].
The third party need not be named or identified individually if the third party can show that he, she, or
it is a member of a class for whose express benefit the parties made the contract [ General Motors
Corp. v. Superior Court (1993) 12 Cal. App. 4th 435, 444, 15 Cal. Rptr. 2d 622 (release); Macaulay
v. Norlander (1992) 12 Cal. App. 4th 1, 7-8, 15 Cal. Rptr. 2d 204 (agreement between investor and
clearing broker); Kaiser Engineers, Inc. v. Grinnell Fire Protection Systems Co. (1985) 173 Cal.
App. 3d 1050, 1054-1055, 219 Cal. Rptr. 626 ; but see Vahle v. Barwick (2001) 93 Cal. App. 4th
1323, 1332, 113 Cal. Rptr. 2d 793 (trial court erred in granting summary judgment to attorney who
was sued for malpractice in handling plaintiffs' personal injury case against country club on basis that
language in release agreement between plaintiffs and country club was unambiguous and benefitted
attorney; whether defendant attorney was intended third party beneficiary of release agreement was
triable issue of fact)].
The party claiming to be a third-party beneficiary bears the burden of proving that the contracting
parties actually promised the performance that the third-party beneficiary seeks. In a case in which the
plaintiff did not sign a contract that contained an attorney fee provision, the court found that a
defendant that was the prevailing party could recover contractual attorney's fees only if the nonsigna-
tory plaintiff would have been entitled to those fees had it prevailed [see Sessions Payroll Manage-
ment, Inc. v. Noble Construction Co. (2001) 84 Cal. App. 4th 671, 680-681, 101 Cal. Rptr. 2d 127
(because contracting parties did not intend to benefit third party by including it within contractual
attorney's fee clause, it could not have recovered attorney's fees had it prevailed on third-party breach
of contract cause of action; it thus should not have attorney's fees imposed against it); but see Loduca
v. Polyzos (2007) 153 Cal. App. 4th 334, 337, 62 Cal. Rptr. 3d 780 (property owner was third-party
beneficiary of contract between general contractor and subcontractor for installation of cabinetry in
owner's house under construction; property owner successfully sued subcontractor for breach of that
contract and was entitled to attorney's fees under provision in that contract)].
A third party beneficiary's rights are subject to the conditions of the contract [see, e.g., Mercury
Casualty Company v. Maloney (2003) 113 Cal. App. 4th 799, 802-803, 6 Cal. Rptr. 3d 647 (injured
Page 39 of 479
passenger who received medical payments from driver's excess insurer was obligated to reimburse
insurer pursuant to insurance policy provision requiring reimbursement upon settlement with
responsible party)].
[b] Creditor Beneficiary
A party cannot be a creditor beneficiary unless the contract will discharge some form of legal duty
owed to the beneficiary by the promisee [ COAC, Inc. v. Kennedy Engineers (1977) 67 Cal. App. 3d
916, 919-920, 136 Cal. Rptr. 890] .
A creditor beneficiary may bring an action against either the promisee or the promisor or against both
of them [ Anderson v. Calaveras Cent. Mining Corp. (1936) 13 Cal. App. 2d 338, 344, 57 P.2d
560] .
The third-party contract is not an offer to the creditor-beneficiary that the creditor-beneficiary must
accept before a cause of action accrues. The cause of action accrues at the time the parties to the
contract execute it, even if the creditor-beneficiary does not know of its existence. The cause of action
is subject to the four-year statute of limitations [ Skylawn & Skyview Memorial Lawn v. Superior
Court (1979) 88 Cal. App. 3d 316, 318-320, 151 Cal. Rptr. 793 ; see Code Civ. Proc. ß 337(1)].
[c] Donee Beneficiary
A party is a donee beneficiary if the promisee's contractual intent is to make a gift or confer a right
against the promisor. If the promisee intends to make a gift, the donee beneficiary may recover if the
promisor must have understood the donative intent from the nature of the contract and the circum-
stances accompanying its execution [ Schauer v. Mandarin Gems of California, Inc. (2005) 125 Cal.
App. 4th 949, 958, 23 Cal. Rptr. 3d 233 (jeweler must have understood that husband intended to give
ring he was buying to wife because they shopped together, wife chose the ring, and husband bought it
for the purpose of giving it to wife)]. Even though a third party is not the intended recipient of a gift,
the third party may nevertheless be a donee beneficiary if it appears from the terms of the promise, in
view of the accompanying circumstances, that the promisee's purpose in obtaining the promise was to
confer on the third party a right against the promisor to performance that was not due, supposed or
asserted to be due from the promisee to the beneficiary [ Martinez v. Socoma Companies, Inc.
(1974) 11 Cal. 3d 394, 400-401, 113 Cal. Rptr. 585, 521 P.2d 841 ; Dateline Builders, Inc. v. City
of Santa Rosa (1983) 146 Cal. App. 3d 520, 526, 194 Cal. Rptr. 258] .
[d] Exception for Express Trust Beneficiary
Express trusts are not governed by the rules that apply to contracts generally. Civ. Code ß 1559 has no
application to a trust beneficiary. A trust beneficiary may not sue the trustee, an agent of the trustee or
one with whom the trustee contracted for the benefit of the trust. The express trust beneficiary's rights
are governed by the Probate Code provisions applicable to trusts [ National Bank v. Exchange Nat.
Bank (1921) 186 Cal. 172, 180, 199 P. 1 ; Saks v. Damon Raike & Co. (1992) 7 Cal. App. 4th 419,
430-431, 8 Cal. Rptr. 2d 869 ; see, e.g., Prob. Code ßß 16401, 16420, 16421, 17000, 17200].
Page 40 of 479
[5] Promisee's Right to Enforce Contract
The promisee has the right to enforce a third-party contract for the benefit of the third party. The type
of enforcement action depends on whether the third-party beneficiary is a creditor beneficiary or a
donee beneficiary [see [4][b], [c], above]. For a creditor beneficiary, the promisee may bring an action
for damages or specific performance, because the promisor has a legal obligation to pay the debt. For
a donee beneficiary, the promisee may enforce the contract only through an action for specific
performance. Although the promisee is entitled to the promised performance by the promisor, the
performance is a gift to the beneficiary, and the promisee has no economic interest in the performance.
Therefore, damages would be an inadequate remedy, and only specific performance is appropriate
[ In re Marriage of Smith & Maescher (1993) 21 Cal. App. 4th 100, 106-108, 26 Cal. Rptr. 2d
133] .
[6] Waiver of Rights
The rights of a third-party beneficiary may be voluntarily waived or disclaimed. However, the burden
is on the party claiming waiver to prove it by clear and convincing evidence. The courts will decide
doubtful cases against a waiver [ Bass v. John Hancock Mut. Life Ins. Co. (1974) 10 Cal. 3d 792,
796, 112 Cal. Rptr. 195, 518 P.2d 1147] .
Page 41 of 479
8 of 138 DOCUMENTS

PART V. FORMS
ß 140.104 Complaint for Damages [Civ. Code ß 3300] for Breach of Oral Contract [Civ. Code
ß 1622]--General Form
[1] FORM Complaint for Damages [Civ. Code ß 3300] for Breach of Oral Contract [Civ. Code ß
1622]--General Form
3. On or about ___________________ [date], plaintiff and defendant entered into an oral agreement
whereby plaintiff agreed to ___________________ [specify] and defendant agreed to
___________________ [specify].
(specify conditions not performed), the performance of which was excused on the ground that
___________________ (specify)].
5. On or about ___________________ [date], defendant breached the oral agreement by

Page 42 of 479
[Prayer. See ß 140.101[1].]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
The complaint in [1], above, is for use in an action for damages for breach of an oral agreement not
subject to the statute of frauds [see, e.g., Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6
Cal. App. 4th 603, 614, 7 Cal. Rptr. 2d 859 (oral employment contract allowing termination only for
cause breached when employer threatened to terminate representatives who did not sign new written
contract that allowed termination without cause)]. All contracts may be oral, except those that are
specially required by statute to be in writing [Civ. Code ß 1622; see generally Civ. Code ß 1624
(contracts that must be in writing)].
For discussion and forms relating to contracts within the statute of frauds, see Ch. 530, Statute of
Frauds . For an affirmative defense based on the statute of frauds, see ß 140.143.
[3] Allegations
The parties entered into an oral agreement (Paragraph 3). The complaint should state that
the agreement was oral; otherwise, the defendant may demur on the ground that defend-
nat cannot ascertain from the pleading whether the contract is written or oral or implied
by conduct [Code Civ. Proc. ß 430.10(g); see generally ß 140.130].
The parties made mutual promises constituting consideration (Paragraph 3). Since there
is no presumption of consideration for an oral agreement, the complaint must allege the
consideration [ Acheson v. Western Union Tel. Co. (1892) 96 Cal. 641, 644, 31 P.
583] .
The plaintiff performed all conditions required of plaintiff or was excused from perfor-
mance (Paragraph 4).
Page 43 of 479
The defendant breached the contract (Paragraph 5).
The plaintiff sustained damages (Paragraph 6).
The complaint need not allege a specific duration for an oral agreement. The law infers a reasonable
term. Even if an oral agreement is terminable at will, Com. Code ß 2309 requires that reasonable
notice be given before termination [ Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th
612, 616, 17 Cal. Rptr. 2d 708 (sustaining demurrer improper although no duration of contract
alleged, in part because what constitutes commercially reasonable time is presumptively within
defendant's knowledge as much as plaintiff's)].
If the complaint does not allege explicit words by which the parties agreed but instead alleges a course
of conduct, including oral representations that created a reasonable expectation, the cause of action is
one for breach of an implied contract rather than breach of an oral contract [ Foley v. Interactive
Data Corp. (1988) 47 Cal. 3d 654, 675, 254 Cal. Rptr. 211, 765 P.2d 373 ; Wilkerson v. Wells
Fargo Bank (1989) 212 Cal. App. 3d 1217, 1225 n.2, 261 Cal. Rptr. 185 (implied contracts for
employment terminable only for cause)]. For a form of allegation of an implied contract, see ß
140.110[1].
Page 44 of 479
9 of 138 DOCUMENTS

PART V. FORMS
Anticipatory Breach [Civ. Code ß 1440]
[1] FORM Complaint for Damages [Civ. Code ß 3300] for Breach of Written Contract--
3. On or about ___________________ [date], plaintiff and defendant entered into a written contract,
[EITHER]
4. On or about ___________________ [date], defendant, by ___________________ [specify, e.g., a

letter to plaintiff] gave notice that defendant would not perform the contract, and defendant totally
repudiated it. [A copy of defendant's ___________________ (specify, e.g., letter) is attached as
Exhibit _____ and made a part of this pleading.] Defendant's repudiation has not been retracted.
[OR]
Page 45 of 479
4. ___________________ [If repudiation was implied instead of express, allege facts showing that
defendant put it out of defendant's power to perform, e.g., Defendant dissolved the partnership,
liquidated its assets, and voluntarily went out of business despite defendant's promise to pay plaintiff's
note from the profits of the partnership].
[CONTINUE]
[5. At the time plaintiff received defendant's repudiation, plaintiff (had performed all of the conditions
and things on his/her/its part to be done and performed, and) was ready, able, and willing to
___________________ (perform those terms and conditions on his/her/its part to be performed or
complete performance on his/her/its part).]
[Prayer. See ß 140.101[1].]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
The complaint in [1], above, is for use in an action for damages resulting from anticipatory breach of
contract, when the breach occurs before the time for performance by the defendant [see, e.g., Zogarts
v. Smith (1948) 86 Cal. App. 2d 165, 170-171, 194 P.2d 143 (anticipatory breach by implied
repudiation occurred when defendants who covenanted to pay plaintiff's note out of partnership
profits dissolved partnership, liquidated its assets, and voluntarily went out of business)]. If a
promisor gives notice to the promisee before the promisee is in default, that the promisor will not
perform the obligation on the promisor's part, and the promisor does not retract the notice before
performance on is due, the promisee is entitled to enforce the obligation without previously perform-
ing or offering to perform any conditions on the promisee's part in favor of the promisor [Civ. Code ß
1440].
The doctrine of anticipatory breach does not apply to contracts unilateral in their inception, or contracts
that have become unilateral because of complete performance by one party [ Diamond v. University
Page 46 of 479
of So. California (1970) 11 Cal. App. 3d 49, 53, 89 Cal. Rptr. 302] .
For further discussion of anticipatory breach, see ß 140.54.

[3] Allegations
The essential element of anticipatory breach is that repudiation by the promisor occurred before the
promisor's performance was due under the contract [ Taylor v. Johnston (1975) 15 Cal. 3d 130,
137, 123 Cal. Rptr. 641, 539 P.2d 425 (aggrieved party faced with election of remedies when
promisor repudiates contract: immediately seek damages for breach of contract or treat repudiation as
empty threat and wait until time for performance arrives, then exercise remedies for actual breach)].
The contract (Paragraph 3).
The repudiation by the defendant, which defendnat has not retracted (Paragraph 4) [see,
e.g., Daum Development Corp. v. Yuba Plaza, Inc. (1970) 11 Cal. App. 3d 65, 73-74,
89 Cal. Rptr. 458 (definite and unconditional repudiation of contract by promisor
communicated to promisee is breach of contract that creates immediate right of action
even though it occurs long before time for performance); Mobil Oil Exploration &
Producing Southeast, Inc. v. United States (2000) 530 U.S. 604, 120 S. Ct. 2423, 147
L.Ed. 2d 528, 534 (obligor's statement to obligee indicating that obligor will breach an
important contractual promise, thereby substantially impairing the value of the contract,
constituted repudiation of contract and plaintiffs were entitled to restitution whether or not
repudiated contracts ultimately would have produced financial gain)].
The plaintiff's performance of the contract or the plaintiff's willingness to perform, which
need not be alleged (Paragraph 5). Since Civ. Code ß 1440 states that anticipatory breach
waives conditions, the plaintiff need not allege performance of all conditions on plaintiff's
part. However, plaintiffs customarily include these allegations in a complaint for damages
for anticipatory breach.
To establish a claim for damages, the plaintiff must prove that but for the defendant's breach, plaintiff
would have had the ability to perform. Plaintiff must make this proof in any action for breach of
contract, even one based on repudiation or anticipatory breach in which the plaintiff need not allege
tender of performance [ Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal. App. 4th 613, 625, 2 Cal.
Rptr. 2d 288 ; McDorman v. Moody (1942) 50 Cal. App. 2d 136, 140-141, 122 P.2d 639] .
Page 47 of 479
10 of 138 DOCUMENTS

PART V. FORMS
ß 140.106 Complaint for Damages [Civ. Code ß 3300] for Breach of Contract--Promissory
Estoppel as Substitute for Consideration
[1] FORM Complaint for Damages [Civ. Code ß 3300] for Breach of Contract--Promissory
3. On or about ___________________ [date], in ___________________ [city],

___________________ County, California, defendant ___________________ [promised or assured
or represented to] plaintiff that ___________________ [describe defendant's promise to plaintiff].
4. In so doing, defendant ___________________ [knew or should have known] that plaintiff would
be reasonably induced to rely on defendant's ___________________ [promise or assurance or
representation] by ___________________ [describe act or forbearance of plaintiff that defendant
knew or should have known would be induced].
5. Plaintiff reasonably relied on defendant's ___________________ [promise or assurance or

representation] and was induced to ___________________ [describe specifically action or forbear-
ance taken by plaintiff].
Page 48 of 479
6. Defendant has not performed any part of his/her/its ___________________ [promise or assurance
or representation].
7. As a proximate result of defendant's failure to perform according to the ___________________

[promise or assurance or representation] that he/she/it made to plaintiff, plaintiff has
___________________ [specify items of damage], to his/her/its damage in the sum of
$____________________.
8. Injustice can be avoided only by enforcing defendant's ___________________ [promise or

assurance or representation] completely.
[Prayer. See ß 140.101[1].]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
The complaint in [1], above, is for use in an action for damages for breach of contract when the
consideration is supplied by the doctrine of promissory estoppel [see ß 140.23[8]]. The complaint
may be used for a written or an oral contract in which the customary type of bargained-for considera-
tion is missing.
Generally, a public entity is not estopped by the conduct of officers or employees unless a grave
injustice would otherwise result [ Lundeen Coatings Corp. v. Department of Water & Power (1991)
232 Cal. App. 3d 816, 830, 283 Cal. Rptr. 551] .
[3] Pleading and Proof
[a] Burden
The party claiming estoppel must specifically plead all facts to establish it. Conclusionary pleading of
reliance is insufficient. The complaint must allege facts showing reliance and a change of position
[ Smith v. City and County of San Francisco (1990) 225 Cal. App. 3d 38, 48, 275 Cal. Rptr. 17] .
The burden of proof is on the party asserting estoppel to prove its essential elements, leaving nothing
to surmise or questionable inference [ Bank of California v. Connolly (1973) 36 Cal. App. 3d 350,
366, 111 Cal. Rptr. 468] .
Page 49 of 479
[b] Allegations
The purpose of promissory estoppel is to make a promise binding without the customary bargained-
for consideration [ Youngman v. Nevada Irrigation Dist. (1969) 70 Cal. 2d 240, 249, 74 Cal. Rptr.
398, 449 P.2d 462] . The complaint alleges the following elements of the cause of action [see US
Ecology, Inc. v. State (2005) 129 Cal. App. 4th 887, 891, 908, 28 Cal. Rptr. 3d 894 (plaintiff must
prove that defendant's breach was substantial factor in causing injury to plaintiff); Lundeen Coatings
Corp. v. Department of Water & Power (1991) 232 Cal. App. 3d 816, 829, 283 Cal. Rptr. 551 ;
Thomson v. International Alliance of Stage Employees (1965) 232 Cal. App. 2d 446, 454, 42 Cal.
Rptr. 785] :
A promise clear and unambiguous in its terms (Paragraph 3).
Reasonable and foreseeable reliance (Paragraph 4).
Reliance by the plaintiff (Paragraph 5).
Failure of the defendant to perform (Paragraph 6).
Injury to the plaintiff as a proximate result of the defendant's breach of the promise
(Paragraph 7).
The necessity of enforcing the defendant's promise completely to avoid injustice

(Paragraph 8).
[4] Remedy for Breach of Promise
The appropriate remedy in an action based on promissory estoppel lies in enforcement of the
defendant's promise [ Tomerlin v. Canadian Indemnity Co. (1964) 61 Cal. 2d 638, 639, 39 Cal.
Rptr. 731, 394 P.2d 571] . Generally, the court enforces the promise in toto. The trial court does
nothave discretion to apportion or limit damages according to the equities of the case [see Saliba-
Kringlen Corp. v. Allen Engineering Co. (1971) 92 Cal. Rptr. 799] . However, there is some
authority for limiting the amount of recovery to a sum the judge considers equitable in a particular case
[ Swinerton & Walberg Co. v. City of Inglewood-L.A. County Civic Center Authority (1974) 40 Cal.
App. 3d 98, 104-105, 114 Cal. Rptr. 834 (trial judge could decide proper measure of damages, and
plaintiff entitled to at least partial enforcement of defendant's promise)].
Page 50 of 479
11 of 138 DOCUMENTS

PART V. FORMS
ß 140.107 Allegation--Venue Based on Allegation Other Than Defendant's Residence at Time

Action Is Commenced
[1] FORM Allegation--Venue Based on Allegation Other Than Defendant's Residence at Time
Action Is Commenced
[EITHER]
The contract creating the obligation on which plaintiff brings this action, was entered into in
___________________ County, California.
[OR]
The place of performance for the contract is ___________________County, California.
[OR]
This action arises from_________________ [either an offer or provision of goods, services, loans or
extensions of credit intended primarily for personal, family or household use, other than an obligation
described in Civil Code Section 1812.10 or Civil Code Section 2984.4 or a transaction consummated
as a proximate result of either an unsolicited telephone call made by a seller engaged in the business of
consummating transactions of that kind or a telephone call or electronic transmission made by the
buyer or lessee in response to a solicitation by the seller]. _________________[Plaintiff or
Page 51 of 479
Defendant] _________________ [specify ground for venue, e.g., in fact signed the contract or
resided, at the time the contract was signed, or now resides] in
[2] Use of Form
One of the allegations in ß 140.107[1] may be used when the basis of venue is other than the
defendant's residence at the time the action for breach of contract is commenced. Counsel can use the
allegation in place of Paragraph 1 in the form in ß 140.101[1].
If the defendant is a corporation or an association, venue is also proper in the county in which the
obligation or liability arose, or in which the breach occurred, or in which the principal place of
business of the corporation or association is situated [Code Civ. Proc. ß 395.5].
For allegations and declarations of venue based on Civ. Code ß 2984.4 (motor vehicle sales) or Civ.
Code ß 1812.10 (retail installment sales), respectively, see Ch. 89, Automobiles: Sales and Financing
Under the Rees-Levering Act , and Ch. 501, Sales: Retail Installment Sales .
[3] Accompanying Papers
In a case subject to Code Civ. Proc. ß 395(b), concerning consumer obligations, the plaintiff must use
the third alternative allegation [see ß 140.107[1]; see also Fontaine v. Superior Court (CashCall,
Inc.) (2009) 175 Cal. App. 4th 830, 838-840, 96 Cal. Rptr. 3d 607 (statute applies to action by or
against consumer, and if any defendant in consumer's action is individual, that is irrelevant to
application of statute)] and verify the complaint, or state the facts in an affidavit (ordeclaration under
penalty of perjury [Code Civ. Proc. ß 2015.5]) filed with the complaint, to show that the action has
been commenced in the proper court for the trial of that action [Code Civ. Proc. ß 396a(a)]. For a
form for a declaration of proper venue for use in an action subject to Code Civ. Proc. ß 395(b), see ß
140.108[1].
For memoranda relating to forms supporting and opposing motions for change of venue, see
California Points and Authorities, Ch. 238, Venue (Matthew Bender).
Page 52 of 479
12 of 138 DOCUMENTS

PART V. FORMS
ß 140.108 Declaration of Proper Venue to Be Filed With Complaint in Action Involving

Consumer Obligations [Code Civ. Proc. ßß 395(b), 396a]
[1] FORM Declaration of Proper Venue to Be Filed With Complaint in Action Involving
COUNTY OF ___________________
______________________ [name], )
Plaintiff, )
vs. )
______________________ [names], ) NO. _____
Defendants. ) DECLARATION
)
)
__________________________________________________________________
I ___________________ [name], declare:
I am the [attorney for the] plaintiff in the above-entitled action, which arises from
_________________ [either an offer or provision of goods, services, loans or extensions of credit
intended primarily for personal, family or household use, other than an obligation described in Civil
Code Section 1812.10 or Civil Code Section 2984.4 or a transaction consummated as a proximate
result of either an unsolicited telephone call made by a seller engaged in the business of consummating
transactions of that kind or a telephone call or electronic transmission made by the buyer or lessee in
response to a solicitation by the seller]. This action is therefore subject to Code of Civil Procedure
Section 395(b)].
Page 53 of 479
_________________ [State facts showing that action is being commenced in county where buyer or
lessee in fact signed contract, or where buyer or lessee resided at time contract was entered into, or
where buyer or lessee resides at commencement of action].
and correct.
___________________ [date]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
Attorney for ______________________ [party's status and name]
[2] Use of Form
This declaration is to be filed by the plaintiff at the time the complaint is filed if the action is subject to
the venue provisions of Code Civ. Proc. ß 395(b) [see ß 140.108[3]] and the complaint is not verified
and does not allege compliance with the venue provisions of Code Civ. Proc. ß 395(b) [Code Civ.
Proc. ß 396a(a)].
unless the amount in controversy, exclusive ofinterest, is $25,000 or less, in which case it will be
[3] Venue
In an action arising from an offer or provision of goods, services, loans, or extensions of credit
intended primarily for personal, family, or household use, other than an obligation described in Civ.
Code ß 1812.10 (Unruh Retail Installment Sales Act [Civ. Code ß 1801 et seq.; see Ch. 501, Sales:
Retail Installment Sales ]) or Civ. Code ß 2984.4 (Rees-Levering Motor Vehicle Sales and Finance
Act [Civ. Code ß 2981 et seq.; see Ch. 89, Automobiles: Sales and Financing Under the Rees-
Levering Act ]), or in an action arising from a transaction consummated as a proximate result of either
an unsolicited telephone call made by a seller engaged in the business of consummating transactions
of that kind or a telephone call or electronic transmission made by the buyer or lessee in response to a
solicitation by the seller, the superior court in the county where the buyer or lessee in fact signed the
contract, or where the buyer or lessee resided at the time the contract was entered into, or where the
buyer or lessee resides at the commencement of the action, is the proper court for the trial of the action
[Code Civ. Proc. ß 395(b); see Fontaine v. Superior Court (CashCall, Inc.) (2009) 175 Cal. App.
4th 830, 838-840, 96 Cal. Rptr. 3d 607 (statute applies to action by or against consumer, and if any
defendant in consumer's action is individual, that is irrelevant to application of statute)].
[4] Requirement That Affidavit or Declaration Be Filed and Served
Page 54 of 479
Concurrently with filing the complaint, in a case subject to Code Civ. Proc. ß 395(b), the plaintiff
must file an affidavit (or declaration under penalty of perjury [Code Civ. Proc. ß 2015.5]) in which the
plaintiff or the plaintiff's attorney states facts showing that the action was commenced in the proper
court for the trial of the action and that the action is subject to the provisions of Code Civ. Proc. ß 395
(b). In addition, the plaintiff must serve a copy of the affidavit or declaration on the defendant at the
time the summons is served. The facts may be stated in a verified complaint instead of an affidavit or
declaration. If the plaintiff fails to file the affidavit or declaration or state facts in a verified complaint
as required, there can be no further proceedings except to dismiss the action without prejudice.
However, the court has discretion to permit late filing of the affidavit or declaration on terms as may
be just [Code Civ. Proc. ß 396a(a)].
For a form for an affidavit, see Ch. 15, Affidavits, Certificates, and Declarations .
[5] Action Filed in Improper Court
In a case subject to Code Civ. Proc. ß 395(b), if it appears from the complaint or affidavit or
declaration, or otherwise that the court is not the proper court for trial, the court, whenever the fact
appears, must transfer the action to the proper court, on its own motion or on motion of the defendant,
unless the defendant consents in writing or in open court to keeping the action in the court in which
plaintiff commenced it. Consent in open court must be entered in the minutes or docket of the court. If
the defendant gives consent, the action may continue in the court in which plaintiff commenced it.
However, the defendant may not give consent unless represented by counsel at the time the consent is
given. In any case, when the court orders the action transferred, if summons is served before the
action is filed in the court to which it is transferred, the time to answer or otherwise plead dates from
the time of service on the defendant of written notice of filing as to any defendant so served who has
not appeared in the action [Code Civ. Proc. ß 396a(b), (c)].
Page 55 of 479
13 of 138 DOCUMENTS

PART V. FORMS
ß 140.109 Allegation--Offer of Performance [Civ. Code ß 1485]
[1] FORM Allegation--Offer of Performance [Civ. Code ß 1485]
On or about ___________________ [date], plaintiff offered to perform his/her/its obligations under

the agreement in good faith and unconditionally by ___________________ [specify tender of
performance] and demanded that defendant perform the obligations on his/her/its part to be performed
by ___________________ [specify defendant's performance], but defendant failed and refused, and
continues to fail and refuse, to so perform.
[2] Use of Form
The allegation in [1], above, is for use in a complaint for damages for breach of contract when the
plaintiff extinguished plaintiff's contractual duty by making an offer of performance.
[3] Offer of Performance
An offer of performance extinguishes the offering party's obligation [Civ. Code ß 1485] when it is an
offer of full performance [Civ. Code ß 1486] by the debtor or someone on the debtor's behalf [Civ.
Code ß 1487] to the creditor [Civ. Code ß 1488]. The offer must be in good faith [Civ. Code ß 1493]
and unconditional [Civ. Code ß 1494]. An offer of performance puts the other party in default if that
party refuses to accept it [ Still v. Plaza Marina Commercial Corp. (1971) 21 Cal. App. 3d 378, 385,
98 Cal. Rptr. 414] .
The party making an offer of performance must be able and willing to perform according to the offer
[Civ. Code ß 1495]. The party will have to prove the ability to perform at trial when it is an issue
[ Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal. App. 4th 613, 625, 2 Cal. Rptr. 2d 288 ;
Page 56 of 479
McDorman v. Moody (1942) 50 Cal. App. 2d 136, 141, 122 P.2d 639 ; Dickey v. Kuhn (1930) 106
Cal. App. 300, 304, 289 P. 242] .
Page 57 of 479
14 of 138 DOCUMENTS

PART V. FORMS
ß 140.110 Allegation--Contract Implied in Fact [Civ. Code ß 1621]
[1] FORM Allegation--Contract Implied in Fact [Civ. Code ß 1621]
___________________ [Allege that plaintiff performed act as part of course of conduct, or as result
of usage of trade or personal understanding between plaintiff and defendant, so that defendant
voluntarily accepted consideration with expectation on both plaintiff's and defendant's parts that
plaintiff would receive benefit for his/her/its actions, e.g., At the instance and request of defendant,
plaintiff submitted to defendants, orally and in writing, a novel idea for a marketing campaign, with
the expectation, which was fully and clearly understood by defendants, that plaintiff would be
compensated for its use by defendants when and if defendants used it].
[2] Use of Form
contract is implied in fact, that is, when the existence and terms of the contract are manifested by
conduct and not by express words [see generally Civ. Code ß 1621 (implied contract defined)]. It can
be inserted in the form in ß 140.101[1] in place of Paragraph 4.
[3] Pleading and Proof of Implied Contract
The essential elements of an implied-in-fact contract and an express contract are the same, i.e., mutual
assent and consideration [ Chandler v. Roach (1957) 156 Cal. App. 2d 435, 440, 319 P.2d 776] .
The essential difference between an implied contract and an express contract is the mode of proof.
When a contract is implied, the party asserting it must prove conduct from which a promise may be
inferred [ Foley v. Interactive Data Corp. (1988) 47 Cal. 3d 654, 675, 677, 254 Cal. Rptr. 211, 765
P.2d 373 ; Youngman v. Nevada Irrigation Dist. (1969) 70 Cal. 2d 240, 246, 74 Cal. Rptr. 398,
Page 58 of 479
449 P.2d 462 ; Chandler v. Roach (1957) 156 Cal. App. 2d 435, 440, 319 P.2d 776 ; Thompson v.
California Brewing Co. (1957) 150 Cal. App. 2d 469, 473, 310 P.2d 436] . The party seeking to
prove the contract may introduce evidence of the parties' conduct to establish an implied-in-fact
contract. The other party may introduce evidence rebutting inferences arising from the conduct or
showing another explanation for it [ Foley v. Interactive Data Corp. (1988) 47 Cal. 3d 654, 677,
254 Cal. Rptr. 211, 765 P.2d 373] .
In pleading a cause of action on an agreement implied from conduct, the plaintiff need only allege the
facts from which the promise is implied [ Youngman v. Nevada Irrigation Dist. (1969) 70 Cal. 2d
240, 246-247, 74 Cal. Rptr. 398, 449 P.2d 462] . For example, the plaintiff established an implied-in-
fact contract that interest was owed on past-due accounts bya course of conduct between the parties,
including the seller's acceptance of special interest invoices, partial payment of interest, the continued
business relationship between the parties, and an indication by the seller that interest would be paid
[ Kawasho Internat. (U.S.A.), Inc. v. Lakewood Pipe Service, Inc. (1983) 152 Cal. App. 3d 785,
789-791, 201 Cal. Rptr. 640] .
If the complaint does not allege explicit words by which the parties agreed, but instead alleges a
course of conduct including oral representations that created a reasonable expectation, the cause of
action is for breach of an implied contract rather than for breach of oral contract [ Foley v. Interactive
Fargo Bank (1989) 212 Cal. App. 3d 1217, 1225 n.2, 261 Cal. Rptr. 185 (implied contract for
employment terminable only for cause)].
[4] Proof of Damages for Breach of Implied Contract
The value of the benefit conferred is evidence of the reasonable value of services rendered under an
implied contract [ LuMetta v. U.S. Robotics, Inc. (9th Cir. 1987) 824 F.2d 768, 770 (diversity case
applying California law); Ferrier v. Commercial Steel Corp. (1956) 142 Cal. App. 2d 424, 426-427,
298 P.2d 555] .
The terms of an unenforceable express contract may be evidence of the reasonable value of services
rendered under an implied contract, provided the agreed price assigns a dollar value to the promised
performance or provides a formula by which the ultimate sum is readily ascertainable [ LuMetta v.
U.S. Robotics, Inc. (9th Cir. 1987) 824 F.2d 768, 770 ; George v. Double-D Foods, Inc. (1984) 155
Cal. App. 3d 36, 42, 201 Cal. Rptr. 870] .
For discussion and forms relating to common counts, see Ch. 121, Common Counts .
Page 59 of 479
15 of 138 DOCUMENTS

PART V. FORMS
ß 140.111 Allegation--Custom and Usage Applicable to Construction of Contract [Civ. Code ß

1656]
[1] FORM Allegation--Custom and Usage Applicable to Construction of Contract [Civ. Code ß
1656]
At all times mentioned there has existed a trade custom and usage ___________________ [set out
custom and usage, e.g., that in all contracts in which a manufacturer's representative is granted an
exclusive agency by the manufacturer to perform services as a sales agent, the agent or manufacturer's
representative correspondingly receives a commission on all sales made in the specified territory,
notwithstanding the fact that the request for quotation of prices or the actual purchase order may be
sent directly to the manufacturer for approval and shipment, and notwithstanding the fact that the
principal may actually close the sale specifically originated by the agent]. This custom and usage is,
and at all times mentioned has been, certain and uniform, of general continuity and notoriety, and
acquiesced-in by the whole of this industry. This custom and usage was well known to plaintiff and to
defendant and was in fact deemed by each of the parties to be an integral part of the contract.]
[2] Use of Form
The allegation in [1], above, is for use in a complaint for damages for breach of contract when there is
a trade custom or usage the court should use in interpreting the contract.
[3] Custom and Usage
A party is not bound by a custom or usage unless the party had actual knowledge of it, or it is so
general or well known in the community as to create a presumption of knowledge [ Peiser v. Mettler
(1958) 50 Cal. 2d 594, 608, 328 P.2d 953 ; Wise v. Reeve Electronics, Inc. (1960) 183 Cal. App. 2d
Page 60 of 479
4, 9, 6 Cal. Rptr. 587] . The complaint must plead a custom for the court to accept evidence of that
custom [ Peiser v. Mettler (1958) 50 Cal. 2d 594, 608, 328 P.2d 953 ; Hanley v. Marsh &
McLennan-J.B.F. Davis & Son, Ltd. (1941) 46 Cal. App. 2d 787, 797, 117 P.2d 69] .
The parties are deemed to have used words according to their different and peculiar sense as shown
by trade usage [ Beneficial Fire & Cas. Ins. Co. v. Kurt Hitke & Co. (1956) 46 Cal. 2d 517,
525-526, 297 P.2d 428] . The test for admissibility of extrinsic evidence is not whether a written
agreement appears to the court to be plain and unambiguous on its face, but whether the evidence
offered is relevant to prove a meaning to which the language of the agreement is reasonably suscepti-
ble. Thus, the court could have properly admitted parol evidence of industry custom along with
evidence of the circumstances surrounding formation of the contract todetermine whether a provision
that either party could terminate a distributorship agreement on 30 days' notice meant that termination
could be based only on poor performance that went uncorrected after notice [ Jack Rowe Assoc., Inc.
v. Fisher Corp. (9th Cir. 1987) 833 F.2d 177, 180-183 ; see Wolf v. Superior Court (2004) 114 Cal.
App. 4th 1343, 1346, 1354-1355, 8 Cal. Rptr. 3d 649 (trial court erred in finding that term "gross
receipts" in author's royalty contract meant only cash and in rejecting expert extrinsic evidence that, in
context of entertainment industry, term meant both money and value of other consideration received
when not otherwise limited or defined by contract)].
A trade usage that existed at the contract's inception no longer governs when, at the time of termina-
tion, that trade usage no longer exists [ Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal. App.
4th 880, 892-893, 41 Cal. Rptr. 2d 740] .
Page 61 of 479
16 of 138 DOCUMENTS

PART V. FORMS
ß 140.112 Allegation--Modification of Original Written Contract by Subsequent Written

Agreement or Executed Oral Agreement or Oral Agreement Supported by New Consideration
[Civ. Code ß 1698]
[1] FORM Allegation--Modification of Original Written Contract by Subsequent Written

Agreement or Executed Oral Agreement or Oral Agreement Supported by New Consideration [Civ.
Code ß 1698]
[EITHER]
On or about ___________________ [date], plaintiff and defendant entered into a written contract, a
copy of which is attached as Exhibit _____ and made a part of this pleading. After entering into that
contract, on or about ___________________ [date], plaintiff and defendant entered into another
written contract, a copy of which is attached as Exhibit _____ and made a part of this pleading. The
purpose of the second contract was to modify the terms of the first contract.
[OR]
copy of which is attached as Exhibit _____ and made a part of this pleading. After the parties entered
into that contract, on or about ___________________ [date], plaintiff and defendant made an oral
agreement to ___________________ [specify terms of oral agreement]. The purpose of the oral
agreement was to modify the written contract. The object of the oral agreement has been fully
performed in that ___________________ [specify performance of oral agreement by plaintiff and
Page 62 of 479
defendant].
[OR]
copy of which is attached as Exhibit _____ and made a part of this pleading. The contract did not
contain a provision stating that the parties could not modify the contract by an oral agreement
supported by new consideration. After the parties entered into the contract, on or about
___________________ [date], plaintiff and defendant made an oral agreement to
___________________ [specify terms of oral agreement]. The purpose of the oral agreement was to
modify the written contract. The oral agreement was supported by valuable and new consideration in
that ___________________ [specify new consideration].
[2] Use of Form
parties modified the original written contract. This allegation may be used in the form in ß 140.101[1]
in place of Paragraph 4.
[3] Modification of Written Contract
[a] Parties' Power to Modify Contract
A modification of a contract is a change in one or more respects that introduces new elements into the
details of the contract, or cancels some of them, but leaves the general purpose and effect undisturbed
[ Grant v. Aerodraulics Co. (1949) 91 Cal. App. 2d 68, 74, 204 P.2d 683] .
A contract in writing may be modified by a contract in writing [Civ. Code ß 1698(a)], or by an oral
agreement to the extent that the oral agreement is executed by the parties [Civ. Code ß 1698(b);
Estate of Wilson (1976) 64 Cal. App. 3d 786, 799, 134 Cal. Rptr. 749 (decided before 1976
amendment of Civ. Code ß 1698); see Pearsall v. Henry (1908) 153 Cal. 314, 325, 95 P. 159 (Civ.
Code ß 1698 has no application to new agreements substituted for existing written agreements)].
Whether the parties modified a written contract by an executed oral agreement is a question of fact
[ Daugherty Co. v. Kimberly-Clark Corp. (1971) 14 Cal. App. 3d 151, 158, 92 Cal. Rptr. 120] .
Unless the contract expressly provides otherwise [see [b], below], a written contract may be modified
by an oral agreement supported by new consideration [Civ. Code ß 1698(c); see Raedeke v.
Gibraltar Sav. & Loan Asso. (1974) 10 Cal. 3d 665, 673, 111 Cal. Rptr. 693, 517 P.2d 1157
(decided before 1976 amendment of Civ. Code ß 1698; but see Com. Code ß 2209(1) (allowing
modification of contract without consideration)]. When applicable, the statute of frauds [Civ. Code ß
1624] must be satisfied if a contract is modified by an oral agreement supported by new consideration
[Civ. Code ß 1698(c)].
[b] Provision Against Orally Modifying Contract
Page 63 of 479
Parties may prevent enforcement of executory oral modifications pursuant to Civ. Code ß 1698(c) by
providing in the written contract that it may only be modified in writing [see Com. Code ß 2209(2)
(signed agreement can exclude modification except by signed writing)]. However, this contractual
provision would not apply to a modification by an executed oral agreement as provided for in Civ.
Code ß 1698(b) [ MacIsaac & Menke Co. v. Cardox Corp. (1961) 193 Cal. App. 2d 661, 670, 14
Cal. Rptr. 523 (in action by subcontractor to recover costs for work performed under written
subcontract modified by executed oral agreement, defendant estopped from relying on subcontract
provision requiring prior written approval before proceeding with work involving extra compensation
by its acts and conduct in orally promising to pay for extra work performed)].
Courts may apply various rules of law to permit oral modification even though the written contract
expressly provides that modifications must be in writing. Those rules include:
Estoppel [ MacIsaac & Menke Co. v. Cardox Corp. (1961) 193 Cal. App. 2d 661, 670,
14 Cal. Rptr. 523] ;
Oral novation and substitution of a new agreement [ Pearsall v. Henry (1908) 153 Cal.
314, 325, 95 P. 159] ;
Rescission of a written contract by an oral agreement [see generally Ch. 490, Rescission
and Restitution ];
Waiver of a provision of a written contract [ 1st. Olympic Corp. v. Hawryluk (1960)

185 Cal. App. 2d 832, 841 (provision in building contract that owner could be charged
only for extras ordered in writing permitted to be waived)]; and
Oral independent collateral contracts [ Lacy Mfg. Co. v. Gold Crown Mining Co.
(1942) 52 Cal. App. 2d 568, 577, 126 P.2d 644 (subsequent oral agreement to pay
additional sum for excess weight was independent, collateral contract that did not alter or
vary written contract to transport and reconstruct factory)].
[4] Equitable or Implicit Modification
When one party has, through oral representations and conduct or custom, behaved in a manner
antithetical to one or more of the terms of a contract after execution and has induced the other party to
rely on those representations and conduct or custom, equity will uphold the apparent modification [cf.
Wagner v. Glendale Adventist Medical Center (1989) 216 Cal. App. 3d 1379, 1388, 265 Cal. Rptr.
412 (dicta, conduct not sufficient)].
The court may imply an agreement to modify a written contract by conduct of the parties that is
inconsistent with the written contract so as to warrant a conclusion that the parties intended to modify
Page 64 of 479
it [ Garrison v. Edward Brown & Sons (1944) 25 Cal. 2d 473, 479, 154 P.2d 377 ; Daugherty Co.
v. Kimberly-Clark Corp. (1971) 14 Cal. App. 3d 151, 158, 92 Cal. Rptr. 120] .
Page 65 of 479
17 of 138 DOCUMENTS

PART V. FORMS
ß 140.113 Allegation--Waiver of Condition by Defendant
[1] FORM Allegation--Waiver of Condition by Defendant
On or about ___________________ [date], defendant waived performance of the condition that

plaintiff ___________________ [set forth condition] by ___________________ [specify how
defendant waived condition]. Plaintiff has performed all other conditions of the contract on his/her/its
part to be performed.
[2] Use of Form
defendant has waived performance of a condition and the plaintiff has performed all other conditions.
[3] Waiver of Conditions
Waiver is the intentional relinquishment of a known right. Waiver may result from an express
agreement or be inferred from circumstances indicating an intent to waive. It is essential that the
promisee could and would have performed the condition had it not been for the promisor's waiver
[ Panno v. Russo (1947) 82 Cal. App. 2d 408, 412, 186 P.2d 452] .
A creditor waives all objections to the mode of an offer of performance that the creditor had an
opportunity to state but did not state at the time to the party making the offer [Civ. Code ß 1501].
The rule concerning modification of a written contract [see Civ. Code ß 1698; ß 140.112[3]] is subject
to the exception that a party to a contract may by conduct or representations waive the performance of
a condition or be estopped because of conduct or representations, to deny that the party has waived the
Page 66 of 479
performance [ Panno v. Russo (1947) 82 Cal. App. 2d 408, 412, 186 P.2d 452 (decided before 1976
amendment of Civ. Code ß 1698)].
Page 67 of 479
18 of 138 DOCUMENTS

PART V. FORMS
ß 140.114 Allegation--Charitable Pledge
[1] FORM Allegation--Charitable Pledge
1. On or about ___________________ [date], defendant executed a written subscription in favor of

plaintiff by the terms of which defendant promised to pay to plaintiff the sum of
$____________________. A copy of the subscription is attached as Exhibit _____ and made a part
of this pleading.
[EITHER]
2. At or about the same time other persons executed similar subscriptions by the terms of which all
those persons concurred in a mutual promise to contribute to the payment of an aggregate sum of
$____________________ for the benefit of plaintiff.
[OR]
2. On the faith of and relying on defendant's subscription, plaintiff ___________________ [specify,

e.g., erected a building, purchased equipment, employed teachers, and equipped a department to
further the work of ___________________ (specify)].
[2] Use of Form
The allegations in [1], above, are for use in a complaint for damages for breach of a contract to pay a
Page 68 of 479
promised amount to a charitable institution. This allegation may be inserted in the form in ß 140.101
[1] in place of Paragraph 4.
[3] Enforceability of Pledge or Subscription
The general rule is that the promise to pay a subscription is ordinarily a mere offer that, in the absence
of consideration, the promisor may withdraw at any time before acceptance. The subscription is an
offer until the beneficiary accepts it or acts on it. However, when several parties may similar promises
to contribute to the payment of an aggregate sum for the benefit of a charitable, religious, or education-
al institution in which they are all interested, the so-called mutuality of the promises is generally
adequate consideration for enforcement by the promisee [ Board of Home Missions v. Manley
(1933) 129 Cal. App. 541, 543-544, 19 P.2d 21 ; see Grand Lodge v. Farnham (1886) 70 Cal. 158,
159-160, 11 P. 592] .
A subscription promise to a charitable institution is enforceable if the promisee uses the subscription
to induce other contributions, even though the subscription was not conditioned on securing any
particular sum in the aggregate [ First Trust & Sav. Bank of Pasadena v. Coe College (1935) 8 Cal.
App. 2d 195, 199, 47 P.2d 481] . Acts performed and obligations incurred by a promisee in reliance
on the payment of a subscription noterender the agreement enforceable and estop the promisor from
denying its validity [ University of So. Cal. v. Bryson (1929) 103 Cal. App. 39, 51, 283 P. 949] .
Page 69 of 479
19 of 138 DOCUMENTS

PART V. FORMS
ß 140.115 Allegation--Exclusive Vending Machine Concession
[1] FORM Allegation--Exclusive Vending Machine Concession
On or about ___________________ [date], plaintiff and defendant entered into a written contract by
the terms of which defendant ___________________ [specify, e.g., granted to plaintiff an exclusive
concession for the sale of ___________________ (specify product) by means of automatic vending
machines in and about defendant's place of business located at ___________________ (city),
___________________ County, California]. A copy of the contract is attached as Exhibit _____ and
made a part of this pleading. Plaintiff agreed ___________________ [specify, e.g., to pay defendant
commissions based on the sales through the vending machines, and plaintiff paid defendant the sum
of $____________________ as advance commissions on sales as provided in the contract].
[2] Use of Form
The allegation in [1], above, is for use in an action for damages for breach of a contract to allow the
sale of the plaintiff's products through vending machines located on the defendant's premises. This
allegation may be inserted in the form in ß 140.101[1] in place of Paragraph 4.
The fact that a contract gives a vending machine company discretion to change commission rates on
written notice to the defendant does not render the contract illusory, lacking in mutuality, or void
[ Automatic Vending Co. v. Wisdom (1960) 182 Cal. App. 2d 354, 357, 6 Cal. Rptr. 31] .
Page 70 of 479
20 of 138 DOCUMENTS

PART V. FORMS
ß 140.116 Allegation--Agreement to Manufacture and Promote Invention
[1] FORM Allegation--Agreement to Manufacture and Promote Invention

___________________ County, California, plaintiff and defendant entered into a written contract for
the manufacture and sale by defendant of a device invented by plaintiff, in which plaintiff owns the
patent rights. A copy of the agreement is attached as Exhibit _____ and made a part of this pleading.
The device that is the subject of the contract is ___________________ [describe].
2. Under the terms of the contract, defendant agreed to ___________________ [specify terms, e.g.,
advance sufficient funds to manufacture and make up certain designs and models, to manufacture
large numbers of the devices, to prepare the necessary sales brochures, and to make a concentrated
direct effort for sales of the device]. Defendant further agreed to manufacture and sell sufficiently
large numbers of the device within a reasonable time and to pay to plaintiff the sum of
$____________________.
[2] Use of Form
The allegations in [1], above, are for use in a complaint for damages for breach of a contract to
manufacture, sell, and promote a patented invention. These allegations may be inserted in the form in ß
140.101[1] in place of Paragraph 4.
For forms of complaint for use in an action for breach of a patent licensing agreement, see Ch. 411,
Page 71 of 479
Patents and Inventions .
Page 72 of 479
21 of 138 DOCUMENTS

PART V. FORMS
[Reserved]
Page 73 of 479
22 of 138 DOCUMENTS

PART V. FORMS
B. Demurrers and Defenses
ß 140.130 Demurrer--Complaint Fails to Specify Whether Contract Was Oral or Written or

Implied by Conduct [Code Civ. Proc. ß 430.10(g)]
[1] FORM Demurrer--Complaint Fails to Specify Whether Contract Was Oral or Written or
COUNTY OF ___________________
)
) NO. _____
) DEMURRER TO COMPLAINT[, NOTICE OF
) HEARING AND SUPPORTING
______________________ [name], ) MEMORANDUM]
Plaintiff, ) Date: ____________________
vs. ) Time: ____________________
______________________[name], ) Location: ____________________
Defendant. ) Judge: ____________________
) Date Action Filed: ____________________
) Trial Date: ____________________
) [Amount demanded ____________________ (ex-
ceeds or does not exceed) $10,000]
[LIMITED CIVIL CASE]
__________________________________________________
Defendant demurs to the complaint on the following ground:
The cause of action is founded on a contract, and defendant cannot ascertain from the complaint
whether the contract is written or oral or implied by conduct.
Page 74 of 479
Dated: ___________________.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
Attorney for Defendant ______________________ [name]
NOTICE IS HEREBY GIVEN that this demurrer has been set for hearing on
____________________ [date], at ____________________ [time], or as soon thereafter as the
matter may be heard, in [____________________ (Department or Division)
____________________ of] this court, located at ____________________[street address],
____________________[city], ____________________ County, California.
The demurrer will be based on this notice of hearing and the supporting memorandum served and
filed with this demurrer and notice of hearing, on the records and files herein, and on such evidence as
may be presented at the hearing of the demurrer.
[2] Use of Form
The demurrer in [1], above, is for use by the defendant to object to a complaint for breach of contract
in superior court on the ground that the complaint fails to specify whether the contract is written or
oral or implied by conduct [Code Civ. Proc. ß 430.10(g)]. Special demurrers are not allowed in
limited civil cases (amount in controversy is $25,000 or less) [see Code Civ. Proc. ßß 91(a), (d), 92
(c); Buss v. J.O. Martin Co. (1966) 241 Cal. App. 2d 123, 133, 50 Cal. Rptr. 206 (demurrer under
Code Civ. Proc. ß 430.10(g) as special demurrer)]. For further discussion and forms of demurrers,
see Ch. 206, Demurrers and Motions for Judgment on the Pleadings .
The defendant is required to serve and file with the demurrer a notice of hearing [Cal. Rules of Ct.,
Rule 3.1320(c),(d)], which may instead be included in the demurrer as shown in the form in [1],
above. A memorandum in support of the demurrer is not required; however, the court may construe
the absence of a supporting memorandum as an admission that the demurrer is not meritorious and
cause for overruling it, and as a waiver of all grounds not supported [see Cal. Rules of Ct., Rules
3.1113(a), 3.1320].
Page 75 of 479
23 of 138 DOCUMENTS

PART V. FORMS
ß 140.131 Demurrer--Promisee for Benefit of Donee Third Party May Not Recover Damages
[1] FORM Demurrer--Promisee for Benefit of Donee Third Party May Not Recover Damages
COUNTY OF ___________________
)
) NO. _____
) DEMURRER TO COMPLAINT [NOTICE OF
______________________ [name], ) HEARING AND SUPPORTING
Plaintiff, ) MEMORANDUM]
vs. ) Date: ____________________
______________________ [name], ) Time: ____________________
Defendant. ) Location: ____________________
) Judge: ____________________
Trial Date: ____________________
__________________________________________________
Plaintiff's complaint fails to state a cause of action in that, the contract having been made for the
benefit of a third party, and the plaintiff having failed to allege that the plaintiff was bound to provide
the promised benefit to the third party, the plaintiff may not recover damages for breach of the contract
because the third-party beneficiary is a donee beneficiary.
Dated: ___________________.
______________________ [firm name, if any]
Page 76 of 479
By: ______________________ [signature]

______________________ [typed name]
___________________ [date], at ___________________ [time], or as soon thereafter as the matter
may be heard, in [___________________ (Department or Division) ___________________ of] the
above-entitled court, located at ___________________ [name of building or street address or both],
in ___________________ [city], ___________________ County, California.
[2] Use of Form
The demurrer in [1], above, is for use when the defendant demurs on the ground that the complaint
fails to state a cause of action in that the plaintiff, as promisee of a contract for the benefit of a donee
third party, may not recover damages for breach of the contract.
The defendant is required to serve and file a notice of hearing with the demurrer [Cal. Rules of Ct.,
Rule 3.1320(c), (d)]. The notice may be included in the demurrer as shown in the form in [1], above.
A memorandum in support of the demurrer is not required; however, the court may construe the
absence of a supporting memorandum as an admission that the demurrer is not meritorious and cause
for overruling it, and as a waiver of all grounds not supported [see Cal. Rules of Ct., Rules 3.1113(a),
3.1320].
[4] Promisee for Donee Third-Party Beneficiary Not Damaged
When a contract is for the benefit of a third party, and the promisee is not bound to provide the
promised benefit to the third party, i.e., the promised performance is a gift, not a legal obligation, the
promisee may not recover damages if the promisor breaches the contract, because the third-party
beneficiary is a donee beneficiary, not a creditor beneficiary [see ß 140.103[4][b], [c]]. However, the
promisee may seek specific performance [ In re Marriage of Smith & Maescher (1993) 21 Cal. App.
4th 100, 106-108, 26 Cal. Rptr. 2d 133] .
Page 77 of 479
24 of 138 DOCUMENTS

PART V. FORMS
ß 140.132 Judicial Council Trial Court Pleading Form--Answer in Action Based on Contract
[Cal. Rules of Ct., Rule 1.45(a), (b); Judicial Council Form PLD-C-010]
[1] FORM Judicial Council Trial Court Pleading Form--Answer in Action Based on Contract
[2] Use of Form
The Judicial Council has approved the answer in [1], above, for use in answering any action based on
contract [see Code Civ. Proc. ß 425.12; Cal. Rules of Ct., Rule 1.45(a), (b); Judicial Council Form
PLD-C-010; see generally Ch. 26, Answers ]. Use of the form is optional [see Code Civ. Proc. ß
425.12].

charge. A noninteractive version in PDF format is also available at www.lexisone.com at no charge.
[3] Making General Denial
If the complaint is not verified or the demand or the value of the property in controversy does not
exceed $1,000, the defendant may make a general denial [Code Civ. Proc. ßß 431.30(d), 431.40(a)].
The Judicial Council has adopted a form for a general denial for this purpose [see Code Civ. Proc. ß
431.40(c); Cal. Rules of Ct., Rule 1.45(a); Judicial Council Form PLD-050]. Use of the general denial
form is mandatory [Cal. Rules of Ct., Rule 1.31(c)]. However, in an action based on contract brought
on a Judicial Council complaint form [see ß 140.100] that is unverified, the defendant may use either
the mandatory general denial form or the form in [1], above, which more specifically applies to a
Page 78 of 479
contract complaint and has been approved by the Judicial Council for optional use [see Cal. Rules of
Ct., Rule 1.35; Judicial Council Form PLD-C-010]. Counsel should review local court practice to
determine whether the court will require the mandatory general denial form.
[4] Filling Out Form
[a] Heading
Counsel should fill in the heading with the name, address, and telephone number of and party
represented by the attorney filing the answer. Counsel should also fill in the name and post office and
street address of the court, the names of the plaintiff and the defendant, and the case number. The
appropriate box should be checked indicating whether counsel is answering a complaint or cross
complaint, and fill in the name of the party who filed the complaint or cross complaint.
Counsel should fill in the blank with the number of pages contained in the pleading, including
attachments and exhibits.
[c] Name of Defendant (Paragraph 2)
The name of the defendant answering the complaint or cross complaint should be inserted in
Paragraph 2.
[d] General Denial (Paragraph 3a)
Counsel should check the box for Paragraph 3a if the defendant generally denies each statement of the
complaint or cross complaint.
The filing of a general denial denies in one sentence all the allegations of the complaint. In the case of
a complaint for breach of contract, a general denial denies that there is a contract, that the plaintiff
performed or had an excuse for nonperformance, that the defendant did not perform, or that the
plaintiff was damaged. A general denial allows the denying party the opportunity to present evidence
to refute the allegations in the complaint [ Walsh v. West County Mission Community College
District (1998) 66 Cal. App. 4th 1532, 1545-1547, 78 Cal. Rptr. 2d 725 (dismissal of defendant's
cross-complaint with prejudice did not preclude defendant from defending against complaint by
introducing evidence tending to refute elements of breach of contract claim that had been generally
denied by defendant)].
[e] Specific Denials (Paragraph 3b)
Counsel should check the box for Paragraph 3b when denying only part of the allegations of the
complaint or cross complaint. Counsel should state the paragraph numbers of the allegations denied or
an explanation of the denials in Paragraph 3b(1). The denials of the allegations controverted may be
stated by reference to specific paragraphs or parts of the complaint. Denials may be stated also by
express admission of certain allegations of the complaint with a general denial of all of the allegations
Page 79 of 479
not admitted [Code Civ. Proc. ß 431.30(f)].
Denials based on lack of information or belief as to the truth of allegations should be stated in
Paragraph 3b(2). Denials may be stated by denying certain allegations on information and belief or for
lack of sufficient information or belief, with a general denial of all allegations not so denied or
expressly admitted [Code Civ. Proc. ß 431.30(f)].
If the space allowed for specific denials in Paragraphs 3b(1) and 3b(2) is not sufficient, counsel may
continue the denials on Attachment 3b(1) and Attachment 3b(2). For additional discussion of denials,
see Ch. 26, Answers .
[f] Affirmative Defenses (Paragraph 4)
Defendant's affirmative defenses must be alleged in Paragraph 4. The answer to a complaint must
contain a statement of any new matter constituting a defense [Code Civ. Proc. ß 431.30(b)(2)]. The
example stated in Paragraph 4 may be used in an answer to an action for damages for breach of
contract when the action was not commenced before expiration of the applicable statute of limitations
[see Code Civ. Proc. ßß 337, 339; see also Filet Menu, Inc. v. Cheng (1999) 71 Cal. App. 4th 1276,
1282-1284, 84 Cal. Rptr. 2d 384 (statute may be tolled by plaintiff's out-of-state travel unrelated to
interstate commerce pursuant to Code Civ. Proc. ß 351)]. The defenses must be separately stated, and
the several defenses must refer to the causes of action they are intended to answer, in a manner by
which they may be intelligibly distinguished [Code Civ. Proc. ß 431.30(g)]. Each separately stated
defense must be separately numbered [Cal. Rules of Ct., Rule 2.112]. Counsel should continue the list
of affirmative defenses on a separate sheet of paper labeled Attachment 4.
For possible affirmative defenses, see ßß 140.133 -140.152. For further discussion of affirmative
defenses, see Ch. 26, Answers .
[g] Other Allegations (Paragraph 5)
Counsel should state any additional allegations in Paragraph 5 of the answer.

[h] Prayer (Paragraph 6)
Counsel should check the box for Paragraph 6b if requesting costs of suit. Counsel may request
additional relief by checking the box marked "other" and specifying the relief sought.
Except as otherwise provided specifically by statute, the measure and mode of compensation of
attorneys is left to the express or implied agreement of the parties [Code Civ. Proc. ß 1021]. In any
action on a contract, when the contract specifically provides that attorney's fees and costs incurred to
enforce the contract will be awarded to one of the parties or to the prevailing party, the party
determined to be the prevailing party, whether or not the party specified in the contract, is entitled to
reasonable attorney's fees in addition to costs and necessary disbursements [Civ. Code ß 1717; see
Scott Co. of California v. Blount, Inc. (1999) 20 Cal. 4th 1103, 1108-1109, 86 Cal. Rptr. 2d 614, 979
Page 80 of 479
P.2d 974 (although attorney fees provision in contract was unilateral, giving only defendant and not
plaintiff right to attorney fees, Civ. Code ß 1717 rendered provision mutual, giving prevailing party
right to attorney fees on any claims based on contract); Sears v. Baccaglio (1998) 60 Cal. App. 4th
1136, 1154-1155, 70 Cal. Rptr. 2d 769] (reviewing legislative history of Civ. Code ß 1717 and
finding that party can fail to recover net monetary judgment and still prevail for purposes of collecting
fees in action founded on contract). A court may deny a contractual claim for attorneys' fees by a
defendant who has been voluntarily dismissed from a suit prior to trial [see Santisas v. Goodin
(1998) 17 Cal. 4th 599, 602, 608, 71 Cal. Rptr. 2d 830 (examining recovery of attorney fees
incurreddefending action when plaintiff has voluntarily dismissed action before trial); see also Silver
v. Boatwright Home Inspection, Inc. (2002) 97 Cal. App. 4th 443, 446, 118 Cal. Rptr. 2d 475
(holding that defendant was not prevailing party when plaintiffs obtained their litigation objective
through settlement with other defendants)]. For further discussion of attorney's fees, see Ch. 174,
Costs and Attorney's Fees, ß 174.50 et seq.
There appear to be two options for requesting attorney's fees. According to Civ. Code ß 1717,
reasonable attorney's fees are fixed by the court, on notice and motion by a party, and the fees are an
element of the costs of suit. Thus, although a request for costs of suit might also serve as a request for
attorney's fees, counsel should check the box marked "other" and specifically request attorney's fees.
Page 81 of 479
25 of 138 DOCUMENTS

PART V. FORMS
ß 140.133 Affirmative Defense--Party Entirely Without Understanding [Civ. Code ß 38]
[1] FORM Affirmative Defense--Party Entirely Without Understanding [Civ. Code ß 38]
AS A [___________________ (specify number, if more than one, e.g., FIRST)] SEPARATE AND
AFFIRMATIVE DEFENSE [add, if more than one cause of action was alleged, TO THE
___________________ (specify number, e.g., SECOND) CAUSE OF ACTION], defendant alleges:
1. On or about ___________________ [date], when plaintiff and defendant entered into the contract,
a copy of which is attached to the complaint as Exhibit _____, defendant was a person entirely
without understanding and was not competent to make a contract of any kind.
2. The contract was not for things furnished to the defendant necessary for his/her support or the
support of his/her family.
[2] Use of Form
The affirmative defense in [1], above, is for use in an answer to a complaint for damages for breach of
contract, by a defendant who was entirely without understanding at the time the contract was made
[see Civ. Code ß 38 (persons entirely without understanding have no power to make contracts); Evid.
Code ß 522 (party claiming any person is insane, including himself or herself, has burden of proof on
that issue)]. For further discussion, see ß 140.21[1].
Page 82 of 479
26 of 138 DOCUMENTS

PART V. FORMS
ß 140.134 Affirmative Defense--Defendant Lacked Capacity to Contract [Civ. Code ß 39;

Prob. Code ß 812]--Contract Entered Into Before Adjudication of Incompetence
[1] FORM Affirmative Defense--Defendant Lacked Capacity to Contract [Civ. Code ß 39; Prob.
Code ß 812]--Contract Entered Into Before Adjudication of Incompetence
1. On or about ___________________ [date], when plaintiff and defendant entered into the contract
attached to the complaint as Exhibit _____, defendant was a person of unsound mind, but not entirely
without understanding. Defendant lacked the capacity to contract, by virtue of the fact that defendant
lacked the ability to understand and appreciate the rights, duties, and responsibilities created or
affected by the contract, the probable consequences for defendant and other persons affected by the
contract, or the significant risks and benefits of, and alternatives to, the contract.
[2. On or about ___________________ (date), when plaintiff and defendant entered into the written
contract attached to the complaint as Exhibit _____, defendant was substantially unable to manage his/
her own financial resources and/or to resist fraud or undue influence.]
3. At the time plaintiff and defendant entered into the contract, defendant's incapacity to contract had
not been judicially determined.
4. On or about ___________________ [date], defendant rescinded the contract by

___________________ [specify means of giving notice to plaintiff, e.g., a letter from defendant to
Page 83 of 479
plaintiff].
5. On or about ___________________ [date], defendant ___________________ [restored to

plaintiff everything of value that he/she received from plaintiff under the contract or offered to restore
everything of value that he/she received from plaintiff, on the condition that plaintiff restore to
defendant everything plaintiff received under the contract].
[2] Use of Form
The affirmative defense in [1], above, is for use in an answer to a complaint seeking damages for
breach of contract, when the defendant allegedly lacked the capacity to contract at the time the parties
entered into the contract. This form admits that the defendant was not entirely without understanding,
but alleges that the defendant was of unsound mind at the time the contract was entered into. A
contract entered into by a person of unsound mind before that person's incapacity has been judicially
determined is not automatically void, but is subject to rescission [Civ. Code ß 39]. In contrast, a
contract made by a person entirely without understanding is void [Civ. Code ß 38]. To allege that the
contract is void because the defendant was entirely without understanding, use the form in ß 140.133
instead of this form. For further discussion, see ß 140.21.
[3] Allegation of Lack of Capacity
Paragraph 1 alleges that the defendant was of unsound mind, but not entirely without understanding.
This basic allegation is derived from the language of Civ. Code ß 39(a). The additional language in
support of that basic allegation is derived from Prob. Code ß 812, which specifies the general criteria
to determine whether a person lacks capacity to make any decision. A person lacks that capacity
unless he or she has the ability to communicate the decision verbally or by other means and to
understand and appreciate, to the extent relevant, all of the following [Prob. Code ß 812]:
The rights, duties, and responsibilities created by or affected by the decision;
The probable consequences for the decision-maker and, when appropriate, the persons
affected by the decision; and
The significant risks, benefits, and reasonable alternatives involved in the decision.
These criteria apply to any determination of a person's capacity to make a decision, except as
otherwise provided by law [Prob. Code ß 812; see Smalley v. Baker (1968) 262 Cal. App. 2d 824,
832, 69 Cal. Rptr. 521 (test of mental competency is whether person understood nature, purpose, and
effect of what he or she did); Walton v. Bank of California (1963) 218 Cal. App. 2d 527, 541, 32
Cal. Rptr. 856 (test of mental capacity is whether person could deal with subject matter of contract
sought to be rescinded with full understanding of his or her rights)].
Page 84 of 479
The optional language in Paragraph 2 may be included to invoke the rebuttable presumption estab-
lished by Civ. Code ß 39(b). Under that section, there is a rebuttable presumption, affecting the burden
of proof, that a person is of unsound mind for purposes of rescission if the person is substantially
unable to manage his or her own financial resources or resist fraud or undue influence [Civ. Code ß
39(b)]. Substantial inability may not be proved solely by isolated incidents of negligence or impru-
dence [Civ. Code ß 39(b)].
[4] Basic Prerequisites to Rescission
To qualify for rescission under Civ. Code ß 39, the contract must have been entered into before
defendant's incapacity was determined. Accordingly, Paragraph 3 of this form alleges that no such
determination had been made at the time the plaintiff and the defendant entered into the contract.
To effect a rescission, the defendant must do both of the following promptly on discovering the facts
that entitle him or her to rescind, if he or she is free from duress, menace, undue influence, or
disability, and is aware of his or her right to rescind [Civ. Code ß 1691]:
Give notice of rescission to the plaintiff; and
Restore to the plaintiff everything of value the defendant received from the plaintiff
under the contract, or offer to restore it on condition that the plaintiff do likewise, unless
the plaintiff is unable or positively refuses to do so.
Paragraphs 4 and 5 allege that these conditions have been satisfied.

For memoranda of points and authorities supporting and opposing a general demurrer to a complaint
and to an answer for cancellation of a void contract or conveyance and for partial summary judgment
in actions in which one party may be mentally incompetent, see California Points and Authorities, Ch.
117, Insane and Incompetent Persons , pt. II (Matthew Bender).
For discussion and forms relating to rescission, see Ch. 490, Rescission and Restitution .
Page 85 of 479
27 of 138 DOCUMENTS

PART V. FORMS
ß 140.135 Affirmative Defense--Incompetence--After Adjudication [Civ. Code ß 40]
[1] FORM Affirmative Defense--Incompetence--After Adjudication [Civ. Code ß 40]
1. On or about ___________________ [date], defendant was adjudicated incompetent by order of the

Superior Court of ___________________ County, California, Case No. ____________________.
2. Defendant has not been restored to capacity since the time of that order, and, at the time of making
the contract, defendant was wholly and absolutely incompetent and unable to comprehend and
understand the nature of the transaction.
[2] Use of Form
The form of affirmative defense in [1], above, is for use in an answer to a complaint for damages for
breach of contract by a person adjudged incompetent before the parties entered into the contract into
[see Civ. Code ß 40 (person judicially determined to be of unsound mind not competent to make
contract); Hellman Commercial T. & S. Bk. v. Alden (1929) 206 Cal. 592, 604-605, 275 P. 794
(contract void if defendant judicially determined to be incompetent before contract entered into and
defendant not restored to capacity before time of contracting); see also Civ. Code ß 38 (person entirely
without understanding without power to contract); Civ. Code ßß 1556, 1557(persons of unsound
mind not capable of contracting)]. For further discussion, see ß 140.21.
Page 86 of 479
28 of 138 DOCUMENTS

PART V. FORMS
ß 140.136 Affirmative Defense--Waiver of Breach
[1] FORM Affirmative Defense--Waiver of Breach
On ___________________ [date], plaintiff had full knowledge that defendant had not
___________________ [specify performance or lack of performance constituting breach], and
plaintiff waived his/her/its right to performance on that date, in that plaintiff elected to treat the contract
as still alive, viable, and binding, and plaintiff accepted further performance of the contract from
defendant in that ___________________ [specify].
[2] Use of Form
breach of contract when the defendant breached the contract, but the plaintiff waived the breach.
[3] Waiver of Breach as Defense
A breach of contract is waived by continued performance on the part of the aggrieved party without a
claim of breach [ A.B.C. Distrib. Co. v. Distillers Distrib. Corp. (1957) 154 Cal. App. 2d 175, 187,
316 P.2d 71 ; see Bowman v. Santa Clara County (1957) 153 Cal. App. 2d 707, 713, 315 P.2d 67
(in case of continuing-obligation contract, waiver of breach up to certain time does not necessarily
preclude promisee from asserting subsequent breach); see also ß 140.57]. Waiver may be shown by
conduct. What conduct constitutes waiver is a question of fact [ Bowman v. Santa Clara County
Page 87 of 479
(1957) 153 Cal. App. 2d 707, 713, 315 P.2d 67] .
The plaintiff may waive the right to hold the defendant liable for breach if the plaintiff failed to give
timely notice of cancellation of the contract and subsequently accepted a late tender of performance,
treating the contract as binding after acquiring full knowledge of the breach [ Leiter v. Eltinge (1966)
246 Cal. App. 2d 306, 317, 54 Cal. Rptr. 703] . For example, acceptance of rent by a landlord after
the tenant's breach of a condition of the lease, with full knowledge of all of the facts, was a waiver of
the breach and precluded the landlord from declaring forfeiture of the lease by reason of the breach
[ Kern Sunset Oil Co. v. Good Roads Oil Co. (1931) 214 Cal. 435, 440, 6 P.2d 71] .
The burden of proving waiver of the right to rescind is on the party asserting and relying on the
waiver [ Mayer v. Northwood Textile Mills (1951) 105 Cal. App. 2d 406, 409, 233 P.2d 657] .
Page 88 of 479
29 of 138 DOCUMENTS

PART V. FORMS
ß 140.137 Affirmative Defense--Impossibility [Civ. Code ßß 1441, 1511(2), 1596]
[1] FORM Affirmative Defense--Impossibility [Civ. Code ßß 1441, 1511(2), 1596]
[EITHER]
The ___________________ [condition or object] of the contract alleged in the complaint was
impossible to ___________________ [fulfill or perform] at the time defendant was to have
___________________ [fulfilled or performed] it in that ___________________ [specify].
[OR]
Defendant's performance of the obligation to ___________________ [specify] was prevented by

___________________ [an irresistible, superhuman cause or the act of public enemies of California
or the act of public enemies of the United States] in that ___________________ [specify].
[2] Use of Form
breach of contract when the defendant's fulfillment of a condition or performance of the object of the
Page 89 of 479
contract was impossible or prevented by a superhuman cause or an act of the public enemy.
[3] Impossibility as Defense
Impossibility of performance is an affirmative defense. The burden of proving it rests on the

defendant [ Oosten v. Hay Haulers Dairy Employees & Helpers Union (1955) 45 Cal. 2d 784, 788,
291 P.2d 17 , cert. denied, 351 U.S. 937 (1956) ; see ß 140.45]. Whether impossibility exists is a
question of law [ Autry v. Republic Productions, Inc. (1947) 30 Cal. 2d 144, 157, 180 P.2d 888] .
An impossible condition in a contract is void [Civ. Code ß 1441]. Performance is excused by the
intervention of an irresistible superhuman cause or an act of public enemies [Civ. Code ß 1511(2); but
see, e.g., Civ. Code ßß 2194, 2195 (liability of inland common carrier of property for loss or injury
caused by act of public enemy or superhuman cause); Com. Code ß 2613 (rights of buyer when
goods suffer casualty without fault of buyer or seller before risk of loss passes to buyer or under "no
arrival, no sale" contract)]. The object of a contract must be possible by the time the contract is to be
performed [Civ. Code ß 1596]. Everything is deemed possible except that which is impossible in the
nature of things [Civ. Code ß 1597]. A contract with a single object that is wholly impossible of
performance is void [Civ. Code ß 1598].
Impracticability because of excessive and unreasonable difficulty or expense may be a defense

[ Christin v. Superior Court (1937) 9 Cal. 2d 526, 533, 71 P.2d 205 ; see ß 140.45].
[4] Act of God and Force Majeure
No party is responsible for that which no party can control [Civ. Code ß 3526]. Acts of God are
within this rule of law, as acts of God are events that occur independently of human agency [ Conlin
v. Coyne (1937) 19 Cal. App. 2d 78, 87, 64 P.2d 1123] . Damage by the elements is equivalent to an
act of God [ Pope v. Farmers' Union etc. Co. (1900) 130 Cal. 139, 141, 62 P. 384] . The words
"irresistible, superhuman cause" are equivalent in meaning to the phrase "act of God," and refer to
natural causes the effects of which cannot be prevented by the exercise of prudence, diligence, and
care [ Ryan v. Rogers (1892) 96 Cal. 349, 353, 31 P. 244] . The jury is required to determine as a
fact whether the injury was caused by an act of God [ Conlin v. Coyne (1937) 19 Cal. App. 2d 78,
87, 64 P.2d 1123 (jury's conclusion, if reasonably supported by evidence, conclusive on appeal)].
"Force majeure" is not limited to the meaning of "act of God." The test of force majeure is whether in
the particular circumstances there was such an insuperable interference, occurring without the bound
party's intervention, as could not have been prevented by the exercise of prudence, diligence, and care
[ Pacific Vegetable Oil Corp. v. C.S.T., Ltd. (1946) 29 Cal. 2d 228, 238, 174 P.2d 441] .
The rule that no one is responsible for damage caused by an act of God does not inure to the benefit of
one who could have avoided the damage by complying with the contract [ Holt Manufacturing Co. v.
Thornton (1902) 136 Cal. 232, 235, 68 P. 708] .
Page 90 of 479
For alternative forms of affirmative defenses based on superhuman causes, see Ch. 10, Act of God .
Page 91 of 479
30 of 138 DOCUMENTS

PART V. FORMS
ß 140.138 Affirmative Defense--Payment of Obligation [Civ. Code ß 1478]
[1] FORM Affirmative Defense--Payment of Obligation [Civ. Code ß 1478]
On or about ___________________ [date], the obligation set forth in the complaint was fully
discharged by defendant's payment to plaintiff of the sum of $____________________, which was
the full amount due and was accepted by plaintiff in full payment of the obligation.
[2] Use of Form
breach of contract when the defendant discharged the obligation sued on by payment [see Civ. Code
ßß 1473, 1478 (full performance of obligation, if accepted by creditor, extinguishes it, and payment is
performance of obligation for delivery of money only); Sousa v. First California Co. (1950) 101
Cal. App. 2d 533, 540, 225 P.2d 955 (performance consists of delivery and acceptance of money of
other thing)].
A denial in the answer should be sufficient to put the fact of payment in issue, since the plaintiff must
allege nonpayment to state a cause of action [ Hawley Bros. etc. Co. v. Brownstone (1899) 123 Cal.
643, 646, 56 P. 468 ; Davanay v. Eggenhoff (1872) 43 Cal. 395, 397] . However, since the
California Supreme Court holds payment to be an affirmative defense that must be pleaded, the safer
practice is to plead payment as an affirmative defense [ Pastene v. Pardini (1902) 135 Cal. 431, 434,
Page 92 of 479
67 P. 681] .
If payment is by uncertified check, the underlying obligation is not discharged until the check is paid
[Com. Code ß 3310(b)(1); Cornwell v. Bank of America (1990) 224 Cal. App. 3d 995, 1000-1001,
274 Cal. Rptr. 322 ; but see Civ. Code ß 1476 (if creditor directs particular manner of performance,
risk of loss from performance as directed is on creditor)].
Page 93 of 479
31 of 138 DOCUMENTS

PART V. FORMS
ß 140.139 Affirmative Defense--Tender of Payment by Deposit and Notice [Civ. Code ß 1500]
[1] FORM Affirmative Defense--Tender of Payment by Deposit and Notice [Civ. Code ß 1500]
1. On or about ___________________ [date], defendant tendered to plaintiff at

___________________, California, $____________________ in full payment of the alleged claim
set forth in the complaint.
2. Plaintiff refused, and continues to refuse, to accept the sum tendered.
3. On that date, defendant deposited to the credit of plaintiff in ___________________ [name of bank
or savings and loan association], a ___________________ [specify type of entity, e.g., federal
savings and loan association] located at ___________________, California, the sum of
$____________________ in accordance with Section 1500 of the Civil Code.
4. On ___________________ [date], defendant notified plaintiff of the deposit, in writing by

___________________ [specify method of delivery of notice, e.g., certified mail, return receipt
requested] addressed to ___________________ [give address to which notice was mailed or at
which it was served]. A copy of the notice is attached as Exhibit _____ and made a part of this
pleading.
[2] Use of Form
Page 94 of 479
breach of a contract to pay money, when the defendant tendered payment to the plaintiff, and,
immediately after the plaintiff's refusal to accept the tender, the defendant deposited the money, in the
plaintiff's name, in a bank or savings and loan association in California, of good repute, and notified
the plaintiff of the deposit. The obligation is extinguished by the tender, deposit, and notice [Civ. Code
ß 1500; e.g., Taliaferro v. Taliaferro (1956) 144 Cal. App. 2d 109, 113, 300 P.2d 726 , cert. denied,
352 U.S. 971 (1957) (deposit of money in bank in accordance with Civ. Code ß 1500 is necessary to
extinguish obligation)].
Tender without deposit accomplishes the discharge of incidents under Civ. Code ß 1504, i.e., stops the
running of interest, but does not discharge the obligation under Civ. Code ß 1500 [ Walker v.
Houston (1932) 215 Cal. 742, 745-746, 12 P.2d 952] .
The money deposited must be unconditionally available to the creditor. An account from which the
creditor could not withdraw without thedebtor's signature was not a tender, especially in view of the
debtor's testimony that she intended her attorney to hold the funds and not make them available to the
creditor [ Gaffney v. Downey Savings & Loan Assn. (1988) 200 Cal. App. 3d 1154, 1167, 246 Cal.
Rptr. 421] .
Page 95 of 479
32 of 138 DOCUMENTS

PART V. FORMS
ß 140.140 Affirmative Defense--Prevention of Performance [Civ. Code ß 1511(1)]
[1] FORM Affirmative Defense--Prevention of Performance [Civ. Code ß 1511(1)]
1. Defendant has performed all of the conditions of the contract on his/her/its part to be performed
except ___________________ [specify condition not performed].
2. Defendant failed to perform the condition of ___________________ [specify condition] because

plaintiff prevented defendant's performance by ___________________ [specify plaintiff's acts
preventing defendant's performance, e.g., barring him/her/it from the premises where defendant was
to do the work required by the terms of the contract].
3. At all times mentioned defendant was and is ready, willing, and able to perform the condition, but
plaintiff has prevented and continues to prevent defendant's performance.
[4. On ___________________ [date], defendant gave notice to plaintiff that ___________________

(specify contents of notice, e.g., defendant intended to claim an extension of time to complete
performance of the contract).]
[2] Use of Form
Page 96 of 479
breach of contract when the plaintiff prevented the defendant's performance. The want of performance
of an obligation, or an offer of performance in whole or in part, or any delay in performance, is
excused when the performance or offer is prevented or delayed by the act of the creditor, or by the
operation of law, even though the parties stipulated that this would not be an excuse [see Taylor v.
Sapritch (1940) 38 Cal. App. 2d 478, 481, 101 P.2d 539] . However, the parties may expressly
require in the contract that the party relying on prevention to excuse the party's performance must give
written notice to the other party of an intention to claim an extension of time or of an intention to bring
suit or of any other similar or related intent, within a reasonable time after the occurrence of the event
excusing performance, provided the notice requirement is reasonable and just [Civ. Code ß 1511(1)]
(Paragraph 4).
If the creditor prevents performance of an obligation, the debtor is entitled to all the benefits the debtor
would have received if both parties had performed the contract [Civ. Code ß 1512]. For example,
when theowner's breach delayed the contractor in the construction of a building, the contractor was
excused from performance within the time specified and was entitled to damages [ Kenworthy v.
State of California (1965) 236 Cal. App. 2d 378, 382, 46 Cal. Rptr. 396] .
Page 97 of 479
33 of 138 DOCUMENTS

PART V. FORMS
ß 140.141 Affirmative Defense--Novation [Civ. Code ß 1530]
[1] FORM Affirmative Defense--Novation [Civ. Code ß 1530]
1. On or about ___________________ [date], plaintiff and defendant made a new contract in writing,
a copy of which is attached as Exhibit _____ and made a part of this pleading.
2. The new contract ___________________ [substituted a new obligation, namely,

___________________ (describe new obligation) between the parties with the intent to extinguish the
obligation created by the original contract sued on or substituted a new debtor,
___________________(name of new debtor), in place of defendant, with the intent to release
defendant or substituted a new creditor, ___________________ (name of new creditor), in place of
plaintiff, with the intent to transfer the rights of plaintiff to the new creditor].
[2] Use of Form
breach of contract when the parties to the contract made a novation.
[3] Methods of Making Novation
A novation is the substitution of a new obligation for an existing one [Civ. Code ß 1530; Alexander
v. Angel (1951) 37 Cal. 2d 856, 860, 236 P.2d 561] . It requires an intent to discharge the old
Page 98 of 479
contract, mutual assent, and consideration [ Howard v. County of Amador (1990) 220 Cal. App. 3d
962, 977-978, 269 Cal. Rptr. 807] . Whether these elements are present is a question of fact
[ Klepper v. Hoover (1971) 21 Cal. App. 3d 460, 463, 98 Cal. Rptr. 482] . A novation is subject to
the general rules governing contracts [Civ. Code ß 1532].
A novation is made by one of the following methods [Civ. Code ß 1531]:
The substitution of a new obligation between the parties, with intent to extinguish the old
obligation [ Howard v. County of Amador (1990) 220 Cal. App. 3d 962, 977-978, 269
Cal. Rptr. 807 ; Hunt v. Smyth (1972) 25 Cal. App. 3d 807, 818 ].
The substitution of a new debtor in place of the old one, with the intent to release the
latter [ Alexander v. Angel (1951) 37 Cal. 2d 856, 860, 236 P.2d 561] . Acceptance of
payments from a new debtor does not amount to a contract to release the original debtor,
however[ University of Redlands v. Ford (1942) 56 Cal. App. 2d 151, 152, 132 P.2d
238] .
The substitution of a new creditor in place of the old one, with intent to transfer the
rights of the latter to the former.
[4] Pleading and Evidence of Novation
The defendant must plead novation expressly or by unequivocal implication [ Alexander v. Angel
(1951) 37 Cal. 2d 856, 860, 236 P.2d 561] . Although a novation may be established by implication,
the implication cannot arise until there is evidence showing facts and circumstances from which the
court may reasonably infer that the parties intended a novation [ Paykar Construction, Inc. v. Spilat
Construction Corp. (2001) 92 Cal. App. 4th 488, 494, 111 Cal. Rptr. 2d 863 (no evidence that
subcontractor who settled with property owners and accepted promissory note in lieu of original debt
also intended to substitute note for general contractor's obligation to subcontractor, particularly in light
of subcontractor's dismissal of first action against defendants without prejudice); Ayoob v. Ayoob
(1946) 74 Cal. App. 2d 236, 254, 168 P.2d 462] . The burden of proving a novation is on the party
asserting it [ Alexander v. Angel (1951) 37 Cal. 2d 856, 860, 236 P.2d 561 ; Davies Mach. Co. v.
Pine Mountain Club, Inc. (1974) 39 Cal. App. 3d 18, 24-25, 113 Cal. Rptr. 784 ; see Howard v.
County of Amador (1990) 220 Cal. App. 3d 962, 977-978, 269 Cal. Rptr. 807 (when novation
asserted by third party rather than party to original contract, third party has heavy burden of proof,
and, absent fraud or collusion, court is warranted in finding in favor of original parties to contract
simply because they are original parties)].
If an oral agreement is substituted for an existing written agreement, the extinguishment of the written
contract may be shown by parol evidence. Civ. Code ß 1698, requiring that a contract in writing be
altered only by a contract in writing or by an executed oral agreement, does not apply in this case
[ Producers Fruit Co. v. Goddard (1925) 75 Cal. App. 737, 756-757, 243 P. 686 (decided before
Page 99 of 479
1976 amendment of Civ. Code ß 1698)].
Page 100 of 479

34 of 138 DOCUMENTS

PART V. FORMS
ß 140.142 Affirmative Defense--Lack of Consideration [Civ. Code ß 1550]--Written Contract
[1] FORM Affirmative Defense--Lack of Consideration [Civ. Code ß 1550]--Written Contract
The contract was executed without any consideration whatsoever [in that ___________________
(state facts showing lack of consideration)].
[2] Use of Form
contract when there was no consideration for the contract [see Civ. Code ß 1550 (consideration as
essential element of contract); see, e.g., O'Byrne v. Santa Monica-UCLA Medical Center (2001) 94
Cal. App. 4th 797, 808-810 (no consideration was given for medical staff bylaws adopted pursuant to
22 Cal. Code Reg. ß 70703; thus bylaws did not in and of themselves constitute contract between
hospital and physician on its medical staff)]. Lack of consideration is an affirmative defense and must
be pleaded [ Williams v. Kinsey (1946) 74 Cal. App. 2d 583, 603, 169 P.2d 487 ; see Civ. Code ß
1615]. The burden of pleading and proving lack of consideration is on the party seeking to avoid the
contract or invalidate it on that ground [Civ. Code ß 1615; Blonder v. Gentile (1957) 149 Cal. App.
2d 869, 874, 309 P.2d 147] .
In addition to alleging that the contract was executed without consideration, it is better practice to plead
facts showing that no consideration existed. Some courts have held that pleading in so many words
Page 101 of 479

that a contract was executed without any consideration whatever states a good defense [ Bank of Italy
v. Wetzel (1927) 82 Cal. App. 240, 244, 255 P. 254 ; see First-Trust Joint Stock Land Bank of
Chicago v. Meredith (1936) 5 Cal. 2d 214, 221, 53 P.2d 958] . However, other courts have held that
pleading execution of the contract without consideration is a conclusion of law and the defendant
should state facts to show that no consideration existed [ Gushee v. Leavitt (1855) 5 Cal. 160, 161 ;
Drovers Nat'l Bank v. Browne (1928) 88 Cal. App. 716, 723, 264 P. 265] .
For further discussion, see ß 140.23.
Page 102 of 479

35 of 138 DOCUMENTS

PART V. FORMS
ß 140.143 Affirmative Defense--Statute of Frauds [Civ. Code ß 1624]
[1] FORM Affirmative Defense--Statute of Frauds [Civ. Code ß 1624]
Plaintiff's alleged cause of action is barred by the provisions of subdivision _____ [number] of Civil
Code Section 1624 in that the contract ___________________ [specify how the contract violates the
statute of frauds, e.g., is an agreement that by its terms is not to be performed within a year], and no
note or memorandum of it is in writing and subscribed by defendant or defendant's agent.
[2] Use of Form
contract when the contract comes within the statute of frauds [see Civ. Code ß 1624 (contracts that
must be written); Com. Code ß 2201 (contract for sale of goods for $500 or more); Fam. Code ß
1611 (contracts for marriage settlements); Prob. Code ß 21700 (contract to make will or not to revoke
will or other instrument); see also Civ. Code ß 1698(c) (statute of frauds must be satisfied if written
contract modified by oral agreement is within its provisions); Civ. Code ß 2794 (when promise to
answer for obligation of another need not be in writing)] and is not evidenced by an appropriate
writing.
[3] Pleading Statute of Frauds
If the face of the complaint shows that the contract was oral and within the statute of frauds, the
Page 103 of 479

defendant may raise the defense by a general demurrer [see Code Civ. Proc. ß 430.10(e)]. Defendant
may use a special demurrer in a superior court action to force the plaintiff to state whether the contract
is written or oral or implied by conduct [Code Civ. Proc. ß 430.10(g); see ß 140.130]. However, a
general denial is sufficient to raise the defense of the statute of frauds [ Howard v. Adams (1940) 16
Cal. 2d 253, 257, 105 P.2d 971] . The defendant may also make a specific denial of the contract
[ Walsh v. Standart (1917) 174 Cal. 807, 810, 164 P. 795] . Although a general or specific denial is
sufficient to raise the defense, the more informative and better practice is to specifically plead the
statute. For a more detailed discussion and forms relating to the statute of frauds, see Ch. 530, Statute
of Frauds .
[4] Defendant's Waiver of Statute
The promisor may waive the protection of the statute of frauds [ Romano v. Wilbur Ellis & Co.
(1947) 82 Cal. App. 2d 670, 674, 186 P.2d 1012] . When the complaint alleges an oral agreement
within the statute of frauds, and the defendant does not demur, plead the statute in the answer, or
assert it during the trial, the defendant waives the defense [ Baggesi v. Baggesi (1950) 100 Cal. App.
2d 828, 835, 224 P.2d 894] . Admitting the contract in the answer does not waive the protection of
the statute of frauds, however, if the defendant specifically pleads the statute [ Jamison v. Hyde
(1903) 141 Cal. 109, 112, 74 P. 695] .
The defense of the statute of frauds may not be raised for the first time on appeal [ Rutland, Edwards
& Co. v. Cooke (1941) 44 Cal. App. 2d 258, 262, 112 P.2d 287] .
Page 104 of 479

36 of 138 DOCUMENTS

PART V. FORMS
ß 140.144 Affirmative Defense--Contract Contrary to Express Provision of Law [Civ. Code ß

1667(1)]
[1] FORM Affirmative Defense--Contract Contrary to Express Provision of Law [Civ. Code ß
1667(1)]
The contract alleged in the complaint is unenforceable because it is contrary to an express provision of
law, namely ___________________ [specify illegality].
[2] Use of Form
contract when the contract is contrary to a particular law [see ß 140.24].
[3] Necessity of Pleading Illegality
Generally, illegality of a contract is an affirmative defense and should be specially pleaded if the
illegality does not appear from the face of the complaint [see Eaton v. Brock (1954) 124 Cal. App. 2d
10, 13, 268 P.2d 58 ; see Yoo v. Robi (2005) 126 Cal. App. 4th 1089, 1103, 24 Cal. Rptr. 3d 740
(defense of illegality based on public policy [violation of Talent Agencies Act] not raised as affirma-
tive defense was not waived when issue was raised in petition to Labor Commissioner, whose
decision was appealed in contract action)]. Nevertheless, illegality is a defense if the illegality appears
on the face of the contract or the evidence proving the contract discloses the illegality [ Cain v. Burns
Page 105 of 479

(1955) 131 Cal. App. 2d 439, 442, 280 P.2d 888 ; see Fomco, Inc. v. Joe Maggio, Inc. (1961) 55
Cal. 2d 162, 166, 10 Cal. Rptr. 462, 358 P.2d 918 (finding no cases permitting trial court to grant
motion for new trial on ground of newly discovered evidence of illegality when no evidence
introduced at trial establishing illegality and moving party made no showing of exercise of diligence
required by Code Civ. Proc. ß 657(4))].
The defense of illegality may be raised for the first time on appeal when the evidence at trial discloses
the illegality [see Lewis & Queen v. N.M. Ball Sons (1957) 48 Cal. 2d 141, 147-148, 308 P.2d 713 ;
La Fortune v. Ebie (1972) 26 Cal. App. 3d 72, 75, 102 Cal. Rptr. 588 ; contra Prudential Ins. Co. v.
Fromberg (1966) 240 Cal. App. 2d 185, 190, 49 Cal. Rptr. 475] .
[4] Illegality Is Unavoidable Issue
A party to an illegal contract cannot ratify it, be estopped from relying on the illegality, or waive the
right to assert the defense [ City Lincoln--Mercury Co. v. Lindsey (1959) 52 Cal. 2d 267, 274 ]. The
court may raise the issue of illegality on its own motion when the evidence shows illegality, even if
the parties did not raise issue at trial [ Bovard v. American Horse Enterprises, Inc. (1988) 201 Cal.
App. 3d 832, 838, 247 Cal. Rptr. 340] .
[5] Contracts Held to Be Illegal
A lawful object is an essential element of a contract [Civ. Code ß 1550]. A contract is unlawful if it is
contrary to an express provision of law [Civ. Code ß 1667(1); see Civ. Code ß 1689(b)(5) (rescission
of unlawful contract)]. The law may be a federal law or a state law [ Hainey v. Narigon (1966) 247
Cal. App. 2d 528, 531, 55 Cal. Rptr. 638] . Examples of contracts held to be illegal include:
An agreement for the establishment of a plant in Iran to manufacture computer products

to be sold in Iran was held unenforceable as illegal and against public policy in that it
violated U.S. presidential executive orders and implementing regulations prohibiting U.S.
persons from engaging in transactions relating to the supply of technology to Iran
[ Kashani v. Tsann Kuen China Enterprise, Ltd. (2004) 118 Cal. App. 4th 531, 537, 13
Cal. Rptr. 3d 174] .
A contract by a hospital to compensate the director of mental health services based on a

percentage of gross revenues for room and board charges of all psychiatric patients in
violation of Bus. & Prof. Code ß 650 was void [ Beck v. American Health Group
Internat., Inc. (1989) 211 Cal. App. 3d 1555, 1564-1565, 260 Cal. Rptr. 237 (sustaining
demurrer without leave to amend)].
An agreement employing a person to act as a real estate broker who was not licensed
was void [ Fellom v. Adams (1969) 274 Cal. App. 2d 855, 862, 79 Cal. Rptr. 633] .
Page 106 of 479

For discussion and forms relating to the unenforceability of wagers and contracts based on illegal
gambling activities, see Ch. 272, Gambling .
Page 107 of 479

37 of 138 DOCUMENTS

PART V. FORMS
ß 140.145 Affirmative Defense--Contract Contrary to Public Policy or Good Morals [Civ. Code
ß 1667(2), (3)]
[1] FORM Affirmative Defense--Contract Contrary to Public Policy or Good Morals [Civ. Code
ß 1667(2), (3)]
The contract alleged in the complaint is unenforceable. It is contrary to ___________________ [the

policy of express law or good morals] in that ___________________ [specify facts].
[2] Use of Form
contract when the contract is contrary to public policy or good morals [see ß 140.24].
[3] Contravention of Public Policy or Good Morals
contrary to the policy of express law, even though not expressly prohibited, or otherwise contrary to
good morals [Civ. Code ß 1667(2), (3); see Civ. Code ß 1669 (contract in restraint of marriage); see
also Civ. Code ß 1689(b)(5) (rescission of unlawful contract); Diosdado v. Diosdado (2002) 97
Cal. App. 4th 470, 474, 118 Cal. Rptr. 2d 494 (contract between husband and wife providing for
liquidated damages for infidelity held contrary to public policy underlying no-fault provisions for
dissolution of marriage)]. For example, Cal. Rules Prof. Conduct, Rule 2-200, which prohibits fee
Page 108 of 479

sharing between attorneys who are not partners without written client consent, was approved to
protect the public and promote respect and confidence in the legal profession, and fee-splitting
agreements made in the absence of compliance with that rule therefore are unenforceable [see
Chambers v. Kay (2002) 29 Cal. 4th 142, 162-163, 126 Cal. Rptr. 2d 536, 56 P. 3d 645 ; Margolin
v. Shemaria (2000) 85 Cal. App. 4th 891, 903, 102 Cal. Rptr. 2d 502 (attorney who made case
referral to another attorney had no viable contract for sharing of fees; policy considerations that caused
enactment of Cal. Rules Prof. Conduct, Rule 2-200, which prohibits attorney fee-sharing unless
specified conditions are met, also require that non-complying fee sharing agreement not be enforced
by court of law); but see Huskinson & Brown, LLP v. Wolf (2004) 32 Cal. 4th 453, 464, 9 Cal.
Rptr. 3d 693, 84 P.3d 379 (law firm that was barred from recovering under fee-sharing agreement
with another firm, due to the absence of written client consent to the agreement required by Cal. Rules
Prof. Conduct, Rule 2-200, held entitled to recover from other firm in quantum meruit for reasonable
value of services it rendered on client's behalf)]. The law may be a federal law or a state law [ Hainey
v. Narigon (1966) 247 Cal. App. 2d 528, 531, 55 Cal. Rptr. 638] .
The court determines whether a contract violates public policy on the basis of the law as it existed at
the time the parties made the contract [ Bovard v. American Horse Enterprises, Inc. (1988) 201 Cal.
App. 3d 832, 840 n.3, 247 Cal. Rptr. 340 ; Moran v. Harris (1982) 131 Cal. App. 3d 913, 918, 182
Cal. Rptr. 519] .
[4] Exculpatory Clause as Against Public Policy
All contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for
his or her own fraud, or willful injury to the person or property of another, or violation of law,
whether willful or negligent, are against the policy of the law [Civ. Code ß 1668; see, e.g., Neubauer
v. Goldfarb (2003) 108 Cal. App. 4th 47, 54-57, 133 Cal. Rptr. 2d 218 (waiver of corporate directors'
and majority shareholders' fiduciary duties to minority shareholder in private close corporation is
against public policy and contract provision in buy-sell agreement purporting to effect such a waiver is
void)]. The California Supreme Court in Tunkl v. Regents of University of California interpreted Civ.
Code ß 1668 to invalidate exculpatory clauses in certain types of agreements as contrary to public
policy [ Tunkl v. Regents of University of California (1963) 60 Cal. 2d 92, 98-101, 32 Cal. Rptr.
33, 383 P.2d 441 (exculpatory clause in hospital admission form); see, e.g., Henrioulle v. Marin
Ventures, Inc. (1978) 20 Cal. 3d 512, 518-519, 143 Cal. Rptr. 247, 573 P.2d 465 (exculpatory clause
in residential lease)]. The Court in Tunkl delineated six criteria for identifying the type of agreement in
which an exculpatory clause is invalid as contrary to public policy [see generally Ch. 380, Negligence,
ß 380.170 et seq.; see also Burnett v. Chimney Sweep (2004) 123 Cal. App. 4th 1057, 1065-1066,
20 Cal. Rptr. 3d 562 (commercial lease involved none of the six characteristics present in Tunkl);
Health Net of Cal., Inc. v. Dep't of Health Servs. (2003) 113 Cal. App. 4th 224, 226-227, 234-236
(contractual clause prohibiting any recovery of damages--but not equitable relief--for any violation of
statutory or regulatory law not made part of the parties' contractual obligations held invalid under Civ.
Code 1668; contract involved public interest under Tunkl); Gavin W. v. YMCA of Metropolitan Los
Angeles (2003) 106 Cal. App. 4th 662, 671-674 (agreement exculpating child care provider from its
own negligence is void as against public policy; contract involved public interest under six factors
Page 109 of 479

enumerated in Tunkl)].
The plain language of Civ. Code ß 1668 shows that its provisions apply to "[a]ll contracts" the object
of which is, directly or indirectly, to exempt "anyone" from responsibility for his or her "own fraud,
or willful injury to the person or property of another, or violation of law"; therefore, no exculpatory
provision in any contract can be invoked by anyone who claims to have the benefit of the provision
(whether or not the person is a party to the contract), in order to avoid the legal consequences of the
person's own fraud, willful injury of another, or violation oflaw [ Manderville v. PCG&S Group,
Inc. (2007) 146 Cal. App. 4th 1486, 1501-1502, 55 Cal. Rptr. 3d 59 (defendant real estate broker
could not invoke any exculpatory provisions of standard-form CAR contract of sale between plaintiff
and broker's client, to avoid liability for broker's intentional misrepresentation to plaintiff)].
The criteria established for determining whether an exculpatory clause is unenforceable on the ground
of contravening public policy are not applicable to a commercial transaction between large, sophisticat-
ed companies [ Appalachian Ins. Co. v. McDonnell Douglas Corp. (1989) 214 Cal. App. 3d 1,
27-32, 262 Cal. Rptr. 716 ; see CAZA Drilling (California), Inc. v. TEG Oil & Gas U.S.A., Inc.
(2006) 142 Cal. App. 4th 453, 475, 48 Cal. Rptr. 3d 271 (if only question is which of two equal
bargainers should bear risk of economic loss in event of particular mishap, there is no reason for
courts to intervene and remake parties' agreement in light of Civ. Code ß 1668); Burnett v. Chimney
Sweep (2004) 123 Cal. App. 4th 1057, 1065-1066, 20 Cal. Rptr. 3d 562 (commercial lease is matter
of private contract with which general public is not concerned)]. Nevertheless, exculpatory clauses in
commercial contracts may be void under Civ. Code ß 1668 [see, e.g., Blankenheim v. E.F. Hutton &
Co. (1990) 217 Cal. App. 3d 1463, 1472-1473, 266 Cal. Rptr. 593 (hold harmless agreement signed
by investors void in action by investors against stockbroker for negligent misrepresentation)].
Exculpatory clauses have withstood challenges in various cases; for example:
A hybrid contractual waiver in an employment agreement that preserved an employee's

claims against his corporate employer but waived his right to sue the corporation's
officers, directors, and shareholders for damages arising out of the employment agree-
ment was not unenforceable for illegality under Civ. Code ß 1668, primarily because the
contractual provision was the result of a private, voluntary transaction in which the
employee retained the right to seek redress from the corporation [ Farnham v. Superior
Court (1997) 60 Cal. App. 4th 69, 77-78, 70 Cal. Rptr. 2d 85] .
A conspicuous and reasonable exculpatory clause in a ski equipment rental agreement

was not unenforceable for illegality under Civ. Code ß 1668 merely because of the
recreational-sports context, since recreational sports do not constitute a public interest
[ Westlye v. Look Sports (1993) 17 Cal. App. 4th 1715, 1731-1733, 22 Cal. Rptr. 2d
781 ; accord YMCA of Metropolitan Los Angeles v. Superior Court (1997) 55 Cal.
App. 4th 22, 26-29, 63 Cal. Rptr. 2d 612 (release in agreement for participation in
Page 110 of 479

YMCA-sponsored programs for senior citizens); see also Benedek v. PLC Santa
Monica, LLC (2002) 104 Cal. App. 4th 1351, 1358-1359, 129 Cal. Rptr. 2d 197
(express language of unambiguous release of health club from all premises liability
applied to personal injuries unrelated to exercise suffered by member; release of premises
liability in consideration of permission to enter recreational facilities does not violate
public policy)]. However, an agreement made in the context of sports or recreational
programs or services, purporting to release anyone from liability for future gross
negligence, generally is unenforceable as a matter of public policy [ City of Santa
Barbara v. Superior Court (Janeway) (2007) 41 Cal. 4th 747, 776-777, 62 Cal. Rptr. 3d
527, 161 P.3d 1095] .
An indemnity and hold harmless agreement was not unenforceable when only one of the
criteria set forth in Tunkl v. Regents of University of California (1963) 60 Cal. 2d 92,
98-101, 32 Cal. Rptr. 33, 383 P. 2d 441 , for determining whether exculpatory clause is
unenforceable on grounds of public interest applied [ Rooz v. Kimmel (1997) 55 Cal.
App. 4th 573, 588-590, 64 Cal. Rptr. 2d 177 ; see Queen Villas Homeowners Ass'n v.
TCB Property Mgmt. (2007) 149 Cal. App. 4th 1, 6, 56 Cal. Rptr. 3d 528 (" Rooz,
however, merely illustrates an extreme end of the rule of strict construction: If parties go
out of their way and say 'we really, really mean it,' language clearly contemplating
exculpation may be enforced.")].
An exculpatory clause limiting a telephone directory company's liability for negligent

failure to publish an advertisement was not unenforceable for illegality under Civ. Code ß
1668, primarily because the standard form contract contained an offer to negotiate a
different limitation and the plaintiff did not seek to do that [ McCarn v. Pacific Bell
Directory (1992) 3 Cal. App. 4th 173, 178-183, 4 Cal. Rptr. 2d 109] .
A release regarding injuries sustained while participating in a hypnotism show spon-

sored by a student-parent-teacher association was not invalid on public policy grounds
because the activity did not constitute providing essential goods or services but was only
recreational [ Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal. App. 3d 1559,
1563-1564, 274 Cal. Rptr. 647] .
Page 111 of 479

38 of 138 DOCUMENTS

PART V. FORMS
ß 140.146 Affirmative Defense--Unconscionability [Civ. Code ß 1670.5]
[1] FORM Affirmative Defense--Unconscionability [Civ. Code ß 1670.5]
[Paragraph ____________________ of] [T]he contract alleged in the complaint is unenforceable [or
construction and application of (that provision of) the contract should be limited to avoid an uncon-
scionable result] because it was unconscionable at the time the contract was made, in that
___________________ [specify facts].
[2] Use of Form
This affirmative defense is for use in an answer to a complaint for damages for breach of contract
when the contract or a clause of the contract was unconscionable at the time it was made [see ß
140.25].
[3] Pleading and Proving Unconscionability
The statutory basis for the defense of unconscionability is Civ. Code ß 1670.5, which does not define
unconscionability but authorizes a court to refuse to enforce an unconscionable contract or clause [Civ.
Code ß 1670.5(a); see, e.g., Flores v. Transamerica Homefirst, Inc. (2001) 93 Cal. App. 4th 846,
857-858, 113 Cal. Rptr. 2d 376 (court refused to sever unconscionable arbitration provisions in
reverse mortgage agreement); Bolter v. Superior Court (2001) 87 Cal. App. 4th 900, 910-911, 104
Cal. Rptr. 2d 888 (unconscionable place and manner clauses in arbitration agreement regarding forum
Page 112 of 479

selection, consolidation restrictions, and damages limitations found clearly severable from remainder
of agreement)]. The defendant may present evidence regarding the commercial setting, purpose, and
effect of the contract to aid the court in determining whether the contract or a clause is unconscionable
[Civ. Code ß 1670.5(b)].
The party relying on unconscionability has the burden of proof [e.g., Trend Homes, Inc. v. Superior
Court (2005) 131 Cal. App. 4th 950, 957-964, 32 Cal. Rptr. 3d 411 (purchasers of home failed to
present evidence sufficient to support their assertion that provision for judicial reference as exclusive
remedy under purchase contract was unconscionable), disapproved on other grounds, Tarrant Bell
Property, LLC v. Superior Court (Abaya) (2011) 51 Cal. 4th 538, 545, 121 Cal. Rptr. 3d 538, 247 P.
3d 542] .
A party cannot state a claim for damages or injunctive relief under Civ. Code ß 1670.5 based on the
unconscionability of contract terms. However, if a contract is unconscionable, the court may award
damages or injunctive relief under Bus. & Prof. Code ß 17203 on the ground that imposing the
offending terms constituted an unfair business practice [ Shadoan v. World Savings & Loan Assn.
(1990) 219 Cal. App. 3d 97, 101, 268 Cal. Rptr. 207] .
When a complaint challenged a prepayment penalty as unconscionable and an unfair business practice,
pleading lack of alternative financing without the offending term and the plaintiff's relative lack of
bargaining power was a conclusion and without facts, and the trial court properly sustained a
demurrer. Further, the prepayment penalty was not oppressive or unreasonably favorable to the
defendant [ Shadoan v. World Savings & Loan Assn. (1990) 219 Cal. App. 3d 97, 103-106, 268
Cal. Rptr. 207] .
[4] Determination of Unconscionability
[a] Procedural and Substantive Aspects
Determining unconscionability encompasses procedural and substantive aspects. "The procedural

element focuses on two factors: oppression and surprise. Oppression arises from an inequality of
bargaining power which results in no real negotiation and an absence of meaningful choice. ...
Surprise involves the extent to which the terms of the bargain are hidden in a 'prolix printed form'
drafted by a party in a superior bargaining position" [ Crippen v. Central Valley RV Outlet, Inc.
(2004) 124 Cal. App. 4th 1159, 1165, 22 Cal. Rptr. 3d 189 , quoting Olsen v. Breeze, Inc. (1996) 48
Cal. App. 4th 608, 621, 55 Cal. Rptr. 2d 818] . There is no general rule that a form contract is
procedurally unconscionable [see ß 140.146[4][b]]. Rather, procedural unconscionability arises from
the manner in which the contract is presented to the party in the weaker position [ Crippen v. Central
Valley RV Outlet, Inc. (2004) 124 Cal. App. 4th 1159, 1165, 22 Cal. Rptr. 3d 189] . No extrinsic
evidence of procedural unconscionability is required when a great disparity of power can be inferred
from the parties' relationship or from the contract itself [ Crippen v. Central Valley RV Outlet, Inc.
(2004) 124 Cal. App. 4th 1159, 1165, 22 Cal. Rptr. 3d 189 (unconscionability could not be inferred
from the relationship between a consumer and a motor home dealer)].
Page 113 of 479

Substantive unconscionability is evaluated as of the time the contract was made and consists of an
allocation of risks in an objectively unreasonable manner [ Armendariz v. Foundation Health
Psychcare Services, Inc. (2000) 24 Cal. 4th 83, 113-114, 99 Cal. Rptr. 2d 745, 6 P.3d 669 (reversing
order compelling arbitration in wrongful termination action brought under FEHA); Szetela v.
Discover Bank (2002) 97 Cal. App. 4th 1094, 1099-1100 (citing Armendariz and finding class
arbitration waiver provision in consumer credit card agreement to be both procedurally and substan-
tively unconscionable); Villa Milano Homeowners Association v. IL Davorge (2000) 84 Cal. App.
4th 819, 835-836, 102 Cal. Rptr. 2d 1 (arbitration clause contained in CC&Rs was unconscionable
adhesion contract and unenforceable to extent it applied to construction and design defect claims
against developer who drafted, signed, and recorded CC&Rs); Nunes Turfgrass, Inc. v. Vaughan-
Jacklin Seed Co. (1988) 200 Cal. App. 3d 1518, 1535 ; Kurashige v. Indian Dunes, Inc. (1988) 200
Cal. App. 3d 606, 613-614, 246 Cal.Rptr. 310 ; see ß 140.25[2]]. A compelling showing of
substantive unconscionability supersedes a weaker showing of procedural unconscionability
[ Carboni v. Arrospide (1991) 2 Cal. App. 4th 76, 86, 2 Cal. Rptr. 2d 845 ; West v. Henderson
(1991) 227 Cal. App. 3d 1578, 1588, 278 Cal. Rptr. 570] .
The courts have recognized that there is a sliding scale or a balancing relationship between the two
elements of unconscionability. The greater the degree of unfair surprise or unequal bargaining power,
the less the degree of substantive unconscionability required to annul the contract, and vice versa
[ Discover Bank v. Superior Court (2005) 36 Cal. 4th 148, 160-161, 30 Cal. Rptr. 3d 76, 113 P.3d
1100 (finding class arbitration waiver provision in consumer credit card agreement to be both
procedurally and substantively unconscionable); Crippen v. Central Valley RV Outlet, Inc. (2004)
124 Cal. App. 4th 1159, 1165, 22 Cal. Rptr. 3d 189 ; Harper v. Ultimo (2003) 113 Cal. App. 4th
1402, 1406, 7 Cal. Rptr. 3d 418 (finding arbitration provision in construction contract to be both
procedurally and substantively unconscionable); Woodside Homes v. Superior Court (2003) 107
Cal. App. 4th 723, 730, 736, 132 Cal. Rptr. 2d 35 (low level of procedural unconscionability required
high level of substantive unconscionability; agreements for judicial reference held enforceable);
Mercuro v. Superior Court (2002) 96 Cal. App. 4th 167, 174-175 (given employer's highly
oppressive conduct in securing employee's consent to arbitration agreement, employee needed to make
only minimal showing of substantive unconscionability); Marin Storage & Trucking, Inc. v. Benco
Contracting and Engineering, Inc. (2001) 89 Cal. App. 4th 1042, 1056, 107 Cal. Rptr. 2d 645 (in
light of low level of procedural unfairness in adhesion contract containing indemnity clause, greater
degree of substantive unfairness than that shown was required before contract could be found
substantively unconscionable)].
[b] Standardized Form of Contract
A standardized form does not automatically render a contract unconscionable [ Crippen v. Central
Valley RV Outlet, Inc. (2004) 124 Cal. App. 4th 1159, 1165, 22 Cal. Rptr. 3d 189 (no general rule of
unconscionability exists regarding form contracts); Marin Storage & Trucking, Inc. v. Benco
Contracting and Engineering, Inc. (2001) 89 Cal. App. 4th 1042, 1052, 107 Cal. Rptr. 2d 645
(although standardized contract could be considered contract of adhesion, that finding merely begins
Page 114 of 479

inquiry of whether particular provision within contract should be denied enforcement because it
defeats expectations of weaker party or is unduly oppressive or unconscionable); Coon v. Nicola
(1993) 17 Cal. App. 4th 1225, 1235, 21 Cal. Rptr. 2d 846] . A standardized form does not establish
the adhesive character of the contract. The court must consider the relative bargaining powers of the
parties and the availability of contract benefits from other sources [see ß 140.25[2][c]]. Conversely,
the fact that certain terms of a standardized contract vary among inferior parties does not itself
demonstrate that an objectionable provision was actively negotiated or eliminate the possibility that the
provision is unconscionable [ Ellis v. McKinnon Broadcasting Co. (1993) 18 Cal. App. 4th 1796,
1805, 23 Cal. Rptr. 2d 80] .
Even if the contract is adhesive, an arbitration clause is enforceable if it is not in conflict with the
reasonable expectations of the weaker party or unduly oppressive or unconscionable [ Izzi v.
Mesquite Country Club (1986) 186 Cal. App. 3d 1309, 1317-1318, 231 Cal. Rptr. 315] . If a contract
is adhesive, the court applies a sliding scale. There must be some showing of substantive uncon-
scionability [ Soltani v. Western & Southern Life Insurance Co. (9th Cir. 2001) 258 F.3d 1038,
1042-1045 (holding that employment contract provision shortening limitations period for wrongful
termination action to six months was not unconscionable)].
A finding that a contract is one of adhesion is essentially a finding of procedural unconscionability.

Substantive unconscionability focuses on the one-sidedness of the contract terms. In the context of an
arbitration agreement, the agreement is unconscionable unless there is a "modicum of bilaterality" in
the arbitration remedy [ Flores v. Transamerica Homefirst, Inc. (2001) 93 Cal. App. 4th 846,
853-855, 113 Cal. Rptr. 2d 376 (citing Armendariz; finding arbitration provisions procedurally and
substantive unconscionable); Armendariz v. Foundation Health Psychcare Servs. (2000) 24 Cal. 4th
83, 117, 6 P.3d 669] .
Another kind of substantively unconscionable provision in the context of an arbitration agreement

occurs when the party imposing arbitration mandates a post-arbitration proceeding, either judicial or
arbitral, wholly or largely to its benefit at the expense of the party on which the arbitration is imposed
[ Little v. Auto Stiegler (2003) 29 Cal. 4th 1064, 1072-1074, 1076, 130 Cal. Rptr. 2d 892, 63 P.3d
979 (finding provision in mandatory employment arbitration agreement that permitted either party to
appeal arbitration award of more than $50,000 to second arbitrator to be unconscionable, but
concluding that provision could be severed and rest of agreement enforced)].
[c] Parties' Relative Positions
The fact that a manufacturer is better able than a buyer to detect defects in a product was not relevant
in evaluating a claim of unconscionability of warranty disclaimer and hold harmless clauses, when the
manufactured item was not mass-produced but was the product of specialized high technology, it was
a high risk product, and the contract was not preprinted but was negotiated by the parties [ Ap-
palachian Ins. Co. v. McDonnell Douglas Corp. (1989) 214 Cal. App. 3d 1, 25-26, 262 Cal. Rptr.
716] .
Page 115 of 479

A buyer that drafted one of two exculpatory clauses in a contract and dealt with similar provisions in
previous contracts between the parties could not claim surprise at the scope of provisions claimed to
be unconscionable [ AppalachianIns. Co. v. McDonnell Douglas Corp. (1989) 214 Cal. App. 3d 1,
24-25, 262 Cal. Rptr. 716] .
Between large, sophisticated companies, no procedural element of unconscionability was established

by an allegation of total monopoly in the manufacture of upper-stage rockets used to launch communi-
cations satellites, when a third company, with which the buyer originally contracted, provided an
alternative launch capability [ Appalachian Ins. Co. v. McDonnell Douglas Corp. (1989) 214 Cal.
App. 3d 1, 23, 262 Cal. Rptr. 716] . Similarly, there is nothing inherent in the relationship between a
motor home buyer and motor home dealership from which to infer a great disparity of bargaining
power [ Crippen v. Central Valley RV Outlet, Inc. (2004) 124 Cal. App. 4th 1159, 1166, 22 Cal.
Rptr. 3d 189 (noting buyer's freedom not to make elective purchase)].
With regard to employment agreements, arbitration provisions that limited employee remedies,
contained oppressive cost provisions, and inherently favored the employer without reasonable
justification, were found in Armendariz v. Foundation Health Psychcare Services, Inc. to be so one-
sided as to be unconscionable and unenforceable [ Armendariz v. Foundation Health Psychcare
Services, Inc. (2000) 24 Cal. 4th 83, 124-125, 99 Cal. Rptr. 2d 745, 6 P.3d 669 (reversing order
compelling arbitration in wrongful termination action brought under FEHA); Pinedo v. Premium
Tobacco Stores, Inc. (2000) 85 Cal. App. 4th 774, 780-781 (affirming order denying arbitration in
action brought under FEHA); see Blake v. Ecker (2001) 93 Cal. App. 4th 728, 740-743, 113 Cal.
Rptr. 2d 422 (citing principles set forth in Armendariz and remanding case to trial court to determine
whether Armendariz applied to make parties' arbitration agreement unenforceable); see also ß 140.25
[2][b]]. This same reasoning was used by a federal court in determining that an employment contract
provision requiring 10 days written notice to the employer as a prerequisite to filing suit was
unenforceable. The court found that, as in Armendariz, the effect of the provision was to maximize
employer advantage without reasonable justification for that arrangement. The failure to comply with
the provision deprived an employee of a judicial forum and its concomitant rights [ Soltani v. Western
& Southern Life Insurance Co. (9th Cir. 2001) 258 F.3d 1038, 1045-1047] . In a case involving a
mandatory preemployment arbitration agreement in which a provision permitting either party to appeal
an arbitration award of more than $50,000 to a second arbitrator was found unconscionable under
Armendariz, the court concluded that the offending provision could be severed. Unlike the agreement
in Armendariz, this contract involved only a single provision that was unconscionable, and no
contract reformation was required [ Little v. Auto Stiegler (2003) 29 Cal. 4th 1064, 1072-1074,
1076, 130 Cal. Rptr. 2d 892, 63 P.3d 979] .
In the context of real property developments, an arbitration clause contained in covenants, conditions,
and restrictions (CC&Rs) was held to be an unconscionable adhesion contract that was unenforceable
to the extent it applied to construction and design defect claims against the developer who drafted,
signed, and recorded the CC&Rs [ Villa Milano Homeowners Association v. Il Davorge (2000) 84
Cal. App. 4th 819, 835-836, 102 Cal. Rptr. 2d 1] . Similarly, real estate purchase agreements
Page 116 of 479

containing a provision requiring all disputes to be submitted to judicial reference were held to be
adhesive contracts fatally infected with procedural and substantive unconscionability [ Pardee
Construction Company v. Superior Court (2002) 100 Cal. App. 4th 1081, 1086-1087, 123 Cal. Rptr.
2d 288 (trial court properly denied home builder's motion for appointment of judicial referee; contract
provision presented each entry-level home buyer with "take it or leave it" proposition)].
In the context of consumer credit card agreements, an arbitration clause that prohibited class treatment
of small individual claims was held to be unconscionable and unenforceable [ Discover Bank v.
Superior Court (2005) 36 Cal. 4th 148, 162-163, 30 Cal. Rptr. 3d 76, 113 P.3d 1100 ; Szetela v.
Discover Bank (2002) 97 Cal. App. 4th 1094, 1099-1102, 118 Cal. Rptr. 2d 862] .
In the case of a satellite TV customer agreement, a provision in an arbitration clause prohibiting class
or representative claims in arbitration was unconscionable and unenforceable, based on application of
the Discover Bank principles. Because the customer agreement expressly prohibited the severance of
that provision from the remainder of the arbitration clause, the entire arbitration clause was unenforce-
able [ Cohen v. DIRECTV, Inc. (2006) 142 Cal. App. 4th 1442, 1447, 1451-1453, 48 Cal. Rptr. 3d
813 (summaries of other cases)].
[d] Liquidated Damages Provision
The reasonableness standard set forth in Civ. Code ß 1671(b), concerning liquidated damages,
provides for more judicial scrutiny than is allowed under unconscionability standards [see, e.g.,
Ridgley v. Topa Thrift and Loan Assn. (1998) 17 Cal. 4th 970, 979-981, 73 Cal. Rptr. 2d 378, 953 P.
2d 484 (Cal. Supreme Court evaluated clause in promissory note which was both prepayment charge
and late payment penalty); see also Ch. 177, Damages ]. An unreasonable risk allocation could
invalidate a liquidated damages clause without the clause's being unconscionable, but a liquidated
damages clause that is reasonable under Civ. Code ß 1671(b) cannot be unconscionable [ H.S. Perlin
Co. v. Morse Signal Devices (1989) 209 Cal. App. 3d 1289, 1301-1302, 258 Cal. Rptr. 1] .
[e] Conscionability of Price
Factors relevant to determining whether a price is unconscionable include all of the following
[ Perdue v. Crocker National Bank (1985) 38 Cal. 3d 913, 926-929, 216 Cal. Rptr. 345, 702 P.2d
503 , appeal dismissed, 475 U.S. 1001 (1986) ; see Civ. Code ß 1670.5]:
The basis and justification for the charged amount.
The price paid by other similarly situated consumers in similar transactions.
The inconvenience imposed on the seller.
The true value of the goods or services.
Page 117 of 479

The absence of a meaningful choice for the buyer.
Whether deceptive practices are involved.
A price set by a freely competitive market is unlikely to be unconscionable, but a market price set by
oligopoly is subject to scrutiny [ Perdue v. Crocker National Bank (1985) 38 Cal. 3d 913, 927, 216
Cal. Rptr. 345, 702 P.2d 503 .
[5] Provisions Held Unconscionable
[a] Arbitration Clauses
The following are examples of arbitration clauses that have been held to be unconscionable [see
generally Ch. 32, Contractual Arbitration: Agreements and Compelling Arbitration ]:
An arbitration clause in a contract for a television show was procedurally and substan-
tively unconscionable. The weaker parties were five siblings who were young and
unsophisticated and had recently lost both parents. The arbitration provision appeared in
one paragraph near the end of a lengthy, single-spaced document. No words were printed
in bold letters or larger font, nor were they capitalized. Although the siblings were
required to place their initials in boxes adjacent to six other paragraphs, no box appeared
next to the arbitration provision. The arbitration provision was substantively uncon-
scionable because it required only the siblings to submit their claims to arbitration; only
the television show producers, not the siblings, could compel arbitration; and the
provision barred only the siblings from seeking appellate review of the arbitrator's
decision [ Higgins v. Superior Court (2006) 140 Cal. App. 4th 1238, 1252-1254, 45
An arbitration clause in an employment contract was unconscionable because it provided

the employer more rights and greater remedies than would otherwise be available, and
deprived employees of significant rights and remedies they would normally enjoy
[ Stiren v. Supercuts, Inc. (1997) 51 Cal. App. 4th 1519, 1542, 60 Cal. Rptr. 2d 138 ,
60 Cal. Rptr. 32d 138; see Armendariz v. Foundation Health Psychcare Services, Inc.
(2000) 24 Cal. 4th 83, 124-125, 99 Cal. Rptr. 2d 745, 6 P.3d 669 (reversing order
compelling arbitration in wrongful termination action brought under FEHA); accord,
Davis v. O'Melveny & Myers (9th Cir. 2007) 485 F.3d 1066, 1084] .
Provisions in real estate purchase agreements requiring all disputes to be submitted to

judicial reference were procedurally and substantively unconscionable [ Pardee
Construction Company v. Superior Court (2002) 100 Cal. App. 4th 1081, 1090-1092,
Page 118 of 479

123 Cal. Rptr. 2d 288] .
An arbitration provision in a construction contract that required all controversies under

the contract to be settled in accordance with the Uniform Rules for Better Business
Bureau Arbitration--which were not attached--was held to be unconscionable [ Harper
v. Ultimo (2003) 113 Cal. App. 4th 1402, 1406, 7 Cal. Rptr. 3d 418] .
An arbitration clause in a consumer credit card agreement that prohibited class treatment
of small individual claims was held to be procedurally and substantively unconscionable
[ Discover Bank v. Superior Court (2005) 36 Cal. 4th 148, 162-163, 30 Cal. Rptr. 3d
76, 113 P.3d 1100 ; Szetela v. Discover Bank (2002) 97 Cal. App. 4th 1094,
1099-1102, 118 Cal. Rptr. 2d 862] .
An arbitration provision in a set of covenants, conditions, and restrictions (CC&Rs), to

the extent that the provision applied to construction and design defect claims against the
developer who had drafted, signed, and recorded the CC&Rs [ Villa Milano Homeown-
ers Association v. Il Davorge (2000) 84 Cal. App. 4th 819, 835-836, 102 Cal. Rptr. 2d 1
(arbitration clause in CC&Rs was unconscionable adhesion contract and unenforceable to
extent it applied to construction and design defect claims against developer who drafted,
signed, and recorded CC&Rs)].
An arbitration provision in a residential lease, which provided for binding arbitration of

personal injury disputes arising from the condition of lease premises (that is, exclusively
tenant claims) and which provided no opportunity for tenants to decline the provision,
was held unconscionable due to lack of sufficient bilaterality [ Jaramillo v. JH Real
Estate Partners, Inc. (2003) 111 Cal. App. 4th 394, 405-406, 3 Cal. Rptr. 3d 525] .
[b] Other Contract Provisions
The following are examples of contract provisions other than arbitration clauses that have been held to
be unconscionable:
A telecommunications carrier's new consumer services agreement that barred class

actions, imposed an arbitration fee scheme, and required any arbitration to remain
confidential, and which imposed the contract on customers without the opportunity for
negotiation, modification, or waiver, was held substantively and procedurally uncon-
scionable [ Ting v.AT&T (9th Cir. 2003) 319 F.3d 1126, 1148-1152 .
A provision in an employment contract requiring 10 days written notice to the employer

as a prerequisite to filing suit [ Soltani v. Western & Southern Life Insurance Co. (9th
Cir. 2001) 258 F.3d 1038, 1045-1047 (finding that effect of provision was to maximize
employer advantage without reasonable justification for that arrangement)].
Page 119 of 479

An advertising salesman's standardized form employment agreement that provided for

forfeiture of commissions on previously sold advertising if the employer had not yet
received payment on the salesman's termination was both procedurally and substantively
unconscionable [ Ellis v. McKinnon Broadcasting Co. (1993) 18 Cal. App. 4th 1796,
1803-1805, 23 Cal. Rptr. 2d 80] .
An interest rate of 200 percent per year on a loan exempt from the usury law was
unconscionable and thus unenforceable, considering that similar loans by exempt lenders
would have cost one tenth as much and the borrower was subject to emotional duress
when the loan was negotiated, needed the loan to pay pressing obligations, and could not
obtain funds any other way [ Carboni v. Arrospide (1991) 2 Cal. App. 4th 76, 82-87, 2
Allegations that the price charged in standardized, nonnegotiable adhesion contracts by

car rental companies for a collision damage waiver was far in excess of a price that would
be determined in a competitive business environment, and that on an annualized basis the
rate charged was twice the amount of insurance provided, while no competition existed
between the defendants for such insurance, were sufficient to support a claim of uncon-
scionability to survive a demurrer [ Truta v. Avis Rent A Car System, Inc. (1987) 193
Cal. App. 3d 802, 820-821, 238 Cal. Rptr. 806] .
[6] Provisions Held Not Unconscionable
The following are examples of contract provisions held not to be unconscionable:
A charge imposed for excess value insurance on packages to be shipped via the carrier
from convenience outlets at supply stores, even though it was double the charge that the
carrier would have imposed for the same insurance on directly shipped packages
[ Wayne v. Staples, Inc. (2006) 135 Cal. App. 4th 466, 482-483, 37 Cal. Rptr. 3d 544
(amount that office supply store's outlets would charge was clearly disclosed to cus-
tomers, office supply store's outlets gave customers the option to ship packages without
purchasing the excess value coverage as well as option to obtain excess value coverage
from other providers, and potential customers had a wide range of choices for shipping
their packages at places other than office supply store's outlets)].
An arbitration provision in a form purchase contract for a used motor home [ Crippen
v. Central Valley RV Outlet, Inc. (2004) 124 Cal. App. 4th 1159, 1165-1166, 22 Cal.
Rptr. 3d 189 (fact that dealer used a form contract for its transactions did not mean
contract was unconscionable, and buyer was under no economic compulsion to buy)].
A clearly marked provision imposing a service fee on a shopping card after 24 months
Page 120 of 479

of nonuse [ Freeman v. Wal-Mart Stores, Inc. (2003) 111 Cal. App. 4th 660, 667-670,
3 Cal. Rptr. 3d 860 (no take-it-or-leave-it situation existed, as purchaser could use card
before imposition of fee or simply decline to purchase shopping card and make purchases
by other means)].
An employment contract provision shortening the limitations period for a wrongful

termination action to six months [ Soltani v. Western & Southern Life Insurance Co. (9th
Cir. 2001) 258 F.3d 1038, 1042-1045 (no showing of substantive unconscionability)].
A clause in a real estate sales contract requiring home buyers who sue the builder to
submit the dispute to binding judicial reference [ Woodside Homes v. Superior Court
(2003) 107 Cal. App. 4th 723, 730, 736, 132 Cal. Rptr. 2d 35 ; see also Greenbriar
Homes Communities, Inc. v. Superior Court (2004) 117 Cal. App. 4th 337, 344-346, 11
Cal. Rptr. 3d 371 (provision for judicial reference in real estate purchase and sale
agreements found to be neither procedurally nor substantively unconscionable), disap-
proved on other grounds, Tarrant Bell Property, LLC v. Superior Court (Abaya)
(2011) 51 Cal. 4th 538, 545, 121 Cal. Rptr. 3d 312, 247 P.3d 542] .
An indemnity clause in a "Work Authorization and Contract," which had been used
between the parties for many years, noted above the signature line that it was a contract
that included all terms and conditions on the reverse side, and contained the indemnifica-
tion clause among other provisions on the reverse side [ Marin Storage & Trucking,
Inc. v. Benco Contracting and Engineering, Inc. (2001) 89 Cal. App. 4th 1042, 1052,
107 Cal. Rptr. 2d 645 (in light of low level of procedural unfairness, greater degree of
substantive unfairness than that shown was required before contract could be found
A provision in a substance abuse recovery agreement waiving the right to appeal any
discipline, including separation from service, to the defendant's personnel board [ Robi-
son v. City of Manteca (2000) 78 Cal. App. 4th 452, 458-459, 92 Cal. Rptr. 2d 748
(provision found not even remotely material to dismissal for refusal to participate in a
substanceabuse program)].
A provision in a health care service plan giving the insurer the right to modify benefits
[ Williams v. California Physicians' Service (1999) 72 Cal. App. 4th 722, 741-744, 85
Cal. Rptr. 2d 497 (amendments were subject to review by Department of Corporations
and plan clearly allowed for type of reduction that took place)].
A release signed by a skier as a condition of enrolling in a ski school, by which he

agreed to hold the resort and its employees harmless for any injuries [ Allan v. Snow
Summit, Inc. (1996) 51 Cal. App. 4th 1358, 1377, 59 Cal. Rptr. 2d 813 ; but see City of
Santa Barbara v. Superior Court (Janeway) (2007) 41 Cal. 4th 747, 776-777, 62 Cal.
Page 121 of 479

Rptr. 3d 527, 161 P.3d 1095 (agreement made in context of sports or recreational
negligence, generally is unenforceable as matter of public policy)].
An employment contract that terminated a salesperson's right to receive commissions on

payments received on her accounts 30 days after severance of her employment [ Ameri-
can Software Inc. v. Ali (1996) 46 Cal. App. 4th 1386, 1395, 54 Cal. Rptr. 2d 477] .
A provision in a bank depositor's signature-card contract imposing a deposit-item-

returned fee, based on an industry-wide comparison of fees [ California Grocers Ass'n
v. Bank of America (1994) 22 Cal. App. 4th 205, 215-216, 27 Cal. Rptr. 2d 396] .
A provision in a television game show participant's contract disqualifying individuals

who had been on three game shows and requiring contestants who misrepresented past
appearances to forfeit winnings was neither a contract of adhesion nor unconscionable
[ Winston v. National Broadcasting Co. (1991) 231 Cal. App. 3d 540, 550, 282 Cal.
Rptr. 498] .
A six-month limitation on a tenant's right of action was not unconscionable when the
tenant had time and was advised to consult an attorney before signing the lease. The one-
sided application of the limitation was justified by the fact that any litigation by the tenant
could inhibit the lessor's ability to deal with the property [ West v. Henderson (1991)
227 Cal. App. 3d 1578, 1586-1588, 278 Cal. Rptr. 570] .
A provision in a contract between a developer and an engineer limiting the engineer's

liability for economic losses caused by its own negligence was enforceable because it
was the result of arm's-length negotiation [ Markborough California, Inc. v. Superior
Court (1991) 227 Cal. App. 3d 705, 714-717, 277 Cal. Rptr. 919] .
A termination fee of $50 for a self-directed IRA account was not unconscionable when
other institutions offered IRAs with lower fees. Unconscionability requires a lack of
meaningful alternative sources of the goods or services in question [ Dean Witter
Reynolds, Inc. v. Superior Court (1989) 211 Cal. App. 3d 758, 768-772, 259 Cal. Rptr.
789] .
When the parties had a 20-year commercial relationship, the conscionability of a seller's
limitation of consequential damages was tested under Com. Code ß 2719(3) and the
limitation was a material part of the bargain [ Nunes Turfgrass, Inc. v. Vaughan-Jacklin
Seed Co. (1988) 200 Cal. App. 3d 1518, 1538-1539, 246 Cal. Rptr. 823] .
A contract between a drawee bank and an agent that issued money orders was not
unconscionable in placing the risk of loss on the agent, considering the purpose, effect,
Page 122 of 479

business setting, and reasonableness of the contract [ Central Bank v. Kaiperm Santa
Clara Fed. Credit Union (1987) 191 Cal. App. 3d 186, 205, 236 Cal. Rptr. 262] .
A preprinted, standardized contract requiring the party with less bargaining power to
provide and maintain insurance and indemnify the other party for all damages except
those caused by the sole and exclusive negligence of the stronger party was not one of
adhesion since it did not defeat the expectations of weaker party. The contract was not
unconscionable, since the costs of indemnification were passed on to the stronger party
[ Chevron, U.S.A., Inc. v. Bragg Crane & Rigging Co. (1986) 180 Cal. App. 3d 639,
647-648, 225 Cal. Rptr. 742] .
A dealership contract was one of adhesion and thus not enforceable. A nonassignment
clause was not unconscionable, however, since the agreement was clear, unambiguous,
and not susceptible to a reasonable expectation of assignability or survival [ San
Francisco Newspaper Printing Co. v. Superior Court (1985) 170 Cal. App. 3d 438,
442-444, 216 Cal. Rptr. 462] .
A contract providing for a commission of 0.65 percent of the sale price if a real estate
broker obtained a fully executed purchase and sale agreement that closed escrow, and a
second commission of 0.35 percent of the sale price if the broker served through the
successful close of escrow, with forfeiture of the latter commission if escrow was not
closed on the termination of employment [ Chretian v. Donald L. Bren Co. (1984) 151
Cal. App. 3d 385, 389, 198 Cal. Rptr. 523] .
Page 123 of 479

39 of 138 DOCUMENTS

PART V. FORMS
ß 140.147 Affirmative Defense--Rescission by Mutual Consent [Civ. Code ß 1689(a)]
[1] FORM Affirmative Defense--Rescission by Mutual Consent [Civ. Code ß 1689(a)]
On or about ____________________ [date], plaintiff and defendant consented and agreed that the
contract be, and it was, rescinded. [A copy of the memorandum of the rescission is attached as Exhibit
_____ and made a part of this pleading.]
[2] Use of Form
contract when the contract was rescinded by mutual consent of the parties before any breach occurred.
A contract may be rescinded if all of the parties consent [Civ. Code ß 1689(a); Kane v. Sklar (1954)
122 Cal. App. 2d 480, 482, 265 P.2d 29] . Rescission may be asserted as a defense [Civ. Code ß
1692]. For further discussion, see Ch. 490, Rescission and Restitution .
Page 124 of 479

40 of 138 DOCUMENTS

PART V. FORMS
ß 140.148 Affirmative Defense--Failure of Consideration [Civ. Code ß 1689(b)(2)]
[1] FORM Affirmative Defense--Failure of Consideration [Civ. Code ß 1689(b)(2)]
[1.] Defendant admits that he/she/it failed to perform the obligation described in the complaint but
alleges that the failure resulted from plaintiff's failure to ___________________ [specify], as required
by the terms of the contract, and that performance on plaintiff's part was a ___________________
[condition precedent to or concurrent condition with] the performance of defendant's obligation.
[2. Because of plaintiff's failure and refusal to perform the obligation on his/her/its part to be
performed, defendant, on or about ___________________ (date), rescinded the contract by
___________________ (specify manner of rescission) and ___________________ (restored or
offered to restore) to plaintiff everything of value that defendant had received under the contract.]
[2] Use of Form
contract when there has been a failure of consideration [see ß 140.23[9]]. Failure of consideration
through the fault of the other party is a ground for rescission [Civ. Code ß 1689(b)(2)]. For a
discussion of rescission, see Ch. 490, Rescission and Restitution .
[3] Failure of Consideration
[a] Lack of Consideration Distinguished
Page 125 of 479

In a bilateral contract, failure of consideration is a defense to an action for a breach of the contract,
since it is contemplated that the performance of the promises will be in exchange for each other, the
promises being considered as equal in value [ Bliss v. California Coop. Producers (1947) 30 Cal. 2d
240, 248, 181 P.2d 369] . Although the terms are sometimes interchanged, "lack of consideration"
involves a promise given by one party to another without anything being bargained for or given in
exchange for it, while "failure of consideration" means that a performance for which the promisor
bargained has not been rendered [ Nault v. Smith (1961) 194 Cal. App. 2d 257, 265-266, 14 Cal.
Rptr. 889 ; but see The Money Store v. Southern California Bank (2002) 98 Cal. App. 4th 722,
728-729, 120 Cal. Rptr. 2d 58 (although contract stated that lender "was to be at no expense in this
transaction," deposit of loan funds in exchange for other party's promises was adequate
consideration)]. For example, when the promise of a sellerto deliver corporate stock failed without
fault on the buyer's part, consideration for the buyer's promise to pay failed in a material respect
[ McDorman v. Moody (1942) 50 Cal. App. 2d 136, 141, 122 P.2d 639] .
[b] Worthlessness of Consideration Distinguished
The defense of failure of consideration is not available when the defendant received what the
defendant bargained for, but it has become worthless. However, the defense of frustration of purpose
may be available [ FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 397-401, 282
Cal. Rptr. 508 ; see ß 140.46].
Failure of consideration is not established if the contract became unprofitable and the defendant knew
that its value could be affected by a particular future event but made no provision in the contract with
respect to that risk, only the defendant's error in judgment. Defendant bears the risk, and is not entitled
to avoid, rescind, or reform the contract [ Mosher v. Mayacamas Corp. (1989) 215 Cal. App. 3d 1,
5-6, 263 Cal. Rptr. 373] .
[4] Defense in Action by Assignee
Failure of consideration under a bilateral contract, consisting of breach by the plaintiff's assignor, is a
defense to an action by an assignee, whether it occurred before or after notice of the assignment
[ Dreyfuss v. Burton (1966) 246 Cal. App. 2d 629, 638, 54 Cal. Rptr. 843] .
Page 126 of 479

41 of 138 DOCUMENTS

PART V. FORMS
ß 140.149 Affirmative Defense--Modification of Oral Contract by Writing [Civ. Code ß 1697]
[1] FORM Affirmative Defense--Modification of Oral Contract by Writing [Civ. Code ß 1697]
1. On or about ___________________ [date], the parties consented to a modification of the oral

agreement alleged in the complaint in a writing providing that ___________________ [specify]. A
copy of the writing is attached as Exhibit _____ and made a part of this pleading.
2. Defendant has performed all of the conditions of the contract, as modified, on his/her/its part to be
performed in accordance with the terms of the contract ___________________ [except
___________________ (specify conditions not performed), which defendant did not perform because
___________________ (specify facts showing excuse for nonperformance)].
[2] Use of Form
contract when an oral contract was subsequently modified by the parties' consent. A contract not in
writing may be modified in any respect by consent of the parties in writing without a new considera-
tion, and is extinguished to the extent of the modification [Civ. Code ß 1697; see Roehm Distrib. Co.
v. Burgermeister Brewing Corp. (1961) 196 Cal. App. 2d 678, 681, 16 Cal. Rptr. 881] .
Page 127 of 479

42 of 138 DOCUMENTS

PART V. FORMS
ß 140.150 Affirmative Defense--Modification of Written Contract by Written Agreement or by

Oral Agreement [Civ. Code ß 1698(a), (c)]
[1] FORM Affirmative Defense--Modification of Written Contract by Written Agreement or by

[EITHER]
1. On or about ___________________ [date], the contract was modified by another contract in

writing between plaintiff and defendant, providing that ___________________ [specify]. A copy of
the second contract is attached as Exhibit _____ and made a part of this pleading.
[OR]
1. The contract alleged in the complaint did not contain any provision stating that it could not be
modified by an oral agreement supported by new consideration. On or about ___________________
[date], plaintiff and defendant made an oral agreement to ___________________ [specify terms of
oral agreement]. The purpose of the oral agreement was to modify the written contract alleged in the
complaint. The oral agreement was supported by valuable and new consideration in that
___________________ [specify new consideration].
Page 128 of 479

[OR]
1. The contract alleged in the complaint provided that it could be modified only in writing. On or about
___________________ [specify terms of oral agreement]. Plaintiff is estopped to deny that the
contract was modified by that oral agreement because ___________________ [specify facts showing
estoppel, e.g., defendant was misled into believing, at a time when he/she/it was ready to redeem the
fur coat, that he/she/it was being given an extra week in which to repay the loan, but during that time
the coat was sold by plaintiff for less than the amount of the loan.]
[CONTINUE]
performed in accordance with the terms of the contract [except ___________________ (specify
conditions not performed), which defendant did not perform because ___________________ (specify
facts showing excuse for nonperformance)].
[2] Use of Form
contract when the parties modified a written contract by another written agreement or by an oral
agreement supported by new consideration [see Civ. Code ß 1698]. For further discussion of
modification, see ß 140.112[3].
The court will treat defendant's failure to plead modification of the written contract as an affirmative
defense and failure to object to the introduction of evidence pertaining to the oral agreement as a
waiver of the defense [ James G. Freeman & Associates, Inc. v. Tanner (1976) 56 Cal. App. 3d 1,
9, 128 Cal. Rptr. 109] .
[3] Modification by Oral Agreement
A written contract may be modified by an oral agreement supported by new consideration [Civ. Code
ß 1698(c); D.L. Godbey & Sons Constr. Co. v. Deane (1952) 39 Cal. 2d 429, 432-433, 246 P.2d
946 ; Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187 Cal. App. 3d 299, 314, 231
Cal. Rptr. 820 (employee's move after elimination of position to another facility of employer did not
amount to consideration because detriment was incidental to preparation to accept out-of-state offer of
employment); Raedeke v. Gibraltar Sav. & Loan Asso. (1974) 10 Cal. 3d 665, 673, 111 Cal. Rptr.
693, 517 P.2d 1157 ; see Com. Code ß 2209 (modification of contract for sale of goods)]. This rule
does not preclude the application of rules of law concerning estoppel, oral novation and substitution of
a new agreement, rescission of a written contract by an oral agreement, waiver of a provision of a
Page 129 of 479

written contract, or oral independent collateral contracts [Civ. Code ß 1698(d)].
An obligation a party was required to perform under the written contract is not consideration that will
support an oral modification [ Marani v. Jackson (1986) 183 Cal. App. 3d 695, 704-706, 228 Cal.
Rptr. 518] .
Reliance on oral statements that allegedly modified or superseded a written agreement is not
justifiable. The doctrine of estoppel is unavailable to provide a basis for an oral modification unless an
unconscionable injury or unjust enrichment would result from failure to enforce the oral modification
[ Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187 Cal. App. 3d 299, 319-320, 231
Cal. Rptr. 820] .
Page 130 of 479

43 of 138 DOCUMENTS

PART V. FORMS
ß 140.151 Affirmative Defense--Modification of Written Contract by Executed Oral Agree-

ment [Civ. Code ß 1698(b)]
[1] FORM Affirmative Defense--Modification of Written Contract by Executed Oral Agreement

[Civ. Code ß 1698(b)]
On or about ___________________ [date], plaintiff and defendant made an oral agreement to

modify the written contract alleged in the complaint. The oral agreement has been executed in that
___________________ [specify performance of oral agreement by plaintiff and defendant].
[2] Use of Form
contract when the parties have modified a written contract by an executed oral agreement. A contract
in writing may be modified by an oral agreement to the extent that the oral agreement is executed by
the parties [Civ. Code ß 1698(b); D.L. Godbey & Sons Constr. Co. v. Deane (1952) 39 Cal. 2d 429,
432, 246 P.2d 946] .
Whether a written contract was modified by an executed oral agreement is a question of fact
[ Daugherty Co. v. Kimberly-Clark Corp. (1971) 14 Cal. App. 3d 151, 158, 92 Cal. Rptr. 120] . An
agreement to modify a written contract may be implied by conduct of the parties that is inconsistent
Page 131 of 479

with the written contract and warrants the conclusion that the parties intended to modify it [ Garrison
v. Edward Brown & Sons (1944) 25 Cal. 2d 473, 479, 154 P.2d 377 ; Daugherty Co. v. Kimberly-
Clark Corp. (1971) 14 Cal. App. 3d 151, 158, 92 Cal. Rptr. 120] . The party asserting the oral
modification must prove the elements of an oral modification of a written contract by a preponderance
of the evidence [ Barrett v. Bank of America (1986) 183 Cal. App. 3d 1362, 1369, 229 Cal. Rptr.
16] .
A provision in a written contract prohibiting modification except in a writing before completion of the
transaction precludes modification by an executed oral agreement [ Marani v. Jackson (1986) 183
Cal. App. 3d 695, 704-705, 228 Cal. Rptr. 518] .
Page 132 of 479

44 of 138 DOCUMENTS

PART V. FORMS
ß 140.152 Affirmative Defense--Alteration of Written Contract Without Consent [Civ. Code ß

1700]
[1] FORM Affirmative Defense--Alteration of Written Contract Without Consent [Civ. Code ß
1700]
1. On or about ___________________ [date], plaintiff materially modified, altered, and changed the
terms of the contract alleged in the complaint, in that ___________________ [specify].
2. Plaintiff's modification, alteration, and change of the original contract was intentional and without
the consent or knowledge of defendant. By reason of such modification, alteration, and change, all of
defendant's obligations under the original contract have been extinguished.
[2] Use of Form
contract when the plaintiff materially altered the written contract without the defendant's consent.
[3] Material Alteration
[a] Alteration Extinguishing Defendant's Obligation
The intentional destruction, cancellation, or material alteration of a written contract by a party entitled
to any benefit under it, or with that party's consent, extinguishes all the executory obligations of the
Page 133 of 479

contract in that party's favor against parties who do not consent to the act [Civ. Code ß 1700]. The
answer is demurrable if it fails to aver that the alteration was made with the plaintiff's knowledge or
consent [ Humphreys v. Crane & Yale (1855) 5 Cal. 173, 175] .
[b] Evidence of Alteration
The rule precluding parol evidence to vary or contradict a written contract does not exclude evidence
to show that an alteration of the writing has been made [ Akopoff v. Mesropian (1929) 96 Cal. App.
128, 129, 273 P. 604] . Evidence of alteration in a written contract after it was signed is admissible as
relevant to the denial of the execution of the contract [ Dennie v. Clark (1906) 3 Cal. App. 760, 763,
87 P. 59] .
[c] Test of Materiality
The test of materiality of an alteration is whether it changes the rights or duties of the parties, i.e.,
whether it works an alteration in the meaning or legal effect ofthe contract [ Consolidated Loan Co.
v. Harman (1957) 150 Cal. App. 2d 488, 491, 310 P.2d 450] . Lack of a fraudulent purpose does not
cure a material alteration [ California Savings & Commercial Bank v. Wheeler (1932) 216 Cal. 742,
746, 16 P.2d 737] .
Page 134 of 479

45 of 138 DOCUMENTS
Volume 23: Fraud and Deceit thru Good Faith Improver of Real Property-Chs. 269-279
Chapter 269 FRAUD AND DECEIT
23-269 California Forms of Pleading and Practice--Annotated 269.syn
ß 269.syn Synopsis to Chapter 269: FRAUD AND DECEIT
ß 269.01 Scope of Chapter

ß 269.02 Cross References
ßß 269.03-269.09 [Reserved]
ß 269.10 Governing Statutes
ß 269.11 Definitions
[1] Fraud
[2] Deceit
ß 269.12 Fraud and Deceit Distinguished
ß 269.13 Elements
ß 269.14 Types of Misrepresentations
[1] Knowingly False Statements
[2] Negligent Misrepresentations
[3] Suppression or Nondisclosure of Fact
[4] Duty to Third Persons
[5] Promise Without Intention to Perform
Page 135 of 479

[a] Actionable Promises
[b] Effect of Statute of Frauds
[c] Effect of Parol Evidence Rule

ß 269.15 Actual Reliance
[1] General Rule
[2] Effect of Lack of Communication of Representation to Plaintiff
[3] "Fraud-on-Market" Doctrine Inapplicable to Common-Law Fraud Actions

ß 269.16 Justifiable Reliance
[1] Subjective Test
[2] Effect of Plaintiff's Knowledge of Defendant's Untrustworthiness
[3] Effect of Defendant's Assurances
[4] Effect of Fiduciary or Confidential Relationship
[5] Effect of Defendant's Superior Knowledge
[6] Effect of Plaintiff's Independent Investigation or Lack of Investigation
[7] Effect of Failure to Read Insurance Policy
[8] Effect of Plaintiff's Discovery of True Facts Before Close of Escrow in Real Property Sale
[9] Effect of Plaintiff's Legal Duty to Act in Response to Representations
[10] Constructive Notice Not Applicable
[11] Burden of Proof and Evidence
[a] In General
[b] Class Actions

ß 269.17 Opinion and Fact
Page 136 of 479

[1] Opinions Not Actionable
[2] Distinction Between Opinion and Fact
[3] Opinions That Are Actionable

ß 269.18 Misrepresentation of Law
[1] General Rule
[2] Exceptions
ß 269.19 Intent to Induce Reliance
[1] General Rule
[2] Inference of Intent
[3] Intent to Induce Reliance by Public or by Class of Persons

ß 269.20 Materiality
ß 269.21 Damage as Element of Cause of Action
ß 269.22 Constructive Fraud
[1] Definition
[2] Presumption of Fraud
[3] Breach of Duty of Disclosure
[4] Defenses
ß 269.23 Evidence
[1] Burden of Proof
[2] No Presumption; Inference Permitted

ß 269.24 Liability for Misrepresentation Made to Third Party
[1] Relied on by Third Party
[2] Letter of Recommendation

ß 269.25 Liability for Fraud of Agent
Page 137 of 479

ß 269.26 Public Immunity and Liability

ß 269.27 Amount of Compensatory Damages
[1] General Rule
[2] Sale or Exchange of Property
[a] Statutory Measure of Damages
[b] Recoverability of Lost Profits
[c] Rules for Valuation of Property
[d] Mental Distress Damages Not Recoverable
[3] Sale of Goods
[4] Breach of Fiduciary Duty
[5] Fraud Against Secured Creditor

ß 269.28 Attorney's Fees
ß 269.29 Interest on Damages
[1] Entitlement if Amount of Damages Is Certain
[2] At Jury's Discretion

ß 269.30 Punitive Damages
[1] Basis for Recovery
[2] Liability of Employers

ß 269.31 Defenses
[1] In General
[2] Plaintiff's Negligence
[3] Lack of Justifiable Reliance
[4] Statute of Limitations
Page 138 of 479

[a] Applicable Period
[b] Late Discovery Exception
[5] Statutory Privileges
[6] Implied Waiver

ß 269.32 Election of Remedies
ß 269.33 No Cause of Action for Fraud Based on False Representations of Love or Sexual Desire
ß 269.34 No Cause of Action for Fraud Based on Termination of Employment
ßß 269.35-269.49 [Reserved]
ß 269.50 California Points and Authorities
ß 269.51 California Torts
ß 269.52 State Statutes
ß 269.53 Decisions
[1] Actions Between Partners in Consensual Sexual Relationship
[2] Actual Reliance
[3] Amount of Compensatory Damages
[a] Breach of Duty
[b] General Rule
[c] Loss of Profits
[d] Sale of Goods
[e] Sale or Exchange of Property
[4] Attorney's Fees
[5] Constructive Fraud
[a] Allegations Generally
Page 139 of 479

[b] Breach of Duty
[c] Defenses
[6] Consumers Legal Remedies Act
[7] Damage as Element of Cause of Action
[8] Defendants
[a] Liability for Fraud of Agent
[b] Public Immunity and Liability
[9] Defenses
[a] Generally
[b] Late Discovery
[c] Statute of Limitations
[10] Definitions
[11] Election of Remedies
[12] Elements
[13] Evidence
[14] Federal Racketeer Influenced and Corrupt Organizations Act (RICO)
[15] Fraud and Deceit Distinguished
[16] Implied Misrepresentations
[17] Intent
[18] Interest on Damages
[19] Justifiable Reliance
Page 140 of 479

[a] Burden of Proof and Evidence
[b] Class Actions
[c] Correction to Initial Misrepresentation
[d] Defendant Having Superior Knowledge
[e] Fiduciary Relationship of Plaintiff and Defendant
[f] Investigation by Plaintiff
[g] Plaintiff's Conduct
[h] Pleading Reliance
[i] Untrustworthy Defendant
[20] Materiality
[21] Mental Suffering Damages
[23] Opinion and Fact
[24] Pleading Requirements
[25] Potential Plaintiffs
[26] Products Liability
[a] In General
[a] Statute of Frauds and Parol Evidence Rule
[28] Proximate Cause
[29] Public Policy
Page 141 of 479

[30] Punitive Damages
[a] Generally
[b] Liability of Employers
[31] Required Intent
[32] Suppression and Failure to Disclose
[33] Venue
ß 269.54 Law Reviews
ß 269.55 Text References
ßß 269.56-269.69 [Reserved]
ß 269.70 Plaintiff's Checklist
[1] Facts to Be Ascertained
[2] Documents to Be Obtained
[3] Additional Counts and Causes of Action
[4] Essential Allegations for the Complaint

ß 269.71 Defendant's Checklist
[2] Affirmative Defenses

ßß 269.72-269.89 [Reserved]
ß 269.90 Judicial Council Trial Court Pleading Form [Code Civ. Proc. ß 425.12]--Complaint
[Code Civ. Proc. ß 425.10] for Damages [Civ. Code ßß 3333, 3343] for Fraud and Deceit [Civ. Code
ßß 1709, 1710; Cal. Judicial Council Forms PLD-PI-001, PLD-C-001(3)]
[1] FORM
[2] Judicial Council Trial Court Forms
[3] Use of Form
Page 142 of 479

[4] Filling Out General Complaint
[5] Filling Out Fraud Cause of Action
[a] Heading and Preliminary Information
[b] Alleging Deceit
[i] In General
[ii] Intentional or Negligent Misrepresentation (Paragraph FR-2.)
[iii] Concealment (Paragraph FR-3.)
[iv] Promise Without Intent to Perform (Paragraph FR-4.)
[v] Plaintiff's Induced Acts and Damages (Paragraphs FR-5., FR-6.)
[c] Other Allegations (Paragraph FR-7.)
[6] Filling Out Exemplary Damages Attachment
[7] Verification

ß 269.91 Complaint for Damages for Fraud and Deceit--Intentional Misrepresentation of Fact
[Civ. Code ß 1710(1)]--General Form
[1] FORM
[2] Use of Form
[3] Allegations
[4] Strict Pleading Requirements
[5] Corporate Defendant
[6] Damages
[7] Verification
Page 143 of 479

[8] Jurisdiction
[9] Copies
[11] California Points and Authorities
[12] California Torts

ß 269.92 Allegations for Complaint [Code Civ. Proc. ß 425.10] for Damages for Fraud and
Deceit--Negligent Misrepresentation of Fact [Civ. Code ß 1710(2)]--General Form
[1] FORM
[2] Use of Form
[3] Text References

ß 269.93 Complaint [Code Civ. Proc. ß 425.10] for Damages for Fraud and Deceit--Suppression
of Fact [Civ. Code ß 1710(3)]--General Form
[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References

ß 269.94 Complaint for Damages for Fraud and Deceit--Promise Made Without Intention to
Perform [Civ. Code ß 1710(4)]--General Form
[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References
Page 144 of 479


ß 269.95 Complaint for Damages for Fraud and Deceit [Civ. Code ß 3343]--Intentional Misrepre-
sentation [Civ. Code ß 1710(1)]--Fraud in Sale of Land--By Buyer Against Seller Misrepresenting
Acreage
[1] FORM
[2] Use of Form
[3] Allegations
[4] Venue
[5] Text References

ß 269.96 Complaint for Damages for Fraud and Deceit [Civ. Code ß 3343]--Intentional and
Negligent Misrepresentation [Civ. Code ß 1710(1), (2)]--Suppression of Fact [Civ. Code ß 1710
(3)]--Concerning Effect of Easement--By Buyer Against Seller and Broker
[1] FORM
[2] Use of Form
[3] Allegations

ß 269.97 Complaint [Code Civ. Proc. ß 425.10] for Damages for Fraud and Deceit [Civ. Code ß
3343]--Intentional Misrepresentation [Civ. Code ß 1710(1)]--Concerning Existence of Infestation--By
Buyer of Real Property Against Seller and Pest Control Operator
[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References
Page 145 of 479

ß 269.98 Complaint for Damages for Fraud and Deceit [Civ. Code ß 3343]--International
Misrepresentation [Civ. Code ß 1710(1)]--Concerning Filled-in Land--By Buyer Against Seller
[1] FORM
[2] Use of Form
[3] Allegations
[4] Alternative Theories
[5] Text References

ß 269.99 Complaint [Code Civ. Proc. ß 425.10] for Damages for Fraud and Deceit--Fraud in Sale
of Personal Property--By Buyer Against Seller--General Form
[1] FORM
[2] Use of Form
[3] Allegations
[4] Damages in Cases Involving Sales of Goods
[5] Alternative Theories of Recovery
[6] Text References

3343]--Intentional Misrepresentation [Civ. Code ß 1710(1)]--Profits and Other Facts Concerning Sale
of Business--By Buyer Against Seller
[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References
Page 146 of 479


ß 269.101 Complaint [Code Civ. Proc. ß 425.10] for Damages for Fraud and Deceit--Conceal-
ment and Suppression of Fact [Civ. Code ßß 1573, 1710(3)]--Higher Offer for Property Made to
Real Estate Broker Obtaining Secret Profit--By Seller Against Broker and Conspiring Purchaser
[1] FORM
[2] Use of Form
[3] Allegations
[4] Damages
[5] Text References

ß 269.102 Complaint [Code Civ. Proc. ß 425.10] for Damages for Fraud and Deceit [Civ. Code
ßß 1709, 3333]--Constructive Fraud [Civ. Code ß 1573]--Employee Obtaining Money From
Employer's Account Without Authorization
[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References

ß 269.103 Allegation for Complaint [Code Civ. Proc. ß 425.10]--Reason for Failure to Discover
Fraud Before Running of Statutory Period of Limitation [Code Civ. Proc. ß 338(d)]
[1] FORM
[2] Use of Form
[3] Text References

Page 147 of 479

ßß 1709, 1710]--Intentional [Civ. Code ß 1710(1)] or Negligent [Civ. Code ß 1710(2)] Misrepresen-
tation--Misrepresentation in Employment Recommendation Causing Injury to Third Person
[1] FORM
[2] Use of Form
[3] Allegations
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46 of 138 DOCUMENTS
PART I. SCOPE
This chapter discusses actions at law for damages based on the tort of deceit or on the existence of
constructive fraud. It includes the Judicial Council form of fraud cause of action attached to the
Judicial Council form of complaint for personal injury, property damage, or wrongful death [ß
269.90], forms of complaints for damages for fraud and deceit based on intentional misrepresentation
[ß 269.91], on negligent misrepresentation [ß 269.92], on suppression of fact [ß 269.93], on a
promise made without the intention to perform it [ß 269.94]; various forms concerning misrepresenta-
tions about real property [ß 269.95-269.98]; a form for fraud in the sale of personal property [ß
269.99]; a form concerning misrepresentations in the sale of a business [ß 269.100]; a form concern-
ing fraud and deceit of a real estate broker in concealing and suppressing a fact from the client [ß
269.101]; a form concerning the constructive fraud of an employee in obtaining money from the
employer's account without authorization [ß 269.102]; and a form of an allegation extending the
statute of limitations for an action for damages for fraud and deceit on grounds of reasonable failure to
discover the fraud [ß 269.103].
This chapter does not include forms or an extended discussion of remedies for fraud other than
damages although fraud may also be the basis for equitable relief. For discussion of other types of
relief predicated on fraud, see Ch. 7, Accounting, Action For , Ch. 8, Accounts Stated and Open
Accounts , Ch. 25, Annulment (Nullity) of Marriage and Related Spousal Rights , Ch. 107, Cancella-
tion of Instruments , Ch., 121, Common Counts , Ch. 140, Contracts , Ch. 150, Conversion , Ch.
205, Defaults and Default Judgments , Ch. 215, Duress, Menace, Fraud, Undue Influence, and
Mistake , Ch. 488, Reformation of Instruments , Ch. 490, Rescission and Restitution , and Ch. 560,
Trusts: Express, Public, Charitable, and Totten Trusts .
For discussion and forms relating to relief based on fraud in various factual situations, see Ch. 14,
Page 149 of 479

Advertising , Ch. 57, Art , Ch. 77, Auctions and Auctioneers , Ch. 95, Banks, Deposits, and Checks ,
Ch. 103, Brokers , Ch. 104, Building Contracts , Ch. 122, Community Property , Ch. 127, Consumer
Contracts and Loans , Ch. 128, Consumer Contracts: Statutes Regulating Specific Types of
Contracts , Ch. 184, Deeds , Ch. 307, Insolvency , Ch. 308, Insurance , Ch. 318, Judgments , Ch.
393, Oil and Gas , Ch. 401, Partnerships: Actions Between General Partners and Partnership , Ch.
440, Probate: Is Probate Necessary ?, Ch. 460, Products Liability, Ch. 462, Public Accountants ,
Ch. 489, Relief from Judgments and Orders , Ch. 500, Sales and Secured Transactions , Ch. 538,
Suretyship, Bonds, and Undertakings , and Ch. 569, Vendor and Purchaser .
Legal Topics:
TortsBusiness TortsFraud & MisrepresentationActual FraudGeneral OverviewTortsBusiness
TortsFraud & MisrepresentationConstructive FraudGeneral OverviewTortsBusiness TortsFraud &
MisrepresentationNegligent MisrepresentationGeneral Overview
Page 150 of 479

47 of 138 DOCUMENTS
PART I. SCOPE
For a form of complaint for an accounting against a real estate broker, see Ch. 7, Accounting, Action
for.
For a form alleging the defense of fraud to an action based on account stated, see Ch. 8, Accounts
Stated and Open Accounts .
For a form of complaint for use in an action to set aside a decree of adoption rendered due to
fraudulently induced consent, see Ch. 12E, Adoptions: Attack on Decree .
For a form of complaint for use in an action for fraud based on false advertising, see Ch. 14,
Advertising .
For a form of complaint for use in an action against an endorser of products for negligent endorse-
ment, see Ch. 14, Advertising .
For forms of complaints for fraud under the Consumers Legal Remedies Act and related forms, see
Ch. 14, Advertising .
For discussion, complaints, and related forms for use in annulment of marriage on grounds of fraud,
see Ch. 25, Annulment (Nullity) of Marriage and Related Spousal Rights .
For a form of complaint by the buyer against the seller of an art work for fraud, see Ch. 57, Art .
For a form of complaint for fraud by a seller against an auctioneer-buyer, see Ch. 77, Auctions and
Page 151 of 479

Auctioneers .
For a form of complaint against a bank manager for fraud, see Ch. 95, Banks, Deposits, and Checks .
For a form of complaint by a creditor against a bank for fraud and misrepresentation as to solvency,
see Ch. 95, Banks, Deposits, and Checks .
For a form of complaint against a broker secretly acquiring a client's property, see Ch. 103, Brokers .
For a form of complaint against a broker acquiring property adversely to the principal, see Ch. 103,
Brokers .
For a complaint against a broker selling property on terms different from those demanded by client
and in obtaining client's signature by deception, see Ch. 103, Brokers .
For a form of complaint against a building contractor for fraud in completing work contrary to plans,
see Ch. 104, Building Contracts .
For a form of complaint for fraud against a building contractor, see Ch. 104, Building Contracts .
For discussion and forms relating to cancellation of deeds and other instruments on the ground of
fraud, see Ch. 107, Cancellation of Instruments .
For discussion of waiver of tort and complaints based on common counts, see Ch. 121, Common
Counts .
For a complaint for rescission of a property settlement agreement for fraudulent concealment of
community property assets or value, see Ch. 122, Community Property .
For a form of notice of motion to modify judgments dissolving marriage on ground of extrinsic fraud,
see Ch. 122, Community Property .
For discussion and forms relating to consumer rights, see Ch. 127, Consumer Contracts and Loans ,
Ch. 128, Consumer Contracts: Statutes Regulating Specific Types of Contracts , and Ch. 129,
Consumer Credit Reporting .
For a form of affirmative defense to a contract action based on fraud, see Ch. 140, Contracts .
For a form of complaint for conversion based on fraudulent representations, see Ch. 150,
Conversion .
For forms of allegations of damages in actions for fraud, see Ch. 177, Damages .
Page 152 of 479

For a form of allegation of fraud in the procurement of a deed, see Ch. 184, Deeds .
For forms of allegations of fraud for use in actions vitiating consent to a contract, see Ch. 215,
Duress, Menace, Fraud, Undue Influence, and Mistake .
For a form of allegation of fraudulent statements in an application for insurance, see Ch. 308,
Insurance .
For a form of complaint to recover overpayments induced by fraudulent claim of loss, see Ch. 308,
Insurance .
For a form of complaint based on fraudulent representations by an insurance agent, see Ch. 308,
Insurance .
For a form of complaint for fraud by an insured against an insurance company defaulting on a policy,
see Ch. 308, Insurance .
For a discussion of negligent misrepresentation involving a risk of physical harm, see Ch. 380,
Negligence .
For a form of complaint for fraud in the transfer of oil and gas interests, see Ch. 393, Oil and Gas .
For forms of complaints by third parties against partners and by one partner against another based on
fraud, see Ch. 401, Partnerships: Actions Between General Partners and Partnership .
For forms of allegations of fraud in a will contest and a form of special verdict as to fraud in a will
contest, see Ch. 444, Probate: Will Contests .
For a general discussion of the possibility of recovery for defects in products on the grounds of fraud
and deceit, see Ch. 460, Products Liability .
For a discussion of the liability of accountants and auditors for negligent and intentional misrepresen-
tation, see Ch. 462, Public Accountants .
For discussion and forms related to actions to quiet title to real and personal property, see Ch. 482,
Quieting Title .
For a form of complaint for reformation based on fraud, see Ch. 488, Reformation of Instruments .
For a form of complaint to set aside a default judgment based on fraud, see Ch. 489, Relief From
Judgments and Orders .
Page 153 of 479

For forms of complaints to set aside judgments rendered due to extrinsic fraud, see Ch. 489, Relief
From Judgments and Orders .
For a form of notice of motion and related forms for use in setting aside a judgment on the ground of
fraud, see Ch. 489, Relief From Judgments and Orders .
For a form of complaint for restitution based on rescission of contract on ground of fraud, see Ch.
490, Rescission and Restitution .
For a form of complaint in a consumer class action based on fraud, see Ch. 500, Sales and Secured
Transactions .
For discussion regarding the fiduciary duties owed by stockbrokers to their clients, see Ch. 515,
Securities and Franchise Regulation
For a form of complaint by a surety against a person fraudulently obtaining execution of a bond, see
Ch. 538, Suretyship, Bonds, and Undertakings .
For discussion and forms relating to the establishment of constructive trusts in property obtained
through fraud or deceit, see Ch. 561, Trusts: Constructive Trusts .
For a form of complaint for rescission of the sale of a house on the ground of fraud, see Ch. 569,
Vendor and Purchaser .
For a form of complaint based on fraudulent misrepresentation concerning termite infestation, see Ch.
569, Vendor and Purchaser .
For a form of complaint for fraudulent concealment of an ordinance violation, see Ch. 569, Vendor
and Purchaser .
For a form of affirmative defense alleging that an option was obtained by fraud, see Ch. 569, Vendor
and Purchaser .
For a form of complaint for fraud in representing that a multiple unit building was legal, see Ch. 569,
For a form of complaint for fraud in the exchange of land, see Ch. 569, Vendor and Purchaser .
For a form of affirmative defense to an action for fraud on the ground of inspection by vendee, see
Ch. 569, Vendor and Purchaser .
Page 154 of 479

Legal Topics:
Antitrust & Trade LawConsumer ProtectionFalse AdvertisingGeneral OverviewCivil Procedur-
eRemediesEquitable AccountingsGeneral OverviewReal Property LawBrokersGeneral OverviewReal
Property LawDeedsGeneral OverviewTortsIntentional TortsConversionGeneral Overview
Page 155 of 479

48 of 138 DOCUMENTS
PART I. SCOPE
[Reserved]
Page 156 of 479

49 of 138 DOCUMENTS
PART II. LEGAL BACKGROUND
Liability for the tort of deceit is governed by Civ. Code ß 1709, and the tort of deceit is defined in Civ.
Code ß 1710. The statute of limitations for actions for relief on the ground of fraud is governed by
Code Civ. Proc. ß 338(d). Constructive fraud is defined by Civ. Code ß 1573. Compensatory
damages for deceit generally are governed by Civ. Code ßß 1709 and 3333; compensatory damages
for one defrauded in the purchase, sale, or exchange of property are governed by Civ. Code ß 3343.
Punitive damages based on fraud are governed by Civ. Code ß 3294.
Legal Topics:
GovernmentsLegislationStatutes of LimitationsTime LimitationsTortsBusiness TortsFraud &
MisrepresentationActual FraudGeneral OverviewTortsBusiness TortsFraud & MisrepresentationCon-
structive FraudGeneral OverviewTortsDamagesCompensatory DamagesGeneral OverviewTortsDam-
agesPunitive DamagesGeneral Overview
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50 of 138 DOCUMENTS
[1] Fraud
In its broad and general sense, the concept of fraud includes anything that is intended to deceive,
including all statements, acts, concealments, and omissions involving a breach of legal or equitable
duty, trust, or confidence that results in injury to one who justifiably relies thereon [ Ach v.
Finkelstein (1968) 264 Cal. App. 2d 667, 674, 70 Cal. Rptr. 472] . More particularly, 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 on it [ Wilke v. Coinway, Inc. (1967) 257 Cal. App.
2d 126, 136, 64 Cal. Rptr. 845] . But fraud occurs in so many situations that it is difficult to define,
and each case must be considered on its own facts [see Estate of Arbuckle (1950) 98 Cal. App. 2d
562, 568, 220 P.2d 950] .
[2] Deceit
A deceit can be: (1) the suggestion, as a fact, of something that is not true, by one who does not
believe it to be true; (2) the assertion, as a fact, of something that is not true, by one who has no
reasonable ground for believing it to be true; (3) the suppression of a fact, by one who is bound to
disclose it, or who gives information or other facts that are likely to mislead for want of communica-
tion of that fact; or (4) a promise, made without any intention of performing it [Civ. Code ß 1710].
Legal Topics:
TortsBusiness TortsFraud & MisrepresentationGeneral OverviewTortsBusiness TortsFraud &
MisrepresentationActual FraudGeneral Overview
Page 158 of 479

Page 159 of 479

51 of 138 DOCUMENTS
Under the Civil Code, "fraud" and "deceit" are technically two distinct concepts. "Fraud" refers to one
of the bases for rescission of a contract based on lack of valid consent [see Civ. Code ßß 1566, 1567
(3), 1689(b)(1)]. "Deceit" refers to the basis for the tort cause of action for damages [see Civ. Code ßß
1709, 1710]. Nevertheless, the courts frequently use the terms interchangeably to refer to the
common-law tort cause of action for fraud or deceit [see, e.g., Gold v. Los Angeles Democratic
League (1975) 49 Cal. App. 3d 365, 374, 122 Cal. Rptr. 732 ; City Bank of San Diego v. Ramage
(1968) 266 Cal. App. 2d 570, 588, 72 Cal. Rptr. 273] .
The practical distinction is not between the terms "fraud" and "deceit" but between the use of Civ.
Code ß 1572 and Civ. Code ß 1710 as the basis for determining the existence of fraud or deceit.
Reliance on Civ. Code ß 1572 is appropriate if misrepresentation is asserted as a defense to enforce-
ment of a contract. Civ. Code ßß 1709 and 1710 are applicable if a misrepresentation or false promise
is asserted as the basis for recovery of tort damages [see Bezaire v. Fidelity & Deposit Co. (1970) 12
Cal. App. 3d 888, 892, 91 Cal. Rptr. 142] . The elements that are necessary to show fraud or deceit
for the purpose of the tort remedy and for the purpose of showing that there was no valid consent to a
contract are, however, very similar [ South Tahoe Gas Co. v. Hofmann Land Improvement Co.
(1972) 25 Cal. App. 3d 750, 765, 102 Cal. Rptr. 286] .
Legal Topics:
Contracts LawRemediesRescission & RedhibitionGeneral OverviewTortsBusiness TortsFraud &
MisrepresentationGeneral OverviewTortsBusiness TortsFraud & MisrepresentationActual FraudGen-
eral OverviewTortsDamagesCompensatory DamagesGeneral Overview
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Page 161 of 479

52 of 138 DOCUMENTS
ß 269.13 Elements
The elements of deceit are (1) a false representation or concealment of a material fact (or, in some
cases, an opinion) susceptible of knowledge, (2) made with knowledge of its falsity or without
sufficient knowledge on the subject to warrant a representation, (3) with the intent to induce the
person to whom it is made to act on it, (4) and an act by that person in justifiable reliance on the
representation, (5) to that person's damage [ South Tahoe Gas Co. v. Hofmann Land Improvement
Co. (1972) 25 Cal. App. 3d 750, 765, 102 Cal. Rptr. 286 ; Balfour, Guthrie & Co. v. Hansen (1964)
227 Cal. App. 2d 173, 192-193, 38 Cal. Rptr. 525] .
Legal Topics:
MisrepresentationActual FraudElements
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53 of 138 DOCUMENTS
A statement of fact that is not true suggested by one who does not believe it to be true constitutes
deceit [Civ. Code ß 1710(1)]. In other words, a material and knowingly false representation can
support one of the elements of deceit [see Block v. Tobin (1975) 45 Cal. App. 3d 214, 219, 119 Cal.
Rptr. 288] .
"Negligent misrepresentation" is a basis of tort recovery separate and distinct from the tort of
negligence; it is a form of the tort of deceit [ Bily v. Arthur Young & Co. (1992) 3 Cal. 4th 370, 407,
11 Cal. Rptr. 2d 51, 834 P.2d 745 ; see Civ. Code ß 1710(2)]. A cause of action for deceit may be
based on a misrepresentation that was not known to be false, but that was made by one who had no
reasonable ground for believing it to be true [Civ. Code ßß 1709, 1710(2); Gagne v. Bertran (1954)
43 Cal. 2d 481, 487-488, 275 P.2d 15 ; Wilke v. Coinway, Inc. (1967) 257 Cal. App. 2d 126, 136,
64 Cal. Rptr. 845 ; see Bily v. Arthur Young & Co. (1992) 3 Cal. 4th 370, 407-408, 11 Cal. Rptr.
2d 51, 834 P.2d 745] . An objectively reasonable basis for an inaccurate belief, however, is sufficient
to protect the person making the representation from liability. For example, if a landowner has an
objectively reasonable basis for an inaccurate belief concerning the location of boundaries or area, the
landowner has not breached his or her duty to be informed regarding such matters before making a
representation regarding the location of the property [ Quality Wash Group V, Ltd. v. Hallak (1996)
50 Cal. App. 4th 1687, 1696-1697, 58 Cal. Rptr. 2d 592] . If a person asserts that a thing is true
within that person's personal knowledge, or makes a statement as of his or her own knowledge, or
makes such an absolute, unqualified, and positive statement that implies knowledge on his or her part,
although in fact the person has no knowledge whether that assertion is true or false, and the person's
Page 163 of 479

statement proves to be false, that person is as culpable as if he or she had willfully asserted something
to be true that he or she knew to be false, and is equally guilty of fraud [ Howell v. Courtesy
Chevrolet, Inc. (1971) 16 Cal. App. 3d 391, 402, 94 Cal. Rptr. 33] .
A false representation must be a positive assertion, because the tort of deceit based on negligent
misrepresentation does not apply to implied statements [ Evan F. v. Hughson United Methodist
Church (1992) 8 Cal. App. 4th 828, 841 n.2, 10 Cal. Rptr. 2d 748 ; Yanase v. Automobile Club of S.
Cal. (1989) 212 Cal. App. 3d 468, 473 ; cf. Byrum v. Brand (1990) 219 Cal. App. 3d 926, 941-942,
268 Cal. Rptr. 609 (no cause of action stated because defendant had neither made untrue statements
nor actively concealed or suppressed any such facts; court appeared to leave open question whether
nondisclosure of known, material facts could be sufficient assertion)]. However, a cause of action for
negligence may be based on a negligent failure to disclose a material fact if there is a duty of care to
disclose such a fact [see, e.g., OCM Principal Opportunities Fund, L.P. v. CIBC World Markets
Corp. (2007) 157 Cal. App. 4th 835, 855, 68 Cal. Rptr. 3d 828 (investment bank could be liable for
known material omissions in offering memorandum issued in support of sale of securities); Newhall
Land & Farming Co. v. Superior Court (1993) 19 Cal. App. 4th 334, 349, 23 Cal. Rptr. 2d 377
(cause of action stated for negligent failure to disclose soil contamination that materially affected value
of property)].
To be actionable, the representation must be of a past or existing material fact. A representation is not
normally actionable as a negligent misrepresentation if it is merely an expression of opinion as to a
future fact or occurrence [ Neu-Visions Sports, Inc. v. Soren/McAdam/Bartells (2000) 86 Cal. App.
4th 303, 309-310, 103 Cal. Rptr. 2d 159 ; see generally ß 269.17].
A cause of action for negligent misrepresentation has been recognized only if either (1) information is
conveyed in a commercial setting for a business purpose, or (2) providing false information poses a
risk of and results in physical harm to a person or property [ Friedman v. Merck & Co.(2003) 107
Cal. App. 4th 454, 477, 131 Cal. Rptr. 2d 885] . For a discussion of a cause of action for negligent
misrepresentation involving a risk of physical harm, see Ch. 380, Negligence .
Fraud and deceit may consist of the suppression of a fact by one who is bound to disclose it or who
gives information of other facts that are likely to mislead for want of communication of that fact [Civ.
Code ß 1710(3); People v. Highland Fed. Sav. & Loan (1993) 14 Cal. App. 4th 1692, 1718, 19 Cal.
Rptr. 2d 555 (concealment of fact is not actionable under Civ. Code ß 1710 unless defendant is under
duty to disclose); Stevens v. Superior Court (1986) 180 Cal. App. 3d 605, 608-610, 225 Cal. Rptr.
624 ; Outboard Marine Corp. v. Superior Court (1975) 52 Cal. App. 3d 30, 37, 124 Cal. Rptr.
852] . If concealment of a material fact is calculated to induce a false belief, the distinction between
active concealment and affirmative misrepresentation is not significant. Both are fraudulent, and an
active concealment has the same force and effect as a representation that is positive in form [ Out-
board Marine Corp. v. Superior Court (1975) 52 Cal. App. 3d 30, 37, 124 Cal. Rptr. 852] .
Page 164 of 479

The duty to disclose facts arises if a person undertakes to speak, so that the speaker is bound not only
to tell the truth but also not to suppress or conceal facts within speaker's knowledge that materially
qualify those stated, because one who speaks at all must make a full and fair disclosure [ Brownlee v.
Vang (1965) 235 Cal. App. 2d 465, 477, 45 Cal. Rptr. 458] . For example, the vendor of property
who voluntarily speaks concerning the property may not conceal any information within the vendor's
knowledge bearing materially on the subject about which the vendor speaks [ McCue v. Bruce
Enterprises, Inc. (1964) 228 Cal. App. 2d 21, 27-28, 39 Cal. Rptr. 125] . Additionally, if the seller of
property knows of facts materially affecting the value or desirability of the property, which are known
or accessible only to him, and also knows that these facts are not known to, or within the reach of
diligent attention of the buyer, the seller is under a duty to disclose these facts to the buyer [ Newhall
Land & Farming Co. v. Superior Court (1993) 19 Cal. App. 4th 334, 349, 23 Cal. Rptr. 2d 377 ;
Prichard v. Reitz (1986) 178 Cal. App. 3d 465, 468-469, 223 Cal. Rptr. 734 ; see Snelson v.
Ondulando Highlands Corp. (1970) 5 Cal. App. 3d 243, 251, 84 Cal. Rptr. 800 (action for
rescission)]. This duty to disclose can extend to a duty to disclose lawsuits affecting the property's
value or desirability, even lawsuits that are past and settled, and the issue of whether an undisclosed
matter is of sufficient materiality to have affected the value or desirability of the property is a question
of fact [ Calemine v. Samuelson (2009) 171 Cal. App. 4th 153, 165-166, 89 Cal. Rptr. 3d 495 ]. If a
beneficiary under a deed of trust is selling property pursuant to a power of sale, he or she may owe a
common law duty to the prospective buyers to disclose known facts materially affecting the value of
the property [ Karoutas v. HomeFed Bank (1991) 232 Cal. App. 3d 767, 771, 775, 283 Cal. Rptr.
809 (court of appeal reversed general demurrer without leave to amend; complaint had alleged facts
sufficient to raise common-law duty to disclose)]. However, a real estate agent's duty to disclose is
limited to those facts discovered in a diligent visual inspection. For example, an agent has no duty to
ask a homeowner's association about construction defects in the common area of a planned unit
development [ Padgett v. Phariss (1997) 54 Cal. App. 4th 1270, 1284, 63 Cal. Rptr. 2d 373] .
The existence of a fiduciary relationship such as that between a stockbroker and his or her customers
[see Black v. Shearson, Hammill & Co. (1968) 266 Cal. App. 2d 362, 367-368, 72 Cal. Rptr. 157] ,
title insurance company and client [see Moe v. Transamerica Title Ins. Co. (1971) 21 Cal. App. 3d
289, 306, 98 Cal. Rptr. 547] , attorney and client [see Day v. Rosenthal (1985) 170 Cal. App. 3d
1125, 1159, 217 Cal. Rptr. 89] , or any principal-agent relationship [see St. James Armenian
Church of L.A. v. Kurkjian (1975) 47 Cal. App. 3d 547, 551, 121 Cal. Rptr. 214] also gives rise to a
duty to disclose material facts [ LiMandri v. Judkins (1997) 52 Cal. App. 4th 326, 336-337, 60 Cal.
Rptr. 2d 539] so that the suppression or concealment of a material fact by the fiduciary constitutes
actionable fraud [ Moe v. Transamerica Title Ins. Co. (1971) 21 Cal. App. 3d 289, 306, 98 Cal.
Rptr. 547] .
For a discussion of constructive fraud, which also arises from the failure of a fiduciary to disclose a
material fact, see ß 269.22.
The writer of a letter of recommendation owes to third persons a duty not to misrepresent the facts in
Page 165 of 479

describing the qualifications and character of a former employee, if making these misrepresentations
would present a substantial, foreseeable risk of physical injury to third persons [ Randi W. v. Muroc
Joint Unified Sch. Dist. (1997) 14 Cal. 4th 1066, 1081, 60 Cal. Rptr. 2d 263, 929 P.2d 582] .
However, if there is no resulting physical injury or special relationship between the parties, the writer
of a letter of recommendation has no duty of care extending to third persons for misrepresentations
made concerning former employees [ Randi W. v. Muroc Joint Unified Sch. Dist. (1997) 14 Cal. 4th
1066, 1081, 60 Cal. Rptr. 2d 263, 929 P.2d 582] .
The Court relied on Restatement (Second) of Torts ßß 310 (regarding intentional conduct) and 311
(regarding negligent conduct), as well as its analysis of whether a duty of care should be imposed for
the benefit of third persons. In deciding that the Restatement principles should be followed and a duty
imposed, the Court emphasized that the foreseeability of harm, the link between the conduct and the
injury, the moral blame attributable to the conduct, the availability of insurance or alternative courses
of conduct, and public policy considerations on balance supported the imposition of the duty [ Randi
W. v. Muroc Joint Unified Sch. Dist. (1997) 14 Cal. 4th 1066, 1076-1081, 60 Cal. Rptr. 2d 263, 929
P.2d 582] .
The Court also noted that Civ. Code ß 47(c) may well give rise to a defense in some actions involving
letters of reference; however, in dictum (because that section applies only to communications made on
request of prospective employers, a situation not present in the case before the Court) the Court noted
that the statute was primarily intended to provide employers with a defense in an action by the former
employee, not to insulate employers from all tort liability arising from employment disclosures
[ Randi W. v. Muroc Joint Unified Sch. Dist. (1997) 14 Cal. 4th 1066, 1080-1081, 60 Cal. Rptr. 2d
263, 929 P.2d 582] . For discussion of the defenses afforded by Civ. Code ß 47, see Ch. 340, Libel
and Slander .
Deceit may consist of a promise, made without any intention of performing it [see Civ. Code ß 1710
(4)], and such a promise is actionable if the other party relies on it as an inducement [ Brockway v.
Heilman (1967) 250 Cal. App. 2d 807, 811, 58 Cal. Rptr. 772] . Since a promise to do something
necessarily implies the intention to perform, if that intention is absent, there is an implied misrepresen-
tation of the fact of that intention [ Meyer v. Ford Motor Co. (1969) 275 Cal. App. 2d 90, 103, 79
Cal. Rptr. 816] . The promise, to constitute fraud, must be made in bad faith and without intent to
perform and must touch a substantive part of the consideration moving the party with whom the
promisor is dealing [ Harazim v. Lynam (1968) 267 Cal. App. 2d 127, 133, 72 Cal. Rptr. 670] . In
addition, the defendant must not have intended to perform the promise at the time it was made
[ O'Mary v. Mitsubishi Elecs. Am., Inc.(1997) 59 Cal. App. 4th 563, 579, 69 Cal. Rptr. 2d 389
(fraud action properly dismissed if laid off employee offered no evidence to show that employer had
no intent to perform promise of lifetime employment at time promise was made); Kett v. Graeser
(1966) 241 Cal. App. 2d 571, 573, 50 Cal. Rptr. 727] .
Page 166 of 479

In contrast, 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 fraud. The essence of an action for deceit based on a promise made without
any intention of performing it is the lack of intent, at the time of making the promise, to perform it.
The mere failure to perform a promise made in good faith does not constitute fraud [ Church of
Merciful Saviour v. Volunteers of Am. (1960) 184 Cal. App. 2d 851, 859, 8 Cal. Rptr. 48] . Further-
more, the subsequent failure to perform a promise does not give rise to any inference that the
defendant did not intend to perform when he or she made the promise. Though fraudulent intent must
often be established by circumstantial evidence, something more than nonperformance is required to
prove the defendant's intent not to perform [ Tenzer v. Superscope, Inc. (1985) 39 Cal. 3d 18, 30,
216 Cal. Rptr. 130, 702 P.2d 212 (disapproving Santoro v. Carbone (1972) 22 Cal. App. 3d 721,
728, 99 Cal. Rptr. 488 and other cases holding that inference is created by failure to perform);
Magpali v. Farmers Group, Inc. (1996) 48 Cal. App. 4th 471, 55 Cal. Rptr. 2d 225] . Fraudulent
intent may be inferred from such circumstances as the defendant's failure to even attempt performance
the issue of fraudulent intent is one for the trier of fact [ Locke v. Warner Bros., Inc. (1997) 57 Cal.
App. 4th 354, 368, 66 Cal. Rptr. 2d 921 (based on evidence that film studio had expressed an absolute
unwillingness to work with actress, trier of fact reasonably could infer that studio never intended to
give the actresses' movie proposals a good faith evaluation)]. The issue of fraudulent intent is one for
the trier of fact [ Locke v. Warner Bros., Inc. (1997) 57 Cal. App. 4th 354, 368, 66 Cal. Rptr. 2d
921] .
An action for fraud may be maintained even if the allegedly fraudulent promise is unenforceable as a
contract due to the statute of frauds, although proof in such an action is subject to the problems
discussed under ß 269.14[5][a] [ Tenzer v. Superscope, Inc. (1985) 39 Cal. 3d 18, 29-31, 216
Cal. Rptr. 130, 702 P.2d 212 (overruling Kroger v. Baur (1941) 46 Cal. App. 2d 801, 803, 117 P.
2d 50 and progeny)]. In addition, in some instances, an oral collateral promise may have been made
by the defendant to induce the plaintiff to enter into a contract required by the statute of frauds to be in
writing [ Kett v. Graeser (1966) 241 Cal. App. 2d 571, 573, 50 Cal. Rptr. 727] . However, a
licensed real estate broker may not bring an action for fraud based on an alleged oral promise to pay a
commission, because a licensed broker is presumed to know about the statute of frauds; his or her
reliance on such an oral promise is therefore unreasonable as a matter of law [ Phillippe v. Shapell
Indus. (1987) 43 Cal. 3d 1247, 1270, 241 Cal. Rptr. 22, 743 P.2d 1279 ; American Int'l Enters., Inc.
v. Federal Deposit Ins. Corp. (9th Cir. 1993) 3 F.3d 1263, 1270 (applying California law)].
Generally, the tort action for fraud cannot be used to circumvent the effect of the parol evidence rule.
That is, the plaintiff cannot seek to vary the terms of an agreement containing a merger clause by
bringing an action for the tort of fraud rather than for breach of contract and allege that the nonperfor-
mance of the oral promise was the nonperformance of a promise made without the intent to perform.
Page 167 of 479

If the plaintiff can show that the promise concerned a collateral matter and was made to induce the
plaintiff to enter the contract, however, the plaintiff may recover damages from a defendant who has
made an oral promise without the intent to perform despite the existence of a merger clause in the main
contract [ Kett v. Graeser (1966) 241 Cal. App. 2d 571, 574-575, 50 Cal. Rptr. 727 ; see, e.g.,
Agosta v. Astor (2004) 120 Cal. App. 4th 596, 606-607, 15 Cal. Rptr. 3d 565 (fraudulent inducement
to change employment was actionable, even though "at-will" employment provision in written contract
precluded tort recovery for termination of employment)].
A written contractual provision that no other representations were made will not necessarily preclude a
fraud action based on representations that were not included in the written agreement [ Ron
Greenspan Volkswagen v. Ford Motor Land Dev. Corp. (1995) 32 Cal. App. 4th 985, 987-989, 38
Fraud in obtaining an instrument [ Vogelsang v. Wolpert (1964) 227 Cal. App. 2d 102, 122, 38 Cal.
Rptr. 440] or in inducing a party to enter into a contract by a material false promise may be shown by
parol evidence [see Code Civ. Proc. ß 1856(g)]. Evidence of an oral promise consistent with the
written agreement is admissible under the parol evidence rule, while evidence of an oral promise at
variance with the written agreement is not [see Code Civ. Proc. ß 1856(a)]. Thus, Code Civ. Proc. ß
1856(g), embodying the so-called fraud exception to the parol evidence rule, does not apply to
promissory fraud if the evidence in question is offered to show a promise that contradicts an
integrated written agreement. Unless the false promise is either independent of or consistent with the
written instrument, evidence of the false promise is not admissible [ Wang v. Massey Chevrolet
(2002) 97 Cal. App. 4th 856, 873-876, 118 Cal. Rptr. 2d 770 ; Alling v. Universal Mfg. Corp.
(1992) 5 Cal. App. 4th 1412, 1436-1437, 7 Cal. Rptr. 2d 718 ; see Brinderson-Newberg v. Pacific
Erectors (9th Cir. 1992) 971 F.2d 272, 280-281] , cert. denied, 507 U.S. 914 . However, that rule
only bars evidence of false promises. For example, parol evidence of a misrepresentation of fact
concerning the content of an agreement, made at the time of signing, is admissible to void a contract
[ Pacific State Bank v. Greene (2003) 110 Cal. App. 4th 375, 378-380, 1 Cal. Rptr. 3d 739] .
Legal Topics:
Contracts LawStatutes of FraudsGeneral OverviewEvidenceDocumentary EvidenceParol Evidence-
TortsFraud & MisrepresentationNegligent MisrepresentationGeneral OverviewTortsBusiness
TortsFraud & MisrepresentationNondisclosureGeneral Overview
Page 168 of 479

54 of 138 DOCUMENTS
[1] General Rule
To state a cause of action for deceit based on a misrepresentation, a plaintiff must plead and prove that
he or she actually relied on the misrepresentation [ Mirkin v. Wasserman (1993) 5 Cal. 4th 1082,
1088, 1091-1093, 23 Cal. Rptr. 2d 101, 858 P.2d 568 ; see also Bay Summit Cmty. Ass'n v. Shell
Oil Co. (1996) 51 Cal. App. 4th 762, 767, 59 Cal. Rptr. 2d 322 (failure to prove actual reliance
precluded fraud cause of action)].
Forbearance, or the decision not to exercise a right or power, is sufficient to fulfill the element of
reliance necessary to state a cause of action for fraud or negligent misrepresentation [ Small v. Fritz
Cos., Inc. (2003) 30 Cal. 4th 167, 174, 132 Cal. Rptr. 2d 490, 65 P.3d 1255] . In one case, for
example, the California Supreme Court recognized the right of stock investors to bring a common law
action for fraud or negligent misrepresentation based on false statements or reports issued by
corporate directors that induced the holders of that company's stock to decide not to sell the stock,
although a plaintiff in such an action must plead actual reliance with specificity to state a cause of
action [ Small v. Fritz Cos., Inc. (2003) 30 Cal. 4th 167, 171, 132 Cal. Rptr. 2d 490, 65 P.3d
1255] . Actual reliance may be shown, for example, with allegations that if plaintiff had read a truthful
account of the corporation's financial status, the plaintiff would have sold a specified amount of stock
on a specified date [ Small v. Fritz Cos., Inc. (2003) 30 Cal. 4th 167, 184, 132 Cal. Rptr. 2d 490,
65 P.3d 1255] . However, federal law preempts class action suits alleging fraud or misrepresentation
in connection with the sale or purchase of securities, including actionable conduct that induces a
decision to hold already-purchased securities, if those suits are brought in the name of 50 or more
class members [ Merrill Lynch v. Dabit (2006) 547 U.S. 71 (preemption based on Securities
Litigation Uniform Standards Act of 1998, codified at 15 U.S.C.S. ß 78bb(f)(1)(A))].
Page 169 of 479

Because the plaintiff must have actually relied on the misrepresentation in order to state a cause of
action for deceit, there is generally no liability if the plaintiff never heard or read the misrepresentation
before entering into the transaction [see Mirkin v. Wasserman (1993) 5 Cal. 4th 1082, 1088,
1091-1100, 23 Cal. Rptr. 2d 101, 858 P.2d 568 ; Suarez v. Life Ins. Co. of N. Am. (1988) 206 Cal.
App. 3d 1396, 1408, 254 Cal. Rptr. 377 ; see also Edmunds v. Valley Circle Estates (1993) 16 Cal.
App. 4th 1290, 1301-1304, 20 Cal. Rptr. 2d 701 (selling partner as unable to rely on buying partner's
statement of intention regarding resale if selling partner's decision to sell predated statement)]. An
exception exists if the representation was made to a person acting as an agent of the plaintiff, even if
that person does not repeat the misrepresentation to the plaintiff [see Mirkin v. Wasserman (1993) 5
Cal. 4th 1082, 1097-1098, 23 Cal. Rptr. 2d 101, 858 P.2d 568 ; see also Grinnell v. Charles Pfizer
& Co. (1969) 274 Cal. App. 2d 424, 441, 79 Cal. Rptr. 369 (patients permitted to sue pharmaceutical
firms on basis of misrepresentations communicated to physicians on theory that physicians had acted
as patients' agents); Toole v. Richardson-Merrell, Inc. (1967) 251 Cal. App. 2d 689, 707, 60 Cal.
Rptr. 398 (same); Roberts v. Salot (1958) 166 Cal. App. 2d 294, 301, 333 P.2d 232 (property owner
permitted to sue lender for misrepresentations made to owner's agent)]. Another exception exists if a
misrepresentation in an employment letter of recommendation presents a substantial, foreseeable risk
of physical injury to a third person, and a third person is injured as a result. In such a case, it is
sufficient that the employer relied on the misrepresentation; the injured third person need not have
[ Randi W. v. Muroc Joint Unified Sch. Dist. (1997) 14 Cal. 4th 1066, 1085, 60 Cal. Rptr. 2d 263,
929 P.2d 582] . For further discussion, see ß 269.24[2].
In one case, the California Supreme Court permitted a class action by parents suing for alleged false
representations contained in television advertisements directed at children, even though it was
conceded that many of the parents had not actually heard the misrepresentations, nor had the children
literally repeated them to the parents [see Committee on Children's Television, Inc. v. General
Foods Corp. (1983) 35 Cal. 3d 197, 219, 197 Cal. Rptr. 783, 673 P.2d 660] , superseded by statute
as stated in Gartin v. S&M NuTec LLC, 245 F.R.D. 429, 2007 U.S. Dist. LEXIS 38050 . In a later
case, the Court interpreted this decision as merely standing for the proposition that "children cannot be
expected to convey representations about products with precision," andas not dispensing with the
requirement that the representation be communicated to and relied on by the plaintiff [ Mirkin v.
Wasserman (1993) 5 Cal. 4th 1082, 1098-1099, 23 Cal. Rptr. 2d 101, 858 P.2d 568] . However,
communication and reliance may be shown with evidence that the plaintiff was influenced by
widespread advertising targeted at a group of which the plaintiff was a member, even if the plaintiff
cannot specify that any particular advertisement or statement was made directly to him or her or that
the plaintiff relied on any one advertisement [ Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.
App. 4th 655, 676, 71 Cal. Rptr. 3d 775 ; Boeken v. Philip Morris, Inc. (2005) 127 Cal. App. 4th
1640, 1660-1661, 26 Cal. Rptr. 3d 638] .
The "fraud-on-the-market" doctrine used in actions under federal and state securities laws does not
Page 170 of 479

apply to common-law fraud actions. The "fraud-on-the-market" doctrine allows persons who
purchase or sell securities at a price affected by a misrepresentation to sue the person who made the
misrepresentation, even if the buyer or seller never actually heard or relied on the misrepresentation
[see Mirkin v. Wasserman (1993) 5 Cal. 4th 1082, 1100-1108, 23 Cal. Rptr. 2d 101, 858 P.2d
568] . As noted in ß 269.15[1], however, subject to federal preemption of class actions with 50 or
more class plaintiffs, the California Supreme Court has subsequently recognized the right of stock
investors to bring a common law action for fraud or negligent misrepresentation based on false
statements or reports issued by corporate directors that induced the holders of that company's stock to
decide not to sell the stock, although a plaintiff in such an action must plead actual reliance with
specificity to state a cause of action [ Small v. Fritz Cos., Inc. (2003) 30 Cal. 4th 167, 171, 132 Cal.
Rptr. 2d 490, 65 P.3d 1255] .
For discussion of forms for use in actions for securities fraud under California law, see Ch. 515,
Securities and Franchise Regulation .
Legal Topics:
Securities LawLiabilitySecurities Exchange Act of 1934 ActionsImplied Private Rights of ActionEle-
ments of ProofRelianceFraud on the MarketTortsBusiness TortsFraud & MisrepresentationActual
FraudElementsTortsBusiness TortsFraud & MisrepresentationNegligent MisrepresentationElements
Page 171 of 479

55 of 138 DOCUMENTS
[1] Subjective Test
The test for determining justifiability of reliance is whether the person claiming reliance was justified
in believing the representation in the light of his or her own knowledge and experience [ Gray v.
Don Miller & Assocs., Inc. (1984) 35 Cal. 3d 498, 503, 198 Cal. Rptr. 551, 674 P.2d 253] .
The plaintiff is not held to the standard of precaution or minimum knowledge of the hypothetical
reasonable person. The plaintiff will be denied recovery only if the plaintiff's conduct is manifestly
unreasonable in the light of the plaintiff's own intelligence or information. It must be shown that the
plaintiff put faith in representations that were "preposterous" or "shown by facts within [his or her]
observation to be so patently and obviously false that [the plaintiff] must have closed [his or her] eyes
to avoid discovery of the truth." Even in the case of a mere negligent misrepresentation, a plaintiff is
not barred unless the plaintiff's conduct, in the light of the plaintiff's own information and intelligence,
is preposterous and irrational [ Hartong v. Partake, Inc. (1968) 266 Cal. App. 2d 942, 964-965, 72
Cal. Rptr. 722 ; see Atari Corp. v. Ernst & Whinney (9th Cir. 1992) 981 F.2d 1025, 1030-1031] .
A plaintiff who in fact had a generalized distrust of the defendant's honesty or who actually mistrusted
the defendant's statements with regard to the fraudulent transaction may be unable to show the
required justifiable and reasonable reliance on the defendant's statements [see Julrik Prods., Inc. v.
Chester (1974) 38 Cal. App. 3d 807, 810, 113 Cal. Rptr. 527] . Actual reliance is present only when
the plaintiff acts based on belief in the truth of defendant's representations. A plaintiff who suspects
that defendant's claims are false and acts based on that suspicion with the intent to sue for fraud if
plaintiff's suspicions turn out to be true has not actually relied on the truth of defendant's misrepresen-
Page 172 of 479

tations [ Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal. App. 4th 798, 808, 66 Cal. Rptr.
3d 543] . Thus, for example, a consumer who purchases a product with the belief that the manufactur-
er has falsely represented the product in its advertising cannot show actual reliance when purchasing
the product with the specific intent to sue if the advertising does turn out to be false [ Buckland v.
Threshold Enterprises, Ltd. (2007) 155 Cal. App. 4th 798, 808-809, 66 Cal. Rptr. 3d 543] . In the
case of fraud by omission, the plaintiff's requisite belief is in the material completeness of the
defendant's representations [ Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal. App. 4th 798,
808, 66 Cal. Rptr. 3d 543] .
If a plaintiff learns that one representation by a defendant is false, the plaintiff may not assume other
representations by the defendant were true [ Roland v. Hubenka (1970) 12 Cal. App. 3d 215, 225, 90
Cal. Rptr. 490 ; see American Air Equip., Inc. v. Pacific Employers Ins. Co. (1974) 37 Cal. App. 3d
322, 328, 112 Cal. Rptr. 366] .
If the plaintiff has only a suspicion of fraud and the defendant lulls the plaintiff into inaction by a false
representation, the defendant will not be permitted to assert that the plaintiff lost the right to recover
damages by accepting the assurance of the defendant that there was no fraud [ Brownlee v. Vang
(1965) 235 Cal. App. 2d 465, 474, 45 Cal. Rptr. 458] , or by accepting the defendant's plausible
explanation of facts that might otherwise arouse suspicion [ Hartong v. Partake, Inc. (1968) 266
Cal. App. 2d 942, 966, 72 Cal. Rptr. 722] . The plaintiff is not precluded from justifiably relying on
later misrepresentations of the defendant if the defendant has corrected the results of the first
misrepresentation on request [ Shearer v. Cooper (1943) 21 Cal. 2d 695, 701, 134 P.2d 764] .
If there is a fiduciary relationship between the plaintiff and the defendant, the plaintiff has the right to
rely on representations made to him or her without the duty of further inquiry [ Davis v. Kahn
(1970) 7 Cal. App. 3d 868, 878, 86 Cal. Rptr. 872 ; see Greenfield v. Insurance Inc. (1971) 19 Cal.
App. 3d 803, 811, 97 Cal. Rptr. 164 (insurance agent representing he had obtained coverage that he
had not obtained)].
As a general rule, one has a right to rely on statements of material facts essentially connected with the
substance of the transaction if he or she is ignorant or inexperienced in regard to the matters about
which the material misrepresentations are made and this ignorance is known to the other party, who is
also aware that reliance is being placed on those representations and that the facts are not and cannot
be expected to be within the first party's knowledge [ Hartong v. Partake, Inc. (1968) 266 Cal. App.
2d 942, 966, 72 Cal. Rptr. 722] . The plaintiff also has the right to rely on representations if he or she
lacks equal facilities for learning the truth, such as if the facts are peculiarly within the knowledge of
the speaker and are difficult for the hearer to ascertain, or if from the circumstances surrounding the
transaction the hearer is forced to rely on the speaker's statements [ Meyer v. Ford Motor Co. (1969)
Page 173 of 479

275 Cal. App. 2d 90, 105, 79 Cal. Rptr. 816] .

If one is justified in relying, and in fact does rely, on false representations, his or her right of action is
not destroyed merely because he or she could have discovered the true facts by investigation or other
means. In other words, the plaintiff has no duty to investigate the truth of representations that he or
she was justified in relying on [ Howell v. Courtesy Chevrolet, Inc. (1971) 16 Cal. App. 3d 391,
403, 94 Cal. Rptr. 33] . Even if the plaintiff has an opportunity to make an inspection or investigation
that would reveal the falsity of the defendant's statements to him or her, he or she is not required to
make the investigation if the defendant has asserted facts about the subject matter [ Storage Servs. v.
Oosterbaan (1989) 214 Cal. App. 3d 498, 508, 262 Cal. Rptr. 689 ; Balfour, Guthrie & Co. v.
Hansen (1964) 227 Cal. App. 2d 173, 193, 38 Cal. Rptr. 525] . The fact than an investigation would
have revealed the falsity of a misrepresentation will not alone bar recovery, unless the conduct of the
plaintiff in the light of the plaintiff's own intelligence and information was manifestly unreasonable
[ Meyer v. Ford Motor Co. (1969) 275 Cal. App. 2d 90, 105, 79 Cal. Rptr. 816] .
Even if the plaintiff does make an independent investigation or examination of property, this does not
preclude reliance on the defendant's representations if the falsity of the statement is not apparent from
an inspection, or the person making the representations has superior knowledge, or the party relying
on the investigation is not competent to judge the facts without expert assistance [ Snelson v.
Ondulando Highlands Corp. (1970) 5 Cal. App. 3d 243, 252, 84 Cal. Rptr. 800 ; Horn v. Guaranty
Chevrolet Motors (1969) 270 Cal. App. 2d 477, 482, 75 Cal. Rptr. 871] . In addition, if plaintiff
made an attempt to investigate but negligently failed to discover the falsity of the defendant's
representations, this negligence will not relieve the defendant from liability for his or her intentional
misrepresentations [ Manderville v. PCG&S Group, Inc. (2007) 146 Cal. App. 4th 1486,
1502-1503, 55 Cal. Rptr. 3d 59] .
If, however, a party to whom a misrepresentation has been made does make an independent investiga-
tion and ascertains that the representation is false, he or she is not justified in relying on the misrepre-
sentation [ Mercer v. Elliott (1962) 208 Cal. App. 2d 275, 279, 25 Cal. Rptr. 217 ; but see Kramer
v. Musser (1943) 57 Cal. App. 2d 942, 946, 136 P.2d 74 (plaintiff who undertakes investigation as
held to knowledge that would have been obtained had plaintiff pursued investigation to its end)].
In cases involving alleged fraudulent misrepresentations concerning insurance coverage, some courts
have applied what appears to be an exception to the usual rule that a plaintiff has no duty to investigate
the truth of affirmative representations unless the plaintiff is aware of facts indicating the falsity of the
representations [see ß 269.16[6]]. These courts have held that if an insured receives and accepts an
insurance policy, he or she is bound by its terms and cannot thereafter complain that he or she did not
read the policy or know its terms. An insured who fails to read or understand the terms of the policy
is precluded from claiming justifiable reliance on coverage misrepresentations by a broker or agent if
Page 174 of 479

the insured could have ascertained the truth by reading the express terms of the policy [see Hadland
v. NN Investors Life Ins. Co. (1994) 24 Cal. App. 4th 1578, 1586-1589, 30 Cal. Rptr. 2d 88 ;
Hackethal v. National Cas. Co. (1987) 189 Cal. App. 3d 1102, 1111-1112, 234 Cal. Rptr. 853] .
[8] Effect of Plaintiff's Discovery of True Facts Before Close of Escrow in Real Property
Sale
The plaintiff's discovery of the true facts after signing a real property purchase agreement but before
the close of escrow does not preclude a finding of justifiable reliance with respect to false representa-
tions made by the defendant before the purchase agreement was signed. The plaintiff's reliance at the
inception of the agreement is sufficient to support recovery for fraud [ Jue v. Smiser (1994) 23 Cal.
App. 4th 312, 313, 316-318, 28 Cal. Rptr. 2d 242] .
If misrepresentations trigger actions that are mandated by law on the part of the person to whom the
representations are made, then these actions are not taken in reliance on the misrepresentations. In one
case, for example, an employer was required by law and by its workers' compensation insurance
policy to report any claims to its insurer. Because of this legal requirement, the employer could not
demonstrate reliance on an alleged fraudulent claim filed by an employee when it reported the claim to
the insurer [ Leegin Creative Leather Prods., Inc. v. Diaz (2005) 131 Cal. App. 4th 1517, 1525, 33
The plaintiff in an action for fraud is not held to constructive notice of a public record that would
reveal the true facts [ Seeger v. Odell (1941) 18 Cal. 2d 409, 415, 115 P.2d 977] .
[a] In General
The fact that reliance was not justified is a defense [see Hartong v. Partake, Inc. (1968) 266 Cal.
App. 2d 942, 964-965, 72 Cal. Rptr. 722] , but the plaintiff has the burden of proof on the issue of
justifiable reliance [ American Air Equip., Inc. v. Pacific Employers Ins. Co. (1974) 37 Cal. App. 3d
322, 327 n.4, 112 Cal. Rptr. 366] . Whether the plaintiff justifiably relied is generally a question of
fact [ Meyer v. Ford Motor Co. (1969) 275 Cal. App. 2d 90, 105, 79 Cal. Rptr. 816] , but it is not
necessary to show reliance on a false representation by direct evidence. The fact of reliance on false
representations may be inferred from the circumstances attending the transaction, which often afford
much stronger and more satisfactory evidence of the inducement that prompted the party defrauded to
enter into the contract than his or her direct testimony to the same effect [ Vasquez v. Superior Court
(1971) 4 Cal. 3d 800, 814, 94 Cal. Rptr. 796, 484 P.2d 964] .
[b] Class Actions
In a class action for fraud, the plaintiff must show that the defendant made false material representa-
Page 175 of 479

tions to each member of the class with knowledge of their falsity or an unreasonable belief in their
veracity and that these representations were made with intent to and did induce justifiable reliance by
each member of the class and that each member of the class suffered damages as a result [see
Vasquez v. Superior Court (1971) 4 Cal. 3d 800, 811, 94 Cal. Rptr. 796, 484 P.2d 964] . The
representative plaintiff must by common proof show that substantially the same representations were
made to each member of the class. One way of showing common representations is to show that the
defendant used a standardized sales pitch or brochure [see Occidental Land, Inc. v. Superior Court
(1976) 18 Cal. 3d 355, 361-362, 134 Cal. Rptr. 388, 556 P.2d 750] . If representations were in fact
made to all the members of a class, a persuasive inference that each of them relied on the representa-
tions arises without separate proof of reliance by each individual plaintiff [ Collins v. Rocha (1972)
7 Cal. 3d 232, 237, 102 Cal. Rptr. 1, 497 P.2d 225 ; see Mirkin v. Wasserman (1993) 5 Cal. 4th
1082, 1095, 23 Cal. Rptr. 2d 101, 858 P.2d 568] .
Legal Topics:
Civil ProcedureClass ActionsGeneral OverviewEvidenceProcedural ConsiderationsBurdens of
ProofGeneral OverviewTortsBusiness TortsFraud & MisrepresentationActual FraudDefensesTorts-
Business TortsFraud & MisrepresentationActual FraudElementsTortsIntentional TortsBreach of
Fiduciary DutyGeneral Overview
Page 176 of 479

56 of 138 DOCUMENTS
Ordinarily, mere statements of opinion, including legal conclusions drawn from a true statement of
facts, are not actionable [see Wilke v. Coinway, Inc. (1967) 257 Cal. App. 2d 126, 136, 64 Cal. Rptr.
845] , and the plaintiff may not show justifiable reliance on mere statements of opinion [ Wilke v.
Coinway, Inc. (1967) 257 Cal. App. 2d 126, 136, 64 Cal. Rptr. 845] . There is a special type of
opinion known as puffing, an exaggerated statement of the opinion of a seller about his or her wares,
for which the seller is not held liable [see Hauter v. Zogarts (1975) 14 Cal. 3d 104, 111 n.5, 120
Cal. Rptr. 681, 534 P.2d 377] .
The line between opinion and fact is not distinct. If the opinion is rendered under circumstances such
that it may be regarded as amounting to a positive affirmation of fact, it will be treated as a representa-
tion of fact for purposes of a deceit action [ Mercer v. Elliott (1962) 208 Cal. App. 2d 275, 280, 25
Cal. Rptr. 217] . An assertion that factually describes an important characteristic of a product is not a
seller's mere puffing or opinion and is actionable. The courts, in addition, have consistently narrowed
the scope of puffing and expanded the liability that flows from broad statements of manufacturers as
to the quality of their products. A statement, for example that a product is safe is usually held to be a
statement of fact [ Hauter v. Zogarts (1975) 14 Cal. 3d 104, 111-113, 120 Cal. Rptr. 681, 534 P.2d
377 ; Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal. App. 3d 388, 424, 264
Cal. Rptr. 779] . If there is a reasonable doubt as to whether a particular statement is an expression of
opinion or the affirmation of a fact, the determination rests with the trier of fact [ Pacesetter Homes,
Inc. v. Brodkin (1970) 5 Cal. App. 3d 206, 212, 85 Cal. Rptr. 39] .
Page 177 of 479

An expression of opinion is treated as an actionable misrepresentation if any of the following applies:

the one expressing the opinion does not in fact entertain it [ Ogier v. Pacific Oil & Gas Corp. (1955)
132 Cal. App. 2d 496, 506, 282 P.2d 574 ; see also Anderson v. Handley (1957) 149 Cal. App. 2d
184, 187, 308 P.2d 368 (expression of opinion as to character or skill of another)]; the opinion
amplifies false representations of fact [ Harazim v. Lynam (1968) 267 Cal. App. 2d 127, 133, 72
Cal. Rptr. 670 ; Wilke v. Coinway, Inc. (1967) 257 Cal. App. 2d 126, 136, 64 Cal. Rptr. 845] ; the
opinion is expressed in a manner implying a factual basis that does not exist [ Harazim v. Lynam
(1968) 267 Cal. App. 2d 127, 133, 72 Cal. Rptr. 670] ; if the opinion is expressed as a fact [ Haraz-
im v. Lynam (1968) 267 Cal. App. 2d 127, 132, 72 Cal. Rptr. 670] ; the opinion is expressed by a
party possessing superior knowledge to that of the plaintiff [ Bily v. Arthur Young & Co. (1992) 3
Cal. 4th 370, 407-408, 11 Cal. Rptr. 2d 51, 834 P.2d 745 ; Gagne v. Bertran (1954) 43 Cal. 2d
481, 489, 275 P.2d 15 ; Pacesetter Homes, Inc. v. Brodkin (1970) 5 Cal. App. 3d 206, 211, 85 Cal.
Rptr. 39 ; Ogier v. Pacific Oil & Gas Corp. (1955) 132 Cal. App. 2d 496, 506-507, 282 P.2d 574] ;
or if there is a fiduciary relationship between the plaintiff and the defendant [ Katz v. Feldman (1972)
23 Cal. App. 3d 500, 504, 100 Cal. Rptr. 367 ; Harazim v. Lynam (1968) 267 App. 2d 127, 133, 72
Cal. Rptr. 670] .
Legal Topics:
TortsBusiness TortsFraud & MisrepresentationActual FraudDefensesTortsBusiness TortsFraud &
Page 178 of 479

57 of 138 DOCUMENTS
[1] General Rule
Absent special circumstances, a misrepresentation of law is not actionable fraud [ Bledsoe v. Watson
(1973) 30 Cal. App. 3d 105, 110, 106 Cal. Rptr. 197 ; Regus v. Schartkoff (1957) 156 Cal. App. 2d
382, 388, 319 P.2d 721] . That is, a representation of law by a layperson not occupying a confidential
relationship toward the one to whom it is addressed and based on facts equally known or accessible to
both does not ordinarily justify reliance on the representation [ Regus v. Schartkoff (1957) 156 Cal.
App. 2d 382, 388, 319 P.2d 721] .
[2] Exceptions
The rule precluding liability for misrepresentations of law has several exceptions. One of the most
commonly known and recognized exceptions arises if the parties occupy confidential or fiduciary
relations toward one another [see Lynch v. Cruttenden & Co. (1993) 18 Cal. App. 4th 802, 808, 22
Cal. Rptr. 2d 636 ; Katz v. Feldman (1972) 23 Cal. App. 3d 500, 504, 100 Cal. Rptr. 367 ; Bank of
Am. v. Sanchez (1934) 3 Cal. App. 2d 238, 242, 38 P.2d 787] .
This exception is not limited to situations in which there is a formal fiduciary or confidential
relationship (for example, an attorney-client relationship). The exception extends to fiduciary or
confidential relationships that may arise out of moral, social, domestic, or personal relationships. For
example, the existence of friendly relations between the parties during a period of several years may
entitle the injured party, in an appropriate case, to place confidence in the integrity and honesty of the
other party and in the truth of representations made by the latter regarding a transaction between them
[ Bank of Am. v. Sanchez (1934) 3 Cal. App. 2d 238, 243, 38 P.2d 787 ; see Lynch v. Cruttenden &
Co. (1993) 18 Cal. App. 4th 802, 809, 22 Cal. Rptr. 2d 636 (plaintiffs justified in relying on
Page 179 of 479

defendant's representations regarding legal effect of documents signed by them because defendant had
obtained control over funds through trust and confidence reposed in defendant as their friend and as
purported expert in investments)].
Another exception exists if one who has had superior means of obtaining information possesses a
knowledge of the law and thereby gains an unconscionable advantage over another who is ignorant
and has not been in a situation to become informed [ Orange County Rock Prods. Co. v. Cook Bros.
Equip. Co. (1966) 246 Cal. App. 2d 698, 701, 55 Cal. Rptr. 265 ; Regus v. Schartkoff (1957) 156
Cal. App. 2d 382, 388-389, 319 P.2d 721] . An exception also exists if the party expressing the
opinion purports to have (or is reasonably believed by the other party to have) expert knowledge
concerning the matter [see Seeger v. Odell (1941) 18 Cal. 2d 409, 414, 115 P.2d 977 ; Lynch v.
Cruttenden & Co. (1993) 18 Cal. App. 4th 802, 808, 22 Cal. Rptr. 2d 636 ; Regus v. Schartkoff
(1957) 156 Cal. App. 2d 382, 388, 319 P.2d 721] .
Legal Topics:
MisrepresentationActual FraudElementsTortsIntentional TortsBreach of Fiduciary DutyGeneral
Overview
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58 of 138 DOCUMENTS
[1] General Rule
Some cases have implied that an actual intent on the part of the defendant to deceive the plaintiff is a
necessary element of the cause of action for deceit [see, e.g., Lesperance v. North Am. Aviation, Inc.
(1963) 217 Cal. App. 2d 336, 345, 31 Cal. Rptr. 873] . However, one who deceives another with the
intent to induce that other person to alter his or her position to his or her injury or risk is liable for any
damages that the other person thereby suffers [Civ. Code ß 1709]. The required intent is the intent to
induce reliance so that the person defrauded alters his or her position, and is not the intent to defraud
[ Gagne v. Bertran (1954) 43 Cal. 2d 481, 488 n.5, 275 P.2d 15 ; De Zemplen v. Home Fed. Sav.
& Loan Ass'n (1963) 221 Cal. App. 2d 197, 207, 34 Cal. Rptr. 334] . The fact that negligent
misrepresentation is made actionable by Civ. Code ß 1710(2) further indicates that the intent to induce
reliance, rather than the intent to deceive, is the required intent [ Hale v. George A. Hormel & Co.
(1975) 48 Cal. App. 3d 73, 82-86, 121 Cal. Rptr. 144] .
The defendant's intent to cause the plaintiff to suffer a particular type of damage or harm is not an
element of a cause of action for fraud [ Lovejoy v. AT&T Corp. (2001) 92 Cal. App. 4th 85, 92-94,
111 Cal. Rptr. 2d 711] .
An intent to induce the plaintiff to alter his or her position can be inferred from the fact that the
defendant made the representation with knowledge that the plaintiff would act in reliance on it
[ Gagne v. Bertran (1954) 43 Cal. 2d 481, 488, 275 P.2d 15 ; Eddy v. Sharp (1988) 199 Cal. App.
3d 858, 864, 245 Cal. Rptr. 211 ; see Civ. Code ß 1709], since direct proof of intent is often
impossible [ Santoro v. Carbone (1972) 22 Cal. App. 3d 721, 728, 99 Cal. Rptr. 488] . For
Page 181 of 479

example, an accounting firm that prepares financial reports for a research company for inclusion in a
confidential offering memorandum to be communicated to potential investors was found to have
known to a substantial certainty that investors would rely on the reports in the course of the transac-
tion [ Anderson v. Deloitte & Touche (1997) 56 Cal. App. 4th 1468, 1477-1478, 66 Cal. Rptr. 2d
512 (forecasts and underlying assumptions to which reports referred were designed for the specific
purpose of attracting investors and could not reasonably be understood to have any other purpose)].
Intent is usually proved by inference from the fact of concealment or from misrepresentation of
material facts [ Horn v. Guaranty Chevrolet Motors (1969) 270 Cal. App. 2d 477, 483, 75 Cal.
Rptr. 871] .
One who commits a deceit with intent to defraud the public or a particular class of persons is deemed
to have intended to defraud every individual in that class who is actually misled by the deceit [Civ.
Code ß 1711]. Thus, liability may be imposed if the representation was intended to be relied on by the
public or by a general class of persons that includes the plaintiff; the defendant need not have intended
that the representation be relied on by the plaintiff specifically [see Barnhouse v. City of Pinole
(1982) 133 Cal. App. 3d 171, 191-192, 183 Cal. Rptr. 881 ; see also Civ. Code ß 1711]. However,
there is no liability unless the representation was ultimately communicated to and actually relied on by
the plaintiff [see Mirkin v. Wasserman (1993) 5 Cal. 4th 1082, 1088-1100, 23 Cal. Rptr. 2d 101,
858 P.2d 568 ; see also ß 269.15[2]].
Legal Topics:
Civil ProcedureClass ActionsGeneral OverviewEvidenceInferences & PresumptionsInferencesTorts-
Business TortsFraud & MisrepresentationActual FraudDefensesTortsBusiness TortsFraud &
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59 of 138 DOCUMENTS
In order to constitute actionable fraud, the alleged false representation must be of a material fact
[ Adkins v. Wyckoff (1957) 152 Cal. App. 2d 684, 689, 313 P.2d 592] . This requirement is related to
the requirement that the representation by the defendant must have induced the plaintiff to alter his or
her position--that is, that the plaintiff must have actually relied on the defendant's representation [see
Sanfran Co. v. Rees Blow Pipe Mfg. Co. (1959) 168 Cal. App. 2d 191, 202, 335 P.2d 995 (causation
in misrepresentation cases as frequently presented in terms of reliance and inducement); see also ß
269.15[2]]. A fraudulent misrepresentation is not actionable unless the plaintiff's conduct in reliance
on the misrepresentation caused the loss for which the plaintiff seeks damages [ Bezaire v. Fidelity &
Deposit Co. (1970) 12 Cal. App. 3d 888, 893, 91 Cal. Rptr. 142] . The materiality of the representa-
tion and the actual reliance of the plaintiff on the representation are both necessary to show that the
damage claimed was sustained by reason of the fraud. The fraud and the damage sustained must have
a cause and effect relationship to each other [ Hill v. Wrather (1958) 158 Cal. App. 2d 818, 825, 323
P.2d 567] .
To be material, the misrepresentation must be such that the plaintiff would not have acted as the
plaintiff did without it [ Adkins v. Wyckoff (1957) 152 Cal. App. 2d 684, 689, 313 P.2d 592] . The
fact represented or suppressed is deemed material if it relates to a matter of substance and directly
affects the purpose for which the deceived party acted [ Handley v. Handley (1960) 179 Cal. App. 2d
742, 746, 3 Cal. Rptr. 910 (misrepresentation as ground for annulment of marriage contract)].
Concealment is material if the knowledge suppressed is so important that its mere repression amounts
to fraud [ Sanfran Co. v. Rees Blow Pipe Mfg. Co. (1959) 168 Cal. App. 2d 191, 205, 335 P.2d
995] . On the other hand, a false representation that cannot affect the intrinsic merits of a business
transaction must necessarily be immaterial because reliance on it could not produce injury in a legal
sense [ Hill v. Wrather (1958) 158 Cal. App. 2d 818, 824-825, 323 P.2d 567] .
Page 183 of 479

The plaintiff will also be unable to show materiality or causation if the plaintiff could have done
nothing to improve his or her position if the plaintiff had known initially that the representation was
false [ Bezaire v. Fidelity & Deposit Co. (1970) 12 Cal. App. 3d 888, 893, 91 Cal. Rptr. 142] .
However, it is unnecessary that the defendant's representations be the sole cause of the damage. If
they are a substantial factor in inducing the plaintiff to act, even though the plaintiff also relies in part
on the advice of others, reliance and materiality are sufficiently shown [ Wennerholm v. Stanford
Univ. Sch. of Med. (1942) 20 Cal. 2d 713, 717, 128 P.2d 522 ; Anderson v. Handley (1957) 149
Cal. App. 2d 184, 186-187, 308 P.2d 368] . It is sufficient if the evidence shows that the representa-
tion was an inducement to the plaintiff to act without showing that it was the sole inducement
[ Sanfran Co. v. Rees Blow Pipe Mfg. Co. (1959) 168 Cal. App. 2d 191, 205, 335 P.2d 995] .
Legal Topics:
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60 of 138 DOCUMENTS
Fraud without damage furnishes no ground for action [ Wallis v. Farmers Group, Inc. (1990) 220
Cal. App. 3d 718, 734, 269 Cal. Rptr. 299 , overruled in part by, Dore v. Arnold Worldwide, Inc., 39
Cal. 4th 384 ; South Tahoe Gas Co. v. Hofmann Land Improvement Co. (1972) 25 Cal. App. 3d
750, 765, 102 Cal. Rptr. 286 ; see Fraker v. Sentry Life Ins. Co. (1993) 19 Cal. App. 4th 276,
285-286, 23 Cal. Rptr. 2d 372] . A plaintiff may recover for fraud only if the plaintiff shows that
because of the defendant's misrepresentations, the plaintiff has sustained some pecuniary damage or
injury from having been put in a position worse than he or she would have occupied had there been
no fraud [ R.D. Reeder Lathing Co. v. Cypress Ins. Co. (1970) 3 Cal. App. 3d 995, 999, 84 Cal.
Rptr. 98] . The plaintiff must allege and prove the precise amount of damages [ Santoro v. Carbone
(1972) 22 Cal. App. 3d 721, 728, 99 Cal. Rptr. 488] .
Legal Topics:
MisrepresentationActual FraudElementsTortsBusiness TortsFraud & MisrepresentationActual
FraudRemedies
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61 of 138 DOCUMENTS
[1] Definition
Constructive fraud is (1) any breach of duty by which a person, without an actually fraudulent intent,
gains an advantage by misleading another to his or her prejudice, or to the prejudice of anyone
claiming under him or her; or (2) any act or omission that the law specially declares to be fraudulent,
without respect to actual fraud [Civ. Code ß 1573].
In its generic sense, constructive fraud comprises all acts, omissions, and concealments involving a
breach of legal or equitable duty, trust, or confidence, and resulting in damage to another person.
Constructive fraud exists in cases in which conduct, although not actually fraudulent, ought to be
treated as fraud. That is, it exists in situations in which the conduct is a constructive or quasi fraud,
and has all the actual consequences and legal effects of actual fraud. Constructive fraud occurs if there
is a breach of duty arising from a confidential relationship, that is, a relationship in which trust and
confidence is reposed by one person in the integrity and fidelity of another [ Barrett v. Bank of Am.
(1986) 183 Cal. App. 3d 1362, 1368-1369, 229 Cal. Rptr. 16 (criticized in Price v. Wells Fargo
Bank (1989) 213 Cal. App. 3d 465, 476, 261 Cal. Rptr. 735 to extent it suggests that relationship
between bank and loan customer is quasi-fiduciary); Estate of Arbuckle (1950) 98 Cal. App. 2d 562,
568, 220 P.2d 950 ; see also Feeney v. Howard (1889) 79 Cal. 525, 529, 21 P. 984 ; Salahutdin v.
Valley of Cal., Inc. (1994) 24 Cal. App. 4th 555, 562, 29 Cal. Rptr. 2d 463 ; Guthrie v. Times-
Mirror Co. (1975) 51 Cal. App. 3d 879, 889, 124 Cal. Rptr. 577] , with justification [ Twomey v.
Mitchum, Jones & Templeton, Inc. (1968) 262 Cal. App. 2d 690, 711, 69 Cal. Rptr. 222] .
If during the existence of the fiduciary relationship one of the parties secures any advantage over the
Page 186 of 479

other, the transaction is presumptively fraudulent and the burden is on the party gaining the advantage
to show fairness and good faith in all respects. The presumption is evidence and is sufficient to
sustain a finding of fraud although there may be direct evidence to the contrary [ Boyd v. Bevilacqua
(1966) 247 Cal. App. 2d 272, 290-291, 55 Cal. Rptr. 610] .
If there is a duty to speak because of a trust or confidential relationship, a failure to do so is consid-

ered constructive fraud [ Blair v. Mahon (1951) 104 Cal. App. 2d 44, 49, 230 P.2d 832] . Wherever
there is a confidential relationship, there is a duty to make full disclosure of all material facts within the
agent's or trustee's knowledge relating to the transaction [ Montoya v. McLeod (1985) 176 Cal. App.
3d 57, 64, 221 Cal. Rptr. 353 ; Ford v. Cournale (1973) 36 Cal. App. 3d 172, 182, 111 Cal. Rptr.
334] .
Such a duty exists between a real estate broker and his or her client [ Salahutdin v. Valley of Cal.,
Inc. (1994) 24 Cal. App. 4th 555, 562-563, 29 Cal. Rptr. 2d 463 ; Ford v. Cournale (1973) 36 Cal.
App. 3d 172, 182, 111 Cal. Rptr. 334 ; Kachig v. Boothe (1971) 22 Cal. App. 3d 626, 634-635, 99
Cal. Rptr. 393] ; between a title insurance company and all principals to the escrow and between an
escrow officers and all principals to the escrow [ Moe v. Transamerica Title Ins. Co. (1971) 21 Cal.
App. 3d 289, 306, 98 Cal. Rptr. 547] ; between joint venturers [ Davis v. Kahn (1970) 7 Cal. App.
3d 868, 877-878, 86 Cal. Rptr. 872 ; Boyd v. Bevilacqua (1966) 247 Cal. App. 2d 272, 290, 55 Cal.
Rptr. 610] ; between spouses negotiating a property settlement agreement [ Boeseke v. Boeseke
(1974) 10 Cal. 3d 844, 849, 112 Cal. Rptr. 401, 519 P.2d 161 (but duty is qualified in case of
spouses); see Fam. Code ßß 721, 1100(e)]; between the executor of an estate and the devisees and
legatees [ Blair v. Mahon (1951) 104 Cal. App. 2d 44, 49, 230 P.2d 832] ; between the officers,
directors, and managers of a corporation and the stockholders [ Credit Managers Ass'n of So. Cal. v.
Superior Court (1975) 51 Cal. App. 3d 352, 360-361, 124 Cal. Rptr. 242] ; and between any agent
and principal [ McFate v. Bank of Am. of Cal. (1932) 125 Cal. App. 683, 687, 14 P.2d 146] .
For example, a real estate broker representing a buyer breaches his or her fiduciary duty to the buyer if
the broker makes erroneous statements concerning material characteristics of a parcel of property
without disclosing that he or she is merely passing on information provided by the seller and that he
or she has not independently investigated the truth of those statements. Such a breach of duty may
constitute constructive fraud, depending on the circumstances [see Salahutdin v. Valley of Cal., Inc.
(1994) 24 Cal. App. 4th 555, 562-563, 29 Cal. Rptr. 2d 463] .
[4] Defenses
In an action for constructive fraud, the applicable statute of limitations is Code Civ. Proc. ß 338(d), the
same statute applicable to actions based on deceit [ Agair, Inc. v. Shaeffer (1965) 232 Cal. App. 2d
513, 517-519, 42 Cal. Rptr. 883] . Contributory negligence is not a defense to an action for construc-
tive fraud based on misrepresentations by a fiduciary [ Bacon v. Bacon (1907) 150 Cal. 477, 489, 89
P. 317] .
Page 187 of 479

Legal Topics:
EvidenceInferences & PresumptionsPresumptionsGeneral OverviewGovernmentsLegislationStatutes
of LimitationsTime LimitationsTortsBusiness TortsFraud & MisrepresentationConstructive FraudDe-
fensesTortsBusiness TortsFraud & MisrepresentationConstructive FraudElementsTortsIntentional
TortsBreach of Fiduciary DutyGeneral Overview
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62 of 138 DOCUMENTS
ß 269.23 Evidence
[1] Burden of Proof
Although some earlier cases assumed that fraud must be proved by clear and convincing evidence,
later cases have indicated that fraud need only be proved by a preponderance of the evidence [see
Sierra Nat'l Bank v. Brown (1971) 18 Cal. App. 3d 98, 104-106, 95 Cal. Rptr. 742 ; Teledyne Indus.,
Inc. v. EON Corp. (S.D.N.Y. 1975) 401 F. Supp. 729, 737 (interpreting California law); see also Evid.
Code ß 115 (except as otherwise provided by law, a party's burden proof requires proof by a
preponderance of the evidence)]. However, if "fraud" as defined by Civ. Code ß 3294(c)(3) is
asserted as a basis for recovery of punitive damages, it must be proven by clear and convincing
evidence [Civ. Code ß 3294(a); see also ß 269.30].
Fraud is never presumed [ Fowler v. Fowler (1964) 227 Cal. App. 2d 741, 748, 39 Cal. Rptr. 101] .
The facts constituting fraud must be determined from the circumstances of each case, and fraud may
be proved from direct evidence or inferred from all the circumstances in the case, [ Ach v. Finkelstein
(1968) 264 Cal. App. 2d 667, 675, 70 Cal. Rptr. 472] . Thus, fraud may be proved by inference and
circumstantial evidence [ Vogelsang v. Wolpert (1964) 227 Cal. App. 2d 102, 111, 38 Cal. Rptr.
440] because it is often impossible to prove directly. The circumstances surrounding the transaction
and the relationship of the parties will often be facts from which fraud may be inferred [ Balfour,
Guthrie & Co. v. Hansen (1964) 227 Cal. App. 2d 173, 192, 38 Cal. Rptr. 525] .
Legal Topics:
Page 189 of 479

EvidenceInferences & PresumptionsPresumptionsGeneral OverviewEvidenceProcedural Considera-

tionsBurdens of ProofClear & Convincing ProofEvidenceProcedural ConsiderationsBurdens of
ProofPreponderance of EvidenceTortsBusiness TortsFraud & MisrepresentationActual FraudGeneral
OverviewTortsDamagesPunitive DamagesAvailabilityGeneral Overview
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63 of 138 DOCUMENTS
Although the plaintiff must ultimately receive and actually rely on the misrepresentation [see ß
269.15], it is not necessary that the defendant communicate directly with the plaintiff. The defendant is
subject to liability if he or she communicates a fraudulent misrepresentation to a third person with the
intention or with reason to expect that it would be repeated to and relied on by the plaintiff or by a
class of persons including the plaintiff [see Mirkin v. Wasserman (1993) 5 Cal. 4th 1082,
1095-1097, 23 Cal. Rptr. 2d 101, 858 P.2d 568 (but finding rule inapplicable to facts of case);
Barnhouse v. City of Pinole (1982) 133 Cal. App. 3d 171, 191-192, 183 Cal. Rptr. 881 ; Restatement
(Second) of Torts ß 533].
Having "reason to expect" that a fraudulent misrepresentation will be communicated to and influence a
third party requires only knowledge on the part of the person making the misrepresentation such that a
reasonable person would conclude that there is a special likelihood that the misrepresentations will
induce reliance by third parties. Mere foreseeability that a third party might so rely is insufficient
[ Geernaert v. Mitchell (1995) 31 Cal. App. 4th 601, 608-609, 37 Cal. Rptr. 2d 483 (buyers of real
property had stated cause of action against sellers once and twice removed by alleging that defendants
intended or had reason to expect that misrepresentations would be passed to subsequent buyers)]. To
the extent that BAJI No. 12.50 requires actual intent to commit a fraud against a third person in order
to incur liability to that third person, it has been disapproved by the court of appeal [ Geernaert v.
Mitchell (1995) 31 Cal. App. 4th 601, 609 n.3, 37 Cal. Rptr. 2d 483] .
If the misrepresentation made to the third party is negligent rather than knowingly false, the courts
have been somewhat more reluctant to allow recovery to a plaintiff to whom the representation was
not directly communicated. Although privity of contract between the plaintiff and the defendant is not
Page 191 of 479

a prerequisite to recovery, the courts analyze a number of factors in determining whether the defendant
should be held liable, including the extent to which the transaction was intended to affect the plaintiff,
the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the
closeness of the connection between the defendant's conduct and the injury suffered, any moral blame
attached to the defendant's conduct, and the policy of preventing future harm [ De Zemplen v. Home
Fed. Sav. & Loan Ass'n (1963) 221 Cal. App. 2d 197, 206, 34 Cal. Rptr. 334] .
California follows the rule of Restatement (Second) of Torts, ß 552(2), regarding negligent misrepre-
sentations made by suppliers of information and evaluations for the use and benefit of others [ Bily
v. Arthur Young & Co. (1992) 3 Cal. 4th 370, 408-414, 11 Cal. Rptr. 2d 51, 834 P.2d 745
(auditors)]. Under that rule, liability is limited to the narrow and circumscribed class of persons for
whose benefit the representations are made, either in transactions that the supplier of information
intends, or knows that the recipient intends, to influence, or in substantially similar transactions [see
Restatement (Second) of Torts, ß 552(2) & cmt. (j); Bily v. Arthur Young & Co. (1992) 3 Cal. 4th
370, 408-409, 11 Cal. Rptr. 2d 51, 834 P.2d 745 ; see also Mariani v. Price Waterhouse (1999) 70
Cal. App. 4th 685, 707-708, 82 Cal. Rptr. 2d 671 (no evidence that auditor intended to induce
guarantors of corporation's debt to rely on results of audit of corporation)]. To support liability under
this rule, the plaintiff must have relied on the misrepresentations in his or her capacity as a member of
the protected class, rather than in some other capacity [ Mariani v. Price Waterhouse (1999) 70 Cal.
App. 4th 685, 705-706, 82 Cal. Rptr. 2d 671 (auditors had no liability to the plaintiffs as individual
guarantors of corporate debt because alleged reliance involved actions in capacity as corporate
officers)]. Professional suppliers of information subject to this rule include, but are not limited to,
attorneys, accountants, architects, auditors, engineers, and title insurers or abstractors [see Bily v.
Arthur Young & Co. (1992) 3 Cal. 4th 370, 410, 11 Cal. Rptr. 2d 51, 834 P.2d 745] .
Applying this rule, the court of appeal has held that the auditor of an insurance company owes a duty
of care not to make negligent misrepresentations to the Insurance Commissioner if the Commissioner
is acting in the capacity of representative of policyholders and creditors. The court in that case rejected
the auditor's argument that liability to the Commissioner could not be imposed if the auditor lacked
knowledge that the report would be supplied to the Commissioner, because filing the report with the
Commissioner is mandated by statute, and knowledge of this would be imputed to the auditor
[ Arthur Andersen v. Superior Court (1998) 67 Cal. App. 4th 1481, 1506-1507, 79 Cal. Rptr. 2d
879] .
The writer of a letter or recommendation owes to third persons a duty not to misrepresent the facts in
Joint Unified Sch. Dist. (1997) 14 Cal. 4th 1066, 1081, 60 Cal. Rptr. 2d 263, 929 P.2d 582 ; see ß
269.24[1]]. Applying this rule, the California Supreme Court held that former employers' positive
recommendations of a person whom the employers knew had been accused of sexually inappropriate
behavior toward minors could be the basis of a cause of action by the guardian ad litem of a student
Page 192 of 479

that the person allegedly assaulted in the person's subsequent employment at a school [ Randi W. v.
Muroc Joint Unified Sch. Dist. (1997) 14 Cal. 4th 1066, 1081-1087, 60 Cal. Rptr. 2d 263, 929 P.2d
582] .
In addressing the reliance element, the Court held that it was sufficient that the plaintiff alleged that the
school district that hired the person relied on the former employers' representations in the letters of
recommendation, and that the injury resulted from action that the recipient of the defendants'
misrepresentation took in reliance on those misrepresentations [ Randi W. v. Muroc Joint Unified
Sch. Dist. (1997) 14 Cal. 4th 1066, 1085, 60 Cal. Rptr. 2d 263, 929 P.2d 582] . The Court noted that
in such a case, it would be unusual for the person ultimately injured by the employee to be aware of
the letters of recommendation, much less actually rely on them [ Randi W. v. Muroc Joint Unified
Sch. Dist. (1997) 14 Cal. 4th 1066, 1085, 60 Cal. Rptr. 2d 263, 929 P.2d 582] .
Legal Topics:
TortsFraud & MisrepresentationActual FraudElements
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64 of 138 DOCUMENTS
If an agent acting within his or her actual or apparent authority gains an advantage by means of fraud,
the principal is jointly liable with the agent for damages, even though the principal is innocent of
personally participating in the fraud, if the principal accepts and retains the benefits that result from the
transaction [ Ach v. Finkelstein (1968) 264 Cal. App. 2d 667, 677, 70 Cal. Rptr. 472] . The principal
is not permitted to derive any benefit from a transaction that involved the fraud of the principal's agent
acting within his or her authority by claiming that the fraud was not authorized by the principal
[ Balfour, Guthrie & Co. v. Hansen (1964) 227 Cal. App. 2d 173, 192, 38 Cal. Rptr. 525] .
However, a principal is not vicariously liable for fraud if an agent is using the principal to obtain a
benefit for the agent and other parties in a transaction in which the principal will ultimately not benefit,
and if the plaintiff was one of those other parties and knew that the agent's actions did not arise from
the normal conduct of the agent's duties on behalf of the principal, but were designed ultimately to
benefit only the individual parties to the transaction [ Saks v. Charity Mission Baptist Church (2001)
90 Cal. App. 4th 1116, 1138-1139, 110 Cal. Rptr. 2d 45 (plaintiff knew that church pastor was using
church's name only to secure public funding for construction project, after which title for purchased
property would be transferred to private partnership that would include plaintiff and pastor as
partners)].
Legal Topics:
Business & Corporate LawAgency RelationshipsDuties & LiabilitiesAuthorized Acts of AgentsLia-
bility of PrincipalBusiness & Corporate LawAgency RelationshipsRatificationGeneral Overview-
TortsBusiness TortsFraud & MisrepresentationActual FraudGeneral Overview
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65 of 138 DOCUMENTS
Gov. Code ß 822.2 provides that a public employee acting in the scope of his or her employment is
not liable for an injury caused by his or her misrepresentation, whether or not such misrepresentation
be negligent or intentional, unless the public employee is guilty of actual fraud, corruption, or actual
malice. Gov. Code ß 818.8 provides that a public entity is not liable for an injury caused by misrepre-
sentation by an employee of the public entity, whether such misrepresentation be negligent or
intentional [see Schonfeld v. City of Vallejo (1974) 50 Cal. App. 3d 401, 407, 123 Cal. Rptr. 669] .
Fraudulent concealment is within the immunity granted by Gov. Code ß 818.8 [ Schonfeld v. City of
Vallejo (1974) 50 Cal. App. 3d 401, 409, 123 Cal. Rptr. 669 ; but see Michael J. v. Los Angeles
County Dept. of Adoptions (1988) 201 Cal. App. 3d 859, 872, 875, 247 Cal. Rptr. 504 (county
adoption agency subject to liability for intentional misrepresentation or fraudulent concealment in
adoption process)]. The immunity granted by Gov. Code ß 818.8 also applies to alleged intentional or
negligent interference with economic advantage or business relations that is based on misrepresenta-
tion [ Los Angeles Equestrian Ctr., Inc. v. City of Los Angeles (1993) 17 Cal. App. 4th 432,
449-450, 21 Cal. Rptr. 2d 313] .
Actual fraud for the purpose of Gov. Code ß 822.2 does not mean actual fraud as defined by Civ.
Code ß 1572 or deceit as defined by Civ. Code ß 1710. It means that in addition to the elements of
common law deceit, the public employee is motivated by corruption or actual malice; that is, the
employee has a conscious intent to deceive, vex, annoy, or harm the injured party in that party's
business [ Schonfeld v. City of Vallejo (1974) 50 Cal. App. 3d 401, 409-410, 123 Cal. Rptr. 669] .
Although tort liability of a public entity for false representations made by a public employee is barred
by Gov. Code ß 818.8(a), and the public entity is therefore not liable on a tort theory for fraudulent
inducements, the public entity is still liable for damages for breach of contract [ Warner Constr.
Page 196 of 479

Corp. v. Los Angeles (1970) 2 Cal. 3d 285, 293-294, 85 Cal. Rptr. 444, 466 P.2d 996] .
In determining whether the immunity provisions apply, some courts have drawn a distinction between
misrepresentations that cause interference with financial or commercial interests and those that cause
harm in a social service area, such as adoption placement. For example, in a case involving placement
for adoption of a child suffering from a physical disorder, an appellate court held that Gov. Code ßß
818.8 and 822.2 do not immunize a county from liability for intentional misrepresentation or
fraudulent concealment of a child's medical condition. It also found that public policy considerations
support recognition of a cause of action against a public agency for intentional misrepresentation or
fraudulent concealment in the adoption process [ Michael J. v. Los Angeles County Dep't of
Adoptions (1988) 201 Cal. App. 3d 859, 872, 875, 247 Cal. Rptr. 504] .
Legal Topics:
Business & Corporate LawAgency RelationshipsRatificationGeneral OverviewTortsBusiness
TortsFraud & MisrepresentationActual FraudGeneral OverviewTortsBusiness TortsFraud &
MisrepresentationActual FraudDefensesTortsPublic Entity LiabilityImmunityGeneral OverviewTort-
sPublic Entity LiabilityLiabilityState Tort Claims ActsEmployees
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66 of 138 DOCUMENTS
[1] General Rule
One who willfully deceives another with intent to induce him or her to alter his or her position to his
or her injury or risk, is liable for any damages that the injured party thereby suffers [Civ. Code ß
1709]. Additionally, for the breach of an obligation not arising from a contract, the measure of
damages, unless otherwise expressly provided by the Civil Code, is the amount that will compensate
for all the detriment proximately caused thereby, whether it could have been anticipated or not [Civ.
Code ß 3333]. These statutes govern the amount of damages for fraud and deceit, with the exceptions
discussed in ß 269.27[2] and ß 269.27[3]. It appears that if a business deal involving the possible
purchase or sale of property is never completed, the measure of damages will be governed by the
general Civ. Code ßß 1709 and 3333, rather than by Civ. Code ß 3343, which deals with damages
from the purchase, sale, or exchange of real property [ Block v. Tobin (1975) 45 Cal. App. 3d 214,
220, 119 Cal. Rptr. 288] .
Even under Civ. Code ßß 1709 and 3333, damages are not recoverable if the fact of damage is too
remote, speculative, or uncertain. One may recover compensation for time and effort expended in
reliance on a defendant's misrepresentation. One may not, however, recover anticipated profits from a
business deal if it is uncertain whether, even in the absence of deceit, there would have been any profit
at all [ Block v. Tobin (1975) 45 Cal. App. 3d 214, 219-220, 119 Cal. Rptr. 288] .
If damages are based on Civ. Code ßß 1709 and 3333 (as distinguished from the "out-of-pocket loss"
measure provided by Civ. Code ß 3343), damages may be calculated as of the date the plaintiff
discovered the fraud, and are not limited to damages as of the date of the transaction [ Salahutdin v.
Valley of Cal., Inc. (1994) 24 Cal. App. 4th 555, 568, 29 Cal. Rptr. 2d 463] .
Page 198 of 479


A person defrauded in the purchase, sale, or exchange of property is entitled to recover the difference
between the actual value of that with which the defrauded person parted and the actual value of what
the defrauded person received. However, the defrauded person may not recover any amount measured
by the differences between the value of property as represented and the actual value of the property
[Civ. Code ß 3343(a), (b)(1)]. The defrauded person may also recover additional damages arising
from the particular transaction, including [Civ. Code ß 3343(a)]:
Amounts actually and reasonably expended in reliance on the fraud;
An amount that compensates the defrauded party for loss of use and enjoyment of the
property to the extent that such loss was proximately caused by the fraud;
If the defrauded party has been induced by the fraud to sell or part with the property, an
amount that will compensate him or her for profits or other gains that might reasonably
have been earned by use of the property had he or she retained it; and
If the defrauded party has purchased or acquired the property, an amount that will
compensate him or her for any loss of profits or other gains that were reasonably
anticipated and would have been earned from the use or sale of the property had it
possessed the characteristics fraudulently attributed to it by the party committing the
fraud; but only if and to the extent that (a) the property was acquired for the purpose of
using or reselling it for a profit, (b) the defrauded party reasonably relied on the fraud in
anticipating profits, and (c) the loss of profits was proximately caused by the fraud and
the reliance on it.
In enacting Civ. Code ß 3343(a), the legislature enacted an "out-of-pocket loss" measure of damages,
as opposed to the "benefit-of-the-bargain" rule applied in many other jurisdictions, which allows
recovery of the difference between the value of the property as represented and the actual value of the
property received [see Stout v. Turney (1978) 22 Cal. 3d 718, 725, 150 Cal. Rptr. 637, 586 P.2d
1228 ; Civ. Code ß 3343(b)(1); see also Salahutdin v. Valley of Cal., Inc. (1994) 24 Cal. App. 4th
555, 563-565 & n.6, 29 Cal. Rptr. 2d 463 ; Housley v. City of Poway (1993) 20 Cal. App. 4th 801,
812-813 & n.9, 24 Cal. Rptr. 2d 554] . However, the plaintiff is not required to allege and prove an
"out-of-pocket loss" (that is, a difference between the amount paid for the property and its actual
value) in order to recover the consequential or "additional" categories of damages listed in Civ. Code ß
3343(a)(1)-(4) [ Stout v. Turney (1978) 22 Cal. 3d 718, 727-730, 150 Cal. Rptr. 637, 586 P.2d
1228] .
Page 199 of 479

If the plaintiff has been defrauded in the sale of the property, additional damages under Civ. Code ß
3343(a)(2), (3) (loss of use and enjoyment and loss of profits) are only available if, under the terms of
the particular transaction, the seller retained some right to use the property or participate in the profits
from the property after transfer or conveyance to the defendant [ Channell v. Anthony (1976) 58 Cal.
App. 3d 290, 315-318, 129 Cal. Rptr. 704 (management contract giving sellers right to continue to
live on and operate farm as sufficient interest)]. Furthermore, if the seller elects to enforce the contract
and recover the sale price to which he or she agreed, the seller cannot recover lost profits under Civ.
Code ß 3343(a)(3); however, the seller may recover lost profits if he or she elects to rescind the sale
contract [see Croeni v. Goldstein (1994) 21 Cal. App. 4th 754, 759-760, 26 Cal. Rptr. 2d 412] .
The provision of Civ. Code ß 3343(a)(4) allowing a defrauded buyer to recover profits that would
have been earned if the property had the characteristics represented by the seller only applies if the
defrauded party actually acquires the property. Thus, in one case, the court of appeal held that it was
improper to award profits lost as a result of the defendant's fraudulent breach of a promise to sell a
parcel of agricultural property to the plaintiff. The plaintiff in that case had been induced to purchase a
note secured by the defendant's property (rather than the property itself) by the defendant's fraudulent
promise to sell the property to the plaintiff [see Kenly v. Ukegawa (1993) 16 Cal. App. 4th 49,
53-56, 19 Cal. Rptr. 2d 771] .
In applying Civ. Code ß 3343, the court will assess damages as of the day on which the fraudulent
transaction occurred. The value of the property will be determined as of the date of sale [ McCue v.
Bruce Enterprises, Inc. (1964) 228 Cal. App. 2d 21, 30-32, 39 Cal. Rptr. 125] . The trier of fact may
determine a figure for the correct value of the property that is between the figures offered by the
experts for the plaintiff and the defendant [ Ach v. Finkelstein (1968) 264 Cal. App. 2d 667, 677-678,
70 Cal. Rptr. 472] .
Mental distress is not an element of damages for fraud under Civ. Code ß 3343 [ Sierra Nat'l Bank v.
Brown (1971) 18 Cal. App. 3d 98, 103, 95 Cal. Rptr. 742 ; see In re Marriage of McNeill (1984)
160 Cal. App. 3d 548, 559, 206 Cal. Rptr. 641] .
[3] Sale of Goods
Remedies for material misrepresentation or fraud in the sale of goods include all remedies available
under Com. Code ßß 2101-2724 for nonfraudulent breach [Com. Code ß 2721]. Damages available
for breach of warranty and other available remedies include the difference between the value of the
goods as warranted and their actual value [see Com. Code ßß 2714(2), (3), 2715].Damages may
include incidental and consequential damages, including lost profits if the lost profits could not
reasonably be prevented through mitigation efforts or otherwise [ Green Wood Industrial Co. v.
Page 200 of 479

Forceman Internat. Development Group, Inc. (2007) 156 Cal. App. 4th 766, 774, 67 Cal. Rptr. 3d
624 ; see Com. Code ß 2715(2)(a)].
This measure of damages is inconsistent with that provided by Civ. Code ß 3343 governing damages
for fraud in the sale or exchange of property, which provides that nothing in Civ. Code ß 3343 will
permit the defrauded person to recover any amount measured by the difference between the value of
the property as represented and its actual value [Civ. Code ß 3343(b)(1)].
Com. Code ß 2721 has been described as an exception to Civ. Code ß 3343 in that its purpose is to
give the defrauded buyer of goods the same remedies as those specified for breach of warranty, and
therefore in a proper case to give the buyer the "benefit of the bargain" [ Continental Airlines, Inc. v.
McDonnell Douglas Corp. (1989) 216 Cal. App. 3d 388, 430-431, 264 Cal. Rptr. 779] . Inasmuch as
the legislature, in enacting Com. Code ß 2721, expressed the intent to make fraud remedies in the
commercial context as broad as, and coextensive with, remedies applicable in the absence of fraud,
one court found it worthy of note that Civ. Code ß 3343, the "out-of-pocket" statute, was not repealed
despite its sharp conflict with the Commercial Code [see Continental Airlines, Inc. v. McDonnell
Douglas Corp. (1989) 216 Cal. App. 3d 388, 431, 264 Cal. Rptr. 779] .
The term "goods" for the purpose of Com. Code ß 2721 means all things, including specially
manufactured goods, which are movable at the time of identification to the contract for sale other than
the money in which the price is to be paid, investment securities, and things in action. The term also
includes the unborn young of animals, growing crops, and other things attached to realty as described
in Com. Code ß 2107 [Com. Code ß 2105].
Some court of appeal decisions have held that if there is fraud by a fiduciary, the out-of-pocket loss
rule of Civ. Code ß 3343 does not apply. Instead, the much broader provisions of Civ. Code ßß 1709
and 3333 are applicable [ Salahutdin v. Valley of Cal., Inc. (1994) 24 Cal. App. 4th 555, 566-568, 29
Cal. Rptr. 2d 463 ; Simone v. McKee (1956) 142 Cal. App. 2d 307, 315, 298 P.2d 667] . Thus, the
fraudulent fiduciary must make good the full amount of the loss of which the fiduciary's breach of
faith is the cause [ Prince v. Harting (1960) 177 Cal. App. 2d 720, 730-731, 2 Cal. Rptr. 545] .
Although the California Supreme Court has held that only "out-of-pocket loss" may be recovered for
negligent misrepresentations by a fiduciary [ Alliance Mortgage Co. v. Rothwell (1995) 10 Cal. 4th
1226, 1249-1250, 44 Cal. Rptr. 2d 352, 900 P.2d 601 ; see also Fragale v. Faulkner (2003) 110
Cal. App. 4th 229, 237, 1 Cal. Rptr. 3d 616] , there is a conflict among court of appeal decisions
concerning whether Civ. Code ßß 1709 and 3333 authorize a "benefit-of-the-bargain" measure in
cases of fiduciary fraud [compare Fragale v. Faulkner (2003) 110 Cal. App. 4th 229, 237-239, 1
Cal. Rptr. 3d 616 (authorizing "benefit-of-bargain" measure for intentional misrepresentations);
Salahutdin v. Valley of Cal., Inc. (1994) 24 Cal. App. 4th 555, 565-568, 29 Cal. Rptr. 2d 463
(authorizing "benefit-of-bargain" measure); and Pepitone v. Russo (1976) 64 Cal. App. 3d 685,
688-689, 134 Cal. Rptr. 709 (authorizing "benefit-of-bargain" measure); with Hensley v. McSweeney
Page 201 of 479

(2001) 90 Cal. App. 4th 1081, 1085-1086, 109 Cal. Rptr. 2d 489 (Civ. Code ß 3333 does not permit
"benefit-of-bargain" measure); and Overgaard v. Johnson (1977) 68 Cal. App. 3d 821, 827-828,
137 Cal. Rptr. 412 (Civ. Code ß 3333 does not permit "benefit-of-bargain" measure)].
However, even if a defendant is not the plaintiff's fiduciary, the law provides a quasi-contractual
remedy to prevent one from being unjustly enriched at the expense of another [see Civ. Code ß 2224
(involuntary trust)]. For example, if a real estate broker, who is under a duty of honesty even to a
person for whom her or she is not acting as an agent, deceives that person, an obligation will be
imposed to repay the money unjustly received on the theory of constructive trust [see Ward v.
Taggart (1959) 51 Cal. 2d 736, 741-742, 336 P.2d 534] . For discussion of constructive trusts, see
Ch. 561, Trusts: Constructive Trusts .
The primary measure of damages for fraud against a secured lender is the extent of the impairment of
security, that is, the amount by which the indebtedness exceeds the actual value of the security. A
foreclosure sale establishes the actual value of the security. Thus, if the secured property is sold at
auction for an amount sufficient to satisfy the indebtedness, there is no impairment of security, and the
secured party is not damaged. Any damage suffered thereafter is not a proximate result of the
fraudulent transaction [ GN Mortgage Corp. v. Fidelity Nat'l Title Ins. Co. (1994) 21 Cal. App. 4th
1802, 1808, 27 Cal. Rptr. 2d 47] .
This general rule does not apply, however, in an action brought against a party other than the debtor, if
the lender alleges not only that the defendant's fraudulent conduct induced the lender to make the loan,
but also that the lender justifiably relied on the defendant's misrepresentations when subsequently
purchasing the property at foreclosure sale for the full amount of the indebtedness. Under those
circumstances, damages would be measured either by the lender's out-of-pocket and consequential
losses under Civ. Code ß 3343, or under Civ. Code ß 3333 if the defendant stood in a fiduciary
relationship to the lender [ Alliance Mortgage Co. v. Rothwell (1995) 10 Cal. 4th 1226, 1249-1250,
44 Cal. Rptr. 2d 352, 900 P.2d 601 ; Michelson v. Camp (1999) 72 Cal. App. 4th 955, 965-969, 85
For discussion of damages as a required element of a fraud cause of action, see ß 269.21.
Legal Topics:
Real Property LawPurchase & SaleContracts of SaleEnforceabilityFraud & MisrepresentationTorts-
Business TortsFraud & MisrepresentationActual FraudGeneral OverviewTortsBusiness TortsFraud
& MisrepresentationActual FraudRemediesTortsDamagesCompensatory DamagesPain & SufferingE-
motional & Mental DistressGeneral OverviewTortsIntentional TortsBreach of Fiduciary DutyReme-
dies
Page 202 of 479

67 of 138 DOCUMENTS
Attorney's fees incurred in bringing an action for fraud are not recoverable [ Bezaire v. Fidelity &
Deposit Co. (1970) 12 Cal. App. 3d 888, 892, 91 Cal. Rptr. 142] . However, a person who is
required through the tort of another to act in protection of his or her interest by bringing or defending
an action against a third person is entitled to recover as damages compensation for the reasonably
necessary attorney's fees incurred [ Moe v. Transamerica Title Ins. Co. (1971) 21 Cal. App. 3d 289,
303, 98 Cal. Rptr. 547] .
Legal Topics:
TortsBusiness TortsFraud & MisrepresentationActual FraudRemediesTortsDamagesCosts &
Attorney FeesGeneral Overview
Page 203 of 479

68 of 138 DOCUMENTS
Prejudgment interest can be proper in a fraud action if damages can be ascertained with certainty
[ Greenfield v. Insurance Inc. (1971) 19 Cal. App. 3d 803, 813, 97 Cal. Rptr. 164] . To recover
interest for prejudgment amounts due the plaintiff need not plead or specially pray for interest
[ Greenfield v. Insurance Inc. (1971) 19 Cal. App. 3d 803, 813, 97 Cal. Rptr. 164] .
In an action for breach of an obligation not arising from contract, and in every case of oppression,
fraud, or malice, interest may be awarded in the discretion of the jury [Civ. Code ß 3288]. Although
the statute uses the word "jury," the trial court, if acting as the trier of fact, may award prejudgment
interest under the statute [ Bullis v. Security Pac. Nat'l Bank (1978) 21 Cal. 3d 801, 814 n.16, 148
Cal. Rptr. 22, 582 P.2d 109 ; Segura v. McBride (1992) 5 Cal. App. 4th 1028, 1040 n.13, 7 Cal.
Rptr. 2d 436] . However, in a case tried to a jury, the court may not usurp the discretion conferred on
the jury by the statute [ Barry v. Raskov (1991) 232 Cal. App. 3d 447, 457, 283 Cal. Rptr. 463] .
Prejudgment interest under Civ. Code ß 3288 may be awarded only on a recovery of a specific sum of
money or of property subject to specific valuation. It may not be awarded on nonpecuniary damages
that are not readily subject to precise calculation, such as the intangible, noneconomic aspects of
mental and emotional injury [ Greater Westchester Homeowners Ass'n, Inc. v. City of Los Angeles
(1979) 26 Cal. 3d 86, 103, 160 Cal. Rptr. 733, 603 P.2d 1329] .
Legal Topics:
Page 204 of 479

Civil ProcedureRemediesJudgment InterestPrejudgment InterestTortsBusiness TortsFraud &
MisrepresentationActual FraudGeneral OverviewTortsBusiness TortsFraud & MisrepresentationAc-
tual FraudRemedies
Page 205 of 479

69 of 138 DOCUMENTS
Fraud is a ground for awarding punitive damages [ Stevens v. Superior Court (1986) 180 Cal. App.
3d 605, 610, 225 Cal. Rptr. 624 ; Horn v. Guaranty Chevrolet Motors (1969) 270 Cal. App. 2d
477, 484, 75 Cal. Rptr. 871] . "Fraud" as a basis for punitive damages is defined in Civ. Code ß 3294
(c)(3) as an intentional misrepresentation, deceit, or concealment of a material fact known to the
defendant with the intention on the part of the defendant to thereby deprive a person of legal rights or
property, or to otherwise cause injury. Because Civ. Code ß 3294(c)(3) requires that the misrepresen-
tation, deceit, or concealment be intentional, punitive damages may not be awarded for a negligent
misrepresentation [see Reid v. Moskovitz (1989) 208 Cal. App. 3d 29, 32, 255 Cal. Rptr. 910] .
Although punitive damages can only be awarded in an action for breach of an obligation other than
one arising from contract [see Civ. Code ß 3294(a)], punitive damages may be awarded in an action
for fraudulent inducement to enter into a contract, which is a tort action, not a contract action [ Las
Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal. App. 3d 1220, 1239, 1 Cal.
Rptr. 2d 301 ; Kuchta v. Allied Builders Corp. (1971) 21 Cal. App. 3d 541, 549, 98 Cal. Rptr. 588] .
Punitive damages may also be granted along with rescission [see In re Marriage of McNeill (1984)
160 Cal. App. 3d 548, 561, 206 Cal. Rptr. 641 ; Horn v. Guaranty Chevrolet Motors (1969) 270
Cal. App. 2d 477, 484, 75 Cal. Rptr. 871] . Punitive damages may also be awarded if fraud accompa-
nies a breach of contract, so long as the conduct constituting the fraud is independent from the conduct
constituting the breach of contract [see Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.
4th 979, 990-991, 22 Cal. Rptr. 3d 352, 102 P.3d 268] . By contrast, if the plaintiff waives the fraud
damages and sues on the contract, no exemplary damages can be awarded under Civ. Code ß 3294.
This is also true if the plaintiff elects to sue on a common count [ Brockway v. Heilman (1967) 250
Cal. App. 2d 807, 812, 58 Cal. Rptr. 772] .
Page 206 of 479

For additional discussion of punitive damages, see Ch. 177, Damages .

An employer will not be liable for punitive damages under Civ. Code ß 3294(a) for the fraudulent acts
of an employee unless the employer had advance knowledge of the employee's unfitness and
employed him or her with conscious disregard for the safety or rights of others, or authorized or
ratified the wrongful conduct for which punitive damages are awarded, or was personally guilty of
malice, fraud, or oppression. With respect to corporate employers, the employer will not be liable for
punitive damages for the acts of an employee unless an officer, director, or managing agent of the
corporation had advance knowledge of the unfitness of the employee and employed him or her with
conscious disregard of the safety or rights of others, or unless an officer, director, or managing agent
authorized or ratified the wrongful act of the employee, or personally committed an act of malice,
fraud, or oppression [Civ. Code ß 3294(b)].
Legal Topics:
TortsFraud & MisrepresentationActual FraudRemediesTortsDamagesPunitive DamagesAvailability-
General OverviewTortsDamagesPunitive DamagesAvailabilityEmployers
Page 207 of 479

70 of 138 DOCUMENTS
ß 269.31 Defenses
[1] In General
Because the plaintiff in a fraud action has the burden of pleading and proving all the necessary
elements that constitute deceit [ Hills Transp. Co. v. Southwest Forest Industries, Inc. (1968) 266
Cal. App. 2d 702, 707-708, 72 Cal. Rptr. 441] , there are few matters that a defendant will need to
raise as affirmative defenses. Most defenses to the tort action for deceit are raised by a general denial
of one or more of the necessary elements pleaded by the plaintiff. A failure of the plaintiff to plead one
or more of the necessary elements may, of course, be challenged by demurrer [Code Civ. Proc. ß
430.10(e)]. For points and authorities supporting demurrers to complaints for fraud, see California
Points and Authorities, Ch. 105, Fraud and Deceit (Matthew Bender).
The defense of contributory negligence does not apply to actions for negligent misrepresentation, just
as it does not apply to actions for intentional misrepresentation. Justifiable reliance may be shown
even if the plaintiff relied under such circumstances as to make it unreasonable to accept the
defendant's statement without an independent inquiry or investigation [ Howell v. Courtesy
Chevrolet, Inc. (1971) 16 Cal. App. 3d 391, 403, 94 Cal. Rptr. 33] . The plaintiff's recovery is not
reduced unless the plaintiff's conduct, in the light of the plaintiff's own information and intelligence, is
preposterous and irrational [see Hartong v. Partake, Inc. (1968) 266 Cal. App. 2d 942, 965, 72 Cal.
Rptr. 722] . That is, the plaintiff's conduct is not the subject of a strictly objective test [see Godfrey v.
Steinpress (1982) 128 Cal. App. 3d 154, 176, 180 Cal. Rptr. 95 ; Howell v. Courtesy Chevrolet, Inc.
(1971) 16 Cal. App. 3d 391, 403, 94 Cal. Rptr. 33 ; Wilke v. Coinway, Inc. (1967) 257 Cal. App. 2d
126, 138, 64 Cal. Rptr. 845 ; Vogelsang v. Wolpert (1964) 227 Cal. App. 2d 102, 111-112, 38 Cal.
Rptr. 440] .
Page 208 of 479

The plaintiff has the burden of proof on the issue of the plaintiff's justifiable reliance on the
defendant's representation [ American Air Equip., Inc. v. Pacific Employers Ins. Co. (1974) 37 Cal.
App. 3d 322, 327 n.4, 112 Cal. Rptr. 366] . However, evidence of lack of justifiable reliance by the
plaintiff is frequently introduced as a defense to an action for deceit [see, e.g., Hartong v. Partake,
Inc. (1968) 266 Cal. App. 2d 942, 964-965, 72 Cal. Rptr. 722] . For discussion of justifiable reliance,
see ß 269.16.
If the complaint states a cause of action for fraud, the period of limitation expires at the end of three
years after the time when the action accrued, which is the time when the aggrieved party discovered
facts constituting the fraud, as provided by Code Civ. Proc. ß 338(d) [ Sun'N Sand, Inc. v. United
Cal. Bank (1978) 21 Cal. 3d 671, 701, 148 Cal. Rptr. 329, 582 P.2d 920 ; Galusha v. Fraser
(1918) 178 Cal. 653, 656, 174 P. 311] .
If it is apparent from the face of the pleading that the statute of limitations has run, in order to avoid
the bar of the statute, the plaintiff must state, with particularity, facts, rather than conclusions, that
excuse his or her failure to learn of the fraud within the statutory period. The plaintiff must show
diligence exercised to discover the facts and must plead and prove facts showing: (1) lack of
knowledge; (2) lack of means of obtaining knowledge (in the exercise of reasonable diligence the facts
could not have been discovered at an earlier date); and (3) how and when the plaintiff did actually
discover the fraud or mistake. Under this rule, constructive or presumed notice is equivalent to
knowledge. When the plaintiff has notice or information of circumstances to put a reasonable person
on inquiry, or has the opportunity to obtain knowledge from sources open to his or her investigation
(such as public records or corporate books), the statute commences to run [ Casualty Ins. Co. v. Rees
Inv. Co. (1971) 14 Cal. App. 3d 716, 719-720, 92 Cal. Rptr. 857] .
However, if the plaintiff has the right, due to the existence of a fiduciary relationship, to rely on
statements of the defendant without further inquiry, the statute of limitations does not run merely
because the means of discovery were available, and the plaintiff is not compelled to disprove that the
means existed. The plaintiff need only establish facts sufficientto show that he or she made an actual
discovery of unknown information within three years before the filing of the action [ Davis v. Kahn
(1970) 7 Cal. App. 3d 868, 878, 86 Cal. Rptr. 872] . Even if the defendant's status as a fiduciary
obviates any duty on the plaintiff's part to inquire into the representations of the defendant, however, a
duty of investigation may arise if the plaintiff becomes aware of facts that would make a reasonable
person suspicious. If such an awareness is shown to have existed, the plaintiff will be charged with
constructive knowledge of matters that would have been revealed by an investigation, and this
imputed knowledge can be sufficient to start the running of the statute of limitations of Code Civ.
Page 209 of 479

Proc. ß 337(3) or Code Civ. Proc. ß 338(d) [ Miller v. Bechtel Corp. (1983) 33 Cal. 3d 868,
875-876, 191 Cal. Rptr. 619, 663 P.2d 177] .
Under the appropriate circumstances, the statutory privileges of Civ. Code ß 47 may be used in
defense of a fraud claim. In one case, for example, the court of appeal held that the litigation privilege
of Civ. Code ß 47(b) applied to defeat a fraud claim alleging that the defendant executed a release of
claims with no intention of abiding by the release and then filed federal counterclaims that were
covered by the release [ Navellier v. Sletten (2003) 106 Cal. App. 4th 763, 771, 131 Cal. Rptr. 2d
201] . For further discussion of these privileges, see Ch. 340, Libel and Slander .
[6] Implied Waiver
A plaintiff claiming to have been induced into signing a contract by fraud or deceit is deemed to have
waived a claim for damages for that fraud if, after discovering the fraud, the plaintiff enters into a new
agreement with the defendant regarding the same subject matter that supersedes the former agreement
and confers significant benefits on the plaintiff [ Oakland Raiders v. Oakland-Alameda County
Coliseum, Inc. (2006) 144 Cal. App. 4th 1175, 1185, 51 Cal. Rptr. 3d 144 (relying on Schmidt v.
Mesmer (1897) 116 Cal. 267, 48 P. 54 , and other cases)]. This rule of implied waiver focuses on the
conduct of the plaintiff in entering into a new contract that has the effect of ratifying the original
agreement. Thus, waiver may be found despite testimony that the plaintiff did not subjectively intend
to waive a claim for fraud, at least when this intent was not made manifest when the subsequent
contractual agreement was reached [see Oakland Raiders v. Oakland-Alameda County Coliseum,
Inc. (2006) 144 Cal. App. 4th 1175, 1186-1190, 51 Cal. Rptr. 3d 144] .
In one case, for example, the court of appeal held that plaintiff, the Oakland Raiders National Football
League team, had waived the right to sue the Oakland-Alameda County Coliseum for fraud in
inducing the Raiders in 1995 to sign a long-term agreement to play at the Coliseum. The Raiders'
claimed that the Coliseum misrepresented the level of advance season ticket sales, inducing the
Raiders to agree to return to Oakland rather than pursue other available options. The court of appeal
held that the Raiders had waived the fraud claim, however, because after learning during the 1995
season that season ticket sales were not as high as they had been told, the Raiders subsequently
entered into a new contract with the Coliseum in September 1996. This new contract concerned the
same subject matter as the previous contract, modified the rights of the parties, conferred significant
financial benefits on the Raiders, and otherwise reaffirmed the validity and enforceability of the 1995
agreement [ Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 144 Cal. App. 4th
1175, 1190-1191, 51 Cal. Rptr. 3d 144] .
While the existence of waiver is generally a question of fact, implied waiver, when based on conduct
that is manifestly inconsistent with the intent to enforce a known right, may be determined as a matter
of law if the underlying facts are undisputed [ Oakland Raiders v. Oakland-Alameda County
Coliseum, Inc. (2006) 144 Cal. App. 4th 1175, 1191, 51 Cal. Rptr. 3d 144] .
Page 210 of 479

Legal Topics:
EvidenceProcedural ConsiderationsBurdens of ProofGeneral OverviewGovernmentsLegislation-
Statutes of LimitationsTime LimitationsTortsBusiness TortsFraud & MisrepresentationActual
FraudDefensesTortsBusiness TortsFraud & MisrepresentationNegligent MisrepresentationDefenses-
TortsNegligenceDefensesComparative NegligenceGeneral Overview
Page 211 of 479

71 of 138 DOCUMENTS
If the plaintiff has been induced to enter into a contract by the defendant's fraud, the plaintiff has a
choice of either affirming the contract and suing for damages for deceit or rescission of the agreement
and restitution of the property exchanged with the defendant. The plaintiff, not the defendant, has the
right to election of remedies [ Kaluzok v. Brisson (1946) 27 Cal. 2d 760, 763, 167 P.2d 481 ;
Brockway v. Heilman (1967) 250 Cal. App. 2d 807, 811, 58 Cal. Rptr. 772] . If the plaintiff elects to
stand on the contract and sue for damages, continued performance of the contract does not constitute a
waiver of the plaintiff's action for damages. However, courts have stated that if the plaintiff elects not
to rescind, the plaintiff must stand toward the other party at arm's length, comply with the contract,
and not ask for favors of the other party or offer to perform the contract on conditions the plaintiff has
no right to extract or make any new agreement, or the plaintiff will waive the fraud [ Bagdasarian v.
Gragnon (1948) 31 Cal. 2d 744, 750-752, 192 P.2d 935 ; but see Persson v. Smart Inventions, Inc.
(2005) 125 Cal. App. 4th 1141, 1154, 23 Cal. Rptr. 3d 335 (although contract for sale of stock shares
contained claims release language, party allowed to affirm contract and sue in tort because fraudulently
induced to enter contract)]. The plaintiff may, however, plead and pray in the alternative for rescission
and for damages for deceit [see Boeseke v. Boeseke (1967) 255 Cal. App. 2d 848, 852, 63 Cal. Rptr.
651] .
The doctrine of election of remedies applies only if the plaintiff seeks inconsistent remedies in causes
of action based on the same set of facts. It therefore does not preclude a plaintiff from pursuing two
causes of action, as breach of contract and fraud, if each action arose out of different obligations and
different operative facts [ Pat Rose Assocs. v. Coombe (1990) 225 Cal. App. 3d 9, 18, 275 Cal. Rptr.
1] .
Legal Topics:
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Contracts LawRemediesElection of RemediesTortsBusiness TortsFraud & MisrepresentationActual
FraudGeneral OverviewTortsBusiness TortsFraud & MisrepresentationNegligent Misrepresentation-
General Overview
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72 of 138 DOCUMENTS
ß 269.33 No Cause of Action for Fraud Based on False Representations of Love or Sexual
Desire
Civ. Code ß 43.4 provides that a fraudulent promise to marry or to cohabit after marriage does not
give rise to a cause of action for damages. One court of appeal has held that the public policy behind
this statute precludes an action for fraud and deceit based on allegedly false or fraudulent representa-
tions of love, passion, or sexual desire, that induced the plaintiff to marry and transfer property to the
defendant [see Askew v. Askew (1994) 22 Cal. App. 4th 942, 952-959, 28 Cal. Rptr. 2d 284] .
Legal Topics:
TortsFraud & MisrepresentationActual FraudDefensesTortsBusiness TortsFraud & Misrepresenta-
tionNegligent MisrepresentationGeneral OverviewTortsBusiness TortsFraud & Misrepresentation-
Negligent MisrepresentationDefenses
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73 of 138 DOCUMENTS
The California Supreme Court has held, on policy grounds, that an employee may not bring a tort
cause of action for fraud against his or her employer based on misrepresentations made to effect a
termination of employment [ Hunter v. Up-Right, Inc. (1993) 6 Cal. 4th 1174, 1178, 1184-1185, 26
Cal. Rptr. 2d 8, 864 P.2d 88] . The Court indicated, however, that a misrepresentation not aimed at
terminating an employee's employment, but instead designed to induce the employee to alter detrimen-
tally his or her position in some other respect may, in some cases, form the basis for a valid fraud
claim [ Hunter v. Up-Right, Inc. (1993) 6 Cal. 4th 1174, 1185, 26 Cal. Rptr. 2d 8, 864 P.2d 88] .
For further discussion, see Ch. 249, Employment Law: Termination and Discipline .
Legal Topics:
Labor & Employment LawEmployer LiabilityGeneral OverviewTortsBusiness TortsFraud &
tual FraudDefensesTortsBusiness TortsFraud & MisrepresentationNegligent Misrepresentation-
General OverviewTortsBusiness TortsFraud & MisrepresentationNegligent MisrepresentationDe-
fenses
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74 of 138 DOCUMENTS
[Reserved]
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75 of 138 DOCUMENTS
PART III. RESEARCH GUIDE
For memoranda of points and authorities related to forms in this chapter, see California Points and
Authorities, Ch. 105, Fraud and Deceit, Duress, Menace, Undue Influence, and Mistake (Matthew
Bender)
Legal Topics:
TortsFraud & MisrepresentationNegligent MisrepresentationGeneral Overview
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76 of 138 DOCUMENTS
For discussion of the torts of fraud and deceit and negligent misrepresentation, see N. Levy, M.
Golden & L. Sacks, California Torts, Ch. 40, Fraud and Deceit and Other Business Torts , Pt. A
(Matthew Bender)
Legal Topics:
Page 218 of 479

77 of 138 DOCUMENTS
Fraud or misrepresentation after inspection by any licensed pest control operator concerning
infestation of structures whether or not any report was made is ground for disciplinary action by
Structural Pest Control Board. Bus. & Prof. Code ß 8644
Registration of and misrepresentation by telephonic seller; seller defined. Bus. & Prof. Code ßß
17511-17511.10
Liability for deceptive use of computer software or spyware to take control over, or gain personal
information from, another person's computer. Bus. & Prof. Code ß 22947 et seq.
Liability for use of Internet or e-mail to solicit, request, or induce another to provide identifying
information through unauthorized representation that solicitor is particular business. Bus. & Prof.
Code ß 22948 et seq.
Transferors, optionors, and certain lessors of residences with between one and four units required to
provide statutory disclosure form regarding conditions, appliances, and alterations to prospective
transferees, lessees, optionees; broker inspection and disclosure required on form; actual damages
recoverable for violation. Civ. Code ßß 1102-1102.14
Between July 1, 1985, and December 31, 1986, transferors of one to four unit residential properties
required to disclose to prospective transferees whether additions, alterations, or major repairs were
completed under appropriate permit; actual damages, including attorney's fees, recoverable for failure
to disclose; other remedies preserved. Former Civ. Code ß 1134.5
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Escrow agent not liable for failure of transferor of one to four unit residential property to give
required disclosures regarding permitless additions, alterations, or major repairs. Former Civ. Code ß
1134.5(h)
Fraud is either actual or constructive. Civ. Code ß 1571
Actual fraud defined. Civ. Code ß 1572
Constructive fraud defined. Civ. Code ß 1573
Liability of equity purchaser for damages arising from statement made or act committed by his or her
representative, in connection with acquisition of residence in foreclosure. Civ. Code ßß 1695.15,
1695.16, 1695.17
One who willfully deceives another person with intent to induce other person to alter his or her
position to his or her injury or risk is liable for any damages that other person suffers. Civ. Code ß
1709
Deceit is suggestion, as fact, of something that is not true, by one who does not believe it to be true
Civ. Code ß 1709(1)
Deceit is assertion, as fact, of something that is not true, by one who has no reasonable ground for
believing it to be true. Civ. Code ß 1710(2)
Deceit is suppression of fact, by one who is bound to disclose it, or who gives information of other
facts that are likely to mislead for want of communication of that fact. Civ. Code ß 1710(3)
Deceit is promise, made without any intention of performing it. Civ. Code ß 1710(4)
Person who with intent to defraud sells or disposes of mechanical or electrical devices with
nameplate, serial number, or other identification removed or altered without authorization is civilly
liable to manufacturer and purchaser. Civ. Code ß 1710.1
Neither owner, owner's agent, nor transferee's agent required to disclose to transferee, purchaser,
lessee, or renter that occupant of property had AIDS. Civ. Code ß 1710.2
One who practices deceit with intent to defraud public or class of persons deemed to have intended to
defraud every individual in that class who is misled. Civ. Code ß 1711
Person who gains thing by fraud, violation of trust, or other wrongful act as, unless he or she has
some other and better right to it, involuntary trustee of thing gained, for benefit of person who would
Page 220 of 479

otherwise have had it. Civ. Code ß 2224
Liability of foreclosure consultant for damages arising from statement made or act committed by his
or her representative in connection with foreclosure-consultant services. Civ. Code ßß 2945.9,
2945.10, 2945.11
Exemplary damages for oppression, fraud, or malice. Civ. Code ß 3294
Amount of claim for punitive damages required not to be stated. Civ. Code ß 3295(e)
Measure of damages for breach of obligation not arising from contract is amount that will compensate
for all detriment proximately caused thereby, whether it could have been anticipated or not. Civ. Code
ß 3333
Measure of damages for one defrauded in purchase, sale, or exchange of property. Civ. Code ß 3343
Civil remedy for violation of prohibition against deceptive campaign advertisement. Civ. Code ß
3344.6; Penal Code ß 115.2
Treble penalty in action by or on behalf of senior citizen or disabled person for deceptive or unfair
acts, practices, or methods of competition. Civ. Code ß 3345
Statute of limitations for fraud is three years; cause of action not accruing until discovery by
aggrieved party of facts constituting fraud. Code Civ. Proc. ß 338(d)
County in which defendants, or some of them, reside is proper county for trial of action. Code Civ.
Proc. ß 395(a)
In action by real estate lender for fraudulent inducement to make real estate loan, exemplary damages
equal to 50 percent of actual damages allowed. Code Civ. Proc. ß 726(f)
Statute of fraud provision that no evidence is admissible to charge person on representation as to

credit of third person unless there is writing subscribed by person to be charged. Code Civ. Proc. ß
1974
Goods are all things, including specially manufactured goods, that are movable at time of identifica-
tion to contract for sale other than money in which price is to be paid, investment securities, and things
in action. Com. Code ß 2107
Buyer who has accepted goods is entitled to damages for breach of warranty measured by difference
at time and place of acceptance between value of goods accepted and value they would have had if
they had been as warranted, unless special circumstances show other damages. Com. Code ß 2714
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Buyer entitled to incidental damages resulting from seller's breach, including injury to person or
property proximately resulting from breach of warranty. Com. Code ß 2715
Remedies for material misrepresentation or fraud include all remedies available under Com. Code ßß
2101-2724 for nonfraudulent breach. Com. Code ß 2721
Fraud liability of directors, officers, employees, or agents of Thrift Guaranty Corporation. Fin. Code
ß 18496.1
Public entity not liable for injury caused by misrepresentation by employee of public entity whether
or not misrepresentation is negligent or intentional. Gov. Code ß 818.8
Public employee acting in scope of employment not liable for injury caused by his or her misrepre-
sentation, whether or not misrepresentation is negligent or intentional, unless he or she is guilty of
actual fraud, corruption, or actual malice. Gov. Code ß 822.2
Legal Topics:
tual FraudRemediesTortsBusiness TortsFraud & MisrepresentationNegligent Misrepresentation-
General OverviewTortsBusiness TortsFraud & MisrepresentationNegligent MisrepresentationReme-
dies
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78 of 138 DOCUMENTS
ß 269.53 Decisions
Woman who had abortion based on sexual partner's promise, which he never intended to keep, that
he would impregnate her in one year had no cause of action for fraud and deceit; privacy and public
policy considerations prevent adjudication of promises and representations between consenting adults
regarding their sexual relationship. Perry v. Atkinson (1987) 195 Cal. App. 3d 14, 18-21, 240 Cal.
Rptr. 402
Claims of fraud and negligence against person who engaged in sexual intercourse with plaintiff for
failure to disclose venereal disease stated cause of action and were not barred by privacy considera-
tions. Kathleen K. v. Robert B. (1984) 150 Cal. App. 3d 992, 996-997, 198 Cal. Rptr. 273
Allegations that defendant misrepresented to plaintiff prior to engaging in sexual intercourse that he
was unable to get anyone pregnant and that plaintiff thereafter suffered ectopic pregnancy leaving her
sterile stated cause of action in deceit; right to privacy does not shield sexual relations from judicial
scrutiny if privacy used as shield from liability at expense of other party. Barbara A. v. John G.
(1983) 145 Cal. App. 3d 369, 385, 193 Cal. Rptr. 422
Claims of fraud and negligent misrepresentation against child's mother for falsely representing that
she was taking birth control pills did not state cause of action in tort; privacy and general public policy
considerations preclude courts' interference with birth control practices of partners in consensual
sexual relationships. Stephen K. v. Roni L. (1980) 105 Cal. App. 3d 640, 645, 164 Cal. Rptr. 618
[2] Actual Reliance
Page 223 of 479

Actual reliance is required element of action for fraud or deceit; plaintiff who never heard or read
misrepresentations unable to state cause of action for deceit because California statutory and common
law governing tort of fraud or deceit does not incorporate fraud-on-the-market doctrine of federal
securities law. Mirkin v. Wasserman (1993) 5 Cal. 4th 1082, 1088, 1095, 1100, 1108, 23 Cal.
Rptr. 2d 101, 858 P.2d 568
Insurance agent owed no duty to avoid misrepresenting policy being provided to spouse of insured,
as spouse did not rely on any misrepresentations to change his position to his detriment. The MEGA
Life & Health Ins. Co. v. Superior Court (2009) 172 Cal. App. 4th 1522, 1530-1532, 92 Cal. Rptr.
3d 399
Plaintiff could not prove actual reliance because defendant sold entire asbestos manufacturing
enterprise to successor corporation years before manufacture of asbestos to which plaintiff was
exposed. Cadlo v. Owens-Ill., Inc. (2004) 125 Cal. App. 4th 513, 520, 23 Cal. Rptr. 3d 1
Plaintiffs, homeowners and developer, required to prove actual reliance to recover for fraud from
defendants who manufactured and sold defective plumbing pipes and system components; misrepre-
sentations made by defendants when marketing products were insufficient, in absence of evidence that
plaintiffs actually heard and relied on those misrepresentations. Gawara v. United States Brass
Corp. (1998) 63 Cal. App. 4th 1341, 1348-1359, 74 Cal. Rptr. 2d 663
Plaintiffs unable to establish reliance on defendant insurer's alleged misrepresentations concerning

coverage under insurance policy, thus precluding fraud claim against insurer, because plaintiffs'
assignors disputed insurer's coverage position rather than relying on it. McLaughlin v. National
Union Fire Ins. Co. (1994) 23 Cal. App. 4th 1132, 1148, 29 Cal. Rptr. 2d 559
[a] Breach of Duty
One under duty of honesty who defrauds one for whom he or she is not agent is nevertheless under
duty to repay money unjustly received on theory of constructive trust. Ward v. Taggart (1959) 51
Cal. 2d 736, 741-742, 336 P.2d 534
In action by lender who relied on appraisal against real estate appraiser for negligence or fraud in
appraising real property by overstating its value, measure of damages is not measure applicable to
action for impairment of security but, instead, that provided by Civ. Code ßß 1709, 3333, plus any
punitive damages that may be awarded. Foggy v. Ralph F. Clark & Assocs., Inc. (1987) 192 Cal.
App. 3d 1204, 1214, 238 Cal. Rptr. 130
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Party permitted to recover consequential damages resulting from his or her acts in reliance on other
party's misrepresentations; same damages, however, not permitted to be recovered on different
theories. Walker v. Signal Co., Inc. (1978) 84 Cal. App. 3d 982, 995, 149 Cal. Rptr. 119 (plaintiff
cannot recover double damages sustained by recovering all compensatory damages under breach of
contract theory and additional compensatory damages under fraud theory)
Civ. Code ß 3343 not applicable to measure of damages for fraud and deceit between one business
partner and another. Prince v. Harting (1960) 177 Cal. App. 2d 720, 730-731, 2 Cal. Rptr. 545
Fraudulent fiduciary required to make good full amount of caused by fiduciary's breach of faith.
Prince v. Harting (1960) 177 Cal. App. 2d 720, 730-731, 2 Cal. Rptr. 545
If there is fraud by fiduciary, Civ. Code ß 3343 out-of-pocket loss rule for damages is inapplicable;
Civ. Code ßß 1709 and 3333 is applicable instead. Simone v. McKee (1956) 142 Cal. App. 2d 307,
315, 298 P.2d 667
[b] General Rule
Anticipated profits is improper measure of damages if it is uncertain whether, in absence of negligent

misrepresentation, any profit at all would have been derived. Christiansen v. Roddy (1986) 186 Cal.
App. 3d 780, 790-791, 231 Cal. Rptr. 72
Amount of damages properly reflected great emotional distress and incidental damages resulting from
defendant's attempts to enforce contract tainted by fraud. Lewis v. Upton (1984) 151 Cal. App. 3d
232, 237, 198 Cal. Rptr. 494
Damages not recoverable if fact of damage is too remote, speculative, or uncertain. Block v. Tobin
(1975) 45 Cal. App. 3d 214, 219-220, 119 Cal. Rptr. 288
Anticipated profits not properly recovered as damages if it is uncertain whether in absence of deceit,
any profit at all would have been derived. Block v. Tobin (1975) 45 Cal. App. 3d 214, 220, 119 Cal.
Rptr. 288
Plaintiff allowed to recover compensation for time and effort expended in reliance on defendant's
misrepresentation. Block v. Tobin (1975) 45 Cal. App. 3d 214, 220, 119 Cal. Rptr. 288
Business deal involving possible purchase or sale of real property that is never completed gives rise
to damages for fraud measured by Civ. Code ßß 1709 and 3333 rather than Civ. Code ß 3343 dealing
with damages for fraud in purchase and sale of property. Block v. Tobin (1975) 45 Cal. App. 3d
214, 220, 119 Cal. Rptr. 288
[c] Loss of Profits
Page 225 of 479

If, due to peculiar nature of defrauded business, profit is delayed rather than totally lost, measure of
damages is financial loss in delay in realization of profit rather than total profit temporarily denied by
defendant's fraud. Dean W. Knight & Sons, Inc. v. First W. Bank & Trust Co. (1978) 84 Cal. App.
3d 560, 563, 148 Cal. Rptr. 767 (loss of real estate developer's profits caused by defendant's
temporarily forcing plaintiff into Chapter XI bankruptcy)
[d] Sale of Goods
In action brought by purchaser of airplane against manufacturer, arising from destruction of airplane
caused by defects after airplane had functioned properly some five years after purchase, measure of
damages is market value of aircraft at time plaintiff effectively lost use of it (that is, on date of
accident); exception to Com. Code ß 2714(2), which provides measure of damages for breach of
warranty based on time and place of acceptance of goods, is applicable because plaintiff used product
for period of time without noticing defect. Continental Airlines, Inc. v. McDonnell Douglas Corp.
(1989) 216 Cal. App. 3d 388, 432-433, 264 Cal. Rptr. 779
In case involving purchase, sale, or exchange of real property, plaintiff not required to show out-of-
pocket loss to recover any "additional damage[s]" listed in Civ. Code ß 3343. Stout v. Turney
(1978) 22 Cal. 3d 718, 729-730, 150 Cal. Rptr. 637, 586 P.2d 1228
In absence of fiduciary relationship between plaintiff and defendant, recovery in tort action for fraud
involving purchase or sale of real property is limited to actual damages. Ward v. Taggart (1959) 51
Cal. 2d 736, 741, 336 P.2d 534
Misrepresentation as to acreage of land planted in orange trees is actionable fraud. Morey v. Bovee
(1933) 218 Cal. 780, 782-783, 25 P.2d 2
When plaintiff sold his house in reliance on representations from broker and another seller that
plaintiff would simultaneously be able to purchase seller's house, but plaintiff was unable to do so
because of undisclosed tax liens on seller's property and was unable to find affordable replacement
property in same area due to rapidly escalating housing costs, compensatory damages that included
appreciation in value of property plaintiff sold from time he sold it to time of trial were appropriate,
because plaintiff would otherwise have held onto own property longer, and harm done to plaintiff was
to decrease his buying power in rapidly appreciating housing market. Strebel v. Brenlar
Investments, Inc. (2006) 135 Cal. App. 4th 740, 748-750, 37 Cal. Rptr. 3d 699
Under Civ. Code ß 3343, property owner who was defrauded into granting right-of-way easement
Page 226 of 479

for road construction, which affected additional property to which easement had not been granted, is
not entitled to "cost of repair" of additional property affected by construction (that is, cost of restoring
it to its condition prior to construction), but is only entitled to value of additional property "taken" for
construction. Housley v. City of Poway (1993) 20 Cal. App. 4th 801, 812-813, 24 Cal. Rptr. 2d 554
Vendor's assertion to purchaser of amount of acreage was actionable misrepresentation to purchaser,

who did not survey property until one year after purchase; because purchaser acquired property to
subdivide and develop, fact that actual value of land was more than price paid did not deprive
purchaser of right to damages for loss of anticipated profits pursuant to Civ. Code ß 3343(a)(4).
Cory v. Villa Props. (1986) 180 Cal. App. 3d 592, 597-598, 601-603, 225 Cal. Rptr. 628
Measure of damages for fraud in real property transaction is historically loss of benefit of bargain,
but California has adopted out-of-pocket loss rule by statute in Civ. Code ß 3343. Pepper v.
Underwood (1975) 48 Cal. App. 3d 698, 706-707, 122 Cal. Rptr. 343 , overruled on other grounds,
Stout v. Turney (1978) 22 Cal. 3d 718, 150 Cal. Rptr. 637, 586 P.2d 1228 ; Coleman v. Ladd Ford
Co. (1963) 215 Cal. App. 2d 90, 93, 29 Cal. Rptr. 832
Foreclosure is one circumstance to be considered in determining actual out-of-pocket loss under Civ.
Code ß 3343. Ford v. Cournale (1973) 36 Cal. App. 3d 172, 184, 111 Cal. Rptr. 334
Mental distress is not element of damages for fraud under Civ. Code ß 3343. Sierra Nat'l Bank v.
Brown (1971) 18 Cal. App. 3d 98, 103, 95 Cal. Rptr. 742
Losses suffered by plaintiff as result of foreclosure were recoverable under Civ. Code ß 3343.
Burkhouse v. Phillips (1971) 18 Cal. App. 3d 661, 666, 96 Cal. Rptr. 197
Plaintiff allowed to recover damages in sale of property even if there is no difference in price paid for
it by plaintiff and actual value of property, if there is evidence that defendant represented that property
would produce income that it would not produce. Burkhouse v. Phillips (1971) 18 Cal. App. 3d 661,
665, 96 Cal. Rptr. 197
Person who mitigates damages allowed to recover reasonable cost of doing so, provided that it does
not exceed damages prevented or reasonably expected. Hartong v. Partake, Inc. (1968) 266 Cal.
App. 2d 942, 968, 72 Cal. Rptr. 722
Additional damages also included reasonable value of time fruitlessly spent by plaintiff in reliance on
representations of defendant. Hartong v. Partake, Inc. (1968) 266 Cal. App. 2d 942, 969, 72 Cal.
Rptr. 722
Question of damages is for trier of fact, who may determine figure for correct value of property that
is between figures offered by experts for plaintiff and defendant. Ach v. Finkelstein (1968) 264 Cal.
Page 227 of 479

App. 2d 667, 677-678, 70 Cal. Rptr. 472
Court assesses damages under Civ. Code ß 3343 as of day on which fraudulent transaction involving
property occurred. McCue v. Bruce Enterprises, Inc. (1964) 228 Cal. App. 2d 21, 30-32, 39 Cal.
Rptr. 125
Courts consider circumstances subsequent to time of sale in applying Civ. Code ß 3343 to determine
actual out-of-pocket loss. Hahn v. Food Serv. Equip. Co. (1963) 220 Cal. App. 2d 412, 416, 33
Cal. Rptr. 851
Loss of time and effort or loss of salary are items of damage proximately caused by fraudulent
misrepresentations as inducement to execute lease. Lawson v. Town & Country Shops, Inc. (1958)
159 Cal. App. 2d 196, 205, 323 P.2d 843
Cost of repairs has some probative value on issue of damages, but is not itself measure of damages.
Central Mut. Ins. Co. v. Schmidt (1957) 152 Cal. App. 2d 671, 676-677, 313 P.2d 132
[4] Attorney's Fees
Whether phrased as cause of action for fraud or as one for breach of contract, borrower's only injury
resulting from bank's three-year delay in turning over to borrower's trustee in bankruptcy assets of
borrower that constituted bank's collateral was trustee's attorney's fees necessitated by bankruptcy
proceeding; those fees recoverable only in bankruptcy proceeding. Kruse v. Bank of Am. (1988) 202
Cal. App. 3d 38, 61-62, 248 Cal. Rptr. 217
Person who is required through fraud of another to act in protection of his or her interest by bringing
or defending action against third person is entitled to recover compensation for reasonably necessary
attorney's fees incurred. Moe v. Transamerica Title Ins. Co. (1971) 21 Cal. App. 3d 289, 303, 98
Cal. Rptr. 547
Attorney's fees incurred in bringing action for fraud are not recoverable. Bezaire v. Fidelity &
Deposit Co. (1970) 12 Cal. App. 3d 888, 892, 91 Cal. Rptr. 142
Existence of fiduciary or other confidential relationship between plaintiff and defendant required to be
alleged in complaint. Feeney v. Howard (1889) 79 Cal. 525, 529, 21 P. 984
Substantial evidence supported trial court finding that real estate broker committed breach of duty
constituting constructive fraud by making affirmative statements to clients concerning size,
Page 228 of 479

boundaries, and subdividability of property, knowing these facts to be material to clients, without
disclosing that he had not confirmed accuracy of statements. Salahutdin v. Valley of Cal., Inc.
(1994) 24 Cal. App. 4th 555, 563, 29 Cal. Rptr. 2d 463
Absent either individual duty to plaintiff or personal financial interest in matter, attorney for
corporation or for majority of shareholders not liable for conspiracy (along with client) to commit
constructive fraud if charge rests on fiduciary duty of disclosure owed only by client. Skarbrevik v.
Cohen, England & Whitfield (1991) 231 Cal. App. 3d 692, 711, 282 Cal. Rptr. 627
In constructive fraud action by investor against financial consultant, alleging nondisclosure, special
verdict requiring finding of defendant's intentional failure to disclose material facts was reversible
error, because theory of breach of fiduciary duty does not require element of intent. Byrum v. Brand
(1990) 219 Cal. App. 3d 926, 938, 268 Cal. Rptr. 609
In action against investment advisor brought by defendant's clients, fiduciary relationship shown by
plaintiffs' lack of sophistication concerning investments generally and their personal trust in
defendant's professional expertise; breach of fiduciary duty evidenced by defendant's commingling of
client funds and omission of facts relating to substantial investment risks; finding of liability for
constructive fraud not precluded by absence of specific pleading, because evidence supporting cause
of action for alleged actual fraud was substantially same and defendant made no objection to trial brief.
Stokes v. Henson (1990) 217 Cal. App. 3d 187, 194-197, 265 Cal. Rptr. 836
Relationship between stockbroker and client is fiduciary in nature, whether or not client is "sophisti-
cated" with regard to stock trading; stockbroker breached fiduciary duty to client by failing to explain
risks of investing employee trust fund proceeds in options trading and by making that type of
investment without express, unsolicited orders from client; action brought by trustees of profit-sharing
plan against stockbroker for breach of fiduciary duty was not preempted by ERISA (29 U.S.C. ß
1144(a)), because suit does not affect plan per se. Duffy v. Cavalier (1989) 215 Cal. App. 3d 1517,
1533, 264 Cal. Rptr. 740
Between fiduciaries, actual notice is question of fact; distribution of report, which had footnote
disclosing separate interest of some partners in assets leased to partnership, at partnership meeting
was not sufficient to charge other partners with notice of separate interests or profit on lease.
Rosenfeld, Meyer & Susman v. Cohen (1987) 191 Cal. App. 3d 1035, 1059, 237 Cal. Rptr. 14
Constructive fraud presumed from relation of parties to transaction or circumstances under which it
takes place; constructive fraud often existing if parties to contract have special confidential or fiduciary
relationship that affords one party power to take undue advantage of other party. Ford v. Shearson
Lehman Am. Express, Inc. (1986) 180 Cal. App. 3d 1011, 1020, 225 Cal. Rptr. 895
Causation issue turns on whether or not plaintiff justifiably relied on facts presented; proximate cause
of plaintiff's injury is inapplicable concept in cause of action for constructive fraud. Montoya v.
Page 229 of 479

McLeod (1985) 176 Cal. App. 3d 57, 65, 221 Cal. Rptr. 353
Breach of duty necessary for constructive fraud defined in Civ. Code ß 1573 is required to be breach
of duty created by confidential relationship. Guthrie v. Times-Mirror Co. (1975) 51 Cal. App. 3d
879, 889, 124 Cal. Rptr. 577
Confidential relationship giving rise to possible constructive fraud arises whenever trust and
confidence is reposed by one person in integrity and fidelity of another. Twomey v. Mitchum, Jones
& Templeton, Inc. (1968) 262 Cal. App. 2d 690, 711, 69 Cal. Rptr. 222
Confidential and fiduciary relationship is synonymous in law and exists whenever trust and
confidence is reposed by one person in integrity and fidelity of another; existence of confidential
relationship precludes one party from participating in profit or advantage resulting from dealings of
parties to relationship. Twomey v. Mitchum, Jones & Templeton, Inc. (1968) 262 Cal. App. 2d 690,
708, 69 Cal. Rptr. 222
If during existence of confidential relationship one party gains advantage, burden on that party to
show fairness and good faith in all respects. Boyd v. Bevilacqua (1966) 247 Cal. App. 2d 272,
290-291, 55 Cal. Rptr. 610
Constructive fraud actionable even though material misstatements are made without intent to deceive.
Cardozo v. Bank of Am. (1953) 116 Cal. App. 2d 833, 839, 254 P.2d 949
Constructive fraud consists of all acts, omissions, and concealments involving breach of legal or
equitable duty, trust, or confidence, and resulting in damage to another; constructive fraud exists if
conduct, although not actually fraudulent, ought to be treated as fraud; constructive fraud arises from
breach of confidential relationship. Estate of Arbuckle (1950) 98 Cal. App. 2d 562, 568, 220 P.2d
950
[b] Breach of Duty
Contractual choice-of-law provision applicable to all causes of actions, including tort causes of
actions for breach of fiduciary duty, arising from or related to contract. Nedlloyd Lines B.V. v.
Superior Court (1992) 3 Cal. 4th 459, 464-466, 468-471, 11 Cal. Rptr. 2d 330, 834 P.2d 1148
One spouse has fiduciary duty to account to other during property settlement negotiation. Boeseke
v. Boeseke (1974) 10 Cal. 3d 844, 849, 112 Cal. Rptr. 401, 519 P.2d 161
Managing spouse permitted to protect his or her own interests and assume adverse position despite
existence of relationship with other spouse. Boeseke v. Boeseke (1974) 10 Cal. 3d 844, 850, 112
Cal. Rptr. 401, 519 P.2d 161
Page 230 of 479

Auto club had no duty to members concerning safety features of motels listed in Tourbook because
intention of Tourbook is to give recommendations on attractions and accommodations; any special
relationship between auto club and member using Tourbook was restricted to such listing and rating
of accommodation and did not include within its scope matters of neighborhood safety or security
measures. Yanase v. Automobile Club of So. Cal. (1989) 212 Cal. App. 3d 468, 476-478, 260 Cal.
Rptr. 513
Law firm liable to third party (mortgage brokerage) for fraudulent misrepresentation because member
of firm prepared misleading letter stating that he had reviewed loan documentation and explained
terms of loan transaction to client as required by mortgage broker supplying loan to client, but client
later sued mortgage broker for fraud because she had not understood terms of loan. Home Budget
Loans, Inc. v. Jacoby & Meyers Law Offices (1989) 207 Cal. App. 3d 1277, 1283-1284, 255 Cal.
Rptr. 483
Officers, directors, and managers of corporation have fiduciary obligation to stockholders and
creditors and therefore are liable for constructive fraud if they have breached duty to corporation.
Credit Managers Assn. v. Superior Court (1975) 51 Cal. App. 3d 352, 360, 124 Cal. Rptr. 242
Real estate broker has same obligation of service and loyalty as does trustee in favor of beneficiary;
agent has duty not to misrepresent amount of income to be expected from property and to disclose all
material facts. Ford v. Cournale (1973) 36 Cal. App. 3d 172, 182, 111 Cal. Rptr. 334
Material fact required to be disclosed by fiduciary is one that would be likely to affect principal's
judgment and whose concealment would lead to principal's injury. Ford v. Cournale (1973) 36 Cal.
App. 3d 172, 182, 111 Cal. Rptr. 334
Real estate broker owes his or her principal same duty of undivided service and loyalty as trustee
owes to his or her beneficiary, including duty to disclose all material facts. Kachig v. Boothe (1971)
22 Cal. App. 3d 626, 634-635, 99 Cal. Rptr. 393
Title insurance company is trustee as to all principals to escrow; escrow officer has duty to each of
principals to act fairly and to disclose any facts affecting principals' interests. Moe v. Transamerica
Title Ins. Co. (1971) 21 Cal. App. 3d 289, 306, 98 Cal. Rptr. 547
Joint venture is undertaking by two or more persons jointly to carry out single business enterprise;
joint venturers assume status of fiduciaries. Davis v. Kahn (1970) 7 Cal. App. 3d 868, 877-878, 86
Cal. Rptr. 872
Fraud includes failure to speak if there is duty to speak due to existence of confidential relationship.
Blair v. Mahon (1951) 104 Cal. App. 2d 44, 49, 230 P.2d 832
Agent under duty to disclose any interest agent has that is adverse to principal; failure to disclose
Page 231 of 479

such interest is constructive fraud. McFate v. Bank of Am. of Cal. (1932) 125 Cal. App. 683, 687,
14 P.2d 146
[c] Defenses
Contributory negligence not defense to constructive fraud. Bacon v. Bacon (1907) 150 Cal. 477,
489, 89 P. 317
In personal injury action, plaintiff has no claim for damages based on allegation that defendant would
assert in defense invalid release obtained by fraud or negligent misrepresentation; plaintiff's recourse
is to resist defense in that action, not to allege independent cause of action for asserting it; attorney's
fees and mental stress resulting from having to disprove adversary's falsely asserted defense are not
normally compensable damages. MacCharles v. Bilson (1986) 186 Cal. App. 3d 954, 957-958, 231
Cal. Rptr. 155
Existence of actual damages is essential element of cause of action for damages for fraud; nonsuit
proper because plaintiff failed to show any resulting injury. Downer v. Bramet (1984) 152 Cal.
App. 3d 837, 844, 199 Cal. Rptr. 830
Applicable statute of limitations for action for damages for constructive fraud is former Code Civ.
Proc. ß 338(4) (now see Code Civ. Proc. ß 338(d)). Agair, Inc. v. Shaeffer (1965) 232 Cal. App. 2d
513, 517-519, 42 Cal. Rptr. 883
Complaint for consumer class action filed after effective date of Consumers Legal Remedies Act [Civ.
Code ßß 1750-1784] alleging conduct described by Civ. Code ß 1770 required to follow procedures
specified in that act. Vasquez v. Superior Court (1971) 4 Cal. 3d 800, 818-819, 94 Cal. Rptr. 796,
484 P.2d 964 ; Outboard Marine Corp. v. Superior Court (1975) 52 Cal. App. 3d 30, 37, 124 Cal.
Rptr. 852
Because payment of money that one is already contractually bound to pay is not money damages in
action for fraud, borrower could not claim as damages loan payments made in reliance on lender's
promise to renegotiate terms of loan. Auerbach v. Great W. Bank (1999) 74 Cal. App. 4th 1172,
1185, 88 Cal. Rptr. 2d 718
In fraud/intentional misrepresentation action against alarm company, plaintiff not precluded as matter
of law from attempting to prove "causal nexus" between misrepresentation inducing reliance on alarm
system and later losses due to criminal acts of third parties; however, nonsuit against plaintiff proper
Page 232 of 479

given failure to prove causation at trial. Helm v. K.O.G. Alarm Co. (1992) 4 Cal. App. 4th 194,
202-203, 5 Cal. Rptr. 2d 615
Purchasers of property, who may have made misleading representations or nondisclosures to obtain
loan, not liable for fraud because plaintiff (mortgage guaranty insurer) had suffered no damage;
insurer's payment to lender unnecessary because lender had made successful full credit bid on
property and therefore was not damaged by any act of purchasers. Commonwealth Mortgage
Assurance Co. v. Superior Court (1989) 211 Cal. App. 3d 508, 520-521, 259 Cal. Rptr. 425
Fraud without damage furnishes no ground for action and no defense to action. South Tahoe Gas
Co. v. Hofmann Land Improvement Co., Inc. (1972) 25 Cal. App. 3d 750, 765, 102 Cal. Rptr. 286 ;
McCue v. Bruce Enterprises, Inc. (1964) 228 Cal. App. 2d 21, 30, 39 Cal. Rptr. 125
Plaintiff required to allege and prove precise amount of damages for fraud. Santoro v. Carbone
(1972) 22 Cal. App. 3d 721, 728, 99 Cal. Rptr. 488
Plaintiff who has been put in position worse than plaintiff occupied had there been no fraud has cause
of action for fraud. R.D. Reeder Lathing Co. v. Cypress Ins. Co. (1970) 3 Cal. App. 3d 995, 999,
84 Cal. Rptr. 98
[8] Defendants
Brokerage firm liable for employee broker's fraud in inducing securities purchase under federal law,
for failure to provide reasonable supervision and training, and under California law, for acts of its
agent performed within scope of agent's authority. Seymour v. Summa Vista Cinema, Inc. (9th Cir.
1987) 809 F.2d 1385, 1388 ; see also Alhino v. Starr (1980) 112 Cal. App. 3d 158, 174, 169 Cal.
Rptr. 136
Principal liable for agent's fraud if principal places agent in position to defraud. Alhino v. Starr
(1980) 112 Cal. App. 3d 158, 174, 169 Cal. Rptr. 136
Principal who puts agent in position that enables agent to commit fraud while apparently acting within
his or her authority liable to third person for fraud. Hartong v. Partake, Inc. (1968) 266 Cal. App.
2d 942, 960, 72 Cal. Rptr. 722
Belief in agent's authority required to be generated by some act or neglect of principal before principal
can be held liable. Hartong v. Partake, Inc. (1968) 266 Cal. App. 2d 942, 960, 72 Cal. Rptr. 722
If agent acting within actual or apparent authority gains advantage by means of fraud, principal is
jointly liable with agent for damages. Ach v. Finkelstein (1968) 264 Cal. App. 2d 667, 677, 70 Cal.
Page 233 of 479

Rptr. 472
Principal not permitted to derive any benefit from transaction involving fraud of his or her agent by
claiming fraud was not authorized by principal. Balfour, Guthrie & Co. v. Hansen (1964) 227 Cal.
App. 2d 173, 192, 38 Cal. Rptr. 525
Public entity liable for damages for breach of contract despite fact that breach was also fraudulent and
suit for fraud would be barred by Gov. Code ßß 818.8 and 822.2. Warner Constr. Corp. v. Los
Angeles (1970) 2 Cal. 3d 285, 293-294, 85 Cal. Rptr. 444, 466 P.2d 996
Immunity under Gov. Code ß 818.8 is applicable to intentional or negligent interference with
economic relationships based on misrepresentations of city's employees. Los Angeles Equestrian
Ctr., Inc. v. City of Los Angeles (1993) 17 Cal. App. 4th 432, 449-450, 21 Cal. Rptr. 2d 313
Immunity provided governmental entities by Gov. Code ß 818.8 for misrepresentation applies not
only to intentional misrepresentation and negligent misrepresentation, but also to concealment (that is,
suppression of fact). Chevlin v. Los Angeles Cmty. Coll. Dist. (1989) 212 Cal. App. 3d 382, 390,
260 Cal. Rptr. 628 ; Harshbarger v. City of Colton (1988) 197 Cal. App. 3d 1335, 1343, 243 Cal.
Rptr. 463
Gov. Code ßß 818.8, 822.2 does not preclude action against county adoption agency for intentional
misrepresentation or fraudulent concealment of adoptee's medical condition as part of adoption
process. Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal. App. 3d 859, 872,
875, 247 Cal. Rptr. 504
Tort actions for misrepresentation made by state employees barred by Tort Claims Act (Gov. Code ß
818.8). Seymour v. State of California (1984) 156 Cal. App. 3d 200, 205, 201 Cal. Rptr. 15
Immunity for misrepresentation afforded by Gov. Code ß 818.8 does not preclude action seeking
liability based on contract. Arthur L. Sachs, Inc. v. City of Oceanside (1984) 151 Cal. App. 3d 315,
320-321, 198 Cal. Rptr. 483
Fraudulent concealment within immunity granted by Gov. Code ß 818.8 to public entities for injury
caused by misrepresentation of employee. Schonfeld v. City of Vallejo (1974) 50 Cal. App. 3d 401,
409, 123 Cal. Rptr. 669
Actual fraud, for purposes of avoiding immunity granted to public employees by Gov. Code ß 822.2
and to public entities by Gov. Code ß 818.8 means that public employee is motivated by corruption, or
actual malice, that is, has conscious intent to deceive, vex, annoy, or harm injured party. Schonfeld v.
City of Vallejo (1974) 50 Cal. App. 3d 401, 409-410, 123 Cal. Rptr. 669
Page 234 of 479

[9] Defenses
[a] Generally
In action by computer hardware broker against manufacturer for fraud, breach of fiduciary duty, and
rescission, defendant immune from civil liability based on its good faith cooperation with government
in criminal investigation. Caesar Elecs. Inc. v. Andrews (9th Cir. 1990) 905 F.2d 287, 289
Defendant accused of fraud entitled to rely on plaintiff's lack of specific factual allegations, including
factually devoid discovery responses, to procure summary judgment. Union Bank v. Superior Court
(1995) 31 Cal. App. 4th 573, 576-577, 37 Cal. Rptr 2d 653
In action for fraud, intentional misrepresentation, and conspiracy to interfere with prospective
business advantage based on defendants' actions in causing nonfinal judgment and making false
statements to trial court in underlying action, dismissal of complaint proper on ground that defendants
were absolutely privileged pursuant to Civ. Code ß 47(b). Boston v. Nelson (1991) 227 Cal. App. 3d
1502, 1506-1507, 278 Cal. Rptr. 386
Service station operator's claims of violation of covenant of good faith, fraud, and interference with
prospective advantage arising from oil company's failure to maintain underlying ground lease were
preempted by federal Petroleum Marketing Practices Act (15 U.S.C. ß 2806(a)). Mobil Oil Corp. v.
Superior Court (1987) 189 Cal. App. 3d 485, 488-490, 234 Cal. Rptr. 482
Plaintiff has burden of proof on issue of justifiable reliance. American Air Equip., Inc. v. Pacific
Employers Ins. Co. (1974) 37 Cal. App. 3d 322, 327, 112 Cal. Rptr. 366
Defense of contributory negligence not applicable to actions for negligent misrepresentation.

Howell v. Courtesy Chevrolet, Inc. (1971) 16 Cal. App. 3d 391, 403, 94 Cal. Rptr. 33
Plaintiff's negligence is defense to action for negligent misrepresentation but is not defense to
intentional misrepresentation. Balfour, Guthrie & Co. v. Hansen (1974) 227 Cal. App. 2d 173,
196-198, 38 Cal. Rptr. 525 ; Meyer v. Ford Motor Co. (1969) 275 Cal. App. 2d 90, 105, 79 Cal.
Rptr. 816
Plaintiff has burden of pleading and proving every element that constitutes fraud and deceit. Hills
Transp. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal. App. 2d 702, 707-708, 72 Cal.
Rptr. 441
Negligence of plaintiff is no defense to action for fraud and deceit. Hartong v. Partake, Inc. (1968)
266 Cal. App. 2d 942, 964-965, 72 Cal. Rptr. 722
Page 235 of 479

Lack of justifiable reliance is defense to action for fraud. Hartong v. Partake, Inc. (1968) 266 Cal.
App. 2d 942, 964-965, 72 Cal. Rptr. 722
Negligence of plaintiff is not defense to intentional tort of fraud; plaintiff not held to standard of
caution of reasonable person and exceptionally gullible people allowed to recover from defendant who
took advantage of circumstances. Carroll v. Dungey (1963) 223 Cal. App. 2d 247, 256-257, 35 Cal.
Rptr. 681
[b] Late Discovery
Plaintiff who asserts fraud claim brought over three years (see Code Civ. Proc. ß 338(d)) after
commission of fraud required to affirmatively excuse failure to discover fraud within three years after
it occurred, by establishing facts showing absence of negligence and absence of actual or presumptive
knowledge of facts sufficient to put plaintiff on inquiry. Denholm v. Houghton Mifflin Co. (9th Cir.
1990) 912 F.2d 357, 362
Plaintiff with knowledge of facts sufficient to make reasonable person suspicious is charged with
knowledge that would be gained by reasonable investigation despite defendant's status as fiduciary.
Miller v. Bechtel Corp. (1983) 33 Cal. 3d 868, 875-876, 191 Cal. Rptr. 619, 663 P.2d 177
For purposes of applying statute of limitations in fraud action, plaintiff suing for sexual molestation
of sons committed by priests two decades earlier had duty to investigate whether sons had been
molested when priests fled country after pleading guilty to or being accused of child molestation,
given that plaintiff knew of accusations against priests and that they had considerable unsupervised
access with plaintiff's sons. Doe v. Roman Catholic Bishop of Sacramento (2010) 189 Cal. App. 4th
1423, 1432, 117 Cal. Rptr. 3d 597
Triable issue of fact existed as to when investor had sufficient knowledge of fraud and resulting
damage caused by investment principals to trigger running of statute of limitations; mere belief that
investment funds had been lost, without more, did not trigger duty to investigate whether actionable
fraud occurred. Cleveland v. Internet Specialties West, Inc. (2009) 171 Cal. App. 4th 24, 31-33, 88
Cal. Rptr. 3d 892
Cause of action for negligent misrepresentation accrued only when plaintiff company learned that
defendant had misrepresented qualifications of employee accountant provided to plaintiff, rather than
when plaintiff earlier learned, or should have learned of, accountant's independent fraud and
embezzlement. E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal. App. 4th 1308, 1323, 64
Cal. Rptr. 3d 9
Summary judgment on fraud action based on expiration of statute of limitations was proper because
plaintiff discovered injury-producing wrongdoing of some sort almost nine years prior to filing action
and inquiry at that time would have led to discovery of fraud. Kline v. Turner (2001) 87 Cal. App.
Page 236 of 479

4th 1369, 1374, 105 Cal. Rptr. 2d 699
Late discovery exception applicable in fraud action brought against escrow agent who allegedly
improperly disbursed escrow funds pursuant to forged amended instructions; plaintiff has no duty to
inquire regarding improper disbursal of escrow funds because escrow agent was fiduciary for limited
purpose of carrying out escrow instructions. Lee v. Escrow Consultants, Inc. (1989) 210 Cal. App.
3d 915, 920-922, 259 Cal. Rptr. 117
Action on commercial blanket bond indemnifying against fraudulent acts of employees was timely
even though loss on fidelity bonds ordinarily occurs at time of employee's dishonest act, because
claim concerned secured loan made because of fraudulent misrepresentations. Pacific-S. Mortgage
Trust Co. v. Insurance Co. of N. Am. (1985) 166 Cal. App. 3d 703, 709-713, 212 Cal. Rptr. 754
Plaintiff bringing action eight years after injuries sustained from intrauterine device was barred by
statute of limitations from bringing cause of action in personal injury, but not barred from bringing
cause of action in fraud that is based on alleged fraudulent representations because plaintiff brought
action within three years after discovering allegedly concealed facts pursuant to Code Civ. Proc. ß 338
(d). Snow v. A.H. Robins Co. (1985) 165 Cal. App. 3d 120, 130-135, 211 Cal. Rptr. 271
If it is apparent from face of complaint that statute has run, plaintiff required to state in complaint facts
excusing plaintiff's failure to learn of fraud within statutory period. Casualty Ins. Co. v. Rees Inv.
Co. (1971) 14 Cal. App. 3d 716, 719-720, 92 Cal. Rptr. 857
If statute has otherwise run, plaintiff required to plead and prove facts showing (1) lack of
knowledge, (2) lack of means of obtaining knowledge, and (3) how and when plaintiff did actually
discover fraud. Casualty Ins. Co. v. Rees Inv. Co. (1971) 14 Cal. App. 3d 716, 719-720, 92 Cal.
Rptr. 857
When plaintiff has notice or information of circumstances to put reasonable person on inquiry or has
opportunity to obtain knowledge from sources open to plaintiff's investigation, statute commences to
run. Casualty Ins. Co. v. Rees Inv. Co. (1971) 14 Cal. App. 3d 716, 719-720, 92 Cal. Rptr. 857
If plaintiff has right to rely on defendant's statements without further inquiry because, for example,
they are in confidential relationship, statute does not commence to run merely because means of
discovery were open; plaintiff required only to show that plaintiff made actual discovery of unknown
information within three years before filing action. Davis v. Kahn (1970) 7 Cal. App. 3d 868, 878,
86 Cal. Rptr. 872
In action brought by seller of in-wall heaters against consumer safety group that certified that heaters
Page 237 of 479

were safe for consumer use, statute of limitations began to run when heaters were recalled due to
safety issues and plaintiff was required to bear portion of cost of recall. Platt Elec. Supply, Inc. v.
EOFF Elec., Inc. (9th Cir. 2008) 522 F.3d 1049, 1055-1056
Statute of limitations tolled by broker's reassurances to client regarding matters relevant to possible
misrepresentations; if client relied on broker's advice not to worry or close out position or on promises
that broker would monitor client's account, statute of limitations does not begin to run on dates of
those promises/reassurances. Vucinich v. Paine, Webber, Jackson & Curtis, Inc. (9th Cir. 1986) 803
F.2d 454, 460
Statute of limitations begins to run when one should have been put on notice of fraud or misrepresen-
tation; tolling of statute of limitations allowed if broker reassures client on concerns relevant to
possible misrepresentation. Vucinich v. Paine, Webber, Jackson & Curtis, Inc. (9th Cir. 1984) 739
F.2d 1434, 1436
Period of limitation for fraud expires at end of three years after time action accrued or after discovery
of fraud, as provided by former Code Civ. Proc. ß 338(4) (now see Code Civ. Proc. ß 338(d)).
Galusha v. Fraser (1918) 178 Cal. 653, 656, 174 P. 311
In action for conspiracy to defraud, allegations supporting tolling of limitations period under delayed
discovery rule establish timely filing under Code Civ. Proc. ß 338(d); plaintiffs not required
additionally to allege tolling under "last overt act doctrine" under Wyatt v. Union Mortgage Co.
(1979) 24 Cal. 3d 773, 788, 157 Cal. Rptr. 392, 598 P.2d 45 , because plaintiff is required only to
plead either alternative theory. Aaroe v. First Am. Title Ins. Co. (1990) 222 Cal. App. 3d 124,
128-129, 271 Cal. Rptr. 434
Limitation period on former partners' cause of action against other former partners for fraud based on
concealment of profits derived from sale and rental of property to dissolved partnership was
postponed by fraudulent concealment, and did not commence until plaintiffs had actual or inquiry
notice. Rosenfeld, Meyer & Susman v. Cohen (1987) 191 Cal. App. 3d 1035, 1059-1060, 237 Cal.
Rptr. 14
Three-year statute of limitations under former Code Civ. Proc. ß 338(4) (now see Code Civ. Proc. ß
338(d)) for civil conspiracy based on fraud commences when last overt act of conspiracy completed.
Livett v. F.C. Financial Associates (1981) 124 Cal. App. 3d 413, 418, 177 Cal. Rptr. 411
If gist of action is for fraud, action governed by former Code Civ. Proc. ß 338(4) (now see Code Civ.
Page 238 of 479

Proc. ß 338(d)) period of limitation regardless of form of action or relief sought. Turner v. Milstein
(1951) 103 Cal. App. 2d 651, 659, 230 P.2d 25
Action for constructive fraud arising from fraudulently inducing one party to breach contract is
governed by limitation period of former Code Civ. Proc. ß 338(4) (now see Code Civ. Proc. ß 338
(d)). Romano v. Wilbur Ellis & Co. (1947) 82 Cal. App. 2d 670, 674, 186 P.2d 1012
[10] Definitions
Fraud includes anything intended to deceive, including all statements, acts, concealments, and
omissions involving breach of legal or equitable duty, trust, or confidence that results in injury to one
who justifiably relies. Ach v. Finkelstein (1968) 264 Cal. App. 2d 667, 674, 70 Cal. Rptr. 472
Fraudulent representation is one made with knowledge that it is or may be untrue and with intention
that person to whom it is made act in reliance on it. Wilke v. Coinway, Inc. (1967) 257 Cal. App. 2d
126, 136, 64 Cal. Rptr. 845
If plaintiff elects to stand on contract and sue for damages, continued performance of contract is not
waiver of action for damages; if party elects to rescind, continued performance is possible waiver of
right to do so. Bagdasarian v. Gragnon (1948) 31 Cal. 2d 744, 750-752, 192 P.2d 935
Defrauded person has choice of either rescinding contract or affirming contract, retaining property,
and suing for damages. Kaluzok v. Brisson (1946) 27 Cal. 2d 760, 763, 167 P.2d 481 ; Brockway
v. Heilman (1967) 250 Cal. App. 2d 807, 811, 58 Cal. Rptr. 772
Complaint and proof indicating repeated false representations by automobile seller and dealer that car
had been repaired was action in deceit, entitling plaintiff to tort damages, and contract was merely
foundational backdrop for action. Sprague v. Frank J. Sanders Lincoln Mercury, Inc. (1981) 120
Cal. App. 3d 412, 419, 174 Cal. Rptr. 608
[12] Elements
Actual reliance required element of action for fraud or deceit. Mirkin v. Wasserman (1993) 5 Cal.
4th 1082, 1088, 1095, 1100, 1108, 23 Cal. Rptr. 2d 101, 858 P.2d 568
Making of misrepresentations to one group intending to influence behavior of ultimate purchasers

who are not recipients of original misrepresentation, and succeeding in plan, was sufficient to
establish liability for fraud. Committee on Children's Television, Inc. v. General Foods Corp.
Page 239 of 479

(1983) 35 Cal. 3d 197, 222, 197 Cal. Rptr. 783, 673 P.2d 660 , superseded by statute as stated in
Gartin v. S&M NuTec LLC, 245 F.R.D. 429, 2007 U.S. Dist. LEXIS 38050 (advertising to induce
children to influence parents to make purchases)
Plaintiff stockholders failed to raise triable issue of fact as to whether outside directors had knowl-
edge or reason to know of false or fraudulent accounting practices perpetrated in order to manipulate
stock price. Bains v. Moores (2009) 172 Cal. App. 4th 445, 459-470, 91 Cal. Rptr. 3d 309
Employer's misrepresentation to trust concerning status of employee for purposes of coverage under
employer's group life insurance policy is fraud against insurer if misrepresentation was made to trust
with intent that it would be repeated to and acted on by insurer. Pacific Standard Life Ins. Co. v.
Tower Indus., Inc. (1992) 9 Cal. App. 4th 1881, 1891, 12 Cal. Rptr. 2d 524
Cause of action for fraud not stated, and triable issue of fact not raised in opposition to summary
judgment motion, if there were no allegations of affirmative misrepresentation, intentional conduct, or
justifiable reliance. City of Hope Nat'l Med. Ctr. v. Superior Court (1992) 8 Cal. App. 4th 633, 639
n.3, 10 Cal. Rptr. 2d 465
Complaint in fraud action against corporation required to specify person who made representations;
demurrer properly sustained because of plaintiff's failure to do so. Tarmann v. State Farm Mut.
Auto. Ins. Co. (1991) 2 Cal. App. 4th 153, 156-158, 2 Cal. Rptr. 2d 861
Contractual or fiduciary duty not required for liability to be found under either intentional fraud or
negligent misrepresentation theory. Lacher v. Superior Court (1991) 230 Cal. App. 3d 1038,
1046-1047, 281 Cal. Rptr. 640
Elements of fraud that give rise to tort action for deceit are (1) misrepresentation, (2) knowledge of
falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. Hohe v. San Diego
Unified Sch. Dist. (1990) 224 Cal. App. 3d 1559, 1565, 274 Cal. Rptr. 647 ; Semore v. Pool (1990)
217 Cal. App. 3d 1087, 1102, 266 Cal. Rptr. 280 ; Hackethal v. National Cas. Co. (1987) 189 Cal.
App. 3d 1102, 1111, 234 Cal. Rptr. 853
In action based on discrepancies between description of land acreage in property-exchange contract

and actual acreage, plaintiff unable to prove fraud because of failure to produce evidence of scienter on
part of defendant regarding inaccuracy of contract description or evidence that would put reasonable
person on inquiry regarding accuracy. Marvin v. Adams (1990) 224 Cal. App. 3d 956, 963, 274
Cal. Rptr. 308
In employee's action against former employer based on allegedly wrongful termination, cause of
action in fraud, based on oral promises of continuing employment that contradicted parties' integrated
at-will employment agreement, lacked necessary element of justifiable reliance. Slivinsky v. Watkins-
Johnson Co. (1990) 221 Cal. App. 3d 799, 807, 270 Cal. Rptr. 585
Page 240 of 479

Cause of action for fraud requires clear allegation that each representation was false when made.
Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 74, 269 Cal. Rptr. 337
In action against manufacturer of mechanical heart valve that was ultimately recalled because of
failures resulting in deaths, patient in whom still-functioning valve had been implanted was able to
state cause of action in fraud based on misrepresentations regarding valve's propensity to fail,
omission of facts showing prior failure, and lack of warnings of serious risk, made with intent to
induce plaintiff to choose that valve over valves made by several other manufacturers. Khan v.
Shiley Inc. (1990) 217 Cal. App. 3d 848, 858, 266 Cal. Rptr. 106
In action brought by laid-off employee against employer, alleging several causes of action based on
employer's failure to rehire plaintiff, cause of action in fraud lacked element of false representation,
because based on statements regarding available positions and plaintiff's status regarding reinstatement
that were true when made. Kerr v. Rose (1990) 216 Cal. App. 3d 1551, 1564-1565, 265 Cal. Rptr.
597 , superseded by statute on other grounds as stated in Union Bank v. Superior Court (1995) 31
Cal. App. 4th 573,
Complaint alleging that employer knowingly made false promises that employer would pay
commission to plaintiff, that promises were made to induce plaintiff to work for employer, that
plaintiff relied on those promises by entering into employment relationship, and that employer failed to
pay commissions, was sufficient to withstand demurrer. Douglas v. Superior Court (1989) 215
Cal. App. 3d 155, 158, 263 Cal. Rptr. 473
Action against insurer, based on false advertising that insurance policy covered loss of use of limbs
although in fact only dismemberment of limbs was covered, did not meet elements of fraud action;
statements in advertisement were succinct but not actually misleading, and plaintiff's father and not
plaintiff was person who had relied on advertisement prior to purchase of policy. Suarez v. Life Ins.
Co. of N. Am. (1988) 206 Cal. App. 3d 1396, 1408, 254 Cal. Rptr. 377
Negligent misrepresentation requires intent to induce plaintiff's reliance; intent to induce plaintiff's
reliance is absent if defendant did not know plaintiffs and did not know that plaintiffs would rely on
alleged misrepresentation. Christiansen v. Roddy (1986) 186 Cal. App. 3d 780, 787-788, 231 Cal.
Rptr. 72
Justifiable reliance and representation without reasonable belief are elements of negligent misrepre-
sentation. Christiansen v. Roddy (1986) 186 Cal. App. 3d 780, 788-789, 231 Cal. Rptr. 72
Justifiable reliance is essential element of causes of action for fraud and conspiracy to commit fraud.
Chicago Title Ins. Co. v. Superior Court (1985) 174 Cal. App. 3d 1142, 1151, 220 Cal. Rptr. 507
Pleadings alleging that medical problems were proximate result of false and fraudulent representa-
Page 241 of 479

tions adequately stated cause of action in fraud despite incorporating language from other causes of
action asserting that injuries were caused by defendants' negligence. Snow v. A.H. Robins Co.
(1985) 165 Cal. App. 3d 120, 131-134, 211 Cal. Rptr. 271
Essential allegations in action against attorney are (1) misrepresentation, (2) knowledge of falsity, (3)
intent to defraud, (4) justifiable reliance, and (5) resulting damages, each pleaded with sufficient
factual specificity to allow defendant to understand charges. Roberts v. Ball, Hunt, Hart, Brown &
Baerwitz (1976) 57 Cal. App. 3d 104, 109, 128 Cal. Rptr. 901
Knowledge of falsity of statement and intent to deceive are not elements of negligent misrepresenta-
tion and therefore not element of every cause of action for deceit. Hale v. George A. Hormel & Co.
(1975) 48 Cal. App. 3d 73, 82-86, 121 Cal. Rptr. 144
Elements of case of fraud and deceit. South Tahoe Gas Co. v. Hofmann Land Improvement Co.
(1972) 25 Cal. App. 3d 750, 765, 102 Cal. Rptr. 286 ; Collins v. Marvel Land Co. (1970) 13 Cal.
App. 3d 34, 44, 91 Cal. Rptr. 291 ; Ach v. Finkelstein (1968) 264 Cal. App. 2d 667, 676, 70 Cal.
Rptr. 472 ; Teacher v. Leddel (1966) 247 Cal. App. 2d 95, 97, 55 Cal. Rptr. 271 ; Vogelsang v.
Wolpert (1964) 227 Cal. App. 2d 102, 109-110, 38 Cal. Rptr. 440
Necessity of alleging cause and effect relationship between fraud and damages sought in order to
show cause of action. Zumbrun v. University of Southern California (1972) 25 Cal. App. 3d 1, 12,
101 Cal. Rptr. 499
Knowledge of falsity of statement is necessary element of cause of action for deceit. Harazim v.
Lynam (1968) 267 Cal. App. 2d 127, 130, 72 Cal. Rptr. 670 ; Black v. Shearson, Hammill & Co.
(1968) 266 Cal. App. 2d 362, 367, 72 Cal. Rptr. 157 ; Vogelsang v. Wolpert (1964) 227 Cal. App.
2d 102, 109, 38 Cal. Rptr. 440
[13] Evidence
Fraud sometimes required to be shown by clear and convincing evidence. Thompson v. Occidental
Life Ins. Co. (1973) 9 Cal. 3d 904, 919, 109 Cal. Rptr. 473, 513 P.2d 353 ; K. King & G. Schuler
Corp. v. King (1968) 259 Cal. App. 2d 383, 396, 66 Cal. Rptr. 330
Burden of proof required in fraud case I no more than preponderance of evidence. Sierra Nat'l
Bank v. Brown (1971) 18 Cal. App. 3d 98, 104-105, 95 Cal. Rptr. 742
Facts that constitute fraud required to be determined from circumstances of each case. Ach v.
Finkelstein (1968) 264 Cal. App. 2d 667, 675, 70 Cal. Rptr. 472
Fraud allowed to be proved from direct evidence or inferred from all circumstances in case. Ach v.
Page 242 of 479

Fraud allowed to be proved from inference and circumstantial evidence. Vogelsang v. Wolpert
(1964) 227 Cal. App. 2d 102, 111, 38 Cal. Rptr. 440
Fraud often difficult to prove directly; circumstances surrounding transaction and relationship of
parties are facts from which fraud is often inferred. Balfour, Guthrie & Co. v. Hansen (1964) 227
Cal. App. 2d 173, 192, 38 Cal. Rptr. 525
Fraud is odious and therefore never presumed. Fowler v. Fowler (1964) 227 Cal. App. 2d 741,
748, 39 Cal. Rptr. 101
Misrepresentations by which promoter induced broadcaster to invest in joint venture to acquire and
sell rights to telecast fight was not pattern of racketeering activity sufficient to state cause of action
under 18 U.S.C. ß 1961(5); single scheme or episode sufficient only if circumstances suggest threat of
continuing activity. Medallion Television Enters. v. SelecTV of Cal. (9th Cir. 1987) 833 F.2d 1360,
1363-1365
Allegations of mail fraud (18 U.S.C. ß 1341) describing intent to defraud and facts as to time, place,
and content of alleged mailings was pattern of racketeering activity sufficient to state cause of action
under RICO (18 U.S.C. ß 1961 et seq.). People v. Highland Fed. Sav. & Loan (1993) 14 Cal. App.
4th 1692, 1719-1720, 19 Cal. Rptr. 2d 555
Deceit giving rise to action for damages and fraud vitiating consent to contract both evolved from
action on case of deceit; privity of contract originally required. Hale v. George A. Hormel & Co.
(1975) 48 Cal. App. 3d 73, 82-86, 121 Cal. Rptr. 144
Elements of tort of fraud and deceit and elements of actual fraud showing no consent to contract are
same. South Tahoe Gas Co. v. Hofmann Land Improvements Co. (1972) 25 Cal. App. 3d 750, 765,
102 Cal. Rptr. 286
False promise or misrepresentation that is basis for action in tort for damages is actionable under Civ.
Code ßß 1709 and 1710, rather than Civ. Code ß 1572. Bezaire v. Fidelity & Deposit Co. (1970) 12
Cal. App. 3d 888, 892, 91 Cal. Rptr. 142
In action under Civ. Code ß 1710 by title company against bank, bank's practice of repeatedly
Page 243 of 479

honoring third party's checks payable to title company did not impliedly represent that third party had
sufficient funds to cover checks because third party, rather than bank, was responsible for whatever
representations were presented to title company through uttering checks. Chicago Title Ins. Co. v.
Superior Court (1985) 174 Cal. App. 3d 1142, 1156, 220 Cal. Rptr. 507 (noting apparent conflict
between California and federal law over whether check constitutes representation, but commenting
that conflict was of no concern under facts of this case)
[17] Intent
Intent permissibly established by inference from acts of parties, because direct proof of fraudulent
intent often impossible. Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.
App. 3d 388, 411-412, 264 Cal. Rptr. 779
Actual fraud occurs if one party to contract intends to deceive another party to contract or to induce
another party to enter contract on basis of promise made without any intention of performing it;
existence of intent at time of promise is always question of fact. Walter E. Heller W., Inc. v. Tecrim
Corp. (1987) 196 Cal. App. 3d 149, 160-161, 241 Cal. Rptr. 677
Constitutional rate of 7 percent is proper prejudgment interest rate applicable to fraud claim.
Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal. App. 3d 388, 434, 264 Cal.
Rptr. 779
Prejudgment interest at rate of 7 percent is proper in action by insured to recover on commercial

blanket bond indemnifying against fraudulent acts of employees. Pacific-S. Mortgage Trust Co. v.
Insurance Co. of N. Am. (1985) 166 Cal. App. 3d 703, 716, 212 Cal. Rptr. 754
Civ. Code ß 3328, providing for recovery of interest on certain damages, as authorizes interest in
fraud actions in discretion of trier of fact. Greenfield v. Insurance Inc. (1971) 19 Cal. App. 3d 803,
813, 97 Cal. Rptr. 164
Plaintiff not required to plead or specially pray for interest. Greenfield v. Insurance Inc. (1971) 19
Cal. App. 3d 803, 813, 97 Cal. Rptr. 164
Whether plaintiff's reliance on defendant's representations regarding financial condition of company

plaintiff contemplated buying was justifiable is measured from moment plaintiff was committed to
purchase company's stock, which occurred once plaintiff's obligation to purchase was no longer
Page 244 of 479

conditional. Atari Corp. v. Ernst & Whinney (9th Cir. 1992) 981 F.2d 1025, 1029
Reliance on misrepresentation is question of fact for trial court; issue is whether person claiming
reliance was justified in believing representation in light of his or her own knowledge and experience.
Gray v. Don Miller Assocs., Inc. (1984) 35 Cal. 3d 498, 503, 198 Cal. Rptr. 551, 674 P.2d 253
Reliance not required to be shown by direct evidence; reliance may be inferred from circumstances
surrounding transaction. Vasquez v. Superior Court (1971) 4 Cal. 3d 800, 814, 94 Cal. Rptr. 796
Reliance by party to commercial contract on oral representations, despite clause in written agreement
that all representations had been included in written agreement, was not unreasonable as matter of law.
Ron Greenspan Volkswagen v. Ford Motor (1995) 32 Cal. App. 4th 985, 987-989, 38 Cal. Rptr. 2d
783
Justifiable reliance decided matter of law if reasonable minds can come to only one conclusion based
on facts; reliance not reasonable if attorney who used releases in her practice relied on equestrian
instructor's representation that release was meaningless. Guido v. Koopman (1991) 1 Cal. App. 4th
837, 843-844, 2 Cal. Rptr. 2d 437
In fraud action brought by purchaser of airplane against manufacturer, arising from destruction of
airplane when broken landing gear ripped away from wing, damaging wing fuel tank and causing fire,
defendant's representations that landing gear was designed to break away from wing without
rupturing wing fuel tank was material, and plaintiff's reliance on representations was justified; reliance
established if representation substantially influenced choice, even though other influences operated as
well. Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal. App. 3d 388, 425,
264 Cal. Rptr. 779
Borrower's refusal on three separate occasions to pledge ranch as collateral for long-term (construc-
tion) financing was further evidence that borrower was not reasonably justified in believing its
increased short-term debt would be paid from long-term loan. Kruse v. Bank of Am. (1988) 202 Cal.
App. 3d 38, 56-57, 248 Cal. Rptr. 217
Facts that borrower sought financing elsewhere after bank initially denied long-term financing, that
borrower knew loan it sought exceeded bank officer's lending authority, and that regional approval
was required, established that borrower's reliance was not justified, despite saccharine comments
made by regional bank officer during site visit. Kruse v. Bank of Am. (1988) 202 Cal. App. 3d 38,
55, 248 Cal. Rptr. 217
Testimony concerning one's own reliance is legally insufficient if that reliance is without justification;
plaintiff's misguided belief in statement on which no reasonable person would rely was not justifiable
reliance. Kruse v. Bank of Am. (1988) 202 Cal. App. 3d 38, 54, 248 Cal. Rptr. 217
Page 245 of 479

Whether plaintiff justifiably relied is generally question of fact. Meyer v. Ford Motor Co. (1969)
275 Cal. App. 2d 90, 105, 79 Cal. Rptr. 816
[b] Class Actions
Plaintiffs alleging fraud in advertising permitted to base cause of action on allegation that they acted in
response to advertising campaign, even if they cannot recall specific advertisement that induced
behavior desired by advertisers. Committee on Children's Television, Inc. v. General Foods Corp.
Gartin v. S&M NuTec LLC, 245 F.R.D. 429, 2007 U.S. Dist. LEXIS 38050
If representations were made at same time and place to all class members who act on them at same
time, persuasive inference arises that each of them relied on representations. Collins v. Rocha
(1972) 7 Cal. 3d 232, 237, 102 Cal. Rptr. 1, 497 P.2d 225
Material misrepresentations made to class members support at least inference of reliance as to entire
class. Danzig v. Jack Grynberg & Assocs. (1984) 161 Cal. App. 3d 1128, 1138, 208 Cal. Rptr. 336
Defendant who deceives public by advertisements intended to induce reliance is liable to any
individual who reasonably relied on representations. Block v. Tobin (1975) 45 Cal. App. 3d 214,
219, 119 Cal. Rptr. 288
Plaintiff's reliance on defendant's initial misrepresentation was not negated by defendant's later
disclosure to plaintiff of truth, if defendant had deceived plaintiff into setting in which plaintiff could
be "brainwashed" and rendered incapable of deciding not to act on initial misrepresentation. Molko v.
Holy Spirit Ass'n (1988) 46 Cal. 3d 1092, 1108 , superseded by statute as stated in Scheiding v.
Dinwiddie Const. Co. (1999) 69 Cal. App. 4th 64, 81 Cal. Rptr. 2d 360 .
Plaintiff who lacks equal facilities for learning truth justified in relying on defendant. Meyer v. Ford
Motor Co. (1969) 275 Cal. App. 2d 90, 105, 79 Cal. Rptr. 816
Plaintiff has right to rely on representations if defendant has superior knowledge and knows of
plaintiff's ignorance of subject matter. Hartong v. Partake, Inc. (1968) 266 Cal. App. 2d 942, 966,
72 Cal. Rptr. 722
Reliance on representations not precluded by independent investigation if person making representa-

tions has superior knowledge or party relying is not competent to judge facts without expert
Page 246 of 479

assistance. Brady v. Carman (1960) 179 Cal. App. 2d 63, 68, 3 Cal. Rptr. 612
Because plaintiff was ignorant of effect of easement on property and defendant was real estate broker
with professional knowledge of its effect who gave evasive answers to plaintiff's inquiries, defendant
was chargeable with fraud. Brady v. Carman (1960) 179 Cal. App. 2d 63, 68-70, 3 Cal. Rptr. 612
Owner of real estate, in absence of facts to contrary, is presumed to know boundaries and area of his
or her land; buyer warranted in relying on representations by owner as to such facts. Nathanson v.
Murphy (1955) 132 Cal. App. 2d 363, 369, 282 P.2d 174
Owner of real estate presumed to know boundaries and area of his or her own land. Dohrman v. J.
B. Roof, Inc. (1930) 108 Cal. App. 456, 464, 291 P. 879
Relationship of seller to buyer not ordinarily vested with fiduciary obligation. Committee on
Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 222, 197 Cal. Rptr. 783,
673 P.2d 660 , superseded by statute as stated in Gartin v. S&M NuTec LLC, 245 F.R.D. 429, 2007
U.S. Dist. LEXIS 38050
Instruction that one to whom fiduciary relationship is owed has right to rely on representations made
by fiduciary without further investigation was error; beneficiary of fiduciary relationship charged with
duty to investigate facts of which he or she has actual knowledge. Miller v. Bechtel Corp. (1983) 33
Cal. 3d 868, 875, 191 Cal. Rptr. 619, 663 P.2d 177 ; Kruse v. Bank of Am. (1988) 202 Cal. App. 3d
38, 55 n.10, 248 Cal. Rptr. 217
Insurance agent liable for damages for fraud because agent represented he had obtained coverage for
plaintiff that he had in fact not obtained; plaintiff's reliance justified due to relationship between agent
and client despite existence of written policy not showing coverage. Greenfield v. Insurance Inc.
(1971) 19 Cal. App. 3d 803, 811, 97 Cal. Rptr. 164
Plaintiff has right to rely on representations made to him or her by defendant who is fiduciary without
duty of further inquiry. Davis v. Kahn (1970) 7 Cal. App. 3d 868, 878, 86 Cal. Rptr. 872
Investigation by plaintiff of land did not preclude justifiable reliance if accuracy of defendant's
representations could be checked only by experts. Shearer v. Cooper (1943) 21 Cal. 2d 695, 704,
134 P.2d 764
Page 247 of 479

Plaintiff not held to constructive notice of public records that would reveal true facts. Seeger v.
Odell (1941) 18 Cal. 2d 409, 415, 115 P.2d 977
Triable issue of fact remained on whether disclaimer in life insurance materials was sufficient to put
purchaser on notice that agent's assertions that out-of-pocket premium payments were not required
after eleventh year might be false. Broberg v. The Guardian Life Ins. Co. of America (2009) 171
Cal. App. 4th 912, 921-922, 90 Cal. Rptr. 3d 225
Pursuant to Civ. Code ß 1668, defendant real estate brokers could not rely on exculpatory clauses in
real estate sales contract to avoid liability for intentional misrepresentation or fraud; plaintiffs' failure to
thoroughly investigate zoning restrictions prior to purchase was no defense when contract gave them
right, but not duty, to investigate. Manderville v. PCG&S Group, Inc. (2007) 146 Cal. App. 4th
1486, 1500-1502, 55 Cal. Rptr. 3d 59
In civil action regarding insurance fraud, in which verdict finding fraud was based on misrepresenta-
tion of amount of loss, award for costs of insurer's investigation was reversed on basis of insufficient
evidence of actual reliance; insurer had duty to investigate every claim; evidence showed that
investigation was not instigated by representations of insured, but rather by normal procedures of
investigating every claim. Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal. App.
3d 684, 693-696, 237 Cal. Rptr. 667
Reliance on defense attorney's representations that defendant would pay plaintiff money owed after
dismissal, without independent investigation, was not reasonable or justifiable, and therefore
precluded recovery for fraud based on defendant's failure to pay after dismissal of suit with prejudice.
Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal. App. 3d 1324, 1331-1332, 231 Cal. Rptr.
355
No duty imposed in law to employ means of discovering truth. Howell v. Courtesy Chevrolet, Inc.
(1971) 16 Cal. App. 3d 391, 403, 94 Cal. Rptr. 33
Inspection by plaintiff does not prevent justifiable reliance on defendant's statements if falsity of
statements is not apparent from inspection, person making representations has superior knowledge, or
party relying on investigation is not competent to judge facts without expert assistance. Snelson v.
Chevrolet Motors (1969) 270 Cal. App. 2d 477, 482, 75 Cal. Rptr. 871
If plaintiff begins investigation, plaintiff's failure to discover truth excused by defendant's superior
knowledge of facts, difficulty of ascertaining all of facts, or plaintiff's incompetence to judge facts
without expert assistance. Hartong v. Partake, Inc. (1968) 266 Cal. App. 2d 942, 966, 72 Cal. Rptr.
722
Fact that plaintiff relied to some extent on independent advice does not bar plaintiff's recovery in all
Page 248 of 479

cases. Hartong v. Partake, Inc. (1968) 266 Cal. App. 2d 942, 966, 72 Cal. Rptr. 722
Plaintiff not required to make investigation if defendant has asserted facts about matter. Balfour,
Guthrie & Co. v. Hansen (1964) 227 Cal. App. 2d 173, 193, 38 Cal. Rptr. 525
Plaintiff precluded from reliance on defendant's representations only if plaintiff had means at hand for
determining truth or falsity of it and resorts to such means. Mercer v. Elliott (1962) 208 Cal. App.
2d 275, 279, 25 Cal. Rptr. 217
Plaintiff who undertook to investigate real property for sale and truth of representations concerning it
required to proceed with investigation to its end with diligence and completeness, but not required to
employ experts to investigate. Kramer v. Musser (1943) 57 Cal. App. 2d 942, 946-947, 136 P.2d
74
Purchaser who undertakes to make investigation after representation has been made, who has
available means of learning truth, and who actually learns facts, is not justified in relying on represen-
tation; in absence of these circumstances, purchaser has right to rely on representations of seller.
Dohrman v. J. B. Roof, Inc. (1930) 108 Cal. App. 456, 464, 291 P. 879
Licensed real estate broker's reliance on oral promise to pay commission not sufficiently reasonable to
support action for fraud. American Int'l Enters., Inc. v. Federal Deposit Ins. Corp. (9th Cir. 1993) 3
F.3d 1263, 1270 (relying on Phillippe v. Shapell Indus. (1987) 43 Cal. 3d 1247, 1270, 241 Cal.
Rptr. 22, 743 P.2d 1279 )
Reliance on misrepresentations not justifiable because plaintiff's investigation and analysis had
uncovered information demonstrating that audited statements plaintiff relied on were patently and
obviously false. Atari v. Ernst & Whinney (9th Cir. 1992) 981 F.2d 1025, 1030-1031
Commercial tenant in shopping mall stated cause of action for intentional or negligent misrepresenta-
tion when alleging that landlord during negotiations overstated size of rental space by 7.6 percent and
understated size of shopping mall by 8.1 percent, resulting in overpayment in rent of $90,000; lease
provision stating that parties agreed that sizes were "reasonable approximations," and payments based
on sizes stated were not subject to revision, did not preclude plaintiff from showing that sizes were
materially and unreasonably inaccurate. McClain v. Octagon Plaza, LLC (2008) 159 Cal. App. 4th
784, 793-797, 71 Cal. Rptr. 3d 885
Lease clause specifying that tenant is not relying on representations about other potential tenants for
shopping mall prevented tenant who admitted to reading lease before signing from relying on other
such representations without first seeking clarification. Hinesley v. Oakshade Town Ctr. (2005) 135
Page 249 of 479

Causal connection between misrepresentation of extent of defendant's right to use trademark and
name, and plaintiff's payment of litigation expenses related to dispute with third party over use of
name, was too tenuous to support judgment for plaintiff because plaintiff probably would have
invested anyway and payment of those litigation expenses was probably not required by investment
agreement. Okun v. Morton (1988) 203 Cal. App. 3d 805, 828-829, 250 Cal. Rptr. 220
Detrimental reliance sometimes unreasonable in light of plaintiff's intelligence and experience.

Justifiable reliance shown even if plaintiff relied under such circumstances as to make it unreasonable
for plaintiff to accept defendant's statement without independent inquiry or investigation. Howell v.
Courtesy Chevrolet, Inc. (1971) 16 Cal. App. 3d 391, 403, 94 Cal. Rptr. 33
Plaintiff denied recovery only if plaintiff's conduct in relying on defendant was manifestly unreason-
able in light of plaintiff's own intelligence and information. Hartong v. Partake, Inc. (1968) 266
Cal. App. 2d 942, 964-965, 72 Cal. Rptr. 722
Fact that investigation would have revealed falsity of misrepresentation to plaintiff does not bar
recovery. Hartong v. Partake, Inc. (1968) 266 Cal. App. 2d 942, 964-965, 72 Cal. Rptr. 722
In case of negligent misrepresentation, plaintiff not barred unless plaintiff's conduct, in light of
plaintiff's own information and intelligence, is irrational and preposterous. Hartong v. Partake, Inc.
(1968) 266 Cal. App. 2d 942, 964-965, 72 Cal. Rptr. 722
Test of fraudulent representation is its effect on particular mind, whether strong and circumspect mind
or weak and relying one. Wilke v. Coinway, Inc. (1967) 257 Cal. App. 2d 126, 138, 64 Cal. Rptr.
845
Credulity of plaintiff not usually defense to action for fraud; fraud not subject of strictly objective test.
Vogelsang v. Wolpert (1964) 227 Cal. App. 2d 102, 111-112, 38 Cal. Rptr. 440
Allegations that defendant concealed and removed person who injured plaintiff from area, and that
concealment required expenditure of great effort by plaintiff, were merely allegations of damage rather
than allegations of change in position amounting to reliance; thus, no fraud cause of action stated.
Hepe v. Paknad (1988) 199 Cal. App. 3d 412, 420, 244 Cal. Rptr. 823
Page 250 of 479

Plaintiff who discovers that defendant has made one false representation not precluded from
justifiably relying on other misrepresentations of defendant if defendant corrected results of first
representation on request. Shearer v. Cooper (1943) 21 Cal. 2d 695, 701, 134 P.2d 764
Person taking several bad checks in payment from one defendant not justified in relying on worth of
any check after first was dishonored. American Air Equip., Inc. v. Pacific Employers Ins. Co.
(1974) 37 Cal. App. 3d 322, 325, 327-328, 112 Cal. Rptr. 366
Plaintiff who learns that one representation by defendant is false is not justified in assuming that other
representations by defendant are true. Roland v. Hubenka (1970) 12 Cal. App. 3d 215, 225, 90 Cal.
Rptr. 490
If defendant has made plausible explanation of facts otherwise arousing suspicion, plaintiff not
required to investigate further. Hartong v. Partake, Inc. (1968) 266 Cal. App. 2d 942, 966, 72 Cal.
Rptr. 722
Defendant who lulls plaintiff into inaction although plaintiff suspects fraud is not permitted to assert
that plaintiff lost right to recover damages by accepting assurance of defendant that there was no
fraud. Brownlee v. Vang (1965) 235 Cal. App. 2d 465, 474, 45 Cal. Rptr. 458
Buyer of powerboat who noticed possible discrepancies was justified in relying on assertion of seller
concerning boat's engines, because seller reassured buyer. Harper v. Silver (1962) 200 Cal. App. 2d
103, 109, 19 Cal. Rptr. 78
[20] Materiality
Defendant's representations not required to be sole cause of damage; but only required to be
substantial factor in inducing plaintiff to act. Wennerholm v. Stanford Univ. Sch. of Med. (1942) 20
Cal. 2d 713, 717, 128 P.2d 522 ; Anderson v. Handley (1957) 149 Cal. App. 2d 184, 186-187
If plaintiff would not have done any differently had plaintiff not relied on defendant's representation,
or if plaintiff had no choice and could have done nothing to improve his or her position if plaintiff had
not relied on defendant, required conduct of plaintiff is lacking. Bezaire v. Fidelity & Deposit Co.
(1970) 12 Cal. App. 3d 888, 892-893, 91 Cal. Rptr. 142
Representation that induces plaintiff to take risk plaintiff would not otherwise have taken is material
fact that induced plaintiff to change position. Kozlowsky v. Westminster Nat'l Bank (1970) 6 Cal.
App. 3d 593, 597-598, 86 Cal. Rptr. 52
To show damages, plaintiff required to show that defendants deceived plaintiff with intent to induce
Page 251 of 479

plaintiff to alter his or her position to his or her injury or risk and that plaintiff was damaged as result.
Meyer v. Ford Motor Co. (1969) 275 Cal. App. 2d 90, 106, 79 Cal. Rptr. 816
Fact represented or suppressed is deemed material if it relates to matter of substance and directly
affects purpose for which deceived party acted. Handley v. Handley (1960) 179 Cal. App. 2d 742,
746, 3 Cal. Rptr. 910
Concealment is material if knowledge suppressed is so important and obviously so well in recollec-

tion of party withholding it, that its mere repression amounts to fraud. Sanfran Co. v. Rees Blow
Pipe Mfg. Co. (1959) 168 Cal. App. 2d 191, 205, 335 P.2d 995
Misrepresentation or concealment of known fact of fill in lot sold to another is material inducement
that works fraud on buyer who is ignorant of fact. Ashburn v. Miller (1958) 161 Cal. App. 2d 71,
79, 326 P.2d 229
Fraud and damage sustained required to have cause and effect relationship to each other. Hill v.
Wrather (1958) 158 Cal. App. 2d 818, 825, 323 P.2d 567
False representation that cannot affect intrinsic merits of business transaction is immaterial because
reliance on it cannot produce injury in legal sense. Hill v. Wrather (1958) 158 Cal. App. 2d 818,
824-825, 323 P.2d 567
To be material, representation required to be such that plaintiff would not have acted as plaintiff did
without it; false representation required to be of material fact. Adkins v. Wyckoff (1957) 152 Cal.
App. 2d 684, 689, 313 P.2d 592
Misrepresentation as to acreage of piece of real property constitutes material misrepresentation; sellers

who did not have property surveyed did not have sufficient knowledge to make representation as to
acreage. Nathanson v. Murphy (1955) 132 Cal. App. 2d 363, 367-368, 282 P.2d 174
Whether existence of fill is material depended on nature and extent of fill; filing of map showing fill
and letting of contract for grading by defendant was evidence of defendant's knowledge of extent of
fill. Rothstein v. Janss Inv. Corp. (1941) 45 Cal. App. 2d 64, 72-73, 113 P.2d 465
Damages for emotional distress not recoverable in fraud action if claim for emotional distress is based
on same conduct alleged to show fraud. Kruse v. Bank of Am. (1988) 202 Cal. App. 3d 38, 67, 248
Cal. Rptr. 217
General damages for mental pain and suffering are recoverable for deceit. Sprague v. Frank J.
Page 252 of 479

Sanders Lincoln Mercury, Inc. (1981) 120 Cal. App. 3d 412, 417, 174 Cal. Rptr. 608
Allegations that defendant knew or could have known true facts, that defendant made false statement,
and that plaintiff relied on it required to be pleaded in case of negligent misrepresentation. Stowe v.
Fritzie Hotels, Inc. (1955) 44 Cal. 2d 416, 423, 282 P.2d 890
Representation to be actionable need not be made with knowledge of falsity, but need only be
assertion, as fact, of something that is not true, by one who has no reasonable ground for believing it
to be true. Gagne v. Bertran (1954) 43 Cal. 2d 481, 487-488, 275 P.2d 15 ; Muraoka v. Budget
Rent-A-Car, Inc. (1984) 160 Cal. App. 3d 107, 119, 206 Cal. Rptr. 476 ; Wilke v. Coinway, Inc.
(1967) 257 Cal. App. 2d 126, 136, 64 Cal. Rptr. 845
Professional who negligently performed soil tests to determine presence of fill and represented that
soil was sound although it was not is liable for negligent misrepresentation. Gagne v. Bertran
(1954) 43 Cal. 2d 481, 487-489, 275 P.2d 15
Investment bank sued by purchasers of securities for material omissions and "half-truths" contained
in offering memorandum, which made numerous representations about established success of issuing
company's business strategy and strong prospects going forward, but failed to mention company's
recent poor quarter and "channel stuffing" with product that enabled company to inflate financial
estimates for upcoming year, were sufficient to support action for negligent misrepresentation. OCM
Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal. App. 4th 835,
855, 68 Cal. Rptr. 3d 828
Stock investors stated causes of action for negligent and intentional misrepresentation against
accounting firms by alleging that firms negligently or intentionally inflated value of corporation's
assets and value in anticipation of merger with another corporation, knowing that reports and
statements would be relied on by other parties such as investors. Murphy v. BDO Seidman, LLP
(2003) 113 Cal. App. 4th 687, 695-696, 6 Cal. Rptr. 3d 770
If independent accountant prepares corporation's financial records, in addition to performing audit on

records, accountant is not acting as independent auditor and may be liable for negligent misrepresenta-
tion to third parties, such as underwriter, who reasonably and foreseeably relied on financial records,
audit, or both. Nutmeg Sec., Ltd. v. McGladrey & Pullen (2001) 92 Cal. App. 4th 1435, 1441-1444,
112 Cal. Rptr. 2d 657
False representation required to be positive assertion; tort of negligent misrepresentation does not
arise from implied statements. Evan F. v. Hughson United Methodist Church (1992) 8 Cal. App. 4th
828, 841 n.2, 10 Cal. Rptr. 2d 748 ; Yanase v. Automobile Club. of So. Cal. (1989) 212 Cal. App.
3d 468, 473, 476, 260 Cal. Rptr. 513
Page 253 of 479

Cause of action for negligent misrepresentation included within meaning of "fraud" for purposes of
Civ. Code ß 1668, prohibiting contractual waiver of liability for fraud (as well as willful injury to
person or property of another). Blankenheim v. E. F. Hutton & Co. (1990) 217 Cal. App. 3d 1463,
1472-1473, 266 Cal. Rptr. 593 ; Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216
Cal. App. 3d 388, 404, 264 Cal. Rptr. 779
"Hold-harmless" agreement between stockbroker and customer violated Civ. Code ß 1668, and
therefore was ineffective to bar negligent misrepresentation action arising from investment losses.
Blankenheim v. E. F. Hutton & Co. (1990) 217 Cal. App. 3d 1463, 1473, 266 Cal. Rptr. 593
Purported exculpatory clause in sales contract, in which buyer agreed to waive all claims for
negligence, was ineffective by reason of Civ. Code ß 1668 to bar negligent misrepresentation action
alleging defect in airplane. Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.
App. 3d 388, 404, 264 Cal. Rptr. 779
Responsibility for negligent misrepresentation rests on existence of legal duty, imposed by contract,
statute, or otherwise, owed by defendant to injured person. Eddy v. Sharp (1988) 199 Cal. App. 3d
858, 864, 245 Cal. Rptr. 211
One party to business transaction under duty to exercise reasonable care to disclose facts basic to
transaction to other party, if party knows that other is acting under mistake regarding facts and would
reasonably expect disclosure of those facts due to relationship between them, customs of trade, or
other objective circumstances. Eddy v. Sharp (1988) 199 Cal. App. 3d 858, 864, 245 Cal. Rptr. 211
Negligent misrepresentation requires allegation that defendant made false representations honestly
believing they were true, but having no reasonable ground for that belief. Wilhelm v. Pray, Price,
Williams & Russell (1986) 186 Cal. App. 3d 1324, 1332-1333, 231 Cal. Rptr. 355
Person who makes statement that implies knowledge on that person's part, although in fact that
person has no knowledge whether it is true or false, is guilty of fraud if statement proves to be false.
Elements of cause of action for negligent misrepresentation. Christiansen v. Roddy (1986) 186 Cal.
App. 3d 780, 785-786, 231 Cal. Rptr. 72
Endorser of product for gain liable to purchaser who relies on endorsement in purchasing product
and is injured as result, if, as result of defendant's negligence, product was not as represented.
Hanberry v. Hearst Corp. (1969) 276 Cal. App. 2d 680, 683, 81 Cal. Rptr. 519
Doctors liable for negligent misrepresentation concerning effectiveness of sterilization operation.

Custodio v. Bauer (1967) 251 Cal. App. 2d 303, 314, 314 n. 8, 59 Cal. Rptr. 463
Page 254 of 479

Even person who has no duty to speak has duty to speak truth if he or she does speak; person with
no knowledge of facts liable for fraud and negligent misrepresentations made without reasonable
grounds for believing them to be true. Balfour, Guthrie & Co. v. Hansen (1964) 227 Cal. App. 2d
173, 192-193, 38 Cal. Rptr. 525
Factors to be considered in determining whether defendant should be liable for negligent misrepre-
sentations to person not in privity with defendant. De Zemplen v. Home Fed. Sav. & Loan Ass'n
(1963) 221 Cal. App. 2d 197, 206, 34 Cal. Rptr. 334
An assertion that factually describes important characteristic of product is not seller's mere puffing
and is actionable. Hauter v. Zogarts (1975) 14 Cal. 3d 104, 111-113, 120 Cal. Rptr. 681, 534 P.2d
377
Reliance on opinion justified if person making statement holds himself or herself out as expert,
person to whom he or she speaks has hired him or her to supply information, and statement implies
that person speaking knows facts that justify statement. Gagne v. Bertran (1954) 43 Cal. 2d 481,
489, 275 P.2d 15
Statement of law or opinion made by fiduciary to person in fiduciary relationship is actionable as

misrepresentation. Katz v. Feldman (1972) 23 Cal. App. 3d 500, 504, 100 Cal. Rptr. 367 ;
Harazim v. Lynam (1968) 267 Cal. App. 2d 127, 133, 72 Cal. Rptr. 670
Determination of whether statement is fact or opinion is for trier of fact if there is reasonable doubt.
Pacesetter Homes, Inc. v. Brodkin (1970) 5 Cal. App. 3d 206, 212, 85 Cal. Rptr. 39
Opinion treated representation of fact if one expressing it does not in fact believe it to be true, if
opinion amplifies false statement of fact, if opinion implies nonexistent factual basis, if opinion is
expressed as fact, and if opinion is expressed by defendant having superior knowledge of subject.
Superior knowledge that justifies reliance on statement of opinion means that party has held himself
or herself out as particularly knowledgeable or that knowledge assumed to be possessed by defendant
is motivation for plaintiff to enter into transaction; more than superior bargaining acumen required.
Opinion misrepresenting facts on which it is based is actionable. Harazim v. Lynam (1968) 267
Cal. App. 2d 127, 133, 72 Cal. Rptr. 670 ; Wilke v. Coinway, Inc. (1967) 257 Cal. App. 2d 126, 136,
64 Cal. Rptr. 845
Page 255 of 479

Misrepresentations of law by lay persons are insufficient to show actionable misrepresentations; but
expressions of opinion are actionable if person making them holds himself or herself out as especially
qualified. Harazim v. Lynam (1968) 267 Cal. App. 2d 127, 132, 72 Cal. Rptr. 670
Opinion actionable if affirmed as fact material to transaction rather than stated as opinion. Harazim
v. Lynam (1968) 267 Cal. App. 2d 127, 132, 72 Cal. Rptr. 670 ; Mercer v. Elliott (1962) 208 Cal.
App. 2d 275, 280, 25 Cal. Rptr. 217
Plaintiff not allowed to justifiably rely on mere statements of opinion. Wilke v. Coinway, Inc.
(1967) 257 Cal. App. 2d 126, 136, 64 Cal. Rptr. 845
Representations as to value of goods are usually considered representations of opinion and are not
actionable; value considered representation of fact if represented as fact. Clar v. Board of Trade
(1958) 164 Cal. App. 2d 636, 645, 331 P.2d 89
Expression of opinion as to character and skill of another is not generally actionable, but is actionable
if dishonestly made to one entitled to rely on it. Anderson v. Handley (1957) 149 Cal. App. 2d 184,
187, 308 P.2d 368 ; Ogier v. Pacific Oil & Gas Corp. (1955) 132 Cal. App. 2d 496, 506, 282 P.2d
574
Expression of opinion actionable if party making it has superior knowledge or special information.
Ogier v. Pacific Oil & Gas Corp. (1955) 132 Cal. App. 2d 496, 506-507, 282 P.2d 574
Facts constituting fraud required to be specifically pleaded so that court can determine whether prima
facie case has been alleged. Cooper v. Leslie Salt Co. (1969) 70 Cal. 2d 627, 636, 75 Cal. Rptr.
766, 451 P.2d 406
If plaintiffs relied on representations of defendant in purchasing option and expending sums in

preparation for purchase of property, cause of action stated for damages for fraud and deceit. Collins
v. Marvel Land Co. (1970) 13 Cal. App. 3d 34, 44, 91 Cal. Rptr. 291
Every element of cause of action for fraud required to be alleged both factually and specifically;
policy of liberal construction of pleadings not available to sustain defective complaint for fraud.
Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal. App. 4th 772, 782, 31 Cal. Rptr. 2d
162 ; Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 73, 269 Cal. Rptr. 337 ; Cooper v. Equity
Gen. Ins. (1990) 219 Cal. App. 3d 1252, 1262, 268 Cal. Rptr. 692
Facts constituting fraud required to be set forth with particularity. La Vista Cemetery Assn. v.
American Sav. & Loan Ass'n (1970) 12 Cal. App. 3d 365, 369, 90 Cal. Rptr. 722 ; Morton v.
Loveman (1968) 267 Cal. App. 2d 712, 720, 73 Cal. Rptr. 623
Page 256 of 479

Legal conclusions of fraud insufficient for complaint and facts constituting fraud required to be
pleaded. Lesperance v. North Am. Aviation, Inc. (1963) 217 Cal. App. 2d 336, 344, 31 Cal. Rptr.
873
Writer of letter of recommendation owes to third persons duty not to misrepresent facts in describing
qualifications and character of former employee, if making these misrepresentations would present
substantial, foreseeable risk of physical injury to third persons [ Randi W. v. Muroc Joint Unified
Sch. Dist. (1997) 14 Cal. 4th 1066, 1081, 60 Cal. Rptr. 2d 263, 929 P.2d 582 (but no duty absent
resulting physical injury or special relationship)].
Privity of contract not required to hold defendant liable for negligent misrepresentations not made
directly to plaintiff. De Zemplen v. Home Fed. Sav. & Loan Ass'n (1963) 221 Cal. App. 2d 197,
206, 34 Cal. Rptr. 334
Factors to be considered in determining liability of defendant if negligent misrepresentations were not

made directly to plaintiff. De Zemplen v. Home Fed. Sav. & Loan Ass'n (1963) 221 Cal. App. 2d
197, 206, 34 Cal. Rptr. 334
False representation made by one person with intention that it should come to attention of another
person and be acted on and that is acted on to that other person's injury gives person so acting same
right of relief as if representation had been made to him or her directly. Simone v. McKee (1956) 142
Cal. App. 2d 307, 313-314, 298 P.2d 667 ; Wice v. Schilling (1954) 124 Cal. App. 2d 735, 745, 269
P.2d 231
Plaintiff injured by product that fails to perform as represented may properly combine causes of
action for fraud, breach of express and implied warranties, and strict liability in tort based on defective
design. Hauter v. Zogarts (1975) 14 Cal. 3d 104, 108, 120 Cal. Rptr. 681, 534 P.2d 377
Absent endorsement or sponsorship for economic gain, publisher of advertisement has no duty to
investigate safety of advertised product; thus, no cause of action for fraud or negligent misrepresenta-
tion is stated against publisher based on injuries sustained from use of product. Walters v. Seventeen
Magazine (1987) 195 Cal. App. 3d 1119, 1121-1122, 241 Cal. Rptr. 101
Action for fraudulent misrepresentations concerning piece of real property and house on it also
included causes of action for rescission based on misrepresentation, negligent design and development
of property, strict liability for defective design and manufacture, breach of warranties, failure of
Page 257 of 479

consideration, and mistake resulting in damages. Snelson v. Ondulando Highlands Corp. (1970) 5
Cal. App. 3d 243, 249, 84 Cal. Rptr. 800
Endorser of product for profit liable for negligent misrepresentation in endorsing product but not
liable on warranty theory or strict liability in tort. Hanberry v. Hearst Corp. (1969) 276 Cal. App.
2d 680, 687, 81 Cal. Rptr. 519
[a] In General
Failure to perform promise does not create inference that defendant did not intend to perform when
defendant made promise; although fraudulent intent often established by circumstantial evidence,
something more than mere nonperformance required to prove defendant's intent not to perform.
Tenzer v. Superscope, Inc. (1985) 39 Cal. 3d 18, 30, 216 Cal. Rptr. 130, 702 P.2d 212
Promise by real estate broker to buyer to use broker's daughter on loan application for credit
purposes, with her name to be removed from title after close of escrow, was actionable fraud because
broker had no intention of keeping promise, but was instead using buyer to provide funds for broker's
acquisition of property in daughter's name. Warren v. Merrill (2006) 143 Cal. App. 4th 96,
110-111, 49 Cal. Rptr. 3d 122
Airplane manufacturer's representation that fuel tank would not rupture on impact was form of
promissory fraud, in action brought by purchaser of airplane arising from destruction of airplane
caused by rupture of fuel tank following damage to wing. Continental Airlines, Inc. v. McDonnell
Douglas Corp. (1989) 216 Cal. App. 3d 388, 419 n.20, 264 Cal. Rptr. 779
Fraud based on promise without intention to perform established by buyer's testimony that he had no
intention of putting up money to back purchase transaction. Manson v. Reed (1986) 186 Cal. App.
3d 1493, 1502-1504, 231 Cal. Rptr. 446
In malpractice action brought by sellers of business against their attorney for damages sustained
when buyers sued sellers because of business liabilities not recorded on balance sheet, cross
complaint by attorney against buyers' attorney stated cause of action for fraud based on allegations that
buyers' attorney promised sellers' attorney, without intent to perform, that buyers would accept
balance sheet as correct, rather than enforcing agreement's strict warranty that balance sheet was
accurate. Cicone v. URS Corp. (1986) 183 Cal. App. 3d 194, 202-203, 227 Cal. Rptr. 887
Facts necessary for establishing fraud or deceit based on promise without intention to perform.
Muraoka v. Budget Rent-A-Car, Inc. (1984) 160 Cal. App. 3d 107, 119, 206 Cal. Rptr. 476 ; Bondi
v. Jewels by Edwar, Ltd. (1968) 267 Cal. App. 2d 672, 677, 73 Cal. Rptr. 494 ; Fowler v. Fowler
(1964) 227 Cal. App. 2d 741, 747-748, 39 Cal. Rptr. 101
Page 258 of 479

Promise implies intention to perform; lack of intention to perform is implied misrepresentation.

Promise to constitute fraud required to be made in bad faith and without intent to perform, and
required to touch substantive part of transaction. Harazim v. Lynam (1968) 267 Cal. App. 2d 127,
133, 72 Cal. Rptr. 670
Complaint for false promise required to plead facts to show intention of promisor to cause promisee
to act in reliance on promise and contemporaneous intention not to perform promise clearly, unequivo-
cally, and with particularity. Hills Transp. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.
App. 2d 702, 708, 72 Cal. Rptr. 441
Complaint based on false promise to enter into contract required by statute of frauds to be in writing
required to be particularly specific. Hills Transp. Co. v. Southwest Forest Industries, Inc. (1968)
266 Cal. App. 2d 702, 707, 72 Cal. Rptr. 441
Promise made without intention to perform is actionable if other party relies on it as inducement.
Brockway v. Heilman (1967) 250 Cal. App. 2d 807, 811, 58 Cal. Rptr. 772
To be fraudulent, promise required to have been without intent to perform at time it was made. Kett
v. Graeser (1966) 241 Cal. App. 2d 571, 573, 50 Cal. Rptr. 727 ; Church of Merciful Saviour v.
Volunteers of America, Inc. (1960) 184 Cal. App. 2d 851, 858-860, 8 Cal. Rptr. 48
Mere failure to perform promise made in good faith in absence of confidential relationship between
parties is not fraud. Ampuero v. Luce (1945) 68 Cal. App. 2d 811, 817, 157 P.2d 899
Licensed real estate broker not permitted to maintain action for fraud based on alleged oral promise to
pay commission because licensed broker has presumed knowledge of statute of frauds and his or her
reliance on such oral promise is therefore unreasonable as matter of law. American Int'l Enters., Inc.
v. Federal Deposit Ins. Corp. (9th Cir. 1993) 3 F.3d 1263, 1270 (applying California law);
Phillippe v. Shapell Industries (1987) 43 Cal. 3d 1247, 1270, 241 Cal. Rptr. 22, 743 P.2d 1279
Action for fraud maintainable if allegedly fraudulent promise is unenforceable as contract due to
statute of frauds. Tenzer v. Superscope, Inc. (1985) 39 Cal. 3d 18, 29-31, 216 Cal. Rptr. 130, 702
P.2d 212
Evidence of false promise inconsistent with matter covered by written instrument is inadmissible
under parol evidence rule; false promise that is independent of or consistent with matters covered by
writing is admissible. Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal. App.
Page 259 of 479

3d 388, 420-421, 264 Cal. Rptr. 779 ; Coast Bank v. Holmes (1971) 19 Cal. App. 3d 581, 590-591,
97 Cal. Rptr. 30
Plaintiff able to show false oral collateral promise made by defendant to induce plaintiff to enter into
contract required to be in writing by statute of frauds. Kett v. Graeser (1966) 241 Cal. App. 2d 571,
573, 50 Cal. Rptr. 727
Fraud in obtaining instrument always allowed to be shown by parol evidence. Vogelsang v.

Wolpert (1964) 227 Cal. App. 2d 102, 122, 38 Cal. Rptr. 440
Individual shareholder of corporate loan applicant did not state cause of action for fraud against bank
that denied loan request; individual's transfer, at bank's request, of controlling interest to person who
was borrowing money from bank and reloaning it to plaintiff's corporation was not proximate cause
of corporation's inability to arrange financing elsewhere, which in turn led to failure of business,
because transfer could have been rescinded after loan application was denied. Kruse v. Bank of Am.
(1988) 202 Cal. App. 3d 38, 62-65, 248 Cal. Rptr. 217
No liability attaches for fraud if only damages suffered by plaintiff were inevitable or resulted from
unrelated causes; failure of bank to pay proceeds to borrower's other creditors was not actionable
because cause of borrower's loss was self-created indebtedness and proceeds were turned over to
borrower's trustee in bankruptcy. Kruse v. Bank of Am. (1988) 202 Cal. App. 3d 38, 60-62, 248
Cal. Rptr. 217
In case in which one company borrowed from bank to loan funds to second company, in which bank
lacked confidence but promised to consider as loan candidate, bank's failure to disclose its lack of
confidence to borrower was not proximate cause of borrower's losses to extent that second company
repaid borrower. Kruse v. Bank of Am. (1988) 202 Cal. App. 3d 38, 53-54, 248 Cal. Rptr. 217
[29] Public Policy
Damages sought in action for fraud by nonbiological parent, for developing close relationship with
child misrepresented to be his and for performing parental acts, were not damages that should be
compensable under law in action for fraud. Nagy v. Nagy (1989) 210 Cal. App. 3d 1262,
1269-1270, 258 Cal. Rptr. 787
[a] Generally
Punitive damages properly awarded to buyer of commercial real estate complex, against developer-
Page 260 of 479

seller that leased property after purchase, based on seller's breach of agreement to guarantee rents of
tenants. Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal. App. 3d 1220,
1255, 1260, 1 Cal. Rptr. 2d 301 (allowing punitive damages on buyer's cross complaint in declaratory
relief action by seller, but reducing amount based on relation to compensatory damages)
Claim for punitive damages was mere incident to causes of action and was not basis for cause of
action. Kruse v. Bank of Am. (1988) 202 Cal. App. 3d 38, 62, 248 Cal. Rptr. 217
Fraud alone is adequate basis under Civ. Code ß 3294 for awarding punitive damages. Orient
Handel v. United States Fid. & Guar. Co. (1987) 192 Cal. App. 3d 684, 697, 237 Cal. Rptr. 667
(punitive damages award reversed because finding of fraud reversed); Walker v. Signal Co., Inc.
(1978) 84 Cal. App. 3d 982, 996, 149 Cal. Rptr. 119
Pleading of fraud alone is sufficient to seek punitive damages; allegation that fraud was motivated by
malicious desire to inflict injury is unnecessary. Stevens v. Superior Court (1986) 180 Cal. App. 3d
605, 610, 225 Cal. Rptr. 624
Punitive damages for fraudulent acts of agents or employees is proper if awarded against parties
responsible for fraud, including those parties who ratify fraud after its commission. Walker v. Signal
Co., Inc. (1978) 84 Cal. App. 3d 982, 999, 149 Cal. Rptr. 119
Punitive damages properly awarded in action for fraud in inducement to enter contract, which is tort
action, although punitive damages may not be awarded in action for breach of contract. Kuchta v.
Allied Builders Corp. (1971) 21 Cal. App. 3d 541, 549, 98 Cal. Rptr. 588
Punitive damages properly awarded if necessary allegations are in complaint, listed in pretrial
conference order, there is evidence to support them, and verdict assesses compensatory damages and
punitive damages separately to show that compensatory damages have been awarded. Sierra Nat'l
Bank v. Brown (1971) 18 Cal. App. 3d 98, 103, 95 Cal. Rptr. 742
Punitive damages even in fraud action not recoverable unless there are also actual and substantial
compensatory damages. Bezaire v. Fidelity & Deposit Co. (1970) 12 Cal. App. 3d 888, 892, 91 Cal.
Rptr. 142
Fraud alone is ground for awarding punitive damages, and fraud allowed to be either express or
implied. Horn v. Guaranty Chevrolet Motors (1969) 270 Cal. App. 2d 477, 484, 75 Cal. Rptr. 871
If plaintiff rescinds contract, waives fraud damages, and sues on contract, or if plaintiff elects to sue
on common count, no punitive damages allowed. Brockway v. Heilman (1967) 250 Cal. App. 2d
807, 812, 58 Cal. Rptr. 772
If essence of action is fraud rather than breach of contract as such, exemplary damages properly
Page 261 of 479

allowed. Brockway v. Heilman (1967) 250 Cal. App. 2d 807, 812, 58 Cal. Rptr. 772
Punitive damages award against brokerage firm whose employee broker defrauded securities
purchasers was proper because of firm's own malice as evidenced by its failure to investigate prior
suits against broker for similar conduct in reckless disregard of rights of others and failure to
supervise or, on basis of firm's ratification of broker' acts, by failure to act when it knew of broker's
fraudulent activity. Seymour v. Summa Vista Cinema, Inc. (9th Cir. 1987) 809 F.2d 1385, 1388
(applying California law; see also Krusi v. Bear, Stearns & Co. (1983) 144 Cal. App. 3d 664,
678-689, 192 Cal. Rptr. 793 (reckless disregard theory); Hobbs v. Bateman Eichler, Hill Richards,
Inc. (1985) 164 Cal. App. 3d 174, 193-194, 210 Cal. Rptr. 387 (ratification theory)
Employer not liable in punitive damages for fraudulent acts of agents or employees unless employer
has authorized acts, except if employer knowingly ratifies fraud after its commission or if fraud was
committed by agent or employee acting in managerial capacity. Kuchta v. Allied Builders Corp.
(1971) 21 Cal. App. 3d 541, 549, 98 Cal. Rptr. 588
Punitive damages and interest properly awarded in same case. Vogelsang v. Wolpert (1964) 227
Cal. App. 2d 102, 125, 38 Cal. Rptr. 440
Intent to deceive not essential element of cause of action for deceit; required intent is intent to induce
action. Gagne v. Bertran (1954) 43 Cal. 2d 481, 488 n.5, 275 P.2d 15
Intent to induce plaintiff to alter his or her position may be inferred from fact that defendant made
representation with knowledge plaintiff would act in reliance on it. Gagne v. Bertran (1954) 43 Cal.
2d 481, 488, 275 P.2d 15
Intent to induce reliance allowed to be established from conduct of parties. Santoro v. Carbone
(1972) 22 Cal. App. 3d 721, 728, 99 Cal. Rptr. 488
Intent usually proved by inference from fact of concealment or misrepresentation of material facts.
Horn v. Guaranty Chevrolet Motors (1969) 270 Cal. App. 2d 477, 483, 75 Cal. Rptr. 871
Executor has fiduciary relationship to all persons having interest in estate; executor's misrepresenta-
tion and concealment was extrinsic fraud supporting motion to set aside court's order regarding
probate of will. Estate of Sanders (1985) 40 Cal. 3d 607, 616-619, 221 Cal. Rptr. 432, 710 P.2d
Page 262 of 479

232
Neither insurer nor health care plan owes common law or statutory duty to disclose to insureds or
coverage applicants how to structure their policies in order to pay lowest amount of premiums
available from company; person's decision to obtain insurance and insurer's decision to offer coverage
are generally governed by traditional freedom of contract principles and no law imposes on insurer
duty to disclose lowest amount that it would be willing to accept to provide coverage. Levine v. Blue
Shield of California (2010) 189 Cal. App. 4th 1117, 1129-1135, 117 Cal. Rptr. 3d 262
Credit union not liable for providing summary opinion that customer's creditworthiness was
"satisfactory," even though customer maintained almost continuous overdrafts that it eventually
covered, because inquiries from other lender were general, couched in form of checklist, and did not
seek more specific information. Lease & Rental Mgmt. Corp. v. Arrowhead Cent. Credit Union
Corporate president and stockholder, who undertook to provide all relevant financial information
about corporation prior to reaching agreement to purchase all shares owned by other stockholder, had
duty to disclose new product that corporation was about to sell, even if profits from sales of new
product could not be accurately predicted. Persson v. Smart Inventions, Inc. (2005) 125 Cal. App.
4th 1141, 1164-1165, 23 Cal. Rptr. 3d 335
Because attorneys for corporation negotiating merger with second company revealed to shareholders
of second company that their client was preparing third-party financing transaction, attorneys could be
liable for fraud for intentionally concealing from those shareholders that financing transaction included
issuing shares of stock that would seriously dilute value of stock that shareholders would be receiving
as part of proposed merger. Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal. App. 4th 282,
292-294, 17 Cal. Rptr. 3d 26
Pub. Util. Code ß 2889.5 imposes several steps of disclosure that phone company must take before
changing consumer's telephone service provider, and failure to comply with statutory requirements
can constitute fraudulent concealment, even if change is subsequently reflected in consumer's phone
bill. Lovejoy v. AT&T Corp. (2004) 119 Cal. App. 4th 151, 158-162, 14 Cal. Rptr. 3d 117
No relationship existed sufficient to impose duty to disclose to plaintiffs that defendants were
undercover journalists and that hidden cameras would record conversations in public restaurant to be
used as part of televised report on matter of public interest. Wilkins v. National Broad. Co. (1999)
71 Cal. App. 4th 1066, 1082-1083, 84 Cal. Rptr. 2d 329
If seller transfers real property to relocation management company with knowledge that property will
be resold to future purchaser, seller has duty under Civ. Code ß 1102 et seq. and common law to make
full disclosure of facts that materially affect value or desirability of property, and duty to disclose runs
to ultimate purchaser and not just to relocation management company; relocation management
Page 263 of 479

company does not owe buyer duty to investigate or disclose if company has no knowledge of
relevant, material facts and lacks knowledge of any misrepresentation made by original sellers.
Shapiro v. Sutherland (1998) 64 Cal. App. 4th 1534, 1546-1550, 76 Cal. Rptr. 2d 101
Tenants who sought to compel beneficial (nonrecord) owners of subject properties to disclose their
ownership did not state cause of action for fraudulent concealment because duty under Civ. Code ß
1962 to disclose owners of dwelling applies only to record owners. People v. Highland Fed. Sav. &
Loan (1993) 14 Cal. App. 4th 1692, 1719-1720, 19 Cal. Rptr. 2d 555 (concealment of fact not
actionable under Civ. Code ß 1710 unless defendant has duty to disclose)
Elements of fraudulent nondisclosure are: (1) nondisclosure by defendant of facts materially affecting
value or desirability of property; (2) defendant's knowledge of facts and plaintiff's ignorance of or
inability to ascertain facts; (3) defendant's intention to induce action by plaintiff; (4) inducement of
plaintiff to act by reason of nondisclosure; and (5) resulting damage. Continental Airlines, Inc. v.
McDonnell Douglas Corp. (1989) 216 Cal. App. 3d 388, 404, 407-408, 264 Cal. Rptr. 779 (jury
instructions omitting elements regarding intent and reliance constituted reversible error); La Jolla
Village Homeowners' Ass'n v. Superior Court (1989) 212 Cal. App. 3d 1131, 1151-1152, 261 Cal.
Rptr. 146 (complaint insufficient to establish elements of cause of action)
Circumstances in which nondisclosure or concealment may constitute actionable fraud are: (1)
defendant is in fiduciary relationship with plaintiff; (2) defendant had exclusive knowledge of material
facts not known to plaintiff; (3) defendant actively conceals material fact from plaintiff; and (4)
defendant makes partial representation but suppresses some material facts. Heliotis v. Schuman
(1986) 181 Cal. App. 3d 646, 650-651, 226 Cal. Rptr. 509
Cause of action for fraud and deceit was stated because complaint alleged that hospital intentionally
concealed from patient that unlicensed, foreign physician was authorized by hospital to function as
staff physician without proper medical qualifications and without necessary supervision required by
Bus. & Prof. Code ß 2112. Stevens v. Superior Court (1986) 180 Cal. App. 3d 605, 610, 225 Cal.
Rptr. 624
Real estate owner/broker who intentionally conceals material facts and makes material false represen-
tations to purchaser is liable for fraudulent conduct. Prichard v. Reitz (1986) 178 Cal. App. 3d 465,
469, 223 Cal. Rptr. 734
For purposes of Civ. Code ß 1710(3), bank owed no common law or statutory duty to disclose, to
noncustomer to whom depositor issued checks, bank's suspicions of check kiting scheme involving
depositor's accounts, because imposition of duty would result in loss of privacy to depositor, expense,
and commercial havoc. Chicago Title Ins. Co. v. Superior Court (1985) 174 Cal. App. 3d 1142,
1159, 220 Cal. Rptr. 507
Absent existing duty to volunteer information, and notice of that duty, mere failure to disclose is not
Page 264 of 479

fraud; criminal defendant who pleaded guilty to misdemeanor while felony case pending on same facts
was not under duty to disclose outstanding felony to court because nothing in record indicated
defendant knew that prosecutor did not read instruction in file to object to misdemeanor plea;
contention that defendant's fraud abrogated double jeopardy bar to second prosecution was rejected.
Crayton v. Superior Court (1985) 165 Cal. App. 3d 443, 447, 451, 211 Cal. Rptr. 605
Seller under duty to disclose facts to buyer if seller knows of facts materially affecting value or
desirability of real property that are accessible only to seller and also knows that such facts are not
known to, or within reach of diligent attention and observation of, buyer. Reed v. King (1983) 145
Cal. App. 3d 261, 265, 193 Cal. Rptr. 130
Fraud and deceit consist of suppression of fact by one bound to disclose it or by one who gives
information or other facts that are likely to mislead for want of communication of that fact.
Outboard Marine Corp. v. Superior Court (1975) 52 Cal. App. 3d 30, 37, 124 Cal. Rptr. 852
Duty of disclosure arises from existence of any principal-agent relationship, whether compensated or
gratuitous. St. James Armenian Church of Los Angeles v. Kurkjian (1975) 47 Cal. App. 3d 547,
551, 121 Cal. Rptr. 214
Fiduciary relationship gives rise to duty to disclose material facts; to fail to do so is actionable fraud
even without active suppression of facts. Moe v. Transamerica Title Ins. Co. (1971) 21 Cal. App.
3d 289, 306, 98 Cal. Rptr. 547 ; Black v. Shearson, Hammill & Co. (1968) 266 Cal. App. 2d 362,
367-368, 72 Cal. Rptr. 157
Seller of real property knowing of facts materially affecting value or desirability of property is under
duty to disclose these facts to buyer. Snelson v. Ondulando Highlands Corp. (1970) 5 Cal. App. 3d
243, 251, 84 Cal. Rptr. 800
Concealment of fact that car offered for sale as new had been stolen and stripped before being
reconditioned was deceit. Horn v. Guaranty Chevrolet Motors (1969) 270 Cal. App. 2d 477, 482,
75 Cal. Rptr. 871
Failure to disclose that land is filled was fraud. Oakes v. McCarthy Co. (1968) 267 Cal. App. 2d
231, 261, 73 Cal. Rptr. 127
Stockbroker has fiduciary duty to his or her customers; existence of conflicting duty to others does
not prevent liability to customers. Black v. Shearson, Hammill & Co. (1968) 266 Cal. App. 2d 362,
367-368, 72 Cal. Rptr. 157
As general rule, seller not in confidential relationship with buyer is not under duty to make full
disclosure concerning object being sold. Brownlee v. Vang (1965) 235 Cal. App. 2d 465, 477, 45
Cal. Rptr. 458
Page 265 of 479

Person who undertakes to speak is bound not only to tell truth but not to suppress or conceal facts
that materially qualify those stated. Brownlee v. Vang (1965) 235 Cal. App. 2d 465, 477, 45 Cal.
Rptr. 458
Vendor who undertakes to speak has duty to make complete disclosure. McCue v. Bruce Enterpris-
es, Inc. (1964) 228 Cal. App. 2d 21, 27-28, 39 Cal. Rptr. 125
Concealment of existence of easement is actionable fraud. Carroll v. Dungey (1963) 223 Cal. App.
2d 247, 250, 35 Cal. Rptr. 681
Facts concealed required to be material facts affecting transaction in order for there to be actionable
fraud. Pacific Odorite Corp. v. Gersh (1949) 94 Cal. App. 2d 174, 178, 210 P.2d 318
[33] Venue
In action for damages for tort of deceit, proper venue is county of defendant's residence. Kaluzok v.
Brisson (1946) 27 Cal. 2d 760, 764, 167 P.2d 481
Action for fraud triable in county of residence of defendant; even if cause of action for relief in tort is
joined with cause of action concerning title to real property, defendant entitled to have action tried in
his or her county of residence. Claycomb v. Caronna (1952) 113 Cal. App. 2d 561, 565-566, 248
P.2d 779
Legal Topics:
structive FraudGeneral OverviewTortsBusiness TortsFraud & MisrepresentationNegligent Misrepre-
sentationGeneral OverviewTortsDamagesCosts & Attorney FeesGeneral Overview
Page 266 of 479

79 of 138 DOCUMENTS
Cornell and Morgan, Using Finance Theory to Measure Damages in Fraud on the Market Cases,
37 UCLA L. Rev. 883 (1990)
Note, Imposing Tort Liability on Real Estate Brokers Selling Defective Housing, 99 Harv. L. Rev.
1861 (1986)
Hallett, Life Insurance Agent Fraud in California: Rebating and Related Misconduct, 17 Loy. L.A.
L. Rev. 809 (1984)
Note, Good Faith and Fraudulent Conveyances, 97 Harv. L. Rev. 495 (1983)
Note, Recovery for Fraud in a California Property Transaction, 30 Hastings L.J. 475 (1978)
Shuler, Immigration Consultants, 8 U.C. Davis L. Rev. 85 (1975)
Bowley, Law Enforcement's Role in Consumer Protection, 14 Santa Clara Lawyer 555 (1974)
Slawson, Mass Contracts: Lawful Fraud in California, 48 S. Cal. L. Rev. 1 (1974)
Comment, Deceit Damages in California: Old Problem--New Departure? 14 Santa Clara Lawyer
325 (1974)
Page 267 of 479

Comment, Private and Public Remedies for Fraudulent Business Practices in California: The
Importance of a Strong Public Role, 6 Loy. L. Rev. 312 (1973)
Note, Art Print Legislation in California: A Critical Review, 25 Stan. L. Rev. 586 (1973)
Comment, Imposing Liability on Data Processing Services--Should California Choose Fraud or

Warranty? 13 Santa Clara Lawyer 140 (1972)
Note, The California Consumer Class Action for Fraud: Crippled at Birth by the Consumers Legal
Remedies Act, 4 Sw. U. L. Rev. 310 (1972)
Note, Legal Control of the Fabrication and Marketing of Fake Paintings, 24 Stan. L. Rev. 930
(1972)
Comment, Buyer's Remedies in the Sale of Real Property in California, 53 Cal. L. Rev. 1062 (1965)
Note, Fraud: Measure of Damages: Statutory Measure of Damages Not Exclusive in Cases of
Fraudulently Induced Sales, 11 UCLA L. Rev. 876 (1964)
Project, A Comparison of Cal. Sales Law and Article Two of the Uniform Commercial Code, 11
UCLA L. Rev. 78, 138 (1963)
Crane, Recent Decisions on Damages in Commercial Cases in California, 12 Hastings L.J. 109
(1960)
Dresser, Procedural Control of Damages by Election of Remedies, 12 Hastings L.J. 171 (1960)
Note, Restitution: In Deceit Action Exemplary Damages Available on Unjust Enrichment Theory
Despite Statutory Bar, 48 Cal. L. Rev. 342 (1960)
McCormick, Recovery in Deceit Actions in California, 11 Hastings L.J. 183 (1959)
Comment, Expanded Remedies for Real Estate Brokers' Misrepresentations, 12 Stan. L. Rev. 270
(1959)
Keeton, Fraud: The Necessity for an Intent to Deceive, 5 UCLA L. Rev. 583 (1958)
Note, Torts--Fraudulent Misrepresentation--Nondisclosure, 29 S. Cal. L. Rev. 378 (1956)
Note, Liability of Advertising Endorsers, 2 Stan. L. Rev. 496 (1950)
Note, Torts--Fraud and Deceit--Negligence--Negligent Misrepresentation Resulting in Bodily Harm,
Page 268 of 479

22 S. Cal. L. Rev. 77 (1948)
Legal Topics:
FraudGeneral OverviewTortsBusiness TortsFraud & MisrepresentationActual FraudRemediesTorts-
Business TortsFraud & MisrepresentationNegligent MisrepresentationGeneral OverviewTortsBusi-
ness TortsFraud & MisrepresentationNondisclosureGeneral Overview
Page 269 of 479

80 of 138 DOCUMENTS
4A PIADD, Fraud and Deceit, Including Misrepresentations Negligently or Innocently Made, ßß

1-5
The California Family Lawyer, Vol. 1 (Cal CEB 1961); Vol. 2 (Cal CEB 1963)
Witkin, California Procedure (2d ed.), Vol. 2, Actions, ßß 333-341, 394-407, 457; Vol. 3, Pleading,
ßß 572-593, 779, 780, 911, 936
Witkin, Summary of California Law, vol. 2, Insurance, ß 243; vol 5, Torts, ßß 767-830; vol. 6,
Torts, ßß 1710-1716 (10th ed. 2005)
23 Cal. Jur. 2d, Fraud and Deceit, ßß 1-91
37 Am. Jur. 2d, Fraud and Deceit, ßß 1-491
Legal Topics:
Page 270 of 479

81 of 138 DOCUMENTS
[Reserved]
Page 271 of 479

82 of 138 DOCUMENTS
PART IV. PROCEDURAL CHECKLIST
NOTE:
The following checklist is illustrative only of the basic points that counsel for a
plaintiff in a deceit action should cover.

NOTE:
Not all of the following facts will be ascertainable from the client in the initial
interview. Subsequent interviews may be required, or it may be necessary to
ascertain the facts from other persons, including the potential defendant, by use of
discovery proceedings.
1. Facts relating to the plaintiff:
a. Name, address, and telephone number of the plaintiff.
b. Capacity of the plaintiff, such as minor, adult, corporation, unincorporat-

ed association, partner in partnership, or public employee.
c. Additional facts, as desired, relating to the plaintiff's stability and financial
Page 272 of 479

solvency such as employment status, prior residences, credit, bank, and

personal references.
2. Facts relating to the defendant:
a. Name and address of each potential defendant.
b. Capacity of each potential defendant such as corporation, unincorporated

association, agent, employee, public entity, public employer, public employ-
ee, licensed professional, or professional corporation.
c. Facts relating to professional status of the defendant. (If the defendant has
professional knowledge with regard to the subject matter of the misrepresen-
tations, the defendant may be liable for negligent misrepresentation concern-
ing any statements that prove to be false [see Custodio v. Bauer (1967) 251
Cal. App. 2d 303, 314, 314 n. 8, 59 Cal. Rptr. 463] . The plaintiff will also
have a greater right due to the defendant's superior knowledge to justifiably
rely on the defendant's statements [see Hartong v. Partake, Inc. (1968) 266
Cal. App. 2d 942, 966, 72 Cal. Rptr. 722] .)
3. Facts relating to possible confidential or fiduciary relationship between the plaintiff and
the defendant. The existence of a confidential or fiduciary relationship will determine
whether the plaintiff can bring an action for constructive fraud [see Civ. Code ß 1573], in
which case it will be unnecessary to show the existence of actual fraud [ Estate of
Arbuckle (1950) 98 Cal. App. 2d 562, 568, 220 P.2d 950] , and the measure of damages
will be the more liberal measure applicable to such actions [see Civ. Code ßß 1709, 3333;
Simone v. McKee (1956) 142 Cal. App. 2d 307, 315, 298 P.2d 667 ; see also ßß 269.22,
269.27]. The existence of a confidential or fiduciary relationship will also give rise to a
duty on the part of the defendant to disclose material facts to the plaintiff, even in the
absence of active suppression or concealment, creating a case of actual fraud and deceit
[ Moe v. Transamerica Title Ins. Co. (1971) 21 Cal. App. 3d 289, 306, 98 Cal. Rptr.
547 ; see Civ. Code ß 1710(3)]. The existence of a fiduciary relationship will also give
the plaintiff a right to rely justifiably on representations made by the defendant without
the duty of further inquiry [ Davis v. Kahn (1970) 7 Cal. App. 3d 868, 878, 86 Cal.
Rptr. 872] .
NOTE:
It is not necessary that the relationship between the plaintiff and the defendant be
an actual fiduciary relationship. In some cases, the necessary duty can arise from a
Page 273 of 479

relationship of actual confidence and trust between the parties [ Feeney v.

Howard (1889) 79 Cal. 525, 529, 21 P. 984] .
4. In cases involving fraudulent statements:
a. The precise words that were spoken or written by the defendant(s).
b. The actual facts.
c. The date on which the misrepresentation was made.
d. The name of the person making the representation, and, if the person was an employee
or officer of a corporation or business, the exact position held by that person. If the
defendant is a public employee or entity, whether the misrepresentation was made with
actual malice, fraud, or corruption, in the sense of a conscious intent to deceive, vex,
annoy, or harm the plaintiff [ Schonfeld v. City of Vallejo (1974) 50 Cal. App. 3d 401,
409, 123 Cal. Rptr. 669] .
e. The circumstances surrounding the misrepresentation, such as whether it was made

during a business transaction, negotiations for a sale, social occasion, in an advertisement
concerning a product, or in another kind of document.
f. If the misrepresentation was intentional or negligent, that is, whether there is evidence
that the defendant knew the statement to be false. (In many cases it is advisable to plead
counts for both intentional and negligent misrepresentation.)
g. Whether the misrepresentation also concerned the defendant's intention to perform

some act in the future, and therefore possibly also was a promise made without the
intention to perform it at the time it was made [see Civ. Code ß 1710(4)].
5. In cases involving a failure to disclose information that the defendant had a duty to disclose or the
suppression of a fact by one who is bound to disclose it or who gives information or other facts that
are likely to mislead for want of communication of that fact [Civ. Code ß 1710(3)].
a. Whether the defendant had a confidential or fiduciary relationship with the plaintiff, in
which case the defendant had a duty to disclose the fact and not merely to refrain from
active suppression of the fact, giving rise to an action for constructive fraud [see Civ.
Code ß 1573].
Page 274 of 479

b. Whether the defendant was, by reason of a confidential or fiduciary relationship or

other business or personal relationship between the plaintiff and the defendant, bound to
disclose a fact that the defendant suppressed [Civ. Code ß 1710(3)]:
I. Was there a fiduciary relationship?
ii. Was the defendant a seller of property aware of facts not known or discoverable by
buyer [ Snelson v. Ondulando Highlands Corp. (1970) 5 Cal. App. 3d 243, 251, 84
Cal. Rptr. 800] ?
iii. Did the defendant undertake to speak at all concerning the transaction but suppress
facts that materially qualified the facts revealed [ Brownlee v. Vang (1965) 235 Cal.
App. 2d 465, 477, 45 Cal. Rptr. 458] ?
6. Facts relating to justifiable reliance by the plaintiff:
a. Did the plaintiff actually believe the defendant's representations?
b. Did the plaintiff undertake an independent investigation [see Snelson v. Ondulando

Highlands Corp. (1970) 5 Cal. App. 3d 243, 252, 84 Cal. Rptr. 800 ; Mercer v. Elliott
(1962) 208 Cal. App. 2d 275, 279, 25 Cal. Rptr. 217] ?
c. Did any previous acts of the defendant arouse the reasonable suspicion of the plaintiff
[see American Air Equip., Inc. v. Pacific Employers Ins. Co. (1974) 37 Cal. App. 3d
322, 325, 327-328, 112 Cal. Rptr. 366 ; Roland v. Hubenka (1970) 12 Cal. App. 3d
215, 255, 90 Cal. Rptr. 490] ?
d. Did seller verbally or through correcting suspected defects reassure the plaintiff as to
his or her trustworthiness [ Brownlee v. Vang (1965) 235 Cal. App. 2d 465, 474, 45
Cal. Rptr. 458] ?
e. Did the relationship between the plaintiff and the defendant justify the plaintiff's
reliance [ Davis v. Kahn (1970) 7 Cal. App. 3d 868, 878, 86 Cal. Rptr. 872] ?
7. Facts relating to existence and amount of damages:
a. The relationship between any damages and the plaintiff's reliance on the defendant's
fraudulent representations [see R.D. Reeder Lathing Co. v. Cypress Ins. Co. (1970) 3
Page 275 of 479

Cal. App. 3d 995, 999, 84 Cal. Rptr. 98] .
b. If the fraud involved the sale, purchase, or exchange of property [see Civ. Code ß
3343]:
I. The difference between the value of the property as represented and its
actual value [see Civ. Code ß 3343].
ii. If the property was purchased for profit, loss of reasonably anticipated
profits [see Civ. Code ß 3343(a)].
iii. Any amounts reasonably expended in reliance on the fraud [see Civ.
Code ß 3343(a)].
iv. Compensation for loss of use and enjoyment [see Civ. Code ß 3343(a)].
v. Other additional damages such as amounts spent in an attempt to mitigate

damages [see Hartong v. Partake, Inc. (1968) 266 Cal. App. 2d 942, 968,
72 Cal. Rptr. 722] and loss of earnings [see Lawson v. Town & Country
Shops, Inc. (1958) 159 Cal. App. 2d 196, 205, 323 P.2d 843] .
c. If the fraud involved a breach of duty, an amount that will compensate the plaintiff for
any damages suffered [see Civ. Code ßß 1709, 3333].
d. If the fraud involved a situation other than the purchase, sale, or exchange of property,
such as an uncompleted business deal, an amount that will compensate the plaintiff for
any damages suffered [see Block v. Tobin (1975) 45 Cal. App. 3d 214, 220, 119 Cal.
Rptr. 288] .
e. Interest on damages [see Civ. Code ß 3288].
f. Punitive damages [see Civ. Code ß 3294].

NOTE:
Not all of the following documents will be obtained from the client in the first
interview. Subsequent interviews may be required, or, if circumstances permit, the
documents might be mailed to the attorney. Also, it might be necessary to obtain
Page 276 of 479

these documents from persons other than the client.
1. Written misrepresentations: Copies of any written documents, such as contracts,

letters, or escrow agreements, containing the fraudulent misrepresentations or promises
of the defendant. Misrepresentations may also appear in published advertisements, sales
literature, billboards, and other public places, and counsel will want to have copies or
photographs of such misrepresentations made immediately.
2. Spoken misrepresentations: Declarations from persons who heard the defendant utter
the misrepresentations. Written memoranda concerning these misrepresentations. Tapes
of any radio or television broadcasts containing material misrepresentations, if appropri-
ate.
3. Documents showing items and amounts of damages suffered by the plaintiff.

1. Facts giving rise to a cause of action for damages for fraud and deceit might also give
rise to one or more of the following causes of action, among others, that counsel might
want to consider:
a. If a fiduciary has taken a secret profit, in addition to an action for fraudu-

lent concealment of the profit and a count based on any affirmative misrepre-
sentations concerning it, the plaintiff may wish to bring an action for an
accounting. For procedure and forms, see Ch. 7, Accounting, Action for.
b. Counsel may wish to waive the tort action and sue on a common count
for money had and received [ City Bank of San Diego v. Ramage (1968)
266 Cal. App. 2d 570, 585, 587, 72 Cal. Rptr. 273] . See generally Ch. 121,
Common Counts .
c. If the defendant has made fraudulent misrepresentations concerning a

consumer product, counsel should consider counts for intentional and
negligent misrepresentations and for concealment of facts, and separate
causes of action for strict liability in tort, breach of warranty, and negligent
design and manufacture [see Hauter v. Zogarts (1975) 14 Cal. 3d 104,
108, 120 Cal. Rptr. 681, 534 P.2d 377 ; Snelson v. Ondulando Highlands
Corp. (1970) 5 Cal. App. 3d 243, 249, 84 Cal. Rptr. 800] .
Page 277 of 479

d. If the defendant's fraud was the making of a promise without the intent to
perform at the time it was made, the promise may also be a part of a contract
that has been breached, giving rise to a cause of action for breach of contract.
For discussion and forms for damages for breach of contract, see Ch. 140,
Contracts .
e. Fraud may also be the basis for an equitable action for rescission [ San-
toro v. Carbone (1972) 22 Cal. App. 3d 721, 728-729, 99 Cal. Rptr. 488] .
For discussion and forms related to rescission and restitution, see Ch. 490,
Rescission and Restitution .
f. Property obtained through fraud and deceit may become the subject of a
constructive trust through an equitable proceeding. For discussion and forms
related to the imposition of a constructive trust, see Ch. 561, Trusts: Con-
structive Trusts .
g. If a deed or instrument has been obtained through fraud, the equitable

proceeding for cancellation of the instrument or an action to quiet title may
be appropriate. For discussion and forms related to such proceedings, see
Ch. 107, Cancellation of Instruments and Ch. 482, Quieting Title .
h. If one party to a written agreement has justifiably relied on the other's

false representations that the instrument represents the actual agreement
between the parties, the defrauded party may have the instrument reformed
to reflect the true agreement [see Security-First Nat'l Bank v. Earp (1942)
19 Cal. 2d 774, 777-778, 122 P.2d 900] . For a discussion and form for
reformation of instruments, see Ch. 488, Reformation of Instruments .
1. If the defendant has made an intentional misrepresentation:
a. The false representation made by the defendant [see Scafidi v. Western

Loan & Bldg. Co. (1946) 72 Cal. App. 2d 550, 558, 165 P.2d 260] ;
b. The falsity of the representation made by the defendant [see McDougall

v. Roberts (1919) 43 Cal. App. 553, 556, 185 P. 483] . This element is
normally shown by allegations of the exact false representation and the
actual facts, so that the necessary element of the materiality of the representa-
tion is also shown in the complaint [see Adkins v. Wyckoff (1957) 152 Cal.
App. 2d 684, 689, 313 P.2d 592] ;
Page 278 of 479

c. The defendant's knowledge of the falsity of the representation [see Civ.

Code ß 1710(1); Harazim v. Lynam (1968) 267 Cal. App. 2d 127, 130, 72
Cal. Rptr. 670] ;
d. The defendant's intent to induce the plaintiff to rely and to defraud and
deceive the plaintiff [see Mirkin v. Wasserman (1993) 5 Cal. 4th 1082,
1100, 23 Cal. Rptr. 2d 101, 858 P.2d 568 ; Hale v. George A. Hormel &
Co. (1975) 48 Cal. App. 3d 73, 82-86, 121 Cal. Rptr. 144] ;
e. Actual and justifiable reliance by the plaintiff [see Harazim v. Lynam

(1968) 267 Cal. App. 2d 127, 130, 72 Cal. Rptr. 670] ;
f. The plaintiff's damage caused by the defendant's representation and the

plaintiff's reliance on it [see Zumbrun v. University of Southern California
(1972) 25 Cal. App. 3d 1, 12, 101 Cal. Rptr. 499] .
2. If the defendant has made a negligent misrepresentation, the same allegations are
required as in the case of an intentional misrepresentation, except:
a. The defendant need not have been aware of the falsity of the misrepresen-
tation. The plaintiff needs only to allege facts showing that the defendant
made the statement without reasonable grounds for believing it to be true
[see Civ. Code ß 1710(2); Gagne v. Bertran (1954) 43 Cal. 2d 481,
487-488, 275 P.2d 15] .
b. The defendant need not have intended to defraud and deceive the plaintiff.
The plaintiff needs only to allege facts showing that the defendant intended
to induce action by the plaintiff in reliance on the representation [ Gagne v.
Bertran (1954) 43 Cal. 2d 481, 488 n. 5, 275 P.2d 15] .
3. If the deceit consists of a failure to disclose or a concealment of a material fact [Civ.

Code ß 1710(3)]:
a. Facts showing that the defendant was bound to disclose the fact that the
defendant suppressed [see Civ. Code ß 1710(3)];
b. Information revealed by the defendant that was likely to mislead for want
Page 279 of 479

of communication of a fact that the defendant suppressed [see Civ. Code ß

1710(3); McCue v. Bruce Enterprises, Inc. (1964) 228 Cal. App. 2d 21,
27-28, 39 Cal. Rptr. 125] ;
c. Justifiable reliance by the plaintiff resulting in damages (see D(1)(e),

above).
4. If the defendant has made a promise without the intention to perform it at the time it
was made:
a. Promise made by the defendant without the intention to perform it at the

time it was made [see Bondi v. Jewels by Edwar, Ltd. (1968) 267 Cal. App.
2d 672, 677, 73 Cal. Rptr. 494 ; Hills Transp. Co. v. Southwest Forest
Industries, Inc. (1968) 266 Cal. App. 2d 702, 707, 72 Cal. Rptr. 441] .
b. Intent of the defendant to induce action by the plaintiff [see Bondi v.

Jewels by Edwar, Ltd. (1968) 267 Cal. App. 2d 672, 677, 73 Cal. Rptr.
494] .
c. Nonperformance of the promise by the defendant [see Bondi v. Jewels

by Edwar, Ltd. (1968) 267 Cal. App. 2d 672, 677, 73 Cal. Rptr. 494] .
d. Justifiable reliance by the plaintiff resulting in damages [see Bondi v.

494] .
5. If the action for damages is based on constructive fraud [Civ. Code ß 1573]:
a. Fiduciary or confidential relationship between the plaintiff and the

defendant [see Feeney v. Howard (1889) 79 Cal. 525, 529, 21 P. 984 ;
Guthrie v. Times-Mirror Co. (1975) 51 Cal. App. 3d 879, 889, 124 Cal.
Rptr. 577] .
b. A material misstatement, failure to disclose facts, or other breach of duty

by the defendant, even in the absence of fraudulent intent to deceive [see
Ford v. Cournale (1973) 36 Cal. App. 3d 172, 182, 111 Cal. Rptr. 334 ;
Twomey v. Mitchum, Jones & Templeton, Inc. (1968) 262 Cal. App. 2d 690,
707, 69 Cal. Rptr. 222 ; Cardozo v. Bank of Am. (1953) 116 Cal. App. 2d
Page 280 of 479

833, 839, 254 P.2d 949] .
c. Reliance by the plaintiff and resulting damages [see Civ. Code ß 1573;
710-711, 69 Cal. Rptr. 222] .
NOTE:
Constructive fraud usually involves actual fraud and deceit as well,
whether the defendant has misrepresented his or her intention to act
as a fiduciary for the plaintiff [see Civ. Code ß 1710(4)], concealed a
profit that he or she was bound to disclose [Civ. Code ß 1710(3)], or
misrepresented the amount of a profit obtained on the plaintiff's account or
other fact [Civ. Code ß 1710(1)].
Legal Topics:
TortsBusiness TortsFraud & MisrepresentationActual FraudElementsTortsBusiness TortsFraud &
MisrepresentationActual FraudRemediesTortsBusiness TortsFraud & MisrepresentationNegligent
MisrepresentationElementsTortsBusiness TortsFraud & MisrepresentationNegligent Misrepresenta-
tionRemediesTortsIntentional TortsBreach of Fiduciary DutyGeneral Overview
Page 281 of 479

83 of 138 DOCUMENTS
NOTE:
defendant in a fraud and deceit action should cover.

NOTE:
interview. Subsequent interviews may be required or it may be necessary to
ascertain the facts from others, including the plaintiff, by use of discovery proceed-
ings.
a. Name, address, and telephone number of the defendant.
b. Capacity of the defendant such as corporation, unincorporated

ee, partner in partnership, or some other capacity.
NOTE:
Page 282 of 479

The defendant's capacity will generally be revealed by the complaint.

Nevertheless, counsel will wish to confirm the allegation with his or her
client. Of course, if the capacity is not revealed by the complaint,
counsel will wish to ascertain it.
c. Additional facts, as desired relating to the defendant's stability and financial solvency
such as employment status, prior residences, credit, bank, and personal references.
2. Facts required for the answer:

NOTE:
Counsel should advise his or her client not to discuss the case with any third
person.
a. Date, manner, and place of service of the complaint and summons.
b. Allegations of the complaint: Ascertain which of the facts alleged in the complaint are
true, which ones are false, and which ones the defendant does not know the truth or
falsity of.

NOTE:
Affirmative defenses can be raised by demurrer, as well as by answer, if they

appear on the face of the complaint or from matters of which the court must or
may take judicial notice [Code Civ. Proc. ßß 430.10, 430.30]
1. Statute of limitations Code Civ. Proc. ß 338(d).
2. Statute of frauds. See Ch. 140, Contracts , and Ch. 530, Statute of Frauds , for
discussion and forms relating to this defense. In actions for deceit, the statute of frauds
[Civ. Code ß 1624] may be used as a defense to an action for a promise made without the
intention to perform it [Civ. Code ß 1710(4)] if the promise was also contractual. The
plaintiff cannot get around the statute of frauds by alleging that the defendant's contractual
promise involving an oral contract required to be in writing was a fraudulent promise
Page 283 of 479

made without any intention of performing it [ Kett v. Graeser (1966) 241 Cal. App. 2d
571, 573, 50 Cal. Rptr. 727 ; but see ß 269.14[5][b]].
3. Negligence. Although it is fairly certain that the plaintiff's negligence is not a defense
even to a negligently made misrepresentation by the defendant, the defendant may wish to
plead facts showing the plaintiff's negligence. This issue is closely connected to that of
whether or not the plaintiff's reliance on the defendant's representation was justified [see
ßß 269.16 (justifiable reliance), 269.31[2] (plaintiff's negligence)].
4. There are other matters that the defendant's counsel will want to keep in mind that,
while not affirmative defenses, counter the plaintiff's case. For example, the defendant
will want to show that the plaintiff's reliance on the defendant's statements was not
justified or that the plaintiff did not in fact rely on the defendant's representations, as, for
example, if the plaintiff made a complete investigation of the subject matter, and learned
that the defendant's representations were false [ Mercer v. Elliott (1962) 208 Cal. App.
2d 275, 279, 25 Cal. Rptr. 217] .
Legal Topics:
MisrepresentationActual FraudDefensesTortsBusiness TortsFraud & MisrepresentationActual
FraudElementsTortsBusiness TortsFraud & MisrepresentationNegligent MisrepresentationDefenses-
TortsBusiness TortsFraud & MisrepresentationNegligent MisrepresentationElements
Page 284 of 479

84 of 138 DOCUMENTS
[Reserved]
Page 285 of 479

85 of 138 DOCUMENTS
PART V. FORMS
[Code Civ. Proc. ß 425.10] for Damages [Civ. Code ßß 3333, 3343] for Fraud and Deceit [Civ.
Code ßß 1709, 1710; Cal. Judicial Council Forms PLD-PI-001, PLD-C-001(3)]
[1] FORM Judicial Council Trial Court Pleading Form [Code Civ. Proc. ß 425.12; Cal. Rules of
Ct., Rule 982.1(a)]--Complaint [Code Civ. Proc. ß 425.10] for Damages [Civ. Code ßß 3333, 3343]
for Fraud and Deceit [Civ. Code ßß 1709, 1710; Cal. Judicial Council Forms PLD-PI-001, PLD-
C-001(3)]
Code Civ. Proc. ß 425.12 requires that the Judicial Council develop and approve official forms for
use in California trial courts for any complaint, cross complaint, or answer in any action based on
personal injury, property damage, wrongful death, unlawful detainer, breach of contract, or fraud. Use
of these forms is optional [see Code Civ. Proc. ß 425.12].
[3] Use of Form
This complaint may be used in any action for deceit [see Civ. Code ßß 1709, 1710]. It consists of the
Judicial Council complaint for personal injury, property damage, or wrongful death to which a
Judicial Council fraud cause of action has been attached [see Code Civ. Proc. ßß 425.12; Cal. Judicial
Council Forms PLD-PI-001, PLD-C-001(3)].

Page 286 of 479

The approved cause of action for fraud is listed with the contracts forms [see Cal. Judicial Council
Form PLD-C-001(3)], but any approved cause of action may be attached to any approved form of
complaint [see Cal. Rules of Ct., Rule 1.45(b)]. Thus, it appears to be appropriate to state a tort cause
of action for deceit by filing the fraud cause of action attached to the general complaint for personal
injury, property damage, or wrongful death.
The other forms in this chapter contain allegations that may be incorporated into the fraud cause of
action, as appropriate.
For a detailed explanation for filling out the Judicial Council form of complaint for personal injury,
property damage, and wrongful death generally, see the Comments to that form in Ch. 380, Negli-
gence . Information particularly applicable to filling out the complaint form in fraud actions is set out
here. For a detailed discussion of filling out the exemplary damages attachment, see the Comments to
that form of attachment in Ch. 177, Damages.
In the heading of the complaint form, boxes are provided for designating the type of action being
brought. If using the complaint in an action for fraud, counsel should check the box marked
"OTHER" and specify fraud as the type of action. In addition, counsel should check the box marked
"Other Damages" and specify the types of damages sought, such as compensatory and exemplary in
this sample form.
In Paragraph 10., counsel should designate the causes of action attached to the complaint. In an
action for fraud, counsel should check box 10.f., "Other", and specify fraud as the cause of action that
is attached.
In Paragraph 11., counsel should check box 11.g.,"other damage", and specify the nature of the
plaintiff's loss. The additional boxes in Paragraph 11. present specific types of loss that appear to be
applicable only in the context of an action for personal injury, property damage, or wrongful death.
Thus, the box for "other damage" should be used in a fraud action to avoid any ambiguity [see ßß
269.27, 269.30].
In Paragraph 14., the prayer for relief, counsel should check the appropriate boxes for compensatory
damages and punitive damages. The sample form requests both. Attorney's fees incurred in bringing
an action for fraud are not recoverable [ Bezaire v. Fidelity & Deposit Co. (1970) 12 Cal. App. 3d
888, 892, 91 Cal. Rptr. 142 ; see ß 269.28].
The fraud cause of action heading should be filled in with the short title of the case, and the number of
the cause of action. In addition, counsel should fill in the page number of the cause of action and
Page 287 of 479

check the appropriate box stating whether the cause of action is attached to a complaint or cross
complaint.
In Paragraph FR-1., counsel should fill in the names of the plaintiff and the defendant and state the
date on that the defendant defrauded the plaintiff.
[b] Alleging Deceit
[i] In General
One who willfully deceives another with intent to induce the other to alter his or her position to his or
her injury or risk is liable for any damages that the other person thereby suffers [Civ. Code ß 1709;
see ßß 269.12, 269.13].
Counsel should check the box for Paragraph FR-2. if the action is based on intentional or negligent
misrepresentation. This type of deceit includes the suggestion as a fact of something that is not true by
one who does not believe it to be true, or the assertion as a fact of something that is not true by one
who has no reasonable ground for believing it to be true [Civ. Code ß 1710(1), (2); see ß 269.14[1],
[2]; see also ßß 269.91, 269.92].
In Paragraph FR-2.a., counsel should state the representations of material factthat were made by the
defendant. The facts constituting fraud must be specifically pleaded so that the court can determine
from the complaint whether or not a prima facie case is alleged [ Cooper v. Leslie Salt Co. (1969) 70
Cal. 2d 627, 636, 75 Cal. Rptr. 766, 451 P.2d 406 ; see ß 269.91[4]].
Paragraph FR-2.b. states that the representations alleged in Paragraph FR-2.a. were in fact false,
and leaves space for counsel to fill in the true facts. If additional space is needed, counsel should state
the true facts on an attachment labeled Attachment FR-2.b.
Counsel should check the appropriate box in Paragraph FR-2.c.; stating either that the defendant
knew that the representations were false when made, or that the defendant had no reasonable ground
for believing that the representations were true. Paragraph FR-2.d., incorporating Paragraph FR-5.
(plaintiff's acts induced by the defendant's conduct), contains the remaining allegations necessary to
state a cause of action for fraud or deceit.
Counsel should check the box for Paragraph FR-3. if the action is based on concealment or
suppression of material facts. Deceit includes the suppression of a fact by one who is bound to
disclose it or who gives information of other facts that are likely to mislead for want of communica-
tion of the suppressed fact [Civ. Code ß 1710(3); see ßß 269.14[3], 269.93].
Paragraph FR-3.a. contains space for alleging the concealed or suppressed material facts; they may
Page 288 of 479

be alleged in attachment FR-3.a. instead. The facts should be stated with specificity [see ß 269.91[4]].
In Paragraph FR-3.b., counsel should check a box describing the nature of the concealment or
suppression. The boxes allow the plaintiff to allege that the defendant concealed or suppressed
material facts either (1) that the defendant was bound to disclose or (2) by telling the plaintiff other
facts to mislead the plaintiff and prevent the plaintiff from discovering the concealed or suppressed
facts. Finally, Paragraph FR-3.c., incorporating Paragraph FR-5., contains the remaining
allegations necessary to state a cause of action for fraud or deceit.
Counsel should check the box for Paragraph FR-4. if the action is based on a promise made by the
defendant without the intent to perform. Deceit includes a promise made without any intention of
performing it [Civ. Code ß 1710(4); see ßß 269.14[5], 269.94].
In Paragraph FR-4.a., counsel should state the facts showing the defendant's promise about a
material matter without any intention of performing it; the facts may be alleged in attachment FR-4.a.
instead [see ß 269.91[4]]. Paragraph FR-4.b., incorporating Paragraph FR-5., contains the
remaining allegations necessary to state a cause of action for fraud or deceit.
Counsel should set out in Paragraph FR-5. the facts showing the plaintiff's acts induced in justifiable
reliance on the defendant's conduct. The plaintiff's damages should be stated in Paragraph FR-6. [see
ßß 269.16, 269.21]. If Paragraphs FR-5. and FR-6. do not contain sufficient space for the
allegations, counsel should state the facts on separate attachments labeled Attachments FR-5. and
FR-6.
The fraud cause of action allows additional space, in Paragraph FR-7., for stating other allegations.
Counsel may use this space, for example, to allege a reason for failing to discover fraud before
expiration of the three-year statute of limitations [Code Civ. Proc. ß 338(d); see ß 269.103]. As
another example, this sample form states on information and belief that the fictitiously named
General information pertaining to filling out this form is contained in the Comments to this form in
Ch. 177, Damages . The following comments discuss this form as it should be used in an action for
fraud or deceit.
Fraud alone is a ground for awarding punitive damages, and the fraud may be either express or
implied [see Civ. Code ß 3294(a), (c)(3); Horn v. Guaranty Chevrolet Motors (1969) 270 Cal. App.
2d 477, 484, 75 Cal. Rptr. 871 ; see also ß 269.30; see generally Ch. 177, Damages .]. Therefore,
counsel should check the box marked "fraud" in Paragraph EX-1. of the Exemplary Damages
Page 289 of 479

Attachment.
In Paragraph EX-2., counsel should state the facts supporting the plaintiff's claim for punitive
damages. The sample form alleges that the defendant fraudulently concealed facts concerning the
plumbing system in a residence that was sold to the plaintiff. These facts are essentially the same as
the allegations set out in Paragraphs FR-2. through FR-6. of the fraud cause of action [see [5],
above], because fraud alone will support an award of punitive damages.
In Paragraph EX-3., counsel should check the box for subparagraph b. Although, in an action for
deceit, the amount of damages generally must be stated [see Code Civ. Proc. ß 425.10(b)], the amount
of exemplary damages is "not shown pursuant to Civil Code Section 3295(e)," which applies to claims
for exemplary damages in any action in which the trial is commenced on or after January 1, 1988 [Civ.
Code ß 3295(f)].
[7] Verification
Although verification of this complaint is not required [see Code Civ. Proc. ß 128.7(a)], verification
will require any answer to be verified in an unlimited civil case [Code Civ. Proc. ßß 92(b), 446].
Verification will also preclude the defendant from using a general denial in an unlimited civil case, and
will preclude a general denial in a limited civil case if the action is a claim assigned to a third party for
collection [Code Civ. Proc. ß 431.30(d)]. For further discussion, see Ch. 26, Answers .
For similar forms, see ßß 269.91 -269.94.
Page 290 of 479

86 of 138 DOCUMENTS
PART V. FORMS
[1] FORM Complaint for Damages for Fraud and Deceit--Intentional Misrepresentation of Fact
COUNTY OF ___________________
)
______________________ [name], Plaintiff, ) NO. _____
______________________ [name(s)], Defendant(s). ) (Deceit)
__________________________________________________
The plaintiff alleges:
[EITHER]
1. The defendant ___________________ [name] is, and at all times herein mentioned was, a resident
of ___________________ [city], ___________________ County, California.
[AND/OR]
Page 291 of 479

2. The defendant ___________________ [name], is, and at all times herein mentioned was, a
corporation organized and existing under the laws of the State of Cal. with its principal place of
business in ___________________ [city], ___________________ County, California.
[EITHER]
3. [The plaintiff is informed and believes and thereon alleges that,] [A]t all times herein mentioned,
defendant ___________________ [name] was the agent and employee of defendant
___________________ [name], and in doing the things herein alleged was acting within the course
and scope of such agency and employment and with the permission and consent of his/her codefen-
dant.
[OR]
3. [The plaintiff is informed and believes and thereon alleges that] [D]efendant
___________________ [name], who made the representations herein alleged, is the
___________________ [specify position] of defendant ___________________ [name of
corporation] and, at the time of the making of the representations herein alleged and at all times herein
mentioned was acting within the course and scope of his/her employment and authority for that
defendant ___________________ [name of corporation].
[CONTINUE]
[4. The plaintiff is ignorant of the true names and capacities of the defendants sued herein as DOES I-
____________________, inclusive, and therefore sues these defendants by such fictitious names. The
plaintiff will amend this complaint to allege their true names and capacities when ascertained. (The
plaintiff is informed and believes and thereon alleges that each of the fictitiously named defendants is
responsible in some manner for the occurrences herein alleged, and that the plaintiff's damages as
herein alleged were proximately caused by their conduct.)]
[EITHER]
5. On or about ___________________ [date], defendant ___________________ [name] made the

following representation(s) to the plaintiff: ___________________ [allege in exact language, or as
close to exact language as possible, the representations of material fact claimed by the plaintiff to be
false].
[OR]
Page 292 of 479

5. On or about ___________________ [date(s)], defendant ___________________ [name] made the

following representation(s) to ___________________ [the public or specify class of persons of which
the plaintiff is a member] in ___________________ [specify media by which representations were
made, e.g., advertising brochures distributed to potential purchasers]: ___________________ [allege
in exact language, or as close to exact language as possible, the representations of material fact
claimed by the plaintiff to be false]. On or about ___________________ [date(s)], the plaintiff
___________________ [saw or heard or read] these representations in ___________________
[specify media by which representations were communicated to the plaintiff, e.g., advertising
brochures mailed by the defendant to potential purchasers].
[CONTINUE]
6. The representations made by the defendant were in fact false. The true facts were
___________________ [specify].
[EITHER]
7. When the defendant made these representations, he/she/it knew them to be false and made these
representations with the intention to [deceive and defraud the plaintiff and to] induce the plaintiff to act
in reliance on these representations in the manner hereafter alleged, or with the expectation that the
plaintiff would so act.
[OR]
representations with the intention to [deceive and defraud ___________________ (the public or
specify class of persons of which the plaintiff is a member) and to] induce members of
___________________ [the public or specify class of persons of which the plaintiff is a member] to
act in reliance on these representations in the manner hereafter alleged, or with the expectation that
they would so act.
[CONTINUE]
8. The plaintiff, at the time these representations were made by the defendant and at the time the
plaintiff took the actions herein alleged, was ignorant of the falsity of the defendant's representations
and believed them to be true. In reliance on these representations, the plaintiff was induced to and did
Page 293 of 479

___________________ [specify actions taken by plaintiff]. Had the plaintiff known the actual facts,
he/she would not have taken such action. The plaintiff's reliance on the defendant's representations
was justified because ___________________ [specify].
9. As a proximate result of the fraudulent conduct of the defendant(s) as herein alleged, the plaintiff
was ___________________ [allege facts showing allowable damages, e.g., induced to expend
____________________ (number) hours of his/her time and energy in an attempt to derive a profit
from the ___________________ (specify type of business) sold to the plaintiff by the defendant(s) but
has received no profit or other compensation for his/her time and energy], by reason of which the
plaintiff has been damaged in the sum of $____________________.
10. The aforementioned conduct of the defendant(s) was an intentional misrepresentation, deceit, or
concealment of a material fact known to the defendant(s) with the intention on the part of the
defendant(s) of thereby depriving the plaintiff of property or legal rights or otherwise causing injury,
and was despicable conduct that subjected the plaintiff to a cruel and unjust hardship in conscious
disregard of the plaintiff's rights, so as to justify an award of exemplary and punitive damages.
WHEREFORE, the plaintiff prays judgment as follows:
1. For general damages in the sum of $____________________;
2. For special damages for ___________________ [specify] in the sum of $____________________;
3. For punitive damages in an amount appropriate to punish the defendant(s) and deter others from
engaging in similar misconduct;
4. For costs of suit incurred herein; and
______________________ [firm name, if any]

By:______________________ [signature]
______________________ [typed name]
VERIFICATION
I, ___________________ [name], am the plaintiff in this action. I have read the foregoing complaint
and know the contents thereof. The same is true of my own knowledge, except as to those matters that
are therein stated on information and belief, and as to those matters, I believe it to be true.
Page 294 of 479

I declare under penalty of perjury under the laws of the State of Cal. that the foregoing is true and
correct.
______________________ [date]
______________________ [signature]
[2] Use of Form
This form of complaint is for use in an action for damages for fraud and deceit based on an intentional
misrepresentation of fact by the defendant [Civ. Code ß 1710(1)].
[3] Allegations
The complaint alleges:
The exact false representations made by the defendant (Paragraph 4) [ Scafidi v.

Western Loan & Bldg. Co. (1946) 72 Cal. App. 2d 550, 558, 165 P.2d 260] ;
The falsity of the statements and the true facts (Paragraph 5);
That the defendant knew of the falsity of the representations (Paragraph 6);
That the misrepresentations were made with the intent to deceive and defraud the plaintiff
or the public and with the intent to induce the plaintiff or the public to act (Paragraph 6)
[ Vasquez v. Superior Court (1971) 4 Cal. 3d 800, 811, 94 Cal. Rptr. 796, 484 P.2d
964 ; Harazim v. Lynam (1968) 267 Cal. App. 2d 127, 130, 72 Cal. Rptr. 670 ; Civ.
Code ß 1711];
Actual and justifiable reliance by the plaintiff on the misrepresentations (Paragraph 7)

[see Mirkin v. Wasserman (1993) 5 Cal. 4th 1082, 1088, 1091-1093, 23 Cal. Rptr. 2d
101, 858 P.2d 568 ; Harazim v. Lynam (1968) 267 Cal. App. 2d 127, 130, 72 Cal.
Rptr. 670] ;
The plaintiff's damage as a result of the defendant's misrepresentations (Paragraph 8)

[see Fraker v. Sentry Life Ins. Co. (1993) 19 Cal. App. 4th 276, 285-286, 23 Cal. Rptr.
2d 372 ; Zumbrun v. University of S. Cal. (1972) 25 Cal. App. 3d 1, 12 ; Lesperance v.
North Am. Aviation, Inc. (1963) 217 Cal. App. 2d 336, 345, 31 Cal. Rptr. 873] ; and
Facts supporting an award of punitive damages (Paragraph 9) [Civ. Code ß 3294].

Page 295 of 479

The facts constituting fraud must be specifically pleaded so that the court can determine from the
complaint whether a prima facie case is alleged [ Cooper v. Leslie Salt Co. (1969) 70 Cal. 2d 627,
636, 75 Cal. Rptr. 766 ; see, e.g., Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.
App. 4th 772, 782-783 (conclusory allegation that defendants made false representations that their
product was safe for use in breast surgery and posed no dangerous risks of injury to plaintiff, without
indicating specifically what was said by whom or in what manner, lacked the requisite specificity for
pleading fraud)]. General allegations are insufficient [ Morton v. Loveman (1968) 267 Cal. App. 2d
712, 720, 73 Cal. Rptr. 623] . Every element of the cause of action for fraud must be alleged in the
proper manner, factually and specifically [ Lesperance v. North Am. Aviation, Inc. (1963) 217 Cal.
App. 2d 336, 344, 31 Cal. Rptr. 873] .
However, if a fraud claim is based on a series of numerous misrepresentations, such as an advertising

campaign that is alleged to be misleading, plaintiffs need not allege the specific advertisements the
individual plaintiffs relied upon. It is sufficient for the plaintiff to provide a representative selection of
the advertisements or other statements to indicate the language upon which the claim is based
[ Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal. App. 4th 1235, 1255-1257, 99 Cal. Rptr.
3d 768 ].
A plaintiff who wishes to charge a corporation with making a fraudulent misrepresentation must
allege the name of the person who spoke, that person's authority to speak, to whom he or she spoke,
what he or she said or wrote, and when it was said or written [ Archuleta v. Grand Lodge of Int'l
Ass'n of Machinists (1968) 262 Cal. App. 2d 202, 208-209, 68 Cal. Rptr. 694 ; Gautier v. General
Tel. Co. (1965) 234 Cal. App. 2d 302, 308, 44 Cal. Rptr. 404] .
[6] Damages
The amount and type of damages available in an action for deceit will depend on the fact situation
involved in the fraudulent transaction. Damages for fraud in the purchase, sale, or exchange of
property, for example, are governed by Civ. Code ß 3343, with the exception that damages for fraud
in the sale or purchase of "goods" as defined in the Commercial Code are governed by Com. Code ß
2721. The attorney must ascertain the applicable statute and allege the proper items of general and
special damages available under that statute. For a discussion of compensatory damages, see ß 269.27.
Punitive damages may also be recoverable in an action for deceit if the defendant's conduct amounts to
fraud as defined by Civ. Code ß 3294(c)(3) [see Civ. Code ß 3294(a)]. Although, in an action for
deceit, the amount of damages must generally be stated in the complaint [Code Civ. Proc. ß 425.10
(b)], the amount of punitive damages must not be stated in any action [Civ. Code ß 3295(e), (f)]. For
further discussion, see ß 269.30.
[7] Verification
Page 296 of 479

collection [Code Civ. Proc. ß 431.30(d)]. For further discussion see Ch. 26, Answers .
[8] Jurisdiction
classified as a limited civil case [Cal. Const. art. VI, ß 10; Code Civ. Proc. ßß 85, 86(a)(1)].
In limited civil cases, the caption must identify the case as a limited civil case and must state whether
the demand exceeds or does not exceed $10,000 [Code Civ. Proc. ß 422.30(b); Gov. Code ß 70613
(b); Cal. Rules of Ct., Rule 2.111(9), (10)].
[9] Copies
The following copies of this complaint should be prepared:
Original to be filed with the court;
One copy together with a copy of the summons to be served on each defendant;
One copy for the office file;
One copy for the plaintiff; and
Other copies as desired.

For alternative allegations as to agency, capacity, and residence of parties, and fictitious name
allegations, see Ch. 20, Allegations Commonly Used
For alternative forms of captions and introductions, see Ch. 108, Captions and Introductions
Complaints
For discussion and forms relating to damages and pleading tort damages, see Ch. 177, Damages
For discussion of jurisdiction in California courts in general, see Ch. 324, Jurisdiction: Subject
Page 297 of 479

Matter
For alternative forms of prayers, see Ch. 420, Prayers
and Papers
For discussion relating to venue and forms of allegations showing proper venue, see Ch. 571, Venue
For alternative forms of verification, see Ch. 572, Verification

For memoranda of points and authorities related to this complaint, see California Points and
Authorities, Ch. 105, Fraud and Deceit (Matthew Bender)
For detailed discussion of the elements of a cause of action for deceit, see Levy, Golden, and Sacks,
California Torts, Ch. 40, Pt. A (Matthew Bender)
Page 298 of 479

87 of 138 DOCUMENTS
PART V. FORMS
[1] FORM Allegations for Complaint [Code Civ. Proc. ß 425.10] for Damages for Fraud and
1. When the defendant made these representations, he/she/it had no reasonable ground for believing
them to be true in that ___________________ [specify facts showing defendant's lack of reasonable
basis for believing in the truth of the representations].
[EITHER]
2. The defendant made these representations with the intention of inducing the plaintiff to act in
reliance on these representations in the manner hereafter alleged, or with the expectation that the
[OR]
2. The defendant made these representations with the intention of inducing members of
___________________ [the public or specify class of persons of which plaintiff is a member] to act
in reliance on these representations in the manner hereafter alleged, or with the expectation that they
would so act.
[2] Use of Form
Page 299 of 479

These allegations are for use in an action for damages for deceit based on negligent misrepresentation,
i.e., a false misrepresentation made by the defendant without reasonable ground for believing the
representation to be true [see Civ. Code ß 1710(2)]. The allegations in Paragraphs 1 and 2 of this form
may be substituted for the allegations in Paragraph 7 of the complaint set forth in ß 269.91, in which
case the subsequent paragraphs (Paragraphs 8, 9, and 10) of ß 269.91 should be renumbered
accordingly.
[3] Text References
Witkin, California Procedure (2d ed.), Vol. 3, Pleading, ß 587
Witkin, Summary of California Law, vol. 5, Torts, ßß 818-826 (10th ed. 2005)
23 Cal. Jur. 2d, Fraud and Deceit, ß 28

For a similar form, see ß 269.91.
Page 300 of 479

88 of 138 DOCUMENTS
PART V. FORMS
ß 269.93 Complaint [Code Civ. Proc. ß 425.10] for Damages for Fraud and Deceit--Suppres-
sion of Fact [Civ. Code ß 1710(3)]--General Form
[1] FORM Complaint [Code Civ. Proc. ß 425.10] for Damages for Fraud and Deceit--Suppres-
[Caption. See ß 269.91.]
[1. Capacity and residence of the defendant. See ß 269.91, Paragraph 1.]
[2. Agency allegation, if appropriate. See ß 269.91, Paragraph 2.]
[3. Fictitious name allegation, if appropriate. See ß 269.91, Paragraph 3.]
4. On or about ____________________ [date], defendant ___________________ [name]

___________________ [allege facts showing the suppression of a fact by one who is bound to
disclose it or by one who gives information of other facts that are likely to mislead for want of
communication of the suppressed fact, e.g., represented to the plaintiff that the house that the
defendant sought to sell to the plaintiff was recently inspected and found free of termites, was
structurally sound, and was generally in good condition, but failed to reveal and suppressed the fact
that the house had defects in its plumbing that were severe and chronic and that caused the house to be
uninhabitable without substantial repairs to the plumbing system, which fact was known to the
defendant at all times herein mentioned. The suppression of the fact of these plumbing defects was
likely to mislead the plaintiff and did in fact mislead the plaintiff in the light of the other representa-
Page 301 of 479

tions made by the defendant concerning the good condition of the ___________________ (specify
property)].
5. The [representations and] failures to disclose information and suppressions of information herein
alleged to have been made by the defendant ___________________ [name] were made with the intent
to induce the plaintiff to act in the manner herein alleged in reliance thereon.
6. The plaintiff, at the time these failures to disclose and suppressions of facts occurred, and at the
time the plaintiff took the actions herein alleged, was ignorant of the existence of the facts that the
defendant suppressed and failed to disclose. If the plaintiff had been aware of the existence of the facts
not disclosed by the defendant, the plaintiff would not have, as he/she did, ___________________
[specify actions taken by plaintiff in reliance on defendant]. ___________________ [Allege if the fact
that plaintiff's reliance was justified is not apparent from the other facts as stated, facts otherwise
showing justifiable reliance].
[7. Damages. See ß 269.91, Paragraph 8.]
[8. Punitive damages. See ß 269.91, Paragraph 9.]
[Prayer. See ß 269.91.]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
[Verification, if desired. See ß 269.91.]

[2] Use of Form
This complaint is for use in an action for damages for fraud and deceit in which the actionable deceit
consists of the suppression of a fact by one who is bound to disclose it or who gives information of
other facts that are likely to mislead for want of communication of that fact.
[3] Allegations
This complaint alleges (1) suppression of a fact by one bound to disclose it or who gives information
likely to mislead for want of communication of that fact (Paragraph 4) [see Civ. Code ß 1710(3)]; (2)
intent to induce reliance (Paragraph 5); and (3) actual and justifiable reliance on the actions of the
defendant (Paragraph 6).
[4] Text References
Page 302 of 479

Witkin, California Procedure (2d ed.), vol. 3. Pleading, ß 582
23 Cal. Jur. 2d, Fraud and Deceit, ßß 45, 46

For similar forms, see ß 269.91 and 269.92.
Page 303 of 479

89 of 138 DOCUMENTS
PART V. FORMS
[1] FORM Complaint for Damages for Fraud and Deceit--Promise Made Without Intention to
4. On or about ____________________ [date], defendant ___________________ [name] promised

the plaintiff that ___________________ [allege a promise made regarding a material fact, e.g., the
defendant would employ and continue to employ the plaintiff, the plaintiff would close his/her
business and enter the employ of the defendant's company ___________________ (name), for so
long as the plaintiff should satisfactorily perform the duties of ___________________ (specify
position)].
5. At the time the defendant made the promise to the plaintiff, the defendant had no intention of
performing it.
Page 304 of 479

6. The promise was made by the defendant with the intent to induce the plaintiff to
___________________ [allege defendant's actual intent in making the false promise, e.g., close his/
her business and thereby remove the plaintiff as a competitor of the defendant's and remain in the
employ of the defendant until the defendant should choose, at his/her will, to terminate the plaintiff's
employment].
7. The plaintiff, at the time this promise was made and at the time the plaintiff took the actions herein
alleged, was ignorant of the defendant's secret intention not to perform and ___________________
[allege facts showing justifiable reliance on the promise, e.g., the plaintiff could not, in the exercise of
reasonable diligence, have discovered the defendant's secret intention]. In reliance on the promise of
the defendant, the plaintiff ___________________ [allege acts of plaintiff]. If the plaintiff had known
of the actual intention of the defendant, the plaintiff would not have taken such action.
8. The defendant failed to abide by his/her promise ___________________ [allege facts showing
nonperformance, e.g., and on ____________________ [date], terminated the employment of the
plaintiff and refused to allow the plaintiff to perform his/her duties and to pay him/her under their
agreement. But for the termination of employment, the plaintiff would have continued to perform his/
her duties satisfactorily under the contract].
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
This complaint is for use in action for damages for fraud and deceit based on a promise made without
the intention of performing it. Whenever the facts indicate that there is a promise made without the
intent to perform, causes of action may also exist for breach of contract and intentional misrepresenta-
tion of fact [see Block v. Tobin (1975) 45 Cal. App. 3d 214, 218-219, 119 Cal. Rptr. 288 ; Bondi v.
Jewels by Edwar, Ltd. (1968) 267 Cal. App. 2d 672, 676-677, 73 Cal. Rptr. 494] .
[3] Allegations
Page 305 of 479

This complaint alleges [see Bondi v. Jewels by Edwar, Ltd. (1968) 267 Cal. App. 2d 672, 677, 73
Cal. Rptr. 494] :
A promise made by the defendant concerning a material fact (Paragraph 4).
That the defendant was without any intention of performing the promise at the time it
was made (Paragraph 5).
That the promise was made with the intent to induce the plaintiff to act in reliance
(Paragraph 6).
That the plaintiff justifiably acted in reliance on the defendant's promise (Paragraph 7).
That the defendant failed to perform the promise (Paragraph 8).
Resulting damages (Paragraphs 9, 10).

[4] Text References
Witkin, California Procedure (2d ed.), Vol. 3, Pleading ß 581
Page 306 of 479

90 of 138 DOCUMENTS
PART V. FORMS
ß 269.95 Complaint for Damages for Fraud and Deceit [Civ. Code ß 3343]--Intentional
Misrepresentation [Civ. Code ß 1710(1)]--Fraud in Sale of Land--By Buyer Against Seller
Misrepresenting Acreage
[1] FORM Complaint for Damages for Fraud and Deceit [Civ. Code ß 3343]--Intentional
Misrepresentation [Civ. Code ß 1710(1)]--Fraud in Sale of Land--By Buyer Against Seller Misrepre-
senting Acreage
4. On or about ____________________ [date], defendant ___________________ [name] was the

owner of certain real property located in ___________________ [city], ___________________
County, California, and known as ___________________ [provide address or legal description].
5. On or about the above-mentioned date, at ___________________ [address],

___________________ [city], ___________________ County, California, defendant
___________________ [name], with the intent to defraud and deceive the plaintiff and with the intent
to induce the plaintiff to purchase the above-described real property for a sum of
Page 307 of 479

$____________________, represented to the plaintiff that this property ___________________

[specify, e.g., contained ____________________ (number) acres of land]. This representation was
false, and the defendant knew it to be false at the time he/she made it, and at all times herein
mentioned. In fact and truth, the above-described real property ___________________ [specify, e.g.,
contained only ____________________(number) acres of land].
6. The plaintiff did not know that this representation was untrue, but on the other hand, believed it to
be true. In reliance on this representation, the plaintiff entered into a contract of purchase and sale of
the above-described real property with the defendant, and paid the defendant the sum of
$____________________ as a purchase price therefor. The contract of sale is attached hereto as
Exhibit A and made a part hereof. Except for the false representation of the defendant, the plaintiff
would not have entered into the above-mentioned contract and would not have paid the contract sum
of $____________________, or any sum, for the above-described real property, to the defendant.
___________________ [Allege, if necessary, facts showing justifiable reliance, e.g., The plaintiff did
not inspect the property or any documents pertaining to it, but was urged by the defendant to accept
the defendant's assurances as to the acreage contained in the property].
7. As a proximate result of the above-described fraud and deceit of the defendant, the plaintiff has
been damaged in the sum of $____________________, which is the difference between the purchase
price of $____________________ paid by the plaintiff for the above-described property and the true
value of the property, which is $____________________.
8. As a further proximate result of the above-described fraud and deceit of the defendant, the plaintiff
has ___________________ [allege other items of allowable damages, e.g., lost the use and
enjoyment of the above-described property], by reason of which the plaintiff has been damaged in the
sum of $____________________.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
This complaint is for use in an action for damages for fraud and deceit that involves an intentional
Page 308 of 479

misrepresentation made to the purchaser of real property by the seller concerning the acreage
contained in the property.
[3] Allegations
This complaint alleges (1) that the defendant was the owner of the property about which the represen-
tation was made (Paragraph 4); (2) that the defendant made a false representation as to the number of
acres contained in the property, with the intent to induce reliance by the plaintiff, and that the
defendant knew of the falsity of the representation (Paragraph 5); (3) the falsity of the representation
as shown by the true acreage (Paragraph 5); (4) that the plaintiff did not know the representation was
untrue and in fact relied on it in purchasing the property, and that such reliance was justifiable
(Paragraph 6); and (5) damages (Paragraphs 7-9) [Civ. Code ß 3343].
[4] Venue
In an action for damages for the tort of deceit, the proper venue is the county of the defendant's
residence, as provided by Code Civ. Proc. ß 395(a). Such an action does not come within the
provisions of Code Civ. Proc. ß 392(a)(1), allowing the action to be brought in the county in which
the property is situated if the action is for the recovery of real property, because the action for damages
for deceit does not determine or affect the title to the real property or any interest in it. The title remains
with the plaintiff [ Kaluzok v. Brisson (1946) 27 Cal. 2d 760, 764, 167 P.2d 481] . Generally, an
action for fraud is triable in the county of the residence of the defendant and the mere fact that,
incidentally, rights in real property may be involved does not change the rule. Furthermore, even if a
cause of action for relief in tort is joined with a cause of action concerning the title to real property, the
defendant is nevertheless entitled to have the case tried in his or her county of residence [ Claycomb
v. Caronna (1952) 113 Cal. App. 2d 561, 565-566, 248 P.2d 779] .
[5] Text References
Witkin, California Procedure (2d ed.), vol. 3, Pleading, ßß 592, 593
Page 309 of 479

91 of 138 DOCUMENTS
PART V. FORMS
[1] FORM Complaint for Damages for Fraud and Deceit [Civ. Code ß 3343]--Intentional and
FIRST COUNT
(Intentional Misrepresentation)
3. At all times herein mentioned, defendant ___________________ [name] was, and now is, a real
estate broker duly licensed as such by the State of Cal., Department of Real Estate.
Page 310 of 479

owner of the real property located in ___________________ [city], ___________________ County,

California, and known as ___________________ [provide legal description or address].
5. At all times herein mentioned, the defendant broker ___________________ [name] was the agent
of the defendant owner ___________________ [name], and at all times herein mentioned, in doing
the things and in making the representations herein alleged, was acting in the course and scope of the
agency, and with the knowledge and consent of his/her codefendant.
6. On or about ____________________ [date], in ___________________ [city],

___________________ County, California, the plaintiff entered into a written agreement with the
defendants to purchase the above-described property, a copy of which agreement is attached hereto as
Exhibit A and made a part hereof.
7. On or about ____________________ [date], the plaintiff was shown by the defendants a copy of a
preliminary title search of the above-described property and noticed from this title search that the
property was subject to an easement ___________________ [describe].
8. The defendant broker ___________________ [name] then and there falsely represented to the
plaintiff that the easement was ___________________ [specify the false representation as to the
harmless nature of the easement or as to its nonexistence, e.g., simply a strip one foot wide and one
foot deep along the edge of the property that would at no time obstruct and prevent or effect in any
way any construction on the property].
9. The true facts are that the easement ___________________ [allege the true nature, extent, and
effect of the easement that exists, e.g., is 30 feet wide and 16 feet deep, giving the plaintiff little more
than the right to cross it, and then only under limited circumstances].
10. The defendants, and each of them, knew when they made these representations concerning the
easement to the plaintiff that these representations were false, and the defendants, and each of them,
made the representations with the intent to deceive the plaintiff and to induce the plaintiff to take the
actions herein alleged, and with the intent to prevent the plaintiff from further inquiring into the effect
of the easement across the property.
11. The plaintiff believed these representations of the defendants, and each of them, to be true, and in
reliance on these representations the plaintiff was induced to complete the purchase of the above-
described real property on ____________________ [date], would not, at a cost of
$____________________. The plaintiff would not have purchased the real property herein described
and would not have expended the sums herein alleged for improvements on the property if he/she had
not relied on these representations by the defendants, and each of them.
12. ___________________ [Allege facts showing interference with use of the property resulting from
the easement, e.g., After the purchase of the above-described property, the plaintiff caused plans to be
Page 311 of 479

drawn for a dwelling house, a garage, and driveways to be constructed on this property. On or about
____________________ (date), the plaintiff began the construction of a dwelling house on the real
property in accordance with these plans. Thereafter, on or about ____________________ (date),
___________________ (allege acts of owner of easement preventing or hindering construction or
other activity on the property)].
13. The above-described property would have a value of $____________________, the price paid by
the plaintiff to the defendants for the property, only if there were no easement. With the easement as it
actually exists, the property has a true value of only $____________________.
The plaintiff was obliged to and did spend $____________________ for ___________________
[allege expenses of plaintiff in reliance on defendants' representations, e.g., the construction of a
dwelling house on the property before he/she learned of the true nature, extent, and effect of the
easement, which prevented completion of the construction]. As a result of the fraud and deceit of the
defendants, and each of them, the plaintiff has been damaged in the sum of
$____________________.
SECOND COUNT
(Negligent Misrepresentation)
1. The plaintiff refers to and incorporates, as though fully set forth herein, Paragraphs 1-9, inclusive,
and 11-14, inclusive, of the First Count.
2. The defendants, and each of them, when they made these representations concerning the easement
to the plaintiff had no reasonable ground for believing that the representations were true, and the
defendants, and each of them, made the representations with the intent to induce the plaintiff to take
the actions herein alleged, and with the intent to prevent the plaintiff from further inquiring into the
effect of the easement across the property.
THIRD COUNT
(Suppression of Fact)
9, and 12-14, inclusive, of the First Count.
Page 312 of 479

2. On or about ____________________ [date], defendant broker ___________________ [name]

represented to the plaintiff that although an easement existed across the above-described property, it
would at no time obstruct or prevent or affect in any way any construction on the property, and the
defendants failed to reveal and suppressed the fact that ___________________ [allege facts showing
that the easement was actually an obstruction, e.g., on or about ____________________ [date], the
owner of the easement had prevented the previous owner of the property, defendant
___________________ (name), from constructing a dwelling house on the property]. The failure to
disclose these facts concerning the easement was likely to mislead and did in fact mislead the plaintiff
in the light of other representations concerning the easement made by the defendants.
3. The defendants, and each of them, made the failures to disclose and the suppressions of information
herein alleged with the intent to induce the plaintiff to act in the manner herein alleged in reliance
thereon, and with the intent to prevent the plaintiff from further inquiring into the effect of the
easement across the property.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
Attorney for Plaintiff

[2] Use of Form
This complaint is for use in an action for damages for fraud and deceit arising from the intentional or
negligent misrepresentation and intentional suppression of the nature, extent, and effect of an easement
across property to be sold by the seller and the seller's real estate broker. The complaint states alternate
theories of recovery: intentional misrepresentation by the defendants, negligent misrepresentation by
the defendants, and intentional suppression by the defendants of facts likely to mislead.
[3] Allegations
The First Count of the complaint alleges (1) the false representation concerning the easement by the
seller's broker (Paragraph 8), (2) the true facts (Paragraph 9), (3) that the defendants knew of the
falsity of the representations and made them with the intent to deceive and induce reliance (Paragraph
10), (4) that the plaintiff in fact relied on the representations in purchasing the property (Paragraph
11), (5) acts of the plaintiff in reliance on the defendants' representations (Paragraph 12), and (6)
damages as a result of such reliance (Paragraphs 13, 14) [Civ. Code ß 3343]. The Second Count
Page 313 of 479

alleges that the defendants made the representations without reasonable grounds for believing them to
be true (Paragraph 2) [Civ. Code ß 1710(2)]. The Third Count alleges (1) that the defendants failed to
disclose and suppressed facts from the plaintiff that were likely to mislead the plaintiff in the light of
other representations made by the defendants (Paragraph 2) [Civ. Code ß 1710(3)] and (2) that these
failures to disclose and suppressions of information were done with the intent to induce the plaintiff's
reliance (Paragraph 3).
Page 314 of 479

92 of 138 DOCUMENTS
PART V. FORMS
ß 3343]--Intentional Misrepresentation [Civ. Code ß 1710(1)]--Concerning Existence of
Infestation--By Buyer of Real Property Against Seller and Pest Control Operator
[1] FORM Complaint [Code Civ. Proc. ß 425.10] for Damages for Fraud and Deceit [Civ. Code
ß 3343]--Intentional Misrepresentation [Civ. Code ß 1710(1)]--Concerning Existence of Infestation--
By Buyer of Real Property Against Seller and Pest Control Operator
1. The defendant ___________________ [name of seller] is now, and at all times herein mentioned
was, a resident of ___________________ [city], ___________________ County, California.
The defendant ___________________ [name of pest control operator] is now, and at all times herein
mentioned was, a duly licensed pest control operator, licensed as such by the State of Cal., Structural
Pest Control Board. The defendant ___________________ [name of pest control operator] is, and at
all times herein mentioned was, a resident of ___________________ [city], ___________________
County, California [or allege other capacity and residence of the defendant, as appropriate].
3. On or about ____________________ [date], the plaintiff, as buyer, and the defendant

___________________ [name], as seller, entered into a written agreement for the purchase and sale
of a family dwelling and appurtenances located at ___________________ [address],
Page 315 of 479

___________________ [city], ___________________ County, California, for a total purchase price

of $____________________. A copy of this agreement is attached hereto as Exhibit A and made a
part hereof. On or about ____________________ [date], the plaintiff and the defendant executed
written escrow instructions for the purchase and sale of the above-described property at the stated
price; a copy of the escrow instructions is attached hereto as Exhibit B and made a part hereof.
4. Both the agreement of purchase and sale and the escrow instructions provided in writing that the
defendant ___________________ [name], as seller, would deposit in escrow a report executed by a
licensed termite control operator, determining the true condition of the property in regard to termite
infestation, dry rot, and fungi, and further provided in writing that the defendant would pay for all
work necessary to place the property in a condition free of these infestations, if found.
5. On or about ____________________ [date], the defendant ___________________ [name of

seller] falsely represented ___________________ [allege circumstances and exact language of
seller's representation that property was free of termites and other infestations, e.g., that the
defendant had been the owner and in personal possession of the property for many years continuously
and immediately before the purchase of the property by the plaintiff and was acquainted with the
house and that the house was in good condition and had no termite infestation, dry rot, fungi, or other
infestations of any kind].
6. At all times herein mentioned, the defendant ___________________ [name of pest control
operator] was the agent of the defendant ___________________ [name of seller], and at all times
herein mentioned, in doing things and in making the representations herein alleged was acting in the
course and scope of the agency, and with the knowledge and consent of his/her codefendant. The
defendant ___________________ [name of seller] employed the defendant ___________________
[name of pest control operator] to inspect the property and to furnish a report showing the condition
of the property in regard to termite infestation, dry rot, and fungi, in accordance with the attached
contract for purchase and sale, Exhibit A, and the attached escrow instructions, Exhibit B.
7. The defendant ___________________ [name of pest control operator], with full knowledge of all
the foregoing and for the purpose of inducing the plaintiff to purchase the property and do the acts
herein alleged, falsely purported to make an inspection of the property to determine the presence or
absence of termite infestation, dry rot, and fungi, and furnished and deposited in escrow a written
statement signed by the defendant ___________________ [name of pest control operator], attached
hereto as Exhibit C and made a part hereof. The attached report purported to be a true and correct
report of the condition of the property in regard to termite infestation, dry rot, and fungi. This
statement represented that the defendant ___________________ [name of pest control operator] had
inspected the property and the property was free and clear of any infestation by termites, dry rot, and
fungi of any kind, and required no work whatsoever to place the property in a free and clear condition.
8. The true facts are that, at all times herein mentioned and for many years before this time, the
property was and had been heavily infested with ___________________ [state conditions], and had
Page 316 of 479

been heavily damaged thereby so that it required extensive repairs and improvements in order to
correct these conditions and place the property in a free and clear condition.
9. The representations and statements of the defendant ___________________ [name of seller] were
and are false and were known by him/her to be false at the time they were made. The representations
of the defendant ___________________ [name of pest control operator] were and are false and were
known by him/her to be false, since the defendant ___________________ [name of pest control
operator] made no reasonable inspection of the property. These representations were made by the
defendants, and each of them, with the intent to induce the plaintiff to rely thereon in doing the acts
herein alleged.
10. Immediately after the furnishing of the report of the defendant ___________________ [name of
pest control operator], the plaintiff closed the escrow, performed the agreement of purchase, and took
possession of the property. In doing these acts, the plaintiff was acting in reliance on the above-
alleged representations of the defendants, and each of them, which he/she believed to be true, and the
plaintiff would not have purchased the property except for these representations of the defendants, and
each of them. ___________________ [Allege facts showing justifiable reliance, if necessary, e.g.,
Although the plaintiff inspected the property, he/she was unable to detect any signs of infestation that
in fact existed, and the plaintiff relied on the representations of the defendants, and each of them].
11. On or about ____________________ [date], immediately on discovering the true condition of the
property, the plaintiff repeatedly notified the defendants, and each of them, by letters attached hereto as
Exhibit D and made a part hereof, of the true condition of the property and of the work required to
place the property in a condition free from infestation; the defendants, and each of them, failed and
refused, and continue to fail and refuse, to correct this condition. The plaintiff caused the infestations
to be removed and the necessary repairs to be made to the property as a result of the damage done to
the property. The reasonable cost of this was a sum of $____________________, and the plaintiff
was damaged as a result of the acts of the defendant herein alleged in that sum.
[13. Additional damages. See ß 269.95, Paragraph 8.]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
Page 317 of 479


[2] Use of Form
This complaint is for use in an action for damages for fraud and deceit in which the seller of real
property and a pest control operator hired by the seller have falsely represented to the buyer that the
property is free of infestation by pests. It alleges intentional misrepresentation by the seller as to the
condition of the property and intentional and negligent misrepresentation by the pest control operator.
[3] Allegations
This complaint alleges: (1) the false representation by the seller (Paragraph5); (2) that the pest control
operator was the agent of the seller (Paragraph 6); (3) the false representation of the pest control
operator, with knowledge that the plaintiff was going to rely on the pest control operator's report
(Paragraph 7) [ Wice v. Schilling (1954) 124 Cal. App. 2d 735, 745, 269 P.2d 231] ; (4) the actual
facts (Paragraph 8); (5) knowledge of the falsity of the representations or that they were made with no
reasonable belief in their truth (Paragraph 9) [Civ. Code ß 1710(1), (2)]; (6) reliance by the plaintiff
[4] Text References

For similar forms, see ßß 269.91 -269.93, 269.95, and 269.96. For a complaint for rescission of a
contract for sale of real property based on a fraudulent representation concerning termite infestation,
see Ch. 569, Vendor and Purchaser
Page 318 of 479

93 of 138 DOCUMENTS
PART V. FORMS
[1] FORM Complaint for Damages for Fraud and Deceit [Civ. Code ß 3343]--International
4. On or about ____________________ [date], the plaintiff and the defendant entered into a contract
in writing, attached hereto as Exhibit A and made a part hereof, in which the plaintiff agreed to
purchase from the defendant certain improved real property commonly described as
___________________ [provide address or legal description].
5. On or about ____________________ [date], and during the negotiations for the above-described
contract for purchase and sale, the defendant falsely represented to the plaintiff that
___________________ [allege misrepresentation concerning fill, e.g., the land to be sold was
suitable for the purpose of constructing a dwelling house on it and contained no fill].
Page 319 of 479

6. In fact, the above-described property ___________________ [allege extent and existence of fill on
the land].
7. These representations were made by the defendant with the intent to deceive and defraud the
plaintiff and to induce him/her to enter the above-described contract for purchase and sale of the
property.
8. The representations made by the defendant were in fact false and were known by the defendant to
be false at the time they were made and at all times herein mentioned.
9. The plaintiff relied on these representations by the defendant in entering the above-described
agreement for purchase and sale of the property, and the plaintiff would not have entered into the
above-described agreement but for the representations of the defendant. The reliance by the plaintiff
on these representations by the defendant was justified because ___________________ [allege
justification, e.g., at the time these representations were made, the defendant was in a position of
advantage with respect to knowledge of facts concerning the land and its suitability for construction of
a building on it, and, more particularly, the defendant knew that the land consisted of a filled-in
___________________ (specify, e.g., creek bed), which fill had not been suitably prepared for
building; the plaintiff could not have discovered by due diligence the existence of this filled condition
or of the quality or suitability of the land for building, despite making an inspection of the land by
viewing it].
10. These representations by the defendant were a material inducement to the plaintiff to enter into the
above-described contract for purchase of the real property and had the plaintiff known that the land the
land was in fact ___________________ [allege extent and type of fill], the plaintiff would not have
entered the above-described contract.
11. On or about ____________________ [date], ___________________ [allege discovery of fill and

resulting damage, e.g., the plaintiff was informed by the contractor whom he/she consulted concern-
ing the construction of a dwelling on the land that the land was in fact unsuitable for building without
extensive soil preparation]. As a result thereof and of the defendant's fraud and deceit, the plaintiff
was damaged in the sum of $____________________, which is the difference between the purchase
price of the property and the actual value of the property, which is the sum of only
$____________________.
Page 320 of 479

______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
This complaint is for use in an action for damages for fraud and deceit in which the vendor of real
property has misrepresented the character of the land, specifically that the land does not consist of fill.
[3] Allegations
This complaint alleges: (1) the false representation by the defendant concerning the character of the
land (Paragraph 5) [ Snelson v. Ondulando Highlands Corp. (1970) 5 Cal. App. 3d 243, 251, 84
Cal. Rptr. 800] ; (2) the true fact of the extent and existence of fill (Paragraph 6); (3) the defendant's
intent to defraud and induce reliance by the plaintiff (Paragraph 7) [Civ. Code ß 1709]; (4) the
defendant's knowledge of the falsity of the representations (Paragraph 8); (5) the plaintiff's reliance
and justifiable reliance (Paragraph 9); (6) that the defendant's representations were a material
inducement to the plaintiff to enter the contract (Paragraph 10) [ Snelson v. Ondulando Highlands
Corp. (1970) 5 Cal. App. 3d 243, 251, 84 Cal. Rptr. 800] ; and (7) resulting damages to the plaintiff
(Paragraphs 11, 13).
The plaintiff in a cause of action concerning misrepresentations as to the character of land may often
also state as a theory of recovery the failure of the defendant to disclose the known fact that the land
was filled and unsuitable for building [see Snelson v. Ondulando Highlands Corp. (1970) 5 Cal.
App. 3d 243, 251, 84 Cal. Rptr. 800 ; Oakes v. McCarthy Co. (1968) 267 Cal. App. 2d 231,
260-261, 73 Cal. Rptr. 127] .
If the plaintiff seeks an expert opinion from a professional concerning the condition of the soil and is
incorrectly informed of its character by the professional, there may also be a cause of action for
negligent misrepresentation against the professional for failure to correctly determine the character of
the soil [see Gagne v. Bertran (1954) 43 Cal. 2d 481, 487-489, 275 P.2d 15] .
[5] Text References

Page 321 of 479

For similar forms, see ßß 269.91 and 269.95 -269.97.
Page 322 of 479

94 of 138 DOCUMENTS
PART V. FORMS
ß 269.99 Complaint [Code Civ. Proc. ß 425.10] for Damages for Fraud and Deceit--Fraud in
Sale of Personal Property--By Buyer Against Seller--General Form
[1] FORM Complaint [Code Civ. Proc. ß 425.10] for Damages for Fraud and Deceit--Fraud in
[1. Capacity and residence of defendant. See ß 269.91, Paragraph 1.]
[2. Agency allegation, if appropriate. See ß 269.91, Paragraph 2. [date]]
4. On or about ____________________ [date], the plaintiff and the defendant entered into a[n]
___________________ [written or oral] contract in which the plaintiff agreed to purchase and
defendant agreed to sell ___________________ [describe personal property], for a total purchase
price of $____________________ [; if contract is written, add: a copy of the contract is attached
hereto as Exhibit A and made a part hereof].
5. On or about ____________________ [date], and at all times during the negotiations for the
purchase and sale of this property and until the date of execution of the contract, defendant
___________________ [___________________ (allege fraud of defendant, e.g., represented to the
plaintiff or concealed from the plaintiff and failed to disclose) that ___________________ (specify
Page 323 of 479

representations or conditions of property not disclosed as to quality, model, or other material fact)].
[EITHER]
6. In reality, these representations of the defendant concerning the property were false and the true
facts were that the property was ___________________ [specify true condition].
[OR]
6. The true facts concerning this property, which the defendant suppressed and failed to reveal, were
___________________ [specify].
7. ___________________ [Allege type of misrepresentation, e.g., The defendant knew these

representations to be false at all times herein mentioned or The defendant made these representations
without reasonable ground for believing them to be true, in that ___________________ (specify) or
The defendant concealed and suppressed the true facts, although the true facts were known to him/her/
it and he/she/it was under a duty to disclose these facts because ___________________ (allege facts
showing duty)].
8. These ___________________ [representations or suppressions and concealments] of the

defendant were made with the intent to induce the plaintiff to rely on them and to induce the plaintiff to
enter into the contract herein alleged [add if appropriate: with the intent to defraud and deceive the
plaintiff].
9. The plaintiff relied on the ___________________ [representations or nonexistence of the facts

suppressed by the defendant] and was induced by this to purchase the property. The plaintiff would
not have purchased the property if the true facts had been known to the plaintiff. This reliance by the
plaintiff was justified because ___________________ [specify].
10. The actual value of the property that the plaintiff purchased from the defendant was
$____________________, and the contract price that the plaintiff paid to the defendant was
$____________________; the plaintiff was therefore damaged by the fraud and deceit of the
defendant in the sum of $____________________ [or allege other measure of damages as
appropriate].
Page 324 of 479

______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
This complaint is for use in an action for damages for fraud and deceit in the sale of personal property.
[3] Allegations
This complaint alleges: (1) a written or oral contract of purchase and sale (Paragraph 4); (2) misrepre-
sentation or concealment of material fact by the defendant (Paragraph 5); (3) the actual facts (Para-
graph 6); (4) fraud of the defendant (Paragraph 7) [Civ. Code ß 1710(1), (2), (3)]; (5) the defendant's
fraudulent intent (Paragraph 8); (6) reliance and justifiable reliance by the plaintiff (Paragraph 9); and
(7) damages (Paragraphs 10, 11) [Civ. Code ß 3343].
In a fraud action regarding the sale of goods governed by the Commercial Code, Com. Code ß 2721,
which allows defrauded persons to secure the "benefit of their bargain," in effect supersedes the "out-
of-pocket" rule of Civ. Code ß 3343, which otherwise applies to fraud actions [ Continental Airlines,
Inc. v. McDonnell Douglas Corp. (1989) 216 Cal. App. 3d 388, 431, 264 Cal. Rptr. 779] . Under
Com. Code ß 2721, remedies for fraud include all remedies available under Com. Code ßß 2101-2724
for nonfraudulent breach.
includes the unborn young of animals, growing crops, and other identified things attached to realty as
described in Com. Code ß 2107 [Com. Code ß 2105].
For further discussion of damages, see ß 269.27[3].

If the seller of goods has made a material misrepresentation concerning the goods sold, the plaintiff
may have, in addition to a cause of action for fraud and deceit, a cause of action for breach of warranty
[see Hauter v. Zogarts (1975) 14 Cal. 3d 104, 114-118, 120 Cal. Rptr. 681, 534 P.2d 377 ; see
Com. Code ßß 2313, 2314, 2316; for further discussion, see Ch. 500, Sales and Secured Transac-
tions ]. In addition, if personal injuries have resulted from a defective condition of the product sold,
the seller will be liable in damages on the theory of strict liability in tort. In some cases, the defective
Page 325 of 479

condition causing the injury will be one that the seller warranted against and that the seller represented
did not exist [see Hauter v. Zogarts (1975) 14 Cal. 3d 104, 120-121, 120 Cal. Rptr. 681, 534 P.2d
377] . For discussion of strict liability actions, see Ch. 460, Products Liability .
[6] Text References

For similar forms, see ßß 269.91 -269.93 and 269.95.
Page 326 of 479

95 of 138 DOCUMENTS
PART V. FORMS
ß 3343]--Intentional Misrepresentation [Civ. Code ß 1710(1)]--Profits and Other Facts
Concerning Sale of Business--By Buyer Against Seller
ß 3343]--Intentional Misrepresentation [Civ. Code ß 1710(1)]--Profits and Other Facts Concerning
Sale of Business--By Buyer Against Seller
[Caption. See ß 269.91 .]
4. On or about ____________________ [date], the defendant was the owner of a business known as
___________________, located at ___________________ [address], ___________________ [city],
5. On or about ____________________ [date], the defendant falsely and fraudulently represented to

the plaintiff that the business as then operated by the defendant was ___________________ [allege
misrepresentations, e.g., a profitable business earning net profits in excess of
$____________________ per year; that all equipment owned and used by the business was easy to
Page 327 of 479

operate and would require no night work for the owner and would not tax an owner suffering from a
heart condition so that such owner could run the business without exerting himself/herself physically
and without giving his/her own personal service; and that obtaining employees would be no problem].
6. These representations of the defendant were false. The true facts were that the business as operated
by the defendant was ___________________ [allege facts, e.g., not profitable and was not then
earning at a rate of $____________________ per year, but was earning less than
$____________________ per year; the business was not easy to operate and required night work for
the owner and heavy labor at all hours of the day and night; and employees are not easy to hire and
keep for the business].
7. The defendant, at all times herein mentioned, knew these representations to be false and made these
representations with the intent to cause the plaintiff to reply on them and to deceive the plaintiff and to
induce the plaintiff to purchase the business from the defendant and take the other actions herein
alleged.
8. The plaintiff believed and relied on these representations by the defendant and was thereby induced
to purchase the business with its stock, fixtures, and ___________________ [specify other appurte-
nances, if any] and paid the defendant the sum of $____________________ for the business. Had it
not been for the plaintiff's reliance on the defendant's representations, the plaintiff would not have
purchased the business.
9. By reason of the fraud and deceit of the defendant, the plaintiff was required to expend
____________________ [number] hours of labor on the business, with no compensation, and was
thereby damaged in the sum of $____________________, the value of the plaintiff's labor thus
expended. By reason of the fraud and deceit of the defendant, the plaintiff was further damaged in the
sum of $____________________, the difference between the price paid for the business and its fair
market value of $____________________ [or allege other damages, e.g., insolvency and valueless-
ness of the business].
[Prayer. See ß 269.91 .]
______________________ [signature]
[Verification, if desired. See ß 269.91 .]

[2] Use of Form
Page 328 of 479

This form of complaint is for use in an action for damages for fraud and deceit against the seller of a
business who has fraudulently represented material facts concerning the business, such as the amount
of profits it made and the amount of labor required, for the purpose of inducing the buyer to purchase
the business.
[3] Allegations
This complaint alleges: (1) the false representations of the defendant (Paragraph 5); (2) the falsity of
the representations and the true facts (Paragraph 6); (3) the defendant's knowledge of the falsity of the
representations (Paragraph 7); (4) the defendant's intent to deceive and induce action by the plaintiff
(Paragraph 7); (5) the plaintiff's reliance (Paragraph 8); and (6) damages (Paragraphs 9, 10) [ Har-
tong v. Partake, Inc. (1968) 266 Cal. App. 2d 942, 969, 72 Cal. Rptr. 722 ; Lawson v. Town &
Country Shops, Inc. (1958) 159 Cal. App. 2d 196, 203, 323 P.2d 843] .
[4] Text References
Witkin, Summary of California Law, vol. 5, Torts, ß 776 (10th ed. 2005)

Page 329 of 479

96 of 138 DOCUMENTS
PART V. FORMS
ment and Suppression of Fact [Civ. Code ßß 1573, 1710(3)]--Higher Offer for Property Made
to Real Estate Broker Obtaining Secret Profit--By Seller Against Broker and Conspiring
Purchaser
[1] FORM Complaint [Code Civ. Proc. ß 425.10] for Damages for Fraud and Deceit--Conceal-
4. At all times herein mentioned, the defendant ___________________ [name] was, and now is, a
real estate broker duly licensed as such by the State of Cal., Department of Real Estate.
5. On or about ____________________ [date], the plaintiff was the owner of improved real property,
known as ___________________ [provide address or legal description].
Page 330 of 479

broker] offered to act as agent and broker on behalf of the plaintiff for the purpose of selling the
property owned by the plaintiff for the benefit of the plaintiff. Pursuant to this offer by the defendant
broker, the plaintiff executed and delivered to the defendant broker a written authorization to sell the
property, which authorization is attached hereto as Exhibit A and made a part hereof.
7. On or about ____________________ [date], the defendant broker informed the plaintiff that the
defendant ___________________ [name or purchaser] had offered to purchase the property for a
price of $____________________. At the same time, the defendant broker informed the plaintiff that
he/she had no other offers in excess of the sum offered by the defendant ___________________
[name of purchaser] and that this sum was the best price possibly obtainable for the property.
8. Each and every one of these representations made by the defendant broker to the plaintiff was false.
The true facts were that the defendant broker knew at the time these representations were made, and at
all times herein mentioned, that ___________________ [name of other offeror] had made an offer,
and communicated it to the defendant broker to purchase the plaintiff's property for the sum of
$____________________ [sum higher than that revealed by the defendant broker]. The defendant
broker concealed the existence of this higher offer by ___________________ [name of other offeror]
in violation of his/her duties as the agent, real estate broker, and fiduciary of the plaintiff.
9. The defendants, and each of them, knew that these representations were false at the time they were
made and at all times herein mentioned; the defendants, and each of them, concealed the higher offer
from the plaintiff and made these representations with the intent to induce the plaintiff to sell his/her
property at the lower price and with the intent to defraud and deceive the plaintiff, in furtherance of a
conspiracy between the defendants to have the sale made to the defendant purchaser for the express
purpose of reselling the property to ___________________ [name of higher offeror] and thus
obtaining a secret profit to be given to the defendants, in the amount of $____________________.
10. On or about ____________________ [date], the plaintiff, in reliance on these representations of

the defendant broker and in the belief that the sum of $____________________ was the only and best
obtainable offer for the property, as represented by the defendant broker ___________________
[name], sold the property to the defendant purchaser ___________________ [name]. If it had not
been for the representations by the defendant broker and for the concealment by the defendant broker
of the higher offer, and if the plaintiff had known the true facts, the plaintiff would not have sold his/
her property to the defendant purchaser ___________________ [name] at that price.
11. By reason of the fraud and deceit of the defendants, and each of them, the plaintiff was damaged
in the sum of $____________________.
Page 331 of 479

______________________ [signature]

[2] Use of Form
This form of complaint is for use in an action for damages for fraud and deceit against a real estate
broker and a private person conspiring with the broker to induce the plaintiff to sell property at a
lower price than could be obtained, knowing that there exists a higher offer for the property, and
obtaining a secret profit by reselling the property to the higher offeror.
[3] Allegations
The complaint alleges (1) capacity of the defendant as a real estate broker (Paragraph 4); (2) that the
defendant was the agent of the plaintiff (Paragraph 6) [ Simone v. McKee (1956) 142 Cal. App. 2d
307, 312, 298 P.2d 667] ; (3) the nature of the defendant's representation to the plaintiff (Paragraph
7); (4) the falsity of the defendant's representation (Paragraph 8); (5) the defendant's knowledge of the
falsity of the representations and concealment of the higher offer (Paragraph 9) [Civ. Code ß 1710(1),
(3)]; (6) the defendant's intent to induce reliance by the plaintiff (Paragraph 11); (7) the plaintiff's
action in reliance and justifiable reliance on the defendants (Paragraph 10); and (8) damages (Para-
graphs 11, 12).
[4] Damages
If a fiduciary breaches a duty, and is guilty of fraud, damages for the fraud are governed by Civ. Code
ßß 1709 and 3333, rather than by Civ. Code ß 3343, even if a sale or exchange of property is involved
[ Simone v. McKee (1956) 142 Cal. App. 2d 307, 315, 298 P.2d 667 ; see ß 269.27[4]].
[5] Text References
Witkin, California Procedure (2d ed.), vol. 3, Pleading, ß 577
23 Cal. Jur. 2d, Fraud and Deceit, ßß 5-7, 45, 56

For similar forms, see ßß 269.91 and 269.93.
Page 332 of 479

97 of 138 DOCUMENTS
PART V. FORMS
4. The defendant ___________________ [name] was the employee of the plaintiff

___________________ [name] from ____________________ [date], until ____________________
[date]. As the plaintiff's employee, the defendant had authority to draw checks on the plaintiff's
account at the ___________________ branch of the ___________________Bank, located at
___________________ [address], ___________________ [city], ___________________ County,
California, account number ___________________, ___________________ [as long as no
individual check draw exceeded the sum of $____________________ or as long as the total amount
drawn did not exceed $____________________ per ____________________], which checks were
Page 333 of 479

to be used to pay minor business operating expenses incurred by the defendant in the course of his/her
employment at the plaintiff's business.
5. By virtue of the defendant's employment by the plaintiff, the defendant owed to the plaintiff a
fiduciary duty, and by virtue of the plaintiff's having placed confidence in the fidelity and integrity of
the defendant in entrusting the defendant with the authority to draw small sums from the plaintiff's
account, a confidential relationship existed at all times herein mentioned between the plaintiff and the
defendant.
6. Despite having voluntarily accepted the trust and confidence reposed in him/her by the plaintiff with
regard to the plaintiff's funds in the above-described bank account, and in violation of this relationship
of trust and confidence, the defendant abused the trust and confidence of the plaintiff by, on the
following occasions, withdrawing the following amounts from the bank account of the plaintiff for the
defendant's own personal use rather than for the authorized purposes connected with the plaintiff's
business: ___________________ [allege dates and amounts of checks drawn on account]. No part
of these sums has been returned by the defendant to the plaintiff, despite the plaintiff's demand
therefor.
7. The defendant did the acts herein alleged with the intent to deceive and defraud the plaintiff, and the
defendant employed the following devices to conceal from the plaintiff the fact that the defendant had
obtained funds from the plaintiff's business bank account for the defendant's own use:
___________________ [allege acts of concealment]. The defendant did these acts with the intent to
induce reliance by the plaintiff in the continuing fidelity of the defendant as an employee entrusted
with the plaintiff's funds and access to the plaintiff's bank account.
8. The plaintiff in fact placed confidence and reliance in the defendant until on or about
____________________ [date], when, through ___________________ [allege circumstances], the
plaintiff discovered the true facts concerning the withdrawals made for the defendant's personal use,
as alleged above. The plaintiff reasonably relied on the defendant in view of their long-standing
employer-employee relationship.
9. As a result of the fraud of the defendant as herein alleged, the plaintiff has been damaged in the sum
of $____________________.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
Page 334 of 479

[Verification, if desired, See ß 269.91 .]

[2] Use of Form
This complaint is for use in an action for damages for constructive fraud [Civ. Code ß 1573] in which
an employee has abused the confidence placed in him or her by his or her employer for the purpose of
obtaining money to which the employee is not entitled.
[3] Allegations
This complaint alleges: (1) the existence of a confidential and fiduciary relationship, in which the
plaintiff placed trust in the defendant (Paragraphs 4, 5); (2) the breach of duty gaining an advantage to
the employee at fault, by misleading the employer to his/her/its prejudice (Paragraph 6) [Civ. Code ß
1573(1)]; (3) intent to deceive and defraud the plaintiff through concealment of the facts (Paragraph 7)
[Civ. Code ß 1710(3); but see Civ. Code ß 1573(1) (no such intent required)]; (4) the plaintiff's actual
and justifiable reliance on the defendant (Paragraph 8); and (5) damages (Paragraphs 9, 10) [Civ.
Code ßß 1709, 3333].
[4] Text References

Page 335 of 479

98 of 138 DOCUMENTS
PART V. FORMS
[1] FORM Allegation for Complaint [Code Civ. Proc. ß 425.10]--Reason for Failure to Discover
[EITHER]
The fraud and deceit of the defendant as herein alleged was not discovered by the plaintiff until on or
about ____________________ [date], a date within three years before the commencement of this
action. The plaintiff could not with due diligence discover the fraud and deceit of the defendant until
on or about this date because ___________________ [specify reasons, e.g., the plaintiff had no way
of knowing and could not determine the true condition of the building constructed by the defendant
until it began to crack and required repairs].
[OR]
___________________ [Allege facts showing existence of fiduciary relationship between the plaintiff
and the defendant, and lack of any grounds for suspicion as to fiduciary's representations, e.g., At all
times herein mentioned, the defendant was acting as the real estate agent and broker for the plaintiff,
pursuant to a written authorization to sell the plaintiff's real property, known as
___________________ (provide address or legal description), which authorization is attached hereto
as Exhibit A and made a part hereof; as the plaintiff's real estate agent and broker, the defendant was
acting as agent for the plaintiff with regard to the sale of property herein alleged. The plaintiff was
never aware of any facts that made him/her suspicious of the veracity of the defendant's representa-
Page 336 of 479

tions, and did not discover the fraud and deceit of the defendant herein alleged until on or about
____________________ [date less than three years before commencement of the action].
[2] Use of Form
These allegations are for use in an action for damages for fraud and deceit if the three year statute of
limitations has expired before the plaintiff has filed the complaint, but the failure to file within the
period is excused by the plaintiff's failure to discover the fraud within that period [Code Civ. Proc. ß
338(d)].
[3] Text References
Witkin, California Procedure, Vol. 5, Pleading, ß 883 (4th ed. 1997)

Page 337 of 479

99 of 138 DOCUMENTS
PART V. FORMS
ßß 1709, 1710]--Intentional [Civ. Code ß 1710(1)] or Negligent [Civ. Code ß 1710(2)] Misrep-
resentation--Misrepresentation in Employment Recommendation Causing Injury to Third
Person
1. [Capacity and residence of the defendant. See ß 269.91, Paragraph 1.]
2. [Agency allegation, if appropriate. See ß 269.91, Paragraph 2.]
3. [Fictitious name allegation, if appropriate. See ß 269.91, Paragraph 3.]
4. On or about ____________________ [date], the defendant represented to ___________________

[name of prospective employer] that ___________________ [name of person who injured plaintiff]
possessed the following characteristics and/or qualifications: ___________________ [specify
representations made in letter of recommendation, e.g., a fondness for children and a good ability to
work with children].
5. The representations described in Paragraph 4 were false in that ___________________ [specify
Page 338 of 479

facts that show falsity of representations, e.g., the defendant had terminated ___________________
(name of person who injured plaintiff) because of an assault on a child in his/her charge].
6. The misrepresentation alleged in Paragraph 4, above, presented a substantial, foreseeable risk of

physical injury in that ___________________ [specify facts tending to show risk of injury, e.g., the
history of assault of children posed a danger to children under his/her charge, and the representations
made it more likely that he/she would be employed in a setting in which he/she would oversee
children].
7. [The plaintiff is informed and believes, and thereon alleges, that] The misrepresentation alleged in
Paragraph 4, above, was relied on by ___________________ [name of prospective employer] in its
determination to hire ___________________ [name of person who injured plaintiff].
8. ___________________ [Allege injury, e.g., On or about ____________________ (date),

___________________ (name of person who injured plaintiff), while in the employ of
___________________ (name of prospective employer), assaulted the plaintiff by seizing her and
attempting to push her into an empty room. As a result, the plaintiff's arm and leg were bruised, and
she feared for her safety and suffered emotional distress as a result of that fear for her safety.]
9. ___________________ [Allege damages suffered as a result of the injury, e.g., The plaintiff
incurred medical expenses in (the sum of $____________________ or an amount according to
proof).]
10. [Punitive damages. See ß 269.91, Paragraph 9.]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
[2] Use of Form
This form of complaint is for use in an action for damages for fraud and deceit, based on a misrepre-
sentation made in an employment reference that presented a substantial, foreseeable risk of physical
injury to third persons, and that in fact resulted in physical injury to a third person [see Randi W. v.
Muroc Joint Unified Sch. Dist. (1997) 14 Cal. 4th 1066, 1081, 60 Cal. Rptr. 2d 263, 929 P.2d 582] .
Ordinarily, the allegations in this complaint would be made in conjunction with an action against the
employer of the person who actually committed the wrongful act that injured the plaintiff, and against
that person if he or she has assets likely to be subject to enforcement.
Page 339 of 479

[3] Allegations
This complaint alleges the following:
The representations made by the defendant in an employment reference (especially a

letter of recommendation) (Paragraph 4).
The falsity of those representations (Paragraph 5) [see Randi W. v. Muroc Joint

Unified Sch. Dist. (1997) 14 Cal. 4th 1066, 1083-1084, 60 Cal. Rptr. 2d 263, 929 P.2d
582 (positive assertions in reference that failed to disclose known material facts concern-
ing misconduct sufficient to constitute affirmative misrepresentation)].
The representations presented a substantial, foreseeable risk of physical injury to third

persons (Paragraph 6) [ Randi W. v. Muroc Joint Unified Sch. Dist. (1997) 14 Cal. 4th
1066, 1081, 60 Cal. Rptr. 2d 263, 929 P.2d 582] .
That the misrepresentations were relied on by the person or entity who hired the person
who injured the plaintiff (Paragraph 7) [see Randi W. v. Muroc Joint Unified Sch. Dist.
(1997) 14 Cal. 4th 1066, 1084-1085, 60 Cal. Rptr. 2d 263, 929 P.2d 582 (reliance
requirement satisfied if recommendation was relied on in hiring; plaintiff need not have
relied on misrepresentation)].
The plaintiff's injury and damages resulting from the hiring of the person (Paragraphs 8
and 9).
Page 340 of 479

100 of 138 DOCUMENTS
Chapter 270 FRAUDULENT CONVEYANCES
A. Uniform Fraudulent Transfer Act
[1] Creditor's Remedies
Creditor permitted to maintain action to avoid fraudulent transfer or obligation, except against person
who took in good faith and for reasonably equivalent value or subsequent transferee or obligee, to
extent of lesser of value of property transferred on date of transfer or amount necessary to satisfy
claim. Civ. Code ßß 3439.07(a)(1), 3439.08(a)-(c)
Creditor permitted attachment or other provisional remedy against asset transferred or its proceeds.
Civ. Code ß 3439.07(a)(2), (b)
Availability of injunctive relief against further dispostion of asset transferred or its proceeds;
appointment of receiver; and any other relief circumstances may require. Civ. Code ß 3439.07(a)(3)
Creditor who has judgment on underlying claim against debtor is permitted to levy execution on asset
transferred or its proceeds. Civ. Code ß 3439.07(c)
Assignee of general assignment for benefit of creditors is entitled to exercise remedies to extent
beneficiaries of assignment could. Civ. Code ß 3439.07(d)
[2] Definitions
Assets. Civ. Code ß 3439.01(a)
Page 341 of 479

Claim. Civ. Code ß 3439.01(b)
Creditor. Civ. Code ß 3439.01(c)
Debt. Civ. Code ß 3439.01(d)
Debtor. Civ. Code ß 3439.01(e)
Lien. Civ. Code ß 3439.01(f)
Person. Civ. Code ß 3439.01(g)
Property. Civ. Code ß 3439.01(h)
Transfer. Civ. Code ß 3439.01(i)
Valid lien. Civ. Code ß 3439.01(j)

[3] Forms of Fraudulent Transfers or Obligations
Transfer made or obligation incurred by debtor with actual intent to hinder, delay, or defraud any
creditor is fraudulent as to creditor, whether creditor's claim arose before or after transfer was made or
obligation was incurred. Civ. Code ß 3439.04(a)(1)
Transfer made or obligation incurred without receipt by debtor of reasonably equivalent value in
exchange is fraudulent as to creditor, whether creditor's claim arose before or after transfer was made
or obligation was incurred, if debtor was engaged in or was about to engage in business or transaction
for which remaining assets were unreasonably small. Civ. Code ß 3439.04(a)(2)(A)
or obligation was incurred, if debtor intended to incur, or believed or reasonably should have believed
that he or she would incur, debts beyond his or her ability to pay as they became due. Civ. Code ß
3439.04(a)(2)(B)
Transfer made or obligation incurred by debtor who did not receive reasonably equivalent value in
exchange for transfer or obligation and who is or will be rendered insolvent thereby is fraudulent as to
creditors whose claims arose before transfer was made or obligation was incurred. Civ. Code ß
3439.05
[4] Insolvency
Page 342 of 479

Debtor is insolvent if at fair valuations, sum of debts is greater than assets. Civ. Code ß 3439.02(a)
Partnership is insolvent if at fair valuations, sum of partnership debts is greater than aggregate of all
partnership's assets and sum of excess of value of each general partner's nonpartnership assets over
partner's nonpartnership debts. Civ. Code ß 3439.02(b)
Debtor who is generally not paying his or her debts as they become due is presumed to be insolvent.
Civ. Code ß 3439.02(c)
For purposes of determining insolvency, assets transferred, concealed, or removed with intent to
hinder, delay, or defraud creditors or in other manner so as to be voidable under Civ. Code ßß
3439-3439.12 are excluded. Civ. Code ß 3439.02(d)
For purposes of determining insolvency, obligation is excluded to extent it is secured by valid lien on
property of debtor not included as asset. Civ. Code ß 3439.02(e)
[5] Preferences
Debtor is entitled to pay one creditor, or to give security to one creditor, in preference to another. Civ.
Code ß 3432
Action to set aside fraudulent transfer under Civ. Code ß 3439.04(a)(1) (transfer made with actual
intent to defraud, hinder, or delay creditor) must be brought or attachment or levy must be made
within four years after transfer was made or obligation was incurred, or, if later, within one year after
transfer or obligation was or could reasonably have been discovered by claimant. Civ. Code ß 3439.09
(a)
Action to set aside transfer as fraudulent under Civ. Code ßß 3439.04(a)(2) or 3439.05 (transfers
without reasonably equivalent value in exchange) must be brought or attachment or levy must be made
within four years after transfer was made or obligation was incurred. Civ. Code ß 3439.09(b)
Despite any other provision of law, action to set aside fraudulent transfer is required to be brought
within seven years after transfer was made or obligation was incurred. Civ. Code ß 3439.09(c)
[7] Transferees' Rights
Transfer or obligation, fraudulent because it was made with actual intent to defraud, hinder, or delay
Page 343 of 479

creditor, is not voidable as against person who took in good faith and for reasonably equivalent value
or any subsequent transferee or obligee. Civ. Code ß 3439.08(a)
Transfer or obligation is only subject to being set aside to extent of lesser of value of property
transferred on date of transfer or amount necessary to satisfy claim. Civ. Code ß 3439.08(b), (c)
Good faith transferee or obligee is entitled, to extent of value given to debtor for obligation or
transfer, to lien on or right to retain any interest in asset transferred. Civ. Code ß 3439.08(d)(1)
Good faith obligee is entitled, to extent of value given to debtor for obligation, to enforcement of any
obligation incurred. Civ. Code ß 3439.08(d)(2)
transfer, to reduction in amount of liability on judgment. Civ. Code ß 3439.08(d)(3)
Transfer is not voidable under Civ. Code ß 3439.04(a)(2) or Civ. Code ß 3439.05 if it results from
termination of lease on debtor's default pursuant to lease and applicable law. Civ. Code ß 3439.08(e)
(1)
enforcement of lien in noncollusive manner in compliance with applicable law (other than retention of
collateral under Com. Code ßß 9620 and 9621 or voluntary transfer of collateral by debtor to lienor) in
satisfaction of all or part of secured obligation. Civ. Code ß 3439.08(e)(2)
Legal Topics:
Bankruptcy LawCase AdministrationExaminers, Officers & TrusteesFraudulent TransfersGeneral
OverviewMergers & Acquisitions LawFraudulent TransfersCivil ProcedureJudgmentsEntry of
JudgmentsEnforcement & ExecutionFraudulent TransfersGovernmentsLegislationStatutes of
LimitationsTime LimitationsReal Property LawPurchase & SaleFraudulent Transfers
Page 344 of 479

23-270 California Forms of Pleading and Practice--Annotated ß 270.130A
ß 270.130A California Civil Jury Instructions
For related jury instructions regarding issues arising under the Uniform Fraudulent Transfer Act, see
Judicial Council of California Civil Jury Instructions (Caci), Series 4200 (LexisNexis Matthew
Bender, Official Publisher), also available in LexisNexis Automated Judicial Council of California
Civil Jury Instructions
Legal Topics:
OverviewMergers & Acquisitions LawFraudulent TransfersCivil ProcedureTrialsJury TrialsJury
InstructionsGeneral OverviewCivil ProcedureJudgmentsEntry of JudgmentsEnforcement &
ExecutionFraudulent TransfersReal Property LawPurchase & SaleFraudulent Transfers
Page 345 of 479

ß 270.131 Decisions
[1] Action to Quiet Title
Trustee in bankruptcy seeking declaration that conveyance by debtor was void and to quiet title in
debtor was not subject to statute of limitations; limitation was not applicable against grantor remaining
in possession and therefore not applicable against trustee. In re Allustiarte (9th Cir. 1986) 786 F.2d
910, 913
In transferee's action to quiet title, defendant creditor who relies on defense of fraudulent conveyance
is required to allege whether conveyance was intentionally fraudulent or made by insolvent without
consideration. Winberry v. Lopez (1960) 178 Cal. App. 2d 672, 677, 3 Cal. Rptr. 245
[2] Action to Set Aside Fraudulent Transfer
[a] In General
Summary adjudication for plaintiff on causes of action seeking to set aside fraudulent transfers
pursuant to Civ. Code ß 3439.04(a), (b) was properly granted, despite defendant's assertion that
privilege against self-incrimination precluded summary adjudication because he faced potential
criminal prosecution arising from same facts and that court should have denied or continued motion
instead. Fisher v. Gibson (2001) 90 Cal. App. 4th 275, 286-287, 109 Cal. Rptr. 2d 145
Cause of action on underlying debtor's indebtedness to creditor was permitted to be adjudicated in

same action as one for setting aside fraudulent transfer. Ahmanson Bank & Trust Co. v. Tepper
Page 346 of 479

(1969) 269 Cal. App. 2d 333, 343, 74 Cal. Rptr. 774 ; Michal v. Adair (1944) 66 Cal. App. 2d 382,
389, 152 P.2d 490
If case is tried on theory of actual fraud, creditor is unable to subsequently claim constructive fraud
predicated on insolvency and lack of receipt by debtor of reasonably equivalent value in exchange.
Stearns v. Los Angeles City School Dist. (1966) 244 Cal. App. 2d 696, 729-730, 53 Cal. Rptr. 482
When there is transfer or agreement to transfer which may be in fraud of creditors, proof and
establishment of fact of transfer is not binding on third-party creditor. Stearns v. Los Angeles City
School Dist. (1966) 244 Cal. App. 2d 696, 729, 53 Cal. Rptr. 482
Tenacity of purpose and diversity of effort on part of creditor in seeking to have fraudulent transfers
set aside is likened to those employed in search for buried treasure, which it is. Rose v. Knapp
(1957) 153 Cal. App. 2d 379, 380-381, 314 P.2d 812
Fraudulent transfer is void, not voidable, as to creditors. Strangman v. Duke (1956) 140 Cal. App.
2d 185, 191, 295 P.2d 12
Creditor by reason of fraudulent transfer obtains no right to possession of property transferred.

Wagner v. Trout (1954) 124 Cal. App. 2d 248, 254, 268 P.2d 537
[b] Assignment
Assignment of right to set aside fraudulent transfer is permissible. Michal v. Adair (1944) 66 Cal.
App. 2d 382, 388, 152 P.2d 490
[c] Award of Interest
In action to recover value of property transferred by bankrupt while insolvent, without consideration
and, with actual intent to defraud creditors, awarding interest from date of transfer is proper under Civ.
Code ß 3288, since transfer is deemed void as well as fraudulent, and transferee is treated as
constructive trustee and required to account for what he has received. Bass v. Youngblood (1963)
221 Cal. App. 2d 278, 289, 34 Cal. Rptr. 326
[d] Equitable Defenses
Unclean hands is defense in actions to set aside fraudulent conveyance. Freeman v. LaMorte
(1957) 148 Cal. App. 2d 670, 674, 307 P.2d 734
[e] Jury Trial
Page 347 of 479

Because (1) common-law right to trial by jury existed for fraudulent transfer claims when California
Constitution was adopted in 1850, (2) the Uniform Fraudulent Transfer Act is cumulative to (and
does not supersede) the common-law action for fraudulent transfer, and (3) the Legislature cannot in
any event dispose of a common-law right to jury trial that existed when the California Constitution
was adopted, the California Constitution continues to guaranty the right to jury trial in an action for
fraudulent conveyance. Wisden v. Superior Court (2004) 124 Cal. App. 4th 750, 755-758, 21 Cal.
Rptr. 3d 523
[f] Parties to Action
Spouse of transferee is not indispensable party to action to set aside fraudulent transfer when
marriage did not occur until after transfer sought to be set aside or when transfer or conveyance
specifies title taken by transferee as separate property. In re Allustiarte (9th Cir. 1986) 786 F.2d 910,
915-916
Transferor, though proper party defendant, is not necessary one. TWM Homes, Inc. v. Atherwood
Realty & Inv. Co. (1963) 214 Cal. App. 2d 826, 848, 29 Cal. Rptr. 887
Transferees are necessary parties defendant in action to set aside fraudulent conveyance or to have it
declared void. T W M Homes, Inc. v. Atherwood Realty & Inv. Co. (1963) 214 Cal. App. 2d 826,
848, 29 Cal. Rptr. 887 ; Heffernan v. Bennett & Armour (1952) 110 Cal. App. 2d 564, 586, 243 P.
2d 846
[g] Procedural Prerequisites
Creditor is not required to reduce his or her claim to judgment before seeking benefit of remedy of
right to have transfer set aside. Weisenburg v. Cragholm (1971) 5 Cal. 3d 892, 896, 97 Cal. Rptr.
862, 489 P.2d 1126
If there is actual fraud, creditor is able to maintain action to set aside transfer without showing that
defendant has no other assets to satisfy judgment. Freeman v. LaMorte (1957) 148 Cal. App. 2d
670, 675, 307 P.2d 734
Creditor is unable without legal process to appropriate property fraudulently transferred by debtor for
payment of debtor's obligations. Wagner v. Trout (1954) 124 Cal. App. 2d 248, 254, 268 P.2d 537
[h] Splitting Cause of Action
Plaintiff is not permitted to split his or her cause of action and to attack separately conveyance of real
estate and secondly transfer of personal property. Heffernan v. Bennett & Armour (1944) 63 Cal.
App. 2d 178, 184, 146 P.2d 482
Page 348 of 479

[i] Statute of Limitations
If common law cause of action is brought, applicable statute of limitations is Code Civ. Proc. ß 338
(d) (providing three-year statute of limitations for actions for relief on ground of fraud or mistake);
cause of action accrues when judgment against debtor is secured, or later if there was belated
discovery. Macedo v. Bosio (2001) 86 Cal. App. 4th 1044, 1050-1052, 104 Cal. Rptr. 2d 1
[3] Burden of Proof
Defendant transferee moving for summary judgment is required to negate necessary element of
plaintiff's case or to establish complete defense; therefore, summary judgment for defendant transferee
was not proper when evidence was insufficient to negate either transferor's insolvency or lack of fair
consideration. McKnight v. Faber (1986) 185 Cal. App. 3d 639, 645-647, 230 Cal. Rptr. 57
Defendant transferee was not entitled to summary judgment when no facts were presented from
which court could determine whether note given by transferee was fair equivalent of interest
conveyed. McKnight v. Faber (1986) 185 Cal. App. 3d 639, 646-647, 230 Cal. Rptr. 57
which court could determine present fair salable value of transferor's assets. McKnight v. Faber
(1986) 185 Cal. App. 3d 639, 646-647, 230 Cal. Rptr. 57
[4] Conspiracy
Privilege of former Civ. Code ß 47(2) (now Civ. Code ß 47(b)) claimed by transferor's attorney with
respect to misrepresentations made at time of allegedly spurious motion for new trial in action on
underlying debt was not established without showing that statements were made in furtherance of
litigation and to promote justice; fact that statements were made while litigation was pending was
insufficient. McKnight v. Faber (1986) 185 Cal. App. 3d 639, 649-650, 230 Cal. Rptr. 57
[5] Creditors Permitted to Attack Transfer
[a] Interest Which May Be Reached
Creditor is entitled to have interest of his or her debtor in property at time of transfer subjected to
creditor's claim. Ackerman v. Merle (1902) 137 Cal. 169, 171, 69 P. 983 ; Ahmanson Bank &
Trust Co. v. Tepper (1969) 269 Cal. App. 2d 333, 344, 74 Cal. Rptr. 774
If debtor only holds property as trustee for beneficiary under resulting trust, transfer of that property
by debtor to beneficiary is not subject to attack as fraudulent transfer. Owings v. Laugharn (1942)
53 Cal. App. 2d 789, 791, 128 P.2d 114
Page 349 of 479

[b] Interest Which May Not Be Reached
General rule is that principles of fraudulent transfer do not apply to declarations of homestead, and
fact that debtor filed such declaration to hinder and delay his or her creditors does not affect its
validity. Lucci v. United Credit & Collection Co. (1934) 220 Cal. 492, 496, 31 P.2d 369 ; Putnam
Sand & Gravel Co. v. Albers (1971) 14 Cal. App. 3d 722, 92 Cal. Rptr. 636
Transfer by judgment debtor of equity of redemption in property sold to creditor at execution sale is
not fraudulent transfer; execution sale to creditor terminates creditor's lien (created by recording
abstract of judgment). Fry v. Bihr, (1970) 6 Cal. App. 3d 248, 251-252, 85 Cal. Rptr. 742 ; Moore
v. Hall (1967) 250 Cal. App. 2d 25, 29-30, 58 Cal. Rptr. 70 ; Siegel v. Farrar (1932) 120 Cal. App.
193, 196-197, 7 P.2d 319
Transfer of debtor's exempt property is not subject to attack by creditor. Burrows v. Jorgensen
(1958) 158 Cal. App. 2d 644, 649, 323 P.2d 150
[c] Persons With Contingent Claims
Under Civ. Code ß 3439.01 person with contingent claim is creditor, but once claim has been
satisfied, that creditor has no standing to seek to have transfer set aside. Allard v. De Lorean (9th
Cir. 1989) 884 F.2d 464, 466
[d] Required Injury
Creditor whose underlying claim is reduced to judgment which is subsequently unqualifiedly

reversed is not entitled to have allegedly fraudulent transfer set aside. Weisenburg v. Cragholm
(1971) 5 Cal. 3d 892, 895-897, 97 Cal. Rptr. 862, 489 P.2d 1126
Relationship of debtor and creditor arises in tort case at moment cause of action accrues. Hansen v.
Cramer (1952) 39 Cal. 2d 321, 323, 245 P.2d 1059
To show injury from transfer, here by assignment of rents and profits from property which secured
its debt, secured creditor is required to show that indebtedness owed to it is not fully secured.
Hibernia Sav. & Loan Soc. v. Belcher (1935) 4 Cal. 2d 268, 274, 48 P.2d 681
Transfer in fraud of creditors is permitted to be attacked only by one who is injured by transfer;
creditor does not sustain injury unless transfer puts beyond his or her reach property which he or she
would otherwise be able to subject to payment of his or her debt. Haskins v. Certified Escrow &
Mortgage Co. (1950) 96 Cal. App. 2d 688, 691, 216 P.2d 90
[6] Insolvency
Page 350 of 479

Future child support payments should not be viewed as debt under Uniform Fraudulent Transfer
Act. Mejia v. Reed (2003) 31 Cal. 4th 657, 670-672, 3 Cal. Rptr. 3d 390, 74 P.3d 166
Fair value of alleged insolvent's assets is to be determined as of date of transfer. Hansford v.

Lassar (1975) 53 Cal. App. 3d 364, 376, 125 Cal. Rptr. 804
Solvency and not insolvency is presumed; for this reason, burden of proof as to insolvency is on
party claiming it to be fact. Hansford v. Lassar (1975) 53 Cal. App. 3d 364, 375, 125 Cal. Rptr.
804
Subsequent insolvency is not of itself sufficient foundation for inference of insolvency at time of or
as result of transfer. Stearns v. Los Angeles City School Dist. (1966) 244 Cal. App. 2d 696, 738, 53
Cal. Rptr. 482
Trust instrument which provides that trustee pay net income from trust estate to trustor for life and
then pay accrued accumulated income to beneficiary and which renders decedent trustor's estate
insolvent has effect of fraudulent transfer. Estate of Camm (1946) 76 Cal. App. 2d 104, 110, 172 P.
2d 547
Transfers is not made in contemplation of insolvency if underlying debt is secured and alleged
defrauded creditor has made no showing that indebtedness was not fully secured. Kirkpatrick v.
Towers (1943) 60 Cal. App. 2d 251, 259, 140 P.2d 681
Amply secured debts are not to be taken into consideration for purpose of determining financial
condition of grantor. Kirkpatrick v. Towers (1943) 60 Cal. App. 2d 251, 259, 140 P.2d 681
[7] Levying Execution on Property
Creditor is permitted to levy execution on property as if there had been no transfer. Strong v. Strong
(1943) 22 Cal. 2d 540, 547, 140 P.2d 386 ; Kuzmicki v. Nelson (1950) 101 Cal. App. 2d 278, 280,
225 P.2d 233
[8] Liability of Transferee
[a] In General
Constructive trust for benefit of creditor or trustee in bankruptcy is properly imposed on property in
hands of transferee when transfer was part of scheme to defraud creditors. In re Allustiarte (9th Cir.
1986) 786 F.2d 910, 913
Page 351 of 479

Fraudulently conveyed asset which has been sold at trustee's sale is subject to being followed into
whatever form it has been converted either on theory of following res into hands of constructive
trustee or by applying kind of equitable conversion. Ahmanson Bank & Trust Co. v. Tepper (1969)
269 Cal. App. 2d 333, 344-345, 74 Cal. Rptr. 774
[b] Good Faith Transferee
Innocent grantee is required to account for everything he or she received under fraudulent transfer;
such a grantee who returns to grantor or assignor all property is not personally liable to creditors for
value of property returned. Cohen v. Heavey (1968) 261 Cal. App. 2d 766, 770-771, 68 Cal. Rptr.
180
In creditors' action against transferees, creditors are relegated to their rights against property and are
unable to recover money damages from those who hold property unless transferors and transferees
participated in scheme of misrepresentation against defrauded creditor. Stearns v. Los Angeles City
[c] Conspiring Transferee
Debtor and those who conspire with him or her to conceal assets for purpose of defrauding creditors
are committing tort of conspiracy. Taylor v. S & M Lamp Co. (1961) 190 Cal. App. 2d 700, 706, 12
Cal. Rptr. 323
Fraudulent transferee who returned property to debtor is not relieved of responsibility for transfer if
he or she is liable for conspiracy. Hickson v. Thielman (1956) 147 Cal. App. 2d 11, 15, 304 P.2d
122
[9] Lis Pendens
Entry of summary judgment in favor of defendant transferee did not automatically entitle defendant to
expungement of lis pendens; after judgment, lis pendens remains until statutory ground for expunge-
ment is established. McKnight v. Faber (1986) 185 Cal. App. 3d 639, 651, 230 Cal. Rptr. 57
[10] Preferences
Transfer that appears to be lawful preference but is made with actual fraudulent intent pursuant to
secret agreement under which grantor retains full beneficial interest is void. Kemp v. Lynch (1937) 8
Cal. 2d 457, 461, 65 P.2d 1316
Transfer of security interests in land by client to attorney for services was not fraudulent as to another
creditor, even though transfer was preference that resulted in debtor being unable to satisfy debts of
Page 352 of 479

other creditors. Wyzard v. Goller (1994) 23 Cal. App. 4th 1183, 1185
In absence of fraud, preferential transfer of assets by debtor to creditors is valid unless subject to
attack under federal bankruptcy law; rule is applicable to creditors of partnership. Commons v.
Schine (1973) 35 Cal. App. 3d 141, 144, 110 Cal. Rptr. 606
Creditor who dominates and controls insolvent corporation is not permitted to use that power to
secure advantage over other creditors of corporation; controller-dominator is liable to creditors of
insolvent corporation for any preference he or she has taken for his or her benefit and to their
disadvantage. Commons v. Schine (1973) 35 Cal. App. 3d 141, 144, 110 Cal. Rptr. 606
Rule permitting one creditor to be preferred over another has no application to situation in which debt
of preferred creditor is not extinguished or diminished. Economy Refining & Serv. Co. v. Royal Nat'l
Bank of N.Y. (1971) 20 Cal. App. 3d 434, 442, 97 Cal. Rptr. 706
Pendency of creditor's action to enforce underlying indebtedness is not indicative of fraudulent intent
if debtor is in position in which he or she must allow one creditor or another to obtain preference and
there is no other evidence to indicate fraud. Arnold v. Hadgis (1951) 102 Cal. App. 2d 88, 92, 226
P.2d 641
Fact that preference of particular creditor hinders or delays other creditors in collection of their claims
does not render void that preferential payment. United States Fid. & Guar. Co. v. Postel (1944) 64
Cal. App. 2d 567, 572, 149 P.2d 183
[11] Reasonably Equivalent Value
[a] In General
Bankruptcy court did not err in determining that reasonably equivalent value for eight parcels of real
property, which were sold in constructively fraudulent transfer, should be computed as fair market
value minus quick-sale discount (seller wanted immediate cash and was willing to take reduced price
so as to obtain funds quickly) and minus bundled-sale discount (seller insisted on selling all eight
parcels together); in reviewing bankruptcy court's conclusion, district court was not entitled to
substitute its own determination based on market value alone. Decker v. Tramiel (In re JTS Corp.)
(9th Cir. 2010), 617 F.3d 1102, 2010 U.S. App. LEXIS 16506, at *11-*13
Transfer of money to person who "invested" in Ponzi scheme after debtor formed fraudulent intent to
operate Ponzi scheme was transfer for reasonably equivalent value, up to aggregate amount that
transferee had paid to debtor, because transferee gave up claim for restitution that transferee had
acquired on handing over money to debtor in belief that money was being invested; but any money
that transferee received in addition to amount that transferee had paid to debtor would be fraudulent
transfer as matter of law. AFI Holding, Inc. v. Mackenzie (9th Cir. 2008) 525 F.3d 700, 708-709
Page 353 of 479

(restitution claim provides reasonably equivalent value); Santa Barbara Capital Mgmt. v. Neilson (In
re Slatkin) (2008) 525 F.3d 805, 814-815 (payment of additional money is fraudulent transfer)
Civ. Code ßß 1614-1615 create presumption that execution of note is supported by consideration and
placing burden of showing lack of consideration on other party; evidence that alleged lender's assets
never totalled amount of loan was sufficient to establish lack of consideration. In re Allustiarte (9th
Cir. 1986) 786 F.2d 910, 916
Whether or not reasonably equivalent value was received by debtor in exchange is to be determined
from standpoint of creditor. Hansen v. Cramer (1952) 39 Cal. 2d 321, 323, 245 P.2d 1059
One test for lack of receipt of reasonably equivalent value is whether debtor is rendered execution
proof by transfer; existence of intent of fraud on part of grantor or grantee is immaterial factor.
Hansen v. Cramer (1952) 39 Cal. 2d 321, 325, 245 P.2d 1059
Exchange of $42,000 for $144,000 equity in $200,000 ranch is not reasonably equivalent value.
Stearns v. Los Angeles City School Dist. (1966) 244 Cal. App. 2d 696, 735, 53 Cal. Rptr. 482
Whether or not reasonably equivalent value was received by debtor in exchange is question of fact.
Patterson v. Missler (1965) 238 Cal. App. 2d 759, 767, 48 Cal. Rptr. 215
If property conveyed is valued in excess of mortgage, agreement on part of grantee to pay mortgage
is not valuable consideration as against grantor's creditors. Patterson v. Missler (1965) 238 Cal.
App. 2d 759, 767, 48 Cal. Rptr. 215
What constitutes reasonably equivalent value is question of fact. Patterson v. Missler (1965) 238
Cal. App. 2d 759, 767, 48 Cal. Rptr. 215
Because playing gambling games for money is illegal, consideration for payment of gambling loss is
likewise illegal and is not receipt of reasonably equivalent value in exchange for monies paid. Tokar
v. Redman (1956) 138 Cal. App. 2d 350, 354, 291 P.2d 987
[b] Antecedent Debts
Transfer made in good faith by insolvent in settlement or compromise of claim is not fraudulent for
lack of proof of enforceability of underlying claim. Mayors v. C I R (1986) 785 F.2d 757, 761 (IRS
attempt to set aside transfer)
Antecedent debt in support of transfer is required to be legally enforceable obligation of grantor;

discharge of debt of another is not receipt of reasonably equivalent value by one who is not responsi-
ble therefor. Hansen v. Cramer (1952) 39 Cal. 2d 321, 324, 245 P.2d 1059
Page 354 of 479

In fraudulent conveyance action brought by landlord against partners who took partnership draws
rather than paying rent, timing of partnership draws (receipt of delayed draws) did not show
fraudulent intent; money transferred in satisfaction of antecedent debts of partnership, i.e., overdue
partnership draws, were transfers for value under Civ. Code ß 3439.03. Annod Corporation v.
Hamilton & Samuels (2002) 100 Cal. App. 4th 1286, 1296-1297, 123 Cal. Rptr. 2d 924
Antecedent debt of $21,000 was reasonable value for 1982 transfer of one-quarter interest in real
property even though same interest sold for $30,000 in 1985; comparable value established by 1979
sale of another quarter interest for $20,000. Barisich v. Lewis (1990) 226 Cal. App. 3d 12, 20, 275
Cal. Rptr. 331
Payment by debtor of obligation of another in good faith belief that he or she is legally responsible
for that obligation is good consideration. Bank of California v. Virtue & Scheck, Inc. (1983) 140
Cal. App. 3d 1026, 1040, 190 Cal. Rptr. 54
Antecedent debt of corporation is not satisfied if corporation is dissolved and new corporation
formed in its place is liable for that debt. Economy Refining & Service Co. v. Royal Nat'l Bank
(1971) 20 Cal. App. 3d 434, 441, 97 Cal. Rptr. 706
Antecedent indebtedness which is disproportionately small compared with property transferred or

new obligation entered into is not receipt of reasonably equivalent value. Pope v. National Aero Fin.
Payment which discharges obligation barred by statute of limitations is receipt of reasonably

equivalent value if payment is made in good faith; that payment is not fraudulent transfer. United
States Fid. & Guar. Co. v. Postel (1944) 64 Cal. App. 2d 567, 572, 149 P.2d 183
[12] Specific Transfers
Transfer is void when debtor did not have requisite intent to convey and continued to exercise
dominion and control over property allegedly conveyed. In re Allustiarte (9th Cir. 1986) 786 F.2d
910, 914-915
Uniform Fraudulent Transfer Act applies to property transfers under marital settlement agreements.
Mejia v. Reed (2003) 31 Cal. 4th 657, 669, 3 Cal. Rptr. 3d 390, 74 P.3d 166
Debtor is unable by any disposition of his or her own property to put same or income thereof beyond
reach of his or her creditors, so long as right to receive and use it is retained. McColgan v. Magee,
Inc. (1916) 172 Cal. 182, 186, 155 P. 995 ; Katz v. Driscoll (1948) 86 Cal. App. 2d 313, 321, 194
P.2d 822
Conveyance by insolvent debtor without receipt of reasonably equivalent value to himself and wife as
Page 355 of 479

joint tenants is fraudulent conveyance because on death debtor has effectively placed one-half of
property beyond reach of creditors. Rupp v. Kahn (1966) 246 Cal. App. 2d 188, 195, 55 Cal. Rptr.
108
Payment of money in satisfaction of gambling debt is transfer. Tokar v. Redman (1956) 138 Cal.
App. 2d 350, 354, 291 P.2d 987
Conveyance by mere record title holder to true owner is not fraudulent conveyance. Perske v.
Perske (1954) 125 Cal. App. 2d 795, 800, 271 P.2d 528
debtor is not subject to statute of limitations; under California law, limitation is not applicable against
grantor remaining in possession and therefore not applicable against trustee. In re Allustiarte (9th
Cir. 1986) 786 F.2d 910, 913
cause of action accrues when judgment against debtor is secured, or later, if there was belated
Cause of action for fraudulent conveyance alleged to have been made in April 1984, and first pleaded
in third amended complaint filed in August 1987, was not protected by doctrine of relation back, and
was barred by three-year limitation period applicable under former law. Filmservice Laboratories,
Inc. v. Harvey Bernhard Enterprises, Inc. (1989) 208 Cal. App. 3d 1297, 1309, 256 Cal. Rptr. 735
[14] Transfer Binding on Transferor
[a] In General
Transferor of property transferred to defraud creditors is unable to revoke transfer. Severance v.

Knight-Counihan Co. (1947) 29 Cal. 2d 561, 568, 177 P.2d 4
Wrongful conduct of transferor in transferring properties under oral trust for sole purpose of
defeating claims of his or her creditors bars that transferor from maintaining suit against subsequent
transferee. Samuelson v. Ingraham (1969) 272 Cal. App. 2d 804, 806, 808, 77 Cal. Rptr. 750
Transfer in fraud of creditors binds on transferor. Slater v. Bielsky (1960) 183 Cal. App. 2d 523,
526, 6 Cal. Rptr. 683 ; Heffernan v. Bennett & Armour (1952) 110 Cal. App. 2d 564, 585, 243 P.2d
846
Page 356 of 479

Title to property fraudulently transferred is vested in purported transferor insofar as rights of latter's
creditors are concerned. Kuzmicki v. Nelson (1950) 101 Cal. App. 2d 278, 280, 225 P.2d 233
[b] Exceptions
Transferor who conveyed property to daughter with intent to defraud creditors (particularly one
claimant of damages for tort) is entitled nevertheless to recover property from her heirs following
daughter's death, when creditors were not actually defrauded (and tort claim eventually proved
unmeritorious). Estate of Blanco (1978) 86 Cal. App. 3d 826, 830-838, 150 Cal. Rptr. 645
[15] Transferee's Rights
[a] Good Faith Transferee
When transfer is only constructively fraudulent, transferee is entitled to credit for sum expended in
paying other debts. Aggregates Associated, Inc. v. Packwood (1962) 58 Cal. 2d 580, 591, 25 Cal.
Rptr. 545, 375 P.2d 425
Judgment setting aside fraudulent transfer affects rights of creditor and not rights of transferee as
against his or her transferor unless transferee was also active participant in fraud. Ahmanson Bank
& Trust Co. v. Tepper (1969) 269 Cal. App. 2d 333, 344, 74 Cal. Rptr. 774
Former Civ. Code ß 3439.09(b) (now Civ. Code ß 3439.08(d)) protecting innocent purchaser or
encumbrancer who without actual fraudulent intent has given less than reasonably equivalent value
confers on purchaser lien on property to secure repayment of his or her investment. Patterson v.
Missler (1965) 238 Cal. App. 2d 759, 771, 48 Cal. Rptr. 215
[b] Fraudulent Transferee
Fraudulent transferee is not entitled to reimbursement for outlays made in connection with acquisition
of property in fraud of creditors. Butler v. San Francisco Gas & Elec. Co. (1914) 168 Cal. 32, 39,
141 P. 818
Conveyance of family residence by quitclaim deed from husband to wife was fraudulent; the
community property asset was not listed in husband's bankruptcy estate, but was prebankruptcy
community property and could be looked to by creditor for payment; although husband was
discharged from personal liability on debt to creditor, wife remained personally liable. Sanwa Bank
California v. Chang (2001) 87 Cal. App. 4th 1314, 1317-1319, 105 Cal. Rptr. 2d 330
If transferee had notice of and was knowing party to fraud, transfer is void as between transferor and
transferee. Ahmanson Bank & Trust Co. v. Tepper (1969) 269 Cal. App. 2d 333, 344, 74 Cal. Rptr.
774
Page 357 of 479

[16] Transfers Made Leaving Unreasonably Small Remaining Assets
Although argument can be made that leveraged buyout (LBO) that leaves surviving entity with
insufficient resources to pay creditors may be fraudulent under Civ. Code ß 3439.05, Legislature, in
enacting predecessor to Civ. Code ß 3439.05, did not intend it to cover LBO; fraudulent conveyance
law was designed to protect creditors from secret transactions, and LBO was sufficiently publicized to
allow creditors opportunity to obtain financial information before extending credit. Kupetz v. Wolf
(9th Cir. 1988) 845 F.2d 842, 849-850
Burden on plaintiff to show that defendant debtor was left with unreasonably small capital under
former Civ. Code ß 3439.05 (now see Civ. Code ß 3439.04(a)(2)(A) (debtor's remaining assets
compared to business or transaction)) after executing conveyance to transferee. Holcomb v. Nunes
(1955) 132 Cal. App. 2d 776, 781, 283 P.2d 301
[17] Transfers Made With Actual Fraudulent Intent
[a] In General
If parties to leveraged buyout (LBO) fully intend to hinder general creditors and benefit selling
shareholders, conveyance is fraudulent under Civ. Code ß 3439.07; but when selling shareholders had
no intent to defraud and did not know how buyer planned to finance purchase, no creditors existed on
date of purchase, and only creditors complaining became creditors after transfer, LBO was not
fraudulent conveyance. Kupetz v. Wolf (9th Cir. 1988) 845 F.2d 842, 846-850
Actual intent to defraud does not require finding that transferor acted maliciously with desire to cause
harm to creditor; intent to prefer certain creditors over others as fraudulent rather than as valid
preference because, although assets remained available to preferred creditors, debt to preferred
creditors was not diminished or satisfied. Economy Refining & Serv. Co. v. Royal Nat'l Bank of N.Y.
(1971) 20 Cal. App. 3d 434, 441-442, 97 Cal. Rptr. 706
Solvency of transferor is immaterial in establishing actual intent to defraud creditors under former
Civ. Code ß 3439.07 (now see Civ. Code ß 3439.04(a)). Stearns v. Los Angeles City School Dist.
(1966) 244 Cal. App. 2d 696, 727, 53 Cal. Rptr. 482
[b] Burden of Proof
Burden of proof to establish fraudulent intent of tranferor is by preponderance of evidence. Liodas

v. Sahadi (1977) 19 Cal. 3d 278, 286-293, 137 Cal. Rptr. 635, 562 P.2d 316 (overruling contrary
holding of Aggregates Associated, Inc. v. Packwood (1962) 58 Cal. 2d 580, 588, 25 Cal. Rptr. 545,
375 P.2d 425 and cases decided thereunder on standard of proof)
Page 358 of 479

Proof of fraud is permitted to be made by circumstantial evidence. Aggregates Associated, Inc. v.

Packwood (1962) 58 Cal. 2d 580, 588, 25 Cal. Rptr. 545, 375 P.2d 425
Party who claims transfer to be fraudulent has burden of showing transferor's fraudulent intent and
knowledge thereof by transferee. Vaughn v. Coccimiglio (1966) 241 Cal. App. 2d 676, 679, 50 Cal.
Rptr. 876
Whether transfer is made with actual intent to defraud creditors is question of fact. TWM Homes,
Inc. v. Atherwood Realty & Inv. Co. (1963) 214 Cal. App. 2d 826, 844, 29 Cal. Rptr. 887
Because of difficulty of direct proof, in most cases proof of actual intent to defraud creditors consists
of inferences from circumstances surrounding transaction and relationship and interests of parties.
Slater v. Bielsky (1960) 183 Cal. App. 2d 523, 526, 6 Cal. Rptr. 683
[c] Evidence of Fraudulent Intent
[i] Particular Circumstances and Inferences
Findings of fraud are not supported by evidence of circumstances surrounding alleged fraudulent
transfer which comport equally with theory of honesty and fair dealing; speed of transfer does not
permit inference of fraud when speed was required to protect interests of grantor. Aggregates
Associated, Inc. v. Packwood (1962) 58 Cal. 2d 580, 588, 25 Cal. Rptr. 545, 375 P.2d 425
Finding that purported transfer of partnership interest was fraudulent was supported by evidence that
formalities were not observed in transfering interest, and transferror partner remained as signatory on
partnership's bank account after purported withdrawl. Eddy v. Temkin (1985) 167 Cal. App. 3d
1115, 1118-1121, 213 Cal. Rptr. 597
Evidence of secret trust or reservation of interest in grantor is persuasive evidence, but not conclusive
presumption, of fraud. Bank of California v. Virtue & Scheck, Inc. (1983) 140 Cal. App. 3d 1026,
1034-1039, 190 Cal. Rptr. 54
Fraud is provable by inferences from circumstances surrounding transaction, relationship and interest
of parties. Neumeyer v. Crown Funding Corp. (1976) 56 Cal. App. 3d 178, 183, 128 Cal. Rptr.
366 ; Burns v. Radoicich (1947) 77 Cal. App. 2d 697, 700-701, 176 P.2d 77
Proof of solvency does not preclude finding of actual intent to defraud, but as relevant to issue of
intent. Hansford v. Lassar (1975) 53 Cal. App. 3d 364, 378, 125 Cal. Rptr. 804
When confidential relation is shown to exist, parties are held to fuller and stricter proof of considera-
tion, and of fairness of transaction. Wood v. Kaplan (1960) 178 Cal. App. 2d 227, 231, 2 Cal. Rptr.
917
Page 359 of 479

Fact that transfer left transferor insolvent raises presumption that conveyance was actually fraudulent.
Wood v. Kaplan (1960) 178 Cal. App. 2d 227, 230, 2 Cal. Rptr. 917
Transfers of almost all of transferor's nonexempt property indicate of intent to defraud creditors.
Burrows v. Jorgensen (1958) 158 Cal. App. 2d 644, 648, 323 P.2d 150
Indicia of fraud, though insufficient when considered separately, may provide sufficient evidence of
fraudulent intent when considered together. Burns v. Radoicich (1947) 77 Cal. App. 2d 697,
700-701, 176 P.2d 77
[ii] Transfers to Relations
Transfers between close relatives are not presumed to be fraudulent per se, but when confidential
relationship exists, fuller and stricter proof of consideration and fairness of transaction are required.
Kirkland v. Risso (1979) 98 Cal. App. 3d 971, 978-979, 159 Cal. Rptr. 798 ; Wood v. Kaplan
(1960) 178 Cal. App. 2d 227, 231, 2 Cal. Rptr. 917
Relationship of parent and child, when coupled with other suspicious circumstances, such as fact that
transfer rendered transferor insolvent, is sufficient to raise inference of fraud in transfer. Wood v.
Kaplan (1960) 178 Cal. App. 2d 227, 230-231, 2 Cal. Rptr. 917
Transfer from debtor to relative without consideration and which renders debtor insolvent is
presumptively fraudulent. Hickson v. Thielman (1968) 147 Cal. App. 2d 11, 15, 304 P.2d 122
Voluntary transfer made by debtor to member of his or her family while insolvent or in contemplation
of insolvency, is conclusively presumed to be fraudulent as to existing creditors. Menick v. Goldy
(1955) 131 Cal. App. 2d 542, 547, 280 P.2d 844
Relationship between transferor and transferee does not justify inference of fraud in transfer, but is
fact which allows greater weight than would otherwise attach to be given to other circumstances, if
any appear. Burns v. Radoicich (1947) 77 Cal. App. 2d 697, 700-701, 176 P.2d 77
[d] Transferee's Knowledge
Knowledge of transferee who took transferor's interest in demolition contract when transferor was
having trouble completing job and paying bills related to contract was insufficient basis for finding
fraudulent intent on part of transferee when transferee agreed to pay and did pay all claims of creditors
of transferor arising from that job. Aggregates Associated, Inc. v. Packwood (1962) 58 Cal. 2d
580, 587-588, 25 Cal. Rptr. 545, 375 P.2d 425
Page 360 of 479

No inference of fraudulent intent on part of transferee can be drawn from speed of transfer in view of
fact that transferor had received notice from other party that it would cancel contract and complete it
from proceeds of performance bond unless contractor/transferor made other arrangements to complete
job. Aggregates Associated, Inc. v. Packwood (1962) 58 Cal. 2d 580, 588, 25 Cal. Rptr. 545, 375
P.2d 425
Transfer made for reasonably equivalent value was not permitted to be attacked by transferor's
creditor, even though transaction was entered into by debtor with intent to delay or defraud creditor,
unless transferee also intended or participated in or had knowledge of fraudulent intent. Kuhlman v.
Pacific States S. & L. Co. (1940) 17 Cal. 2d 820, 821-822, 112 P.2d 620 ; Enos v. Picacho Gold
Mining Co. (1943) 56 Cal. App. 2d 765, 774, 133 P.2d 663
When there is evidence of common design between transferor and transferee to defraud creditors,
declarations of transferor subsequent to transfer are admissable. McGee v. Allen (1936) 7 Cal. 2d
468, 476, 60 P.2d 1026
Transferee's knowledge of transferor's fraudulent intent is insufficient if transferee has no notice of

facts and circumstances that would induce prudent person to inquire into fraudulent purpose. Boness
v. Richardson Mineral Springs (1956) 141 Cal. App. 2d 251, 261, 296 P.2d 581
Deed, even though supported by consideration, is permitted to be set aside as fraudulent if transferee
had knowledge of transferor's fraudulent intent and intended to assist in fraudulent purpose, such as
by agreeing to hold land in secret trust. Knapp v. Elliott (1947) 81 Cal. App. 2d 667, 673, 184 P.2d
934
Legal Topics:
Page 361 of 479

Budnitz, The Duties Imposed by Bankruptcy Courts Upon Mortgages at Foreclosure Sales: How to
Avoid Avoidance Under Section 548, 46 Bus. Law. 1183 (1991)
Kennedy, "The Uniform Fraudulent Transfer Act," 18 UCC L. J. 195 (1986)
Shanker, "What Every Lawyer Should Know about the Law of Fraudulent Transfers," 31(8) The
Practical Lawyer 43 (1985)
Note, "Good Faith and Fraudulent Conveyances," 97 Harvard L. Rev. 495 (1983)
Comment, "Tort Liability for Fraudulent Conveyances," 19 Stan. L. Rev. 636 (1967)
Legal Topics:
JudgmentsEnforcement & ExecutionFraudulent TransfersReal Property LawFinancingMortgages &
Other Security InstrumentsForeclosuresGeneral OverviewReal Property LawPurchase & SaleFraudu-
lent Transfers
Page 362 of 479

Witkin, California Procedure, Vol. 5 Pleading, ß 836, Vol. 8 Enforcement of Judgment, ßß 445-477
(4th ed. 1997)
Legal Topics:
Civil ProcedureJudgmentsEntry of JudgmentsEnforcement & ExecutionGeneral Overview
Page 363 of 479

23-270 California Forms of Pleading and Practice--Annotated ßß 270.134- 270.149
[Reserved]
Page 364 of 479

B. Transfers Without Delivery And Change Of Possession
[1] Accessions to Personal Property
When things belonging to different owners are united so as to form single thing, and cannot be
separated without injury, whole belongs to owner of thing forming principal part. Civ. Code ß 1025
[2] Attachment and Execution
Property exempt. Code Civ. Proc. ßß 704.010 et seq., 704.710 et seq.
Third-party claims. Code Civ. Proc. ß 720.010 et seq.

[3] Transfers Made Without Actual Delivery
[a] In General
Transfer of personal property made by person having possession and not accompanied by immediate
delivery followed by actual and continued change of possession is void. Civ. Code ß 3440(a)
Creditor defined; creditor includes assignee for benefit of creditors under Code Civ. Proc. ß 493.010.
Civ. Code ß 3440(b)
Transfers of personal property to which Civ. Code ß 3440 et seq. are not applicable. Civ. Code ßß
3440.1, 3440.2
Page 365 of 479

Filing and publication requirements necessary to insulate transfer of personal property from attack
under Civ. Code ß 3440 et seq. Civ. Code ß 3440.1(h)
Transfers otherwise not subject to attack because requirements of Civ. Code ßß 3440.1(h), 3440.2, or
3440.5(b) are met are nevertheless void as against purchaser from transferor who is "buyer in
ordinary course of business" under Com. Code ß 1201(b)(9). Civ. Code ß 3440.3
Civ. Code ß 3440 et seq. do not affect rights of buyer for value in good faith from transferee,
provided transferor is not in possession at time of purchase. Civ. Code ß 3440.4
Civ. Code ß 3440 et seq. do not affect rights of secured party who, for value in good faith, acquires
security interest from transferee, provided transferor is not in possession at time security interest
attaches. Civ. Code ß 3440.5(a)
Except as against "buyer in ordinary course of business," Civ. Code ß 3440 et seq. do not affect
rights of secured party who fulfills specified filing and publication requirements prior to acquisition of
security interest from transferee. Civ. Code ß 3440.5(b)
One-year limitation period on creditor's action or levy under Civ. Code ß 3440 et seq.. Civ. Code ß
3440.6
[b] Retention by Lessor
Com. Code ß 10308(a) (retention of possession by lessor in good faith and in current course of
trade) is not restricted by Civ. Code ßß 3440-3440.9. Civ. Code ß 3440.9
[c] Right of Retention by Merchant-Seller
Com. Code ß 2402(2) (right of merchant-seller to retain property) is not restricted by Civ. Code ßß
3440-3440.9. Civ. Code ß 3440.9
Creditor of seller is permitted to treat sale or identification of goods to contract as void if seller's
retention fraudulent under Civ. Code ß 3440 unless seller retains possession in good faith and current
course of trade for commercially reasonable time. Com. Code ß 2402(2)
Legal Topics:
Civil ProcedureJudgmentsEntry of JudgmentsEnforcement & ExecutionGeneral OverviewCivil
ProcedureJudgmentsEntry of JudgmentsEnforcement & ExecutionExemptionsCivil ProcedureJudg-
Page 366 of 479

mentsEntry of JudgmentsEnforcement & ExecutionFraudulent TransfersCivil ProcedureJudg-

mentsEntry of JudgmentsEnforcement & ExecutionWrits of ExecutionCivil ProcedureRemediesProvi-
sional RemediesAttachments
Page 367 of 479

[1] Delivery If Transferor Is Cotenant
Cotenant in sole possession of property who sells his or her interest in such property is required to
transfer actual possession of property in order to protect transferee from creditors of cotenant.
Brown v. O'Neal (1892) 95 Cal. 262, 266, 30 P. 538 ; Haster v. Blair (1940) 41 Cal. App. 2d 896,
899, 107 P.2d 933
If other cotenants are in possession of property in which one contenant sells his or her interest, such
contenant is permitted to make valid sale without placing his or her transferee in custody of property.
Brown v. O'Neal (1892) 95 Cal. 262, 266, 30 P. 538
[2] Impracticality of Actual Delivery
Because physical delivery of cattle is practicable, tagging and segregation was not sufficient
constructive delivery. In re Black & White Cattle Co. (9th Cir. 1986) 783 F.2d 1454, 1458-1459
[3] Purpose of Requiring Delivery and Actual Change of Possession
Transferee's conduct in relation to property is required to be such as to give notice to public that
change in ownership and possession has taken place. Dot Records, Inc. v. Freeman (1966) 247 Cal.
App. 2d 204, 207, 55 Cal. Rptr. 455
[4] Requisites of Delivery and Change of Possession
Page 368 of 479

Delivery is required to be immediate, actual, visible, apparent and not constructive, manifested by
such outward signs as renders it evident that transferor's possession has wholly ceased. Dot
Records, Inc. v. Freeman (1966) 247 Cal. App. 2d 204, 207, 55 Cal. Rptr. 455
When transferor subsequent to delivery of bill of sale of personal property continues to have use and
control of that property in same manner and to like extent as before, no delivery is made as required to
constitute valid delivery. Southern Cal. Collection Co. v. Napkie (1951) 106 Cal. App. 2d 565, 570,
235 P.2d 434
When evidence shows no apparent change in possession of automobile, fact that title has changed and
transferee in partial possession of it does not render transfer free from attack by creditor. Dot
Records, Inc. v. Freeman (1966) 247 Cal. App. 2d 204, 207-208, 55 Cal. Rptr. 455
Legal Topics:
JudgmentsEnforcement & ExecutionFraudulent TransfersReal Property LawPurchase & SaleFraudu-
lent Transfers
Page 369 of 479

California Legal Forms, Ch. 53, Personal Property Leasing (Matthew Bender)
Witkin, Summary of California Law, Vol. 3, Sales, ßß 208-211 (9th ed.)
Legal Topics:
Mergers & Acquisitions LawFraudulent Transfers
Page 370 of 479

[Reserved]
Page 371 of 479

C. Bulk Sales
[1] Attachment
When attachment may be obtained; claim must be for $500 or more. Code Civ. Proc. ß 483.010
Attachment of funds in escrow under Com. Code ß 6106.2 is obtainable even if claim is for less than
$500 or is secured in way that would defeat attachment under Code Civ. Proc. ß 483.010. Com. Code
ß 6106.2(c)
[2] Bulk Sales Within Scope of Bulk Sales Law
Bulk sale by seller (1) whose principal business is sale of inventory from stock or who is restaurant
owner; and (2) who is located in California on date of bulk-sale agreement, or, if seller is located
outside United States, whose major executive office in United States is in California. Com. Code ß
6103(a)
Seller is deemed to be located at its place of business; seller with more than one place of business is
located at its chief executive office. Com. Code ß 6103(b)
[3] Definitions
Assets. Com. Code ß 6102(a)(1)
Page 372 of 479

Auctioneer. Com. Code ß 6102(a)(2)
Bulk sale. Com. Code ß 6102(a)(3)
Buyer. Com. Code ß 2103(1)(a); see Com. Code ß 6102(b)(1)
Claim. Com. Code ß 6102(a)(4)
Claimant. Com. Code ß 6102(a)(5)
Creditor. Com. Code ß 6102(a)(6)
Date of the bulk sale. Com. Code ß 6102(a)(7)
Date of the bulk-sale agreement. Com. Code ß 6102(a)(8)
Debt. Com. Code ß 6102(a)(9)
Equipment. Com. Code ß 9102(a)(33); see Com. Code ß 6102(b)(2)
In ordinary course of seller's business. Com. Code ß 6102(a)(13)
Inventory. Com. Code ß 9102(a)(48); see Com. Code ß 6102(b)(3)
Liquidator. Com. Code ß 6102(a)(10)
Net contract price. Com. Code ß 6102(a)(11)
Net proceeds. Com. Code ß 6102(a)(12)
Sale. Com. Code ß 2106(1); see Com. Code ß 6102(b)(4)
Seller. Com. Code ß 2103(1)(d); see Com. Code ß 6102(b)(5)
United States. Com. Code ß 6102(a)(14)
Value. Com. Code ß 6102(a)(15)
Verified. Com. Code ß 6102(a)(16)

[4] Liability for Failure to Give Notice
Page 373 of 479

Liability of auctioneer or liquidator for failure to comply with Com. Code ßß 6104-6108. Com. Code
ßß 6107, 6108
Buyer's liability to single claimant. Com. Code ß 6107(a)
Limits on buyer's cumulative liability in single bulk sale. Com. Code ß 6107(d)
Net value of asset defined for purposes of determining cumulative liability for single sale that
included property other than inventory and equipment. Com. Code ß 6107(e)
Buyer's payment to person to whom buyer is, or believes it is, liable under Com. Code ß 6107(a)
reduces pro tanto buyer's cumulative liability under Com. Code ß 6107(d). Com. Code ß 6107(f)
Action is barred on unliquidated or contingent claim. Com. Code ß 6107(g)

[5] Notice
Contents and requirements for recording, publishing, and delivering of notice of bulk sale sale. Com.
Code ßß 6104(a), 6105
Notice of bulk sale by auction or through liquidator. Com. Code ßß 6104(a), 6105, 6108(a), (c)
Additional notice requirements when consideration is $2 million or less and is cash or obligation of
buyer to pay cash in future or combination thereof. Com. Code ß 6106.2(f)
[6] Sale for Cash or Obligation to Pay Cash
Procedures applicable when consideration is $2 million or less and is cash or obligation of buyer to
pay cash in future or combination thereof. Com. Code ß 6106.2(a)
Buyer or escrow agent is required to apply cash consideration to pay claims. Com. Code ß 6106.2(b)
Procedures when claim is disputed; claimant's right to attachment. Com. Code ß 6106.2(c)
Procedure when cash is insufficient to pay all claims in full. Com. Code ßß 6106.2(d), 6106.4(a)-(c)
Buyer or escrow agent's duty to pay claims or file interpleader action. Com. Code ß 6106.2(e)
Page 374 of 479

Lien or security interest as may only be released voluntarily. Com. Code ß 6106.2(g)
Deposit required of buyer when escrow is used. Com. Code ß 6106.4
Escrow agent's duties when deposit does not cover claims; notice and postponement; priorities for
distribution. Com. Code ß 6106.4(a)-(c)
[7] Tax Liability
Successors or assigns of person liable for sales or use tax on sale of business or stock of goods are
required to withhold sufficient amount of purchase price to cover liability unless person liable
produces receipt of State Board of Equalization showing no amount due. Rev. & Tax. Code ß 6811
Failure of purchaser of business or stock of goods to withhold purchase price as required by Rev. &
Tax Code ß 6811renders purchaser personally liable therefor. Rev. & Tax. Code ß 6812
[8] Transactions Excepted From Bulk Sales Law
Transfers to satisfy obligations. Com. Code ß 6103(c)(1)-(5)
General assignment for benefit of creditors. Com. Code ß 6103(c)(6)
Sales in course of judicial or administrative proceeding. Com. Code ß 6103(c)(7)-(8)
Buyer assumes known claims. Com. Code ß 6103(c)(9)
Buyer assumes all seller's debts. Com. Code ß 6103(c)(10)
Newly organized entity assumes all seller's debt. Com. Code ß 6103(c)(11)
Sales for less than $10,000 or more than $5 million. Com. Code ß 6103(c)(12)
Sale required by law. Com. Code ß 6103(c)(13)
Sale and lease back. Com. Code ß 6103(c)(14)
Transfer of liquor license. Com. Code ß 6103(c)(15)
Transfer of goods in warehouse. Com. Code ß 6103(c)(16)

[9] Wage and Unemployment Compensation Liability
Page 375 of 479

Preference over creditors of seller or seller of wage claims in sale of business or stock-in-trade. Code
Civ. Proc. ß 1205
Person or employing unit acquiring bulk sale from employer as required to withhold sufficient
property to cover employer's delinquent payments under Unemployment Insurance Act, unless
employer produces certificate showing no amount due. Unemp. Ins. Code ß 1731
Certificate of Department of Human Resources Development. Unemp. Ins. Code ß 1732
Personal liability for failure to withhold amount due for delinquent unemployment compensation
payments. Unemp. Ins. Code ß 1733
Remedies for collection against person or unit acquiring bulk sale. Unemp. Ins. Code ß 1734
Legal Topics:
Civil ProcedureRemediesProvisional RemediesAttachmentsCommercial Law (UCC)Sales (Article 2)
Contract TermsSale by AuctionCommercial Law (UCC)Bulk Sales (Article 6)General Overview-
Commercial Law (UCC)Bulk Sales (Article 6)NoncomplianceCommercial Law (UCC)Bulk Sales
(Article 6)Notice to Claimants
Page 376 of 479

C. Bulk Sales
Frisch & Wladis, General Provisions, Sales, Bulk Transfers, and Documents of Title, 46 Bus. Law.
1455 (1991)
Harris, Practicing Under Existing Bulk Sales Law--And a Look at the Future of Article 6, 22 U.C.C.
L.J. 195 (1990)
Frisch and Wladis, General Provisions, Sales, Bulk Transfers, and Documents of Title, 44 Bus.
Law. 1445 (1989)
Ring, Bulk Sales Problems in California, 42 Calif. L. Rev. 579 (1954)
Legal Topics:
Commercial Law (UCC)Sales (Article 2)General Overview
Page 377 of 479

C. Bulk Sales
Forms And Procedures Under the UCC, Article 6 : Bulk Transfers (Matthew Bender)
Witkin, Summary of California Law, vol. 3, Sales, ßß 212-220 (9th ed. 1987)
Legal Topics:
Page 378 of 479

PART IV. FORMS
ß 270.190 Complaint to Set Aside Fraudulent Transfer or Annul Fraudulent Obligation [Civ.
Code ß 3439.07(a)(1)]--And for Damages Based on Conspiracy--Transfer Made or Obligation
Incurred With Actual Fraudulent Intent [Civ. Code ß 3439.04(a)]
[1] FORM Complaint to Set Aside Fraudulent Transfer or Annul Fraudulent Obligation [Civ.
COUNTY OF ___________________
)
) NO. _____
) COMPLAINT TO ____________________
______________________[name], Plaintiff, ) [SET ASIDE or ANNUL] FRAUDULENT
vs. ) ____________________
______________________ [name (s)], Defendant ) [TRANSFER or
(s). ) OBLIGATION] AND FOR DAMAGES
__________________________________________________
Plaintiff alleges:
FIRST CAUSE OF ACTION
Page 379 of 479

(To ___________________ [Set Aside or Annul] Fraudulent ___________________ [Transfer or

Obligation])
1. Defendants are, and at all times herein mentioned were, residents of ___________________
County, California [or allege other capacity and residence].
[2. Plaintiff is ignorant of the true names and capacities of defendants sued herein as DOES I-
Plaintiff will amend this complaint to allege their true names and capacities when ascertained (Plaintiff
is informed and believes and thereon alleges that each of the fictitiously named defendants claims an
interest in the property hereinafter described and which is the subject of this action.)]
3. ___________________ [From and after ____________________ (date), or At all times men-

tioned herein] plaintiff ___________________ [was or has been] the holder of a certain claim against
defendant ___________________ [name of transferor]. This claim consists of
___________________ [specify claim, and if based on a document, attach a copy as an exhibit, e. g.,
a note payable to plaintiff in the principal sum of $5,000 with interest thereon from and after
____________________ (date), at _____ percent per annum, all due on ____________________
(date). A copy of the note is attached as "Exhibit A" and incorporated by reference.]
[EITHER]
4. No part of the aforementioned claim has matured [, and no part of the sum defendant
___________________ (name of transferor) is required to pay is due and owing,] because
___________________ [specify nature of nonmaturity, if appropriate, e. g., the time fixed for
payment by defendant is ____________________ (date)].
[OR]
4. This claim for which defendant ___________________ [name of transferor] is indebted to

plaintiff is in the sum of $____________________. [Plaintiff has performed all conditions,
covenants, and promises under the contract, on his/her part to be performed (, except
___________________ [condition not performed], the performance of which was excused on the
ground that ___________________ [specify]).] Neither the whole nor any part of this sum has been
paid [except the sum of $____________________] and there is now due and unpaid from this
defendant the sum of $____________________ together with interest thereon at the rate of
____________________ percent per annum from ____________________ [date].
[OR]
Page 380 of 479

4. On ____________________ [date], an action was commenced by plaintiff against defendant

___________________ [name of transferor] based on the aforementioned claim in the
___________________[court], No. ____________________ in the files and records of this court.
Judgment in that action was duly rendered in favor of the plaintiff for the sum of
$____________________, and for costs in the sum of $____________________, for a total of the
sum of $____________________. The judgment became final on ____________________ [date],
prior to the filing of this action. The judgment ___________________ [has never been appealed and
the time for appealing has expired or if appealed and affirmed, so state] and has never been vacated or
modified. Plaintiff is still the owner of the judgment of which no part has been satisfied. A certified
copy of the judgment is attached hereto as Exhibit "B" and made a part hereof.
[CONTINUE]
[5. On or about ____________________ (date), defendant ___________________ (name of

transferor) was the owner and in possession and control of ___________________ (describe
property fraudulently transferred), e.g., that real property situated in ___________________ County,
known as ___________________ (street), ___________________ (city), California, and more
particularly described as follows: ___________________ (give legal description).]
[EITHER]
6. [Plaintiff is informed and believes and thereon alleges that] [o]n or about ____________________
[date], defendant ___________________ [name of transferor] transferred by
___________________ [describe manner of transfer, e.g., deeded] the above-described property to
defendant ___________________[name of transferee]. [If instrument was recorded, official
registration was changed, or security interest was given by UCC filing, give the particulars of the
recordation, transfer of registration, or filing, e.g., On ____________________ (date), the contract
of sale was recorded in Book ____________________, page ____________________, Official
Records in the Office of the County Recorder of ___________________ County, California.]
[OR]
6. [Plaintiff is informed and believes and thereon alleges that] [o]n or about ___________________
[date], defendant ___________________ [name of obligor] and defendant ___________________
[name of obligee] entered into an agreement under which defendant ___________________ [name of
obligor] became obligated to ___________________ [specify, e.g., purchase from defendant
___________________ (name of obligee) 2,000 head of cattle over a period of five years and to pay
___________________ (name of obligee) $____________________ per head for the feeding,
Page 381 of 479

raising, care, and shipping of those cattle]. Defendant ___________________ [name of obligor] has
___________________ [not yet made any payments or paid $____________________] to
___________________ (name of obligee) in fulfillment of this contract.
[CONTINUE]
7. [Although on the date of the aforementioned ___________________ (transfer or agreement) no

part of plaintiff's claim against defendant ___________________ (name of transferor) had matured,]
[p]laintiff is [further] informed and believes and thereon alleges that the ___________________
[transfer was made or obligation was incurred] with an actual intent to hinder, delay, or defraud [all of
defendant ___________________'s (name of tranferor) (then and future) creditors, including]
plaintiff in the collection of his/her/its/their claim(s).
8. In exchange for the aforementioned ___________________[transfer or obligation], defendant

___________________ [name of tranferor or obligor] received ___________________
[$____________________ or consideration worth $____________________in the form of
___________________ (specify, e.g., discharge of a $6,000 gambling debt previously owing from
defendant ___________________ (name of obligor) to defendant ___________________ (name of
obligee)]. At the time the ___________________ [transfer was made or obligation was incurred], the
value of the ___________________ [specify property transferred or obligation incurred, e.g., real
property] was not less than $___________________. Thus, the defendant ___________________
[name of tranferor or obligor] did not receive reasonably equivalent value in exchange for the
___________________ [specify, e.g., land].
[9. (Plaintiff is informed and believes and thereon alleges that) (t)he above-described
___________________ [property or obligation] was received by defendant ___________________
[name of transferee or obligee] with knowledge that defendant ___________________ [name of
transferor or obligor] intended to hinder, delay, or defraud the collection of plaintiff's aforementioned
claim (and the claims of all the ___________________ [then or then and future] creditors of
defendant ___________________ [name of transferor or obligor]). Defendant
___________________ [name of transferee or obligee] had such knowledge by virtue of
___________________[specify, e.g., an agreement made on ____________________(date), between
defendant ___________________ (name of transferor or obligor) and defendant
___________________ (name of transferee or obligee) to defraud the plaintiff in the collection of
his/her claim or allege other facts which show transferee's knowledge of transferor's intent or
knowledge of facts which would put transferee on notice of transferor's intent].
SECOND CAUSE OF ACTION

(Conspiracy)
Page 382 of 479

[To be included if transferee or obligee had knowledge of

fraudulent intent of transferor based on agreement with
transferor.]
10. Plaintiff refers to and incorporates herein Paragraphs 1. through 9., inclusive, of the First Cause of
Action.
11. As alleged above, on ____________________ [date], defendants ___________________ [name]

and ___________________ [name] agreed and knowingly and willfully conspired between
themselves to ___________________ [specify, e.g., hinder, delay, and defraud] plaintiff in the
collection of his/her claim against defendant ___________________ [name of transferor].
12. Under this conspiracy, the above-named defendants agreed ___________________ [state facts
showing the nature of agreement e.g., that ___________________ (name of defendant transferee or
obligee) should take the payments received from ___________________ (name of defendant
transferor or obligor) under the sham cattle investment contract and place them in an account in his/
her own name until the statute of limitations had expired on plaintiff's claim, at which time he/she was
to return the money to ___________________ (name of defendant transferor or obligor)].
13. Defendants ___________________ [name] and ___________________ [name] did the acts and
things herein alleged pursuant to, and in furtherance of, the conspiracy and agreement alleged above.
14. As a proximate result of the wrongful acts herein alleged, plaintiff has been generally damaged in
the sum of $____________________.
[15. Here and in subsequent paragraphs allege any items of

special damages.]
[16. At all times mentioned herein, defendant ___________________ (name of transferee or

obligee) knew of plaintiff's claim against ___________________ (name of transferor or obligor) and
knew that plaintiff's claim could only be satisfied out of the ___________________ (property
transferred or sums expended by ___________________ (name of obligor) in fulfillment of the
obligation). Notwithstanding this knowledge, defendant ___________________ (name of transferee
or obligee) intentionally, willfully, fraudulently, and maliciously did the things herein alleged to
defraud and oppress plaintiff. Plaintiff is therefore entitled to exemplary or punitive damages.]
WHEREFORE, plaintiff prays judgment as follows:
On the First Cause of Action:
1. That the ___________________ [(transfer or conveyance) from defendant ___________________
Page 383 of 479

(name of transferor) to defendant ___________________ (name of transferee) be set aside or

obligation incurred by defendant ___________________ (name of obligor) be annulled and declared
void as to the plaintiff herein to the extent necessary to satisfy plaintiff's ___________________
(claim or judgment) in the sum of $____________________ plus interest thereon at the rate of
____________________ percent per annum from ____________________(date)];
[2. That the property in the hands of defendant ___________________ (transferee) be attached in
accordance with the provisions of Sections 481.010 through 493.060 of the Code of Civil Procedure.]
[3. That defendant ___________________ (name of transferee) be restrained from disposing of the
property (transferred or conveyed) ___________________ (until ____________________(date),
which date is the date on which the aforementioned claim held by plaintiff against defendant
___________________ (name of transferor) will have matured and the sum of
$____________________ will be due and owing from this defendant);]
[4. That a temporary restraining order be granted plaintiff enjoining and restraining defendant
___________________ (name of transferee), and his/her representatives, attorneys, and agents from
selling, transferring, conveying, or otherwise disposing of any of the property transferred;]
[5. That an order pendente lite be granted plaintiff enjoining and restraining defendant
___________________ (name of transferee) and his/her representatives, attorneys, servants, and
agents from selling, transferring, conveying, assigning, or otherwise disposing of any of the property
transferred;]
[6. That the judgment herein be declared a lien on the property transferred;]
[7. That an order be made declaring that defendant ___________________ (name of transferee) holds
___________________(specify all or undivided portion of property, e.g., an undivided one-quarter
interest in) the property described above in trust for plaintiff);]
[8. That defendant ___________________ (name of transferee) be required to account to plaintiff for
all profits and proceeds earned from or taken in exchange for the property described above;]
On the Second Cause of Action against defendants, and each of them, as follows:
[10. For special damages in the sum of $____________________];
[11. For exemplary or punitive damages;]
On all causes of action:
Page 384 of 479

12. For costs of suit herein incurrred; and
______________________ [firm name, if any]
By: ______________________ [signature]
______________________ [typed name]
VERIFICATION
to those matters which are therein alleged on information and belief, and as to those matters, I believe
it to be true.
and correct.
______________________ [date]
______________________ [signature]
[2] Use of Form
This complaint is for use by a creditor in an action to set aside a transfer or conveyance or annul an
obligation which was made by a defendant transferor with actual intent to delay, hinder, or defraud
plaintiff in the collection of his or her claim against the transferor [see Civ. Code ßß 3439.04, 3439.07
(a)(1)]. The form may be used by a creditor with either a matured or an unmatured claim or by a
creditor who has reduced his or her claim against the transferor to judgment [see Civ. Code ß 3439.07
(a) (remedies available); see also Civ. Code ß 3439.01(b), (c) (claim and creditor defined); Hansford
v. Lassar (1975) 53 Cal. App. 3d 364, 369, 125 Cal. Rptr. 804 (claim reduced to judgment)].
The form also contains a second cause of action for conspiracy for use against a transferee or obligee
who knowingly conspired or participated with the transferor to defraud plaintiff [see Holmes v.
Page 385 of 479

Hatch (1938) 11 Cal. 2d 376, 386, 80 P.2d 70 ; Taylor v. S & M Lamp Co. (1961) 190 Cal. App. 2d
700, 706, 712-713, 12 Cal. Rptr. 323] . The second cause of action should be used if plaintiff's
damages for conspiracy would exceed those available under Civ. Code ßß 3439-3439.12.
If the plaintiff is the holder of a matured claim against the defendant transferor which has not been
reduced to judgment, this complaint may be combined with a cause of action on the underlying claim
[see Ahmanson Bank & Trust Co. v. Tepper (1969) 269 Cal. App. 2d 333, 343, 74 Cal. Rptr. 774] .
[3] Allegations
This complaint alleges in part that the plaintiff is a creditor of the defendant transferor (Paragraph 3)
[see Civ. Code ß 3439.07; Hansen v. Cramer (1952) 39 Cal. 2d 321, 323, 245 P.2d 1059] , and that
the plaintiff's claim is unmatured, has matured, or has been reduced to judgment [Civ. Code ßß
3439.01(b), 3439.04, 3439.07(a); Hansford v. Lassar (1975) 53 Cal. App. 3d 364, 369, 125 Cal.
Rptr. 804] . Although there is no requirement that the creditor reduce his or her claim to judgment
before bringing an action to set aside a fraudulent transfer or annul a fraudulent obligation [see Rupp
v. Kahn (1966) 246 Cal. App. 2d 188, 191, 197, 55 Cal. Rptr. 108] , alternative allegations are
included to distinguish the status of the particular plaintiff's underlying claim (alternative Paragraphs
4). If a transfer is involved rather than an obligation, or if an obligation was incurred to transfer
specific property, optional Paragraph 5 should be used to allege the previous ownership of that
property by defendant transferor or obligor [see Civ. Code ß 3439.01(i) (definition of transfer as
including payment of money); Tokar v. Redman (1956) 138 Cal. App. 2d 350, 354, 291 P.2d 987
(payment of gambling debt as transfer); see also Judicial Council of California Civil Jury
Instructions, CACI No. 4204 (LexisNexis Matthew Bender) (related California Judicial Council jury
instruction)].
The complaint further alleges the transfer or obligation (alternative Paragraphs 6), the specific intent of
the tranferor or obligor to defraud, hinder, or delay plaintiff (Paragraph 7) [see Civ. Code ß 3439.04
(a)], and the facts establishing that the transfer or obligation was made or incurred without receipt by
the debtor of consideration of reasonably equivalent value (Paragraph 8) [see Civ. Code ß 3439.03
(definition of value)]. If no allegation is made that reasonably equivalent consideration was not
received in exchange for the property or obligation, plaintiff creditor must allege that the transferor's
intent to defraud plaintiff was known to the transferee at the time of the transfer or incurring of the
obligation (optional Paragraph 9) [ Kuhlman v. Pacific States S. & L. Co. (1940) 17 Cal. 2d 820,
821-822, 112 P.2d 620 ; McKnight v. Superior Court (1985) 170 Cal. App. 3d 291, 299, 215 Cal.
Rptr. 909 (if transferee participates in fraudulent transfer with knowledge or intent to assist transferor
to defraud or hinder creditor, transfer as fraudulent even if full value is given in consideration)].
If the debtor is a partnership, counsel should insert capacity allegations stating the individual names of
the partners, the partnership name, that they did business under the partnership name, and that they are
being sued individually and by the partnership name pursuant to Code Civ. Proc. ß 369.5 [see Code
Civ. Proc. ß 369.5; see Ch. 20, Allegations Commonly Used , and Ch. 402, Partnerships: Actions
Between General Partners or Partnerships and Third Parties , ß 402.12; Ch. 405, Partnerships:
Page 386 of 479

Actions Between Limited Partners or Partnerships and Third Parties, ß 405.12; see also ß 270.192].
Additionally, Paragraph 3 should be modified to set forth the name of the partner who incurred the
claim and to allege that in so doing he or she was acting for and on behalf of the partnership and as its
agent within the scope of his or her authority [see Corp. Code ß 16301].Similarly, Paragraph 6 should
be modified to set forth the name of the partner who made the fraudulent transfer or incurred the
fraudulent obligation and to allege that in so doing he or she was acting for and on behalf of the
partnership and as its agent within the scope of his or her authority [see Corp. Code ß 16305(a)].
This complaint contains a Second Cause of Action for conspiracy for use against a transferee or
obligee who knowingly participated in the plan and agreed to aid the debtor, often for the transferee's
benefit too. This cause of action alleges the formation and operation of the conspiracy (Paragraph 11)
[see Orloff v. Metropolitan Trust Co. (1941) 17 Cal. 2d 484, 488, 110 P.2d 396] , the wrongful act
of defrauding plaintiff as a creditor (Paragraphs 12 and 13) [see Taylor v. S & M Lamp Co. (1961)
190 Cal. App. 2d 700, 706, 12 Cal. Rptr. 323] , the defendants transferor's and transferee's knowl-
edge of the conspiracy and its unlawful purpose (Paragraphs 8, 11, and 13) [see Cohen v. Heavey
(1968) 261 Cal. App. 2d 766, 771, 68 Cal. Rptr. 180 ; Taylor v. S & M Lamp Co. (1961) 190 Cal.
App. 2d 700, 706, 12 Cal. Rptr. 323] , damage resulting from the wrongful act (Paragraphs 14 and
15) [see Taylor v. S & M Lamp Co. (1961) 190 Cal. App. 2d 700, 705, 706, 12 Cal. Rptr. 323] ,
and the basis for punitive damages (optional Paragraph 16) [see Civ. Code ß 3294].
[4] Jurisdiction
An action to set aside a fraudulent transfer has traditionally been considered an equitable action [see
Stearns v. Los Angeles City School Dist. (1966) 244 Cal. App. 2d 696, 719, 53 Cal. Rptr. 482 ;
Wagner v. Trout (1954) 124 Cal. App. 2d 248, 254, 268 P.2d 537 ; but see Civ. Code ß 3439.08(b),
(c) and discussion in ß 270.44[1]]. An exception to the equitable action theory, even under prior law,
allowed a money judgment to be entered against a conspiring transferee who subsequently sold the
property making it unavailable for satisfaction of the creditor's underlying debt [ Flowers & Sons
Development Corp. v. Municipal Court (1978) 86 Cal. App. 3d 818, 825, 150 Cal. Rptr. 555 ; see ß
270.196]. If an action to set aside a fraudulent transfer is considered an equitable remedy, it could be
handled as a limited civil case only if the property fraudulently transferred is valued at not more than
$25,000 [Code Civ. Proc. ß 86(b)(1); see Code Civ. Proc. ßß 85, 86(a)(7)(A), 580(b)(4), 1060
(declaratory relief in action that is otherwise limited civil case)]. Otherwise, the action must be brought
in the superior court as a case of unlimited jurisdiction [see Cal. Const., art. VI, ß 10].
[5] Venue
An action to set aside a fraudulent conveyance of real property has been considered local in nature
since the court is in effect determining a right or interest in real property and the effect of a judgment
for the plaintiff would be to reinvest the title to the property in the debtor to the extent of the debtor's
obligation to the plaintiff [ Rice v. Schubert (1951) 101 Cal. App. 2d 638, 640-642, 226 P.2d 50] .
The applicable venue provision for such an action is thus contained in Code Civ. Proc. ß 392(a)(1),
which provides that subject to the power of the court to transfer actions and proceedings as provided
Page 387 of 479

in Code Civ. Proc. ß 397, the county in which the real property, which is the subject of the action, or
some part thereof, is situated, is the proper county for the trial for such an action [see Rice v.
Schubert (1951) 101 Cal. App. 2d 638, 640-642, 226 P.2d 50] .
However, when the plaintiff's underlying claim has already been reduced to judgment, the action has
been considered one in the nature of a creditor's bill in aid of execution. The primary purpose of such
an action is to redress the frustration of the plaintiff creditor's execution and, therefore, the judgment
would not act directly on the land. Such an action, being transitory in nature, as is an action to set
aside a fraudulent transfer of personal property, may be properly tried in the county in which the
defendants or some of them reside at the commencement of the action [see Code Civ. Proc. ß 395;
Los Angeles City School Dist. v. Redwood Empire Title Co. (1962) 206 Cal. App. 2d 398, 402-403,
23 Cal. Rptr. 662 ; for discussion and forms relating to creditor's suits, see Ch. 254, Executions and
Enforcement of Judgments ].
Finally, it should be noted that if the action to set aside the fraudulent conveyance involves a corporate
defendant, Code Civ. Proc. ß 395.5, providing that a corporation or association may be sued in the
county where the corporation's principal place of business is situated, may apply, regardless of
whether the action is considered local or transitory in nature. The predecessor constitutional section to
Code Civ. Proc. ß 395.5, Cal. Const., art. XII, ß 16, has been held controlling [ Los Angeles City
School Dist. v. Redwood Empire Title Co. (1962) 206 Cal. App. 2d 398, 403, 23 Cal. Rptr. 662] .
An action to set aside a fraudulent transfer on the ground that it was made with actual intent to
defraud, hinder, or delay a creditor must be brought within four years after the transfer was made or
the obligation was incurred, or, if later, within one year after the transfer or obligation was or could
reasonably have been discovered by the claimant [Civ. Code ß 3439.09(a); Judicial Council of
California Civil Jury Instructions, CACI No. 4208 (LexisNexis Matthew Bender) (related California
Judicial Council jury instruction)]. Notwithstanding any other provision of law, an action to set aside
a fraudulent transfer must be brought within seven years after the transfer was made or the obligation
was incurred [Civ. Code ß 3439.09(c); Judicial Council of California Civil Jury Instructions, CACI
No. 4208 (LexisNexis Matthew Bender) (related California Judicial Council jury instruction)].
The Uniform Fraudulent Transfer Act is not the exclusive remedy by which fraudulent conveyances
and transfers may be attacked; they may also be attacked by a common law action. If such an action is
brought, the applicable statute of limitations is Code Civ. Proc. ß 338(d) (providing three-year statute
of limitations for actions for relief on ground of fraud or mistake) and the cause of action accrues not
when the fraudulent transfer occurs, but when the judgment against the debtor is secured (or later, if
there was belated discovery) [ Macedo v. Bosio (2001) 86 Cal. App. 4th 1044, 1050-1052, 104 Cal.
Rptr. 2d 1 (following principles set forth in Cortez v. Vogt (1997) 52 Cal. App. 4th 917, 937, 60
Cal. Rptr. 2d 841 ); see ß 270.49].
If an action to set aside a fraudulent transfer is considered an equitable action, rather than an action for
Page 388 of 479

money as is arguably authorized by Civ. Code ß 3439.08(b), (c) (discussed in ß 270.44[1]), the
creditor must also be aware of the possiblity of being barred by laches [see Heffernan v. Bennett &
Armour (1952) 110 Cal. App. 2d 564, 583, 243 P.2d 846 ; Pedro v. Soares (1937) 18 Cal. App. 2d
600, 610, 64 P.2d 776] . Laches is applied only when the delay in commencing the action was
unnecessary and caused some injury to the defendant [see Pedro v. Soares (1937) 18 Cal. App. 2d
600, 610-611, 64 P.2d 776] .
[7] Necessary Party Defendants
The transferee of a fraudulent transfer is a necessary party defendant in an action to set aside the
fraudulent transfer [ TWM Homes, Inc. v. Atherwood Realty & Inv. Co. (1963) 214 Cal. App. 2d
826, 848, 29 Cal. Rptr. 887] since the residue of the property fraudulently transferred is returned to
the defendant transferee after the claim of the plaintiff creditor is satisfied [see Civ. Code ß 3439.08
(b)-(d); Heffernan v. Bennett & Armour (1952) 110 Cal. App. 2d 564, 586, 243 P.2d 846 ; Liuzza
v. Bell (1940) 40 Cal. App. 2d 417, 430, 104 P.2d 1095] . The transferor, although a proper party
defendant, is not a necessary one, since he or she has reserved no interest, legal or equitable, in the
property conveyed [see TWM Homes, Inc. v. Atherwood Realty & Inv. Co. (1963) 214 Cal. App. 2d
826, 848, 29 Cal. Rptr. 887 ; Liuzza v. Bell (1940) 40 Cal. App. 2d 417, 424, 104 P.2d 1095] .
[8] Other Remedies
The primary relief granted to a creditor in his or her action to have set aside a fraudulent transfer is a
primary lien imposed on the property conveyed to secure payment of the creditor's claim [see
Patterson v. Missler (1965) 238 Cal. App. 2d 759, 771, 48 Cal. Rptr. 215] . The transferee may be
declared a constructive trustee of the asset and may be required to account for anything he or she
received [see McKnight v. Superior Court (1985) 170 Cal. App. 3d 291, 295-300, 215 Cal. Rptr.
909 ; Bass v. Youngblood (1963) 221 Cal. App. 2d 278, 289, 34 Cal. Rptr. 326] .
The creditor, whether or not his or her claim has matured, may seek attachment and other provisional
remedies set forth at Code Civ. Proc. ßß 481.010-493.060 in connection with an action to set aside the
fraudulent transfer or obligation [Civ. Code ß 3439.07(a)(2)]. If this complaint is combined with a
cause of action on the underlying claim, attachment may be had if it would otherwise be available in an
action on the underlying claim [Civ. Code ß 3439.07(b)].
In addition, the creditor, whether the holder of a mature claim or a claim which has not matured may
also move for the appointment of a receiver to take over the management and control of the property
or its proceeds [Civ. Code ß 3439.07(a)(3)(B); Burrows v. Jorgensen (1958) 158 Cal. App. 2d 644,
648, 323 P.2d 150] . A receiver may be appointed by the court in which an action or proceeding is
pending, or by a judge of the court, in any of the following cases (among others):
In an action by creditor to subject any property or fund to the creditor's claim, when it is
shown that the property or fund is in danger of being lost, removed, or materially injured
Page 389 of 479

[Code Civ. Proc. ß 564(b)(1)];
After judgment, to dispose of the property according to the judgment, or to preserve it

during the pendency of an appeal [Code Civ. Proc. ß 564(b)(4)];
In all other cases when necessary to preserve the property or rights of any party [Code
Civ. Proc. ß 564(b)(9)].
For further discussion and forms for allegations, prayers, and orders for the appointment of receivers,
see Ch. 486, Receivers .
In addition, the creditor, whether or not his or her claim has matured, and subject to applicable
principles of equity and rules of civil procedure, may seek an injunction against the debtor or a
transferee, or both, or restraining further disposition of the asset or its proceeds [Civ. Code ß 3439.07
(a)(3)(A); see San Francisco v. Market S. R. Co. (1950) 95 Cal. App. 2d 648, 655-658, 213 P.2d
780 (request for preliminary injunction based on threat to distribute liquidating dividend by defendant
corporation to its stockholders without provision for payment of outstanding tort claims denied when
complaint was unverified and failed adequately to show imminent violation)]. The court may make
any order which the circumstances of the case may require [Civ. Code ß 3439.07(a)(3)(C)].
[9] Recordation of Lis Pendens
At the time the creditor files an action to set aside a fraudulent conveyance, a notice of lis pendens
should be recorded and served on the necessary parties [see Code Civ. Proc. ß 409 et seq.; McKnight
v. Superior Court (1985) 170 Cal. App. 3d 291, 295-300, 215 Cal. Rptr. 909 (lis pendens suppported
by verified complaint to set aside fraudulent conveyance and impose constructive trust)]. A successful
fraudulent conveyance claim requesting relief pursuant to Civ. Code ß 3439.07(a)(1) can result in the
voiding of a transfer of title of specific real property. By definition, the voiding of a transfer of real
property will affect the title to or possession of real property. Clearly such a fraudulent conveyance
action "affects title to, or the right to possession of" real property [see Code Civ. Proc. ß 405.4] and is
therefore a real property claim for purposes of the lis pendens statutes. The complaint must adequately
plead the fraudulent conveyance claim by alleging that the defendant transferred specified real property
with the intent to defraud; for instance, "and defendant made this transfer with the actual intent to
hinder, delay, and/or defraud all of defendant's creditors in the collection of their claims." The
complaint also should ask the court to void the transfer of the specified property to the extent
necessary to satisfy the claim in the complaint [ Kirkeby v. Superior Court (2004) 33 Cal. 4th 642,
649-650 15 Cal. Rptr. 3d 805, 93 P.3d 395] .
Once the lis pendens has been recorded, it imparts constructive notice to anyone who could otherwise
acquire an interest in the property superior to the plaintiff's by purchasing from the grantee for value
and without notice of plaintiff's claim [see Ahmanson Bank & Trust Co. v. Tepper (1969) 269 Cal.
App. 2d 333, 341-342, 74 Cal. Rptr. 774] . For a discussion of the requirements for recording a
Page 390 of 479

notice of lis pendens and forms for such notices, see Ch. 348, Lis Pendens .
[10] Undertaking to Release Property
On the filing of an action seeking relief from a fraudulent transfer, the transferee may file an
undertaking permitting him or her to transfer, convey, encumber, or otherwise dispose of the property
unaffected by the action or the judgment rendered [Civ. Code ß 3446]. The undertaking must be for
the lesser of double the value of the property or double the amount of the creditor's claim in the action
[Civ. Code ß 3448]. It requires that if the transfer or obligation is determined to be fraudulent, the
transferee pay the creditor the lesser of the value of the property as estimated in the undertaking or the
amount determined in the action to be due and owing to the creditor by the transferor or obligor [Civ.
Code ß 3447]. The procedures for objecting to the undertaking or the sureties on the undertaking are
contained in the Bond and Undertaking Law [see Code Civ. Proc. ßß 995.010-996.560; see also Ch.
538, Suretyship, Bonds, and Undertakings ].
[11] State Statutes
Transfer made or obligation incurred with actual intent to defraud either present or future creditors is
fraudulent as to both present and future creditors. Civ. Code ß 3439.04(a)
Creditor is permitted to maintain action to have fraudulent transfer or obligation set aside or annulled
to extent necessary to satisfy claim except against purchaser or encumbrancer who gave reasonably
equivalent value without knowledge of fraud at time of purchase. Civ. Code ßß 3439.04(a), 3439.07
(a)(1), 3439.08
Undertaking to free property subject to fraudulent transfer action. Civ. Code ß 3445 et seq.
[12] Decisions
[a] Elements of Conspiracy Action
Civil liability for conspiracy exists when conspiracy has been formed and operated to accomplish by
concerted action unlawful action or purpose or lawful purpose by unlawful means. Taylor v. S & M
Lamp Co. (1961) 190 Cal. App. 2d 700, 706, 12 Cal. Rptr. 323
Contrary to public policy for debtor to transfer or conceal property for purpose of defrauding
creditors. Taylor v. S & M Lamp Co. (1961) 190 Cal. App. 2d 700, 706, 12 Cal. Rptr. 323
[b] Elements of Fraudulent Transfer Action
Failure of complaint to allege that consideration was inadequate or that transferee intended or
participated in or had knowledge of transferor's fraudulent intent was not stating cause of action to set
Page 391 of 479

aside actually fraudulent transfer. Kuhlman v. Pacific States S. & L. Co. (1940) 17 Cal. 2d 820,
821-822, 112 P.2d 620 (decided under law as it existed prior to 1939 amendments)
Creditor is not required to reduce claim to judgment before maintaining action to set aside fraudulent
transfer. Rupp v. Kahn (1966) 246 Cal. App. 2d 188, 197, 55 Cal. Rptr. 108
[c] Nature of Action
Action is neither on underlying contract nor on judgment but is equitable relief against obstruction
caused by transfers which hinder creditor in satisfaction of his or her claim by ordinary process of
law. Fleischmann v. Lotito (1936) 6 Cal. 2d 365, 366, 57 P.2d 922
[d] Parties to Action
Transferee is necessary party in action to set aside fraudulent transfer. TWM Homes, Inc. v.
Atherwood Realty & Inv. Co. (1963) 214 Cal. App. 2d 826, 848, 29 Cal. Rptr. 887 ; Heffernan v.
Bennett & Armour (1952) 110 Cal. App. 2d 564, 586, 243 P.2d 846
Transferor, even though proper party defendant, is not necessary one. T W M Homes, Inc. v.
Atherwood Realty & Inv. Co. (1963) 214 Cal. App. 2d 826, 848, 29 Cal. Rptr. 887
[e] Privilege Against Self-Incrimination
criminal prosecution arising from same facts, and court should have denied or continued motion
[f] Receivership
Code Civ. Proc. ß 564(b)(1), (4), and (9) authorize appointment of receiver in actions to set aside
fraudulent transfers. Burrows v. Jorgensen (1958) 158 Cal. App. 2d 644, 648, 323 P.2d 150
[g] Recovery of Interest
Amount of plaintiff's lien imposed on property fraudulently transferred to secure repayment of his or
her claim includes interest on money judgment from date of entry. Patterson v. Missler (1965) 238
Cal. App. 2d 759, 771, 48 Cal. Rptr. 215
Page 392 of 479

In action to recover value of property fraudulently transferred by bankrupt, award of interest from
date of transfer is proper exercise of court's discretion under Civ. Code ß 3288 (awarding of interest in
actions based on fraud) since transfer is deemed void as well as fraudulent, and transferee is treated as
constructive trustee who is required to account for what he has received. Bass v. Youngblood (1963)
221 Cal. App. 2d 278, 289, 34 Cal. Rptr. 326
estate as well as transfer of personal property. Heffernan v. Bennett & Armour (1944) 63 Cal. App.
2d 178, 184, 146 P.2d 482
[i] Venue
Action to set aside fraudulent conveyance of real property is considered local in nature, and applicable
venue provision, therefore, as contained in Code Civ. Proc. ß 392, which provides that county in
which real property or some part thereof is situated is proper county for trial of action. Rice v.
Schubert (1951) 101 Cal. App. 2d 638, 640-642, 226 P.2d 50
When fraudulent conveyance action is not considered action to enforce lien on real property, but bill
in aid of execution, action is considered transitory in nature and normal venue provisions are
applicable. Los Angeles City School Dist. v. Redwood Empire Title Co. (1962) 206 Cal. App. 2d
398, 402-403, 23 Cal. Rptr. 662
[13] Text References
Witkin, California Procedure, Vol. 5, Pleading, ß 836, Vol. 8, Enforcement of Judgment, ßß

445-453, 459, 473 (4th ed.)
For discussion and forms relating to accounting, see Ch. 7, Accounting, Action for.
allegations, see Ch. 20, Allegations Commonly Used .
For discussion and forms relating to attachment, see Ch. 62, Attachment .
For alternative forms for captions and introductions, see Ch. 108, Captions and Introductions .
For complaints for breach of contract, see Ch. 140, Contracts .
Page 393 of 479

For alternative allegations of damages, see Ch. 177, Damages .
For forms for allegations and prayers for appointment of receivers, see Ch. 486, Receivers .
For alternative forms for prayers and verifications, see Ch. 420, Prayers , and Ch. 572, Verification .
Page 394 of 479

PART IV. FORMS
ß 270.191 Allegation--In Complaint to Set Aside Fraudulent Transfer or Obligation [Civ.

Code ß 3439.07(a)]--Transfer Made or Obligation Incurred by Insolvent Other Than
Partnership [Civ. Code ßß 3439.02(a), (c)-(e), 3439.05]
[1] FORM Allegation--In Complaint to Set Aside Fraudulent Transfer or Obligation [Civ. Code
ß 3439.07(a)]--Transfer Made or Obligation Incurred by Insolvent Other Than Partnership [Civ.
Code ßß 3439.02(a), (c)-(e), 3439.05]
1. On or about ____________________ [date], the date on which the ___________________

[aforementioned transfer was made or above-described obligation was incurred], defendant
___________________ [name of transferor] had incurred an extensive indebtedness [in addition to
the above-described obligation]. [Plaintiff is informed and believes and thereon alleges that] [t]he
obligations of defendant ___________________ [name of transferor], other than the above-described
claim of plaintiff, included both matured and unmatured claims.
2. [Plaintiff is informed and believes and thereon alleges that] [d]efendant ___________________
[name of transferor] had paid neither the whole nor any part of his/her indebtedness owed to creditors
holding any such matured claims [except the sum of $____________________] and that the total fair
value of such matured claims was at least $____________________. In addition, defendant
___________________ [name of transferor] was potentially indebted to other creditors holding
outstanding claims against him/her which had not yet matured with a total fair value of at least
$____________________. Together, the fair value of defendant ___________________'s [name of
transferor] potential liability for all his/her existing debts was at least $____________________.
[EITHER]
Page 395 of 479

3. [Plaintiff is (further) informed and believes and thereon alleges that] ___________________ [as a
result of the ___________________ (making of the aforementioned transfer or incurring of the
above-described obligation), defendant ___________________ (name of transferor) thereby
rendered himself/herself insolvent or defendant ___________________ (name of transferor) at the
time of the ___________________ (making of the aforementioned transfer or incurring of the above-
described obligation) was insolvent] in that ___________________ [at fair valuations, the sum of
defendant ___________________'s (name of transferor) debts was greater than all of his/her/its
assets and/or defendant ___________________ (name of transferor) was generally not paying his/
her debts as they became due].
[OR]
3. Plaintiff is [further] informed and believes and thereon alleges that defendant
___________________ [name of transferor] was insolvent at the time of the ___________________
[making of the aforementioned transfer or incurring of the above-described obligation] since plaintiff
has instituted an extensive search for but has found neither defendant ___________________ [name
of transferor] nor any assets which defendant ___________________ [name of transferor] may have
had at the time of the ___________________ [making of the aforementioned transfer or incurring of
the above-described obligation] against which plaintiff could have satisfied his/her claim.
[2] Use of Form
These allegations may be used in place of Paragraph 7 of the First Cause of Action of ß 270.190[1],
in a creditor's action to set aside a transfer or annul an obligation made or incurred by the creditor's
debtor for less than reasonably equivalent value and who was insolvent at the time of the transfer or
obligation or was rendered insolvent thereby [see Civ. Code ß 3439.05; Judicial Council of California
Civil Jury Instructions, CACI No. 4203 (LexisNexis Matthew Bender) (related California Judicial
Council jury instruction)]. In addition, they may be included as a separate cause of action in the
creditor's complaint to set aside a transfer or annul an obligation made with actual fraudulent intent as
set forth in see ß 270.190 [see Hansford v. Lassar (1975) 53 Cal. App. 3d 364, 374-379, 125 Cal.
Rptr. 804] .
Although a plaintiff may be a creditor holding a matured claim or a claim which has not matured
against the transferor, these allegations may be used only by a plaintiff whose claim arose before the
transfer was made or the obligation was incurred who was a creditor at the time of the making of the
conveyance or incurring of the obligation; and this fact must be alleged in plaintiff's complaint [Civ.
Code ß 3439.05; see Pope v. National Aero Fin. Co. (1965) 236 Cal. App. 2d 722, 728, 46 Cal.
Rptr. 233 ; TWM Homes, Inc. v. Atherwood Realty & Inv. Co. (1963) 214 Cal. App. 2d 826, 843, 29
Cal. Rptr. 887 ; Judicial Council of California Civil Jury Instructions, CACI No. 4203 (LexisNexis
Matthew Bender) (related California Judicial Council jury instruction)].
Page 396 of 479

[3] Alleging Debtor's Insolvency
A complaint to set aside a transfer conveyance or annul an obligation which was made or incurred by
a debtor who was insolvent or was rendered insolvent thereby must allege either that the debtor was
insolvent at the time of the making of the transfer conveyance or the incurring of the obligation, or that
the making of the transfer or the incurring of the obligation resulted in the debtor's insolvency. A
complaint that merely alleges that after making a transfer for which the debtor received less than
reasonably equivalent value in exchange, the debtor was in fact insolvent does not state a cause of
action for setting aside the transfer [see Tokar v. Redman (1956) 138 Cal. App. 2d 350, 355, 291 P.
2d 987] .
Although pleading generally that the transferor was insolvent at the time of making the fraudulent
transfer or was rendered insolvent thereby may be sufficient to allege insolvency [see TWM Homes,
Inc. v. Atherwood Realty & Inv. Co. (1963) 214 Cal. App. 2d 826, 847, 29 Cal. Rptr. 887] , this form
specifically alleges the debtor's insolvency by alleging that the fair value of the debtor's obligations
exceeded the then fair value of his or her assets and/or that the debtor was generally not paying its
debts as they became due [see Civ. Code ß 3439.01(a)(1), (2) (assets exclude exempt property and
property to extent encumbered by valid lien), 3439.02(a) (defining insolvency), (b) (defining
insolvency of partnership), (c) (presumption of insolvency arising from nonpayment of debts), (e)
(debts for purpose of determining insolvency exclude those secured by valid lien); TWMHomes, Inc.
v. Atherwood Realty & Inv. Co. (1963) 214 Cal. App. 2d 826, 847, 29 Cal. Rptr. 887 ; see also
Judicial Council of California Civil Jury Instructions, CACI Nos. 4205, 4206 (LexisNexis Matthew
Bender) (related California Judicial Council jury instructions)]. In the alternative, this form alleges that
plaintiff creditor was unable to locate the debtor or any of his or her assets (second alternative
Paragraph 3) [see Civ. Code ß 3439.02(d) (assets for purpose of determining insolvency exclude
those transferred to hinder or defraud creditors); Neumeyer v. Crown Funding Corp. (1976) 56 Cal.
App. 3d 178, 186, 128 Cal. Rptr. 366 ; see also Judicial Council of California Civil Jury Instructions,
CACI Nos. 4205, 4206 (LexisNexis Matthew Bender) (related California Judicial Council jury
instructions)]. The latter allegation is sufficient to shift the burden of pleading and proving that the
debtor-transferor was in fact solvent to the defendant transferee [see Neumeyer v. Crown Funding
Corp. (1976) 56 Cal. App. 3d 178, 186-190, 128 Cal. Rptr. 366] .
[4] State Statutes
Assets defined to exclude exempt property, property to extent encumbered by valid lien, and tenancy
by entirety property which could not be reached by creditor of only one tenant. Civ. Code ß 3439.01
(a)
Valid lien is effective against holder of judicial lien subsequently obtained by legal or equitable
process or proceeding. Civ. Code ß 3439.01(j)
Page 397 of 479

In determining insolvency, assets transferred, concealed, or removed with intent to hinder, delay, or
defraud creditors or in other manner so as to be voidable under Civ. Code ßß 3439-3439.12 are
excluded. Civ. Code ß 3439.02(d)
In determining insolvency, obligation is excluded to extent it is secured by valid lien on property of

debtor not incuded as asset. Civ. Code ß 3439.02(e)
3439.05
[5] Decisions
Conveyance by insolvent partnership of partnership asset without receipt of reasonably equivalent

value is transfer in fraud of creditors, without regard to debtor's actual intent. Headen v. Miller (l983)
141 Cal. App. 3d 169, 172, 190 Cal. Rptr. 198
Change in beneficiary of insurance policy from one partner to other partner's wife is fraudulent
transfer if creditors establish that insurance proceeds were asset of partnership and thus subject to
claims to extent proceeds exceed amount exempt from enforcement of judgment. Headen v. Miller
(l983) 141 Cal. App. 3d 169, 176, 190 Cal. Rptr. 198
Allegation that debtor was insolvent after making transfer or conveyance is insufficient to establish
that transfer thereby rendered debtor insolvent. Tokar v. Redman (1956) 138 Cal. App. 2d 350, 355,
291 P.2d 987
Civ. Code ß 3439.05 protects only existing creditors and person invoking section as required to
establish status as creditor at time transfer was made. TWM Homes, Inc. v. Atherwood Realty & Inv.
Actual fraudulent intent of debtor is immaterial if transfer constructively fraudulent under Civ. Code ß
3439.05. Hansford v. Lassar (1975) 53 Cal. App. 3d 364, 374, 125 Cal. Rptr. 804
Page 398 of 479

Burden of proof as to insolvency under Civ. Code ß 3439.05 is on party claiming it as fact.
Hansford v. Lassar (1975) 53 Cal. App. 3d 364, 375, 125 Cal. Rptr. 804
When plaintiff creditor has established prima facie case of insolvency by demonstrating extensive
liabilities on part of debtor and evidence shows that all efforts by creditors to locate either debtor or
his or her assets have proven fruitless, burden of producing further evidence on insolvency issue is
shifted to transferee. Neumeyer v. Crown Funding Corp. (1976) 56 Cal. App. 3d 178, 186-190, 128
Cal. Rptr. 366
[6] Text References
Witkin, California Procedure, Vol. 8, Enforcement of Judgment, ßß 454-456 (4th ed.)
Page 399 of 479

PART IV. FORMS

Code ß 3439.07(a)]--Transfer Made or Obligation Incurred by Insolvent Partnership [Civ.
Code ßß 3439.02, 3439.05]
ß 3439.07(a)]--Transfer Made or Obligation Incurred by Insolvent Partnership [Civ. Code ßß
3439.02, 3439.05]
1. Defendant ___________________ [name] is, and at all times herein mentioned, was a partnership,
sued herein under the name ___________________ [it has assumed or by which it is known].
Defendant ___________________'s [name of partnership] principal place of business is in
[___________________ (city),] ___________________ County, California.
2. Defendants ___________________ [names] are, and at all times herein mentioned were, partners
of the above-named partnership and are sued herein both individually and as partners of defendant
___________________ [name of partnership]. [Defendants ___________________ (names) are,
and at all times herein mentioned were, residents of ___________________ County, California.]
3. Plaintiff is informed and believes and thereon alleges that at all times herein mentioned and in doing
all of the things herein alleged, each of the individual defendants was authorized and empowered to act
as agent of the other individual defendants and of the defendant partnership, and each and all of the
things herein alleged to have been done by each individual defendant were done by him or her in the
capacity and as agent of the other individual defendants and of the defendant partnership.
4. ___________________ [From and after ____________________ [date] or At all times herein

mentioned] plaintiff ___________________ [was or has been] the holder of a certain claim against
Page 400 of 479

defendants ___________________ [name of partnership and individual partners]. This claim

consists of ___________________ [specify claim, and if based on a document, attach a copy as an
exhibit, e.g., a note payable to plaintiff in the principal sum of $5,000 with interest thereon from and
after ____________________(date), at _____ percent per annum, all due on
____________________ (date). A copy of the note is attached as "Exhibit A" and incorporated by
reference.] This ___________________ [specify, e.g., note] was ___________________ [specify,
e.g., negotiated and executed by ___________________ (name of individual partner)] as partner on
behalf of the defendant partnership. The ___________________[describe benefit of particular
transaction, e.g., proceeds of the note] were used in and benefitted the partnership business.
[EITHER]
[date], defendant ___________________ [name of partnership], by and through defendant(s)
___________________ [name(s) of individual partner(s)] as partner(s) on behalf of the defendant
partnership ___________________ [describe manner of transfer, e.g., deeded] the above-described
property to defendant ___________________ [name of transferee]. [If instrument was recorded,
official registration was changed, or security interest was given by UCC filing, give the particulars of
the recordation, transfer of registration, or filing, e.g., On ____________________ (date), the deed
was recorded in _____(Book or Reel) ____________________ (number) _____ (Page or Image)
____________________(number), Official Records in the Office of the County Recorder of
___________________ County, California.]
[OR]
___________________ [name(s) of individual partners] as partner(s) on behalf of the defendant
partnership entered into an agreement under which defendant ___________________[name of
partnership] became obligated to ___________________[specify, e.g., lease from defendant
___________________ (name of obligee) 2,000 square feet of commercial space at
___________________(address) for a period of five years and to pay ___________________(name
of obligee) $____________________ per year as rental]. Defendant ___________________ [name
of partnership] has ___________________ [not yet made any payments or paid
$____________________] to ___________________ (name of obligee) in fulfillment of this
___________________ [specify, e.g., lease].
[CONTINUE]
Page 401 of 479

6. On or about _____ [date], the date on which the aforementioned ___________________ [transfer
was made or obligation was incurred], defendant ___________________ [name of partnership] had
incurred extensive indebtedness [in addition to the claim of plaintiff]. [Plaintiff is informed and
believes and thereon alleges that] [t]he obligations of defendant ___________________ [name of
transferor], other than the above-described claim of plaintiff, included both matured and unmatured
claims.
[name of partnership] had paid neither the whole nor any part of its indebtedness owing to creditors
holding matured claims [except the sum of $____________________] and that the total fair value of
such matured claims was at least $____________________. In addition, defendant
___________________ [name of partnership] was potentially indebted to other creditors holding
outstanding claims which had not yet matured with a total fair value of at least
$____________________. Together, the fair value of defendants' potential liability for all existing
partnership debts was at least $____________________.
[EITHER]
8. [Plaintiff is (further) informed and believes and thereon alleges that] ___________________ [(a)s a
result of ___________________ (making the aforementioned transfer or incurring the above-
described obligation), defendant ___________________ (name of partnership) thereby rendered
itself insolvent or (d)efendant ___________________ (name of partnership) at the time of
___________________ (making the aforementioned transfer or incurring the above-described
obligation) was insolvent] in that ___________________ [at fair valuations, the sum of the partner-
ship's debts was greater than the aggregate of all of the partnership's assets and the sum of the excess
(, in any) of the value of each general partner's nonpartnership assets over the partner's nonpartnership
debts and/or defendant ___________________ (name of partnership) was generally not paying its
debts as they became due].
[OR]
8. [Plaintiff is (further) informed and believes and thereon alleges that] [d]efendant
___________________ (name of partnership) was insolvent at the time of the
___________________ [making the aforementioned transfer or incurring the above-described
obligation] because plaintiff has instituted an extensive search for but has found neither defendants
___________________ [names of individual partners] nor any assets which defendant
___________________ [name of partenrship] or defendants ___________________ [names of
individual partners] may have had at the time of ___________________ [making the aforementioned
transfer or incurring the above-described obligation] against which plaintif could have satisfied his/
her/its claim.
Page 402 of 479

[2] Use of Form
These allegations are for use to set aside a fraudulent transfer or obligation made or incurred by a
partnership which is insolvent or which is rendered insolvent by the transfer or obligation [see Civ.
Code ßß 3439.02(b), 3439.05; Code Civ. Proc. ß 369.5; Corp. Code ßß 16301, 16305(a); Judicial
Council of California Civil Jury Instructions, CACI Nos. 4203, 4205, 4206 (LexisNexis Matthew
Bender) (related California Judicial Council jury instructions)]. The allegations may be used in place
of Paragraphs 1, 3, 6, and 7 of the First Cause of Action in ß 270.190[1]. Unless plaintiff can and
wishes to rely solely on the presumption of insolvency arising because the partnership is generally not
paying its debts as they become due [Civ. Code ß 3439.02(c)], the excess, if any, of each general
partner's nonpartnership assets over nonpartnership debts will have to be taken into account in order
to establish the partnership's insolvency (first alternative Paragraph 8) [Civ. Code ß 3439.02(b)].
[3] Allegations
This form contains:
Capacity allegations which may be used in place Paragraph 1 in ß 270.190[1] when the
transferor/debtor is a partnership (Paragraphs 1-3) [see Code Civ. Proc. ß 388];
Allegations that the underlying obligation was incurred on behalf of and for the benefit
of the partnership (Paragraph 4) and that the fraudulent transfer was made or obligation
was incurred on behalf of the partnership (alternative Paragraphs 5) which may be used
in place of Paragraphs 3 and 6 in see ß 270.190 when the transferor/debtor is a partner-
ship [see Corp. Code ßß 16301, 16305(a)];
Allegations that the partnership had other matured and unmatured claims against it at the
time of the transfer or obligation (Paragraph 6);
Allegations of the fair value of those obligations (Paragraph 7) [see Civ. Code ß 3439.02
(a); see also Judicial Council of California Civil Jury Instructions, CACI Nos. 4205,
4206 (LexisNexis Matthew Bender) (related California Judicial Council jury
instructions)]; and
Allegations of insolvency (alternative Paragraphs 8) which may be used in place of

alternative Paragraphs 3 in see ß 270.191 when the transferor/debtor is a partnership [see
Civ. Code ß 3439.02(b), (c); see also Judicial Council of California Civil Jury Instruc-
tions, CACI Nos. 4205, 4206 (LexisNexis Matthew Bender) (related California Judicial
Council jury instructions)].
Page 403 of 479

See also ßß 270.190 and 270.191.
Page 404 of 479

PART IV. FORMS
ß 270.193 Allegation--In Complaint to Set Aside Fraudulent Transfer or Annul Fraudulent

Obligation [Civ. Code ß 3439.07(a)(1)]--Transfer Made or Obligation Incurred by Person
Believing Debts Will Be Incurred Beyond Person's Ability to Pay [Civ. Code ß 3439.04(a)(2)
(B)]
[1] FORM Allegation--In Complaint to Set Aside Fraudulent Transfer or Annul Fraudulent
Obligation [Civ. Code ß 3439.07(a)(1)]--Transfer Made or Obligation Incurred by Person Believing
Debts Will Be Incurred Beyond Person's Ability to Pay [Civ. Code ß 3439.04(b)(2)]
At the time defendant ___________________ [name of transferor] ___________________ [made

the aformentioned transfer or incurred the above-described obligation], he/she
___________________ [intended and/or believed and/or reasonably should have believed] that he/
she would thereafter incur debts which would be beyond his/her ability to pay as they became due.
[2] Use of Form
This allegation may be used in place of Paragraph 7 of the First Cause of Action of ß 270.190[1],
with appropriate modifications made in that form, in a creditor's action to set aside a transfer or
conveyance or annul an obligation if the transfer was made or the obligation incurred without the
debtor's receiving reasonably equivalent value in exchange therefor and when the debtor intended to
incur, or believed or reasonably should have believed, that he or she would thereafter incur debts
beyond his or her ability to pay as they become due. A person who was a creditor at the time of the
transfer or the incurring of the obligation or a person who subsequently became a creditor may bring
such an action [see Civ. Code ß 3439.04(a)(2)(B); Judicial Council of California Civil Jury Instruc-
tions, CACI No. 4202 (LexisNexis Matthew Bender) (related California Judicial Council jury
instruction)].
Page 405 of 479

[3] State Statutes
exchange therefor and who intended to incur, or believed or reasonably should have believed that he
or she would incur, debts beyond his or her ability to pay as they became due held fraudulent as to
both present and future creditors. Civ. Code ß 3439.04(a)(2)(B)
[4] Decisions
Complaint to set aside transfers made or obligations incurred which are fraudulent under Civ. Code ß
3439.04(a)(2)(B) is required to allege that plaintiff was creditor of debtor, that transfers were made or
obligations entered into with intent or belief that debts would be incurred beyond individual's ability to
pay as they became due, and that transfers were made or obligations were incurred without reasonably
equivalent consideration. Pope v. National Aero Fin. Co. (1965) 236 Cal. App. 2d 722, 728, 46 Cal.
Rptr. 233
Page 406 of 479

PART IV. FORMS
ß 270.194 Complaint to Set Aside Fraudulent Transfer [Civ. Code ß 3439.07(a)(1)]--Transfer

Made Leaving Unreasonably Small Remaining Assets With Which to Engage in Business or
Transaction [Civ. Code ß 3439.04(a)(2)(A)]
[1] FORM Complaint to Set Aside Fraudulent Transfer [Civ. Code ß 3439.07(a)(1)]--Transfer
Transaction [Civ. Code ß 3439.04(b)(1)]
COUNTY OF ___________________
______________________ [name], )
Plaintiff, )
vs. ) NO. _____
______________________[name(s)], ) COMPLAINT TO HAVE FRAUDULENT
Defendant(s). ) TRANSFER SET ASIDE
__________________________________________________
Plaintiff alleges:
[1. Capacity and residence of defendant. See ß 270.190[1], Paragraph 1.]
[2. Fictitious name allegation, if appropriate. See ß 270.190[1], Paragraph 2.]
[EITHER]
Page 407 of 479

3. On or about ____________________ [date], defendant ___________________ [name of

transferor] was ___________________ [engaged in or about to engage in] a business in the State of
California as ___________________ [describe business, e.g., a contractor for the construction of
residential dwellings].
[OR]

transferor] was ___________________ [engaged in or about to engage in] a transaction with
___________________ [specify person(s) involved, e.g., plaintiff] in which defendant
___________________ [name of transferor] ___________________[would or was]
___________________ [describe transaction, e.g., raise certain cattle stock for eventual sale, the
proceeds of which sale were to be divided between defendant ___________________ (name of
transferor) and plaintiff].

transferor) did commence that ___________________ (business or transaction). On or about
____________________ (date), this ___________________ (business or transaction) entirely failed
and collapsed as proximate result of the unreasonably small remaining assets with which to carry on
the ___________________ (business or transaction).]
5. [Transfer of property or incurring of obligation on date on which transferor was engaged or was
about to engage in business or transaction by defendant transferor. See ß 270.190[1], Paragraphs 5
and 6.]
6. Plaintiff is informed and believes and thereon alleges that the assets remaining in the defendant
___________________'s [name of transferor] hands after the aforementioned
___________________ [transfer or obligation] were unreasonably small in relation to the above-
described ___________________[business or transaction] [in that following this
___________________(transfer or obligation), defendant ___________________ (name of
transferor) retained no more than the sum of $____________________ (or state other assets
available to defendant transferor) and the sum of at least $____________________ was required to
meet the reasonably foreseeable liabilities of the ___________________ (business or transaction)].
[This ___________________ (business or transaction) entirely failed and collapsed as a proximate
result of the unreasonably small remaining assets with which to carry on the ___________________
(business or transaction), as alleged above.]
7. [Lack of reasonably equivalent value for transfer. See ß 270.190[1], Paragraph 8.]
Page 408 of 479

8. ___________________ [On the date of the aforementioned ___________________ (transfer or

obligation) or On or about ____________________ (date), while the ___________________
(business or transaction) was continuing], plaintiff became ___________________ [allege status of
plaintiff as holder of claim against defendant transferor; see ß 270.190[1], Paragraphs 3 and 4.]
[Prayer. See ß 270.190[1].]
______________________ [signature]

[2] Use of Form
This complaint is for use by a creditor to set aside a transfer made or an obligation incurred by a
debtor without receipt by the debtor of reasonably equivalent value in exchange therefor, when the
debtor was engaged in or was about to engage in a business or transaction for which the debtor's
remaining assets were unreasonably small in relation to the business or transaction. Relief on this
ground is available to the creditor whether or not the creditor's underlying claim against the debtor
arose before or after the transfer was made or the obligation was incurred [Civ. Code ß 3439.04(a)(2)
(A); see Judicial Council of California Civil Jury Instructions, CACI No. 4202 (LexisNexis Matthew
Bender) (related California Judicial Council jury instruction)]. This form may also be included as a
separate count in a creditor's action to set aside a conveyance made with actual fraudulent intent or
made by an insolvent for less than fair consideration [see Pope v. National Aero Fin. Co. (1965) 236
Cal. App. 2d 722, 728, 46 Cal. Rptr. 233 ; see ßß 270.190 and 270.191].
[3] State Statutes
Transfer made or obligation incurred by debtor without receipt of reasonably equivalent value in
exchange when debtor was engaged in or was about to engage in business or transaction for which
debtor's remaining assets were unreasonably small in relation to business or transaction is fraudulent
as to creditor whose claim arose before or after transfer was made or obligation was incurred. Civ.
Code ß 3439.04(a)(2)(A)
[4] Decisions
Whether transferor left himself or herself unreasonably small remaining assets under Civ. Code ß
3439.04(a)(2)(A) after transfer is question of fact with burden on creditors to establish this fact.
Page 409 of 479

Pope v. National Aero Fin. Co. (1965) 236 Cal. App. 2d 722, 728, 46 Cal. Rptr. 233 ; Holcomb v.
Nunes (1955) 132 Cal. App. 2d 776, 781, 283 P.2d 301 (construing former Civ. Code ß 3439.05)
Finding that transfer left debtor with unreasonably small assets for transaction was unsupported by
evidence when transfer occurred while plaintiff and debtor were still negotiating and be fore they
actually agreed to engage in transaction together and since asset transferred was not comtemplated to
be devoted by debtor to transaction. Holcomb v. Nunes (1955) 132 Cal. App. 2d 776, 780-781, 283
P.2d 301
Page 410 of 479

PART IV. FORMS
ß 270.195 Allegation--In Complaint to Set Aside Fraudulent Transfer [Civ. Code ß 3439.07(a)
(1)]--Transferee's Conversion of Property Conveyed to Own Use
[1] FORM Allegation--In Complaint to Set Aside Fraudulent Transfer [Civ. Code ß 3439.07(a)
Plaintiff is informed and believes and thereon alleges that on or about ____________________
[date], defendant ___________________[name of transferee] transferred the above-described
property to ___________________ [name] who for such transfer gave ___________________[the
sum of $____________________ and ___________________(or describe other consideration)].
Defendant ___________________[name of transferee] has converted the ___________________
[sum or other consideration as described above] to his/her own use [and has used such
___________________ (sum or describe other consideration) to ___________________ (describe
form into which consideration has been converted by defendant transferee, e.g., make the following
improvements on other property of which he/she is now the owner, to wit: ___________________
[describe; if real property, give legal description])].
[2] Use of Form
This allegation is for use by a creditor in his or her action to set aside a fraudulent transfer after the
defendant transferee has sold the property and converted the proceeds of the sale to his or her own use
[see Aggregates Associated, Inc. v. Packwood (1962) 58 Cal. 2d 580, 591, 25 Cal. Rptr. 545, 375
P.2d 425 ; Cohen v. Heavey (1968) 261 Cal. App. 2d 766, 770-771, 68 Cal. Rptr. 180] . When this
form is included in the creditor's complaint, a personal judgment may be rendered against the
transferee in the amount of the proceeds which the transferee converted to his or her own use
[ Aggregates Associated, Inc. v. Packwood (1962) 58 Cal. 2d 580, 591, 25 Cal. Rptr. 545, 375 P.2d
Page 411 of 479

425] . In addition, in equity, the property may be followed into whatever form it has been converted
after the fraudulent transfer, subject to any party's superior rights, either on the theory of following the
res into the hands of a constructive trustee, or by applying a kind of equitable conversion. Under
either theory, the creditor is entitled to subject the property or funds to a lien as security for repayment
of his or her claim, subject to any right of reimbursement the transferee may have [see Civ. Code ß
3439.08(b), (c) (judgment against original or successor transferee in lesser of amount necessary to
satisfy creditor's claim or value, at time of transfer, of asset transferred); see also Ahmanson Bank &
Trust Co. v. Tepper (1969) 269 Cal. App. 2d 333, 344-345, 74 Cal. Rptr. 774 ; Ohio Elec. Car Co.
v. Duffet (1920) 48 Cal. App. 674, 678, 192 P. 298] .
In the case of an innocent transferee, while the transferee must account for everything received under
the fraudulent transfer, no personal judgment may be rendered against the transferee if he or she was
not benefitted by the transfer [ Cohen v. Heavey (1968) 261 Cal. App. 2d 766, 771, 68 Cal. Rptr.
180 (innocent transferee as not liable when he returned property to transferor)].
[3] State Statutes
Good faith transferee, notwithstanding voidability of transfer, is entitled, to extent of value given to
debtor for obligation or transfer, to lien on or right to retain any interest in asset transferred, enforce-
ment of any obligation incurred, and reduction in amount of liability on judgment. Civ. Code ß
3439.08(d)
[4] Decisions
Fraudulent transferee who has sold property fraudulently transferred is personally liable to creditors
of his or her transferor for amount of proceeds of sale which he or she converted to his or her own
use. Aggregates Associated, Inc. v. Packwood (1962) 58 Cal. 2d 580, 591, 25 Cal. Rptr. 545, 375
P.2d 425
Innocent transferee required to account for everything received under fraudulent transfer. Cohen v.
Heavey (1968) 261 Cal. App. 2d 766, 770, 68 Cal. Rptr. 180
Page 412 of 479

PART IV. FORMS
(1)--Concealment of Fraudulent Transfer by Transferor and Transferee [Civ. Code ß 3439.09
(a), (c)]
(1)--Concealment of Fraudulent Transfer by Transferor and Transferee [Civ. Code ß 3439.09(a), (c)]
Defendant ___________________ [name of transferor] [and defendant ___________________

(name of transferee)] willfully and surreptitiously concealed the aforementioned
___________________ [transfer or obligation] from ___________________ [plaintiff and/or all of
defendant ___________________'s (name of transferor) creditors]. Plaintiff did not discover, and
could not reasonably have discovered, the existence of the fraud and fraudulent
___________________ [transfer or obligation] until ____________________ (date), at which time
___________________[specify how plaintiff learned of transfer or obligation, e.g., defendant
___________________'s (name of transferor) former spouse informed plaintiff of the transfer].
[If appropriate, add: The fraudulent transfer was made during the pendency of a lawsuit that
established the debtor-creditor relationship between plaintiff and defendant. The judgment in that
lawsuit became final on ____________________ (date).]
[2] Use of Form
This allegation is for use in a creditor's action to set aside a fraudulent transfer when it appears on the
face of the complaint that the action is being brought more than four years from the date that the
fraudulent transfer was made or the fraudulent obligation was incurred or, if later, within one year
after the transfer or obligation was or could reasonably have been discovered by the creditor [Civ.
Page 413 of 479

Code ß 3439.09(a); Judicial Council of California Civil Jury Instructions, CACI No. 4208 (Lexis-
Nexis Matthew Bender) (related California Judicial Council jury instruction)]. Notwithstanding any
other provision of law, a cause of action with respect to a fraudulent transfer or obligation is
extinguished if no action is brought within seven years after the transfer was made or the obligation
The optional language at the end of the form may be used when an allegedly fraudulent transfer was
made during a pending lawsuit that would establish whether, and the extent to which, a debtor-creditor
relationship exists. In this situation, the limitation period does not commence to run until the judgment
in the underlying action becomes final. The four-year limitation period, i.e., the language, "four years
after the transfer was made or the obligation was incurred," accommodates a tolling until the
underlying liability becomes fixed by a final judgment [ Cortez v. Vogt (1997) 52 Cal. App. 4th 917,
937, 60 Cal. Rptr. 2d 841] .
See also ß 270.190.
Page 414 of 479

PART IV. FORMS
ß 270.197 Allegations--In Complaint to Set Aside Fraudulent Transfer [Civ. Code ß 3439.07
(a)(1)]--For Accounting of Profits or Proceeds Received by Transferee
[1] FORM Allegations--In Complaint to Set Aside Fraudulent Transfer [Civ. Code ß 3439.07(a)
(1)]--For Accounting of Profits or Proceeds Received by Transferee
1. Between ____________________ [date], which was the date of the aforementioned fraudulent
___________________ [transfer or obligation], and the date of the filing of the above-entitled action,
defendant ___________________ [name of transferee] collected and received
___________________ [specify what was received and from whom, e.g., from the tenants in
possession of the real property all the rents and profits from the real property], amounting to at least
the sum of $____________________ [estimated amount received].
2. Plaintiff has heretofore demanded of defendant ___________________ [name of transferee] that

he/she account to plaintiff for any and all sums so received by him/her, and that he/she include such
sums as part of the property which plaintiff may subject to his/her claim against defendant
___________________ [name of transferor], but defendant ___________________ [name of
transferee] has failed and refused to so do, and still fails and refuses to make such accounting.
[2] Use of Form
This allegation should be included in a creditor's complaint to have set aside a fraudulent transfer or
obligation when the defendant transferee has received profits, income, or other proceeds from the
property, and the creditor's claim will not be fully satisfied by the property fraudulently transferred
[see Michal v. Adair (1944) 66 Cal. App. 2d 382, 388, 152 P.2d 490] . In such a case, when the
transfer is set aside, the creditor may have a decree against the transferee for an accounting of the
Page 415 of 479

income or proceeds while the property was in the transferee's possession to the extent necessary to
satisfy his or her claim against the transferor. Such a decreee is a proper incident to an action to set
aside a fraudulent transfer or obligation [ Wright v. Salzberger (1932) 121 Cal. App. 639, 645, 9 P.
2d 860 ; see Patterson v. Missler (1965) 238 Cal. App. 2d 759, 770-774, 48 Cal. Rptr. 215] .
[3] State Statutes
Reference to take accounting. Code Civ. Proc. ßß 638, 639

[4] Decisions
Rentals from property fraudulently conveyed by debtor are subject to claims of defrauded creditor.
Michal v. Adair (1944) 66 Cal. App. 2d 382, 388, 152 P.2d 490 ; Wright v. Salzberger (1932) 121
Cal. App. 639, 645, 9 P.2d 860
For a discussion and forms for use in actions involving an accounting, see Ch. 7, Accounting, Action
for.
For memoranda of points and authorities for use in actions involving an accounting generally, see
California Points and Authorities, Ch. 12, Accounting (Matthew Bender).
Page 416 of 479

PART IV. FORMS
ß 270.198 Cross Complaint for Declaratory Relief [Code Civ. Proc. ß 1060]--In Action to Set
Aside Fraudulent Transfer or Obligation [Civ. Code ß 3439.07(a)(1)]--To Determine
Tranferee's or Obligee's Right to Retain Interest in or Lien on Property or to Enforce
Obligation [Civ. Code ß 3439.08(d)]
[1] FORM Cross Complaint for Declaratory Relief [Code Civ. Proc. ß 1060]--In Action to Set
Aside Fraudulent Transfer or Obligation [Civ. Code ß 3439.07(a)(1)]--To Determine Tranferee's or
Obligee's Right to Retain Interest in or Lien on Property or to Enforce Obligation [Civ. Code ß
3439.08(d)]
COUNTY OF ___________________
______________________ [name], )
Plaintiff [and Cross Defendant], )
vs. ) NO. _____
______________________ [name], ) CROSS COMPLAINT FOR DECLARATORY
Defendant [and Cross Complainant] ) RELIEF
__________________________________________________
Cross complainant alleges:
1. Cross defendants ___________________ [name of creditor/plaintiff] and ___________________

[name of transferor or obligor] are, and at all times herein mentioned were, residents of
___________________ County, California [or allege other capacity and residence].
Page 417 of 479

2. On or about ____________________ [date], cross defendant ___________________ [name of

creditor/plaintiff] commenced an action against cross complainant to have set aside a
___________________ [___________________ (transfer or conveyance) of certain property or
certain obligation], which ___________________ [transfer or conveyance or obligation] was alleged
to be in fraud of cross defendant's rights as a creditor of [cross defendant] ___________________
[name of transferor or obligor], who is the person alleged to have made the ___________________
[transfer or conveyance or obligation].
3. In cross defendant's complaint to set aside this ___________________ [transfer or obligation],

cross defendant alleges: ___________________ [set forth the pertinent allegations of cross
defendant's complaint in this paragraph and additional paragraphs, including cross defendant's
status as creditor, ownership by the transferor at the time of transfer or obligation, making of
transfer or incurring of obligation by transferor with actual fraudulent intent, cross complainant's
participation is such fraud, and/or lack of reasonably equivalent value given by cross complainant
for transfer. See ß 270.190[1], First Cause of Action, Paragraphs 3-9]. [A copy of this complaint is
attached as Exhibit ____________________ and incorporated by reference.]
4. Cross complainant had no knowledge of ___________________[cross defendant's

___________________ (name of creditor/plaintiff) claim against ___________________ (name of
tranferor or obligor) or of ___________________'s (name of transferor or obligor) actual intent to
hinder, delay, or defraud cross defendant ___________________ (name of creditor/plaintiff) in the
collection of his/her/its claim or of ___________________'s (name of tranferor or obligor)
___________________(insolvency or financial embarassment)] nor did cross complaintant have
knowledge of any facts which would put him/her/it on notice of that ___________________ [sepcify,
e.g., claim or insolvency].
5. As consideration for the allegedly fraudulent ___________________ [transfer or obligation], cross

complainant ___________________ [paid $____________________ and ___________________
(or describe other consideration, e.g., assumed the payments due on a certain promisory note dated
____________________ [date], in favor of Megabucks, Inc. with a then remaining principal balance
of $____________________ with interest at the rate of _____ percent per annum secured by a certain
deed of trust on the property conveyed, which deed of trust was recorded on
____________________ (date), at ____________________ (Book or Reel)
____________________ (Page or Image) in the Official Records of the county recorder of
___________________ County, ___________________ (state). Copies of the promissory note and
deed of trust are attached as Exhibits _____ and _____, and incorporated by reference)]. This
consideration constituted reasonably equivalent value in that it was ___________________ [a fair
equivalent or not in an amount disproportionately small as compared] to the value of the
____________________ [property transferred or obligation undertaken] and was made in good faith,
as more fully described in Paragraph 4.
Page 418 of 479

6. In addition, from ____________________ [date], which was the date of the allegedly fraudulent
___________________ [transfer or obligation], to the date of the filing of cross defendant's action to
set aside the ___________________ [transfer or obligation], cross complainant expended the sum of
$____________________, ___________________ [specify expenditure that benefitted property,
payments made on any obligation assumed or undertaken in connection with the transfer, and/or
counterperformance of obligee, if any, e.g., consisting of principal and interest payments made on the
deed of trust encumbering the property].
7. Therefore, an actual controversy has arisen and now exists between cross complainant and cross
defendant(s) concerning their respective rights in the property conveyed in that cross complainant
contends that in the event cross defendant ___________________ [name of plaintiff/creditor] is
adjudged entitled to have the ___________________ [specify, e.g., conveyance] set aside for being in
fraud of his/her rights against ___________________ [name of transferor], cross complainant is
entitled ___________________ [to retain ___________________ (an interest in or a lien on) the
property to the extent of the payments made in acquisition and maintanence of, and otherwise to
benefit (or improve) the property or cross defendant's interest, if any, therein or to enforce the
___________________ (specify, e.g., contract) against ___________________ (obligor) to the extent
of the value given to him/her/it by cross complainant], whereas cross defendant disputes this
contention and contends that such ___________________ [property or ___________________
(specify e.g., contract)] is not subject to any such interest as claimed by cross complainant.
8. Cross complainant desires a judicial determination of his/her rights, and in particular, a declaration
as to whether in the event that cross defendant ___________________ [name of plaintiff/creditor] is
entitled to have the alleged fraudulent ___________________ [specify, e.g., conveyance] set aside,
cross complainant is entitled to retain ___________________ [specify, e.g., a lien on the property as
security for repayment of the consideration given for the property and sums expended in preserving
and maintaining the property].
10. Such a declaration is necessary and appropriate at this time in order that cross complainant may
ascertain his/her rights in the ___________________ [property or ___________________ (specify
e.g., contract)].
WHEREFORE, cross complainant prays judgment against cross defendant as follows:
[EITHER, when tranfer is at issue]
[1. For a declaration, in the event cross defendant ___________________ (name of creditor/plaintiff)
be adjudged entitled to set aside the aforementioned transfer, that cross complainant is entitled to retain
___________________ (an interest in or a lien on) the property to the extent of (the aggregate of) the
consideration given therefor, together with interest thereon at the legal rate from the date said
consideration was paid (add as applicable: and all sums expended in maintenance, improvement, and
Page 419 of 479

preservation of the property and in payment of liens and encumbrances against the property).]
[OR, if obligation is at issue]
be adjudged entitled to set aside the aforementioned ___________________ (specify obligation, e.g.,
contract), that cross complainant is entitled to enforce the ___________________ (specify obligation,
e.g., contract) to the extent of (the aggregate of) the consideration given therefor, together with interest
thereon at the legal rate from the date said consideration was paid (add as applicable: and all sums
expended in preperation for and commencement of performance thereunder).]
[CONTINUE]
be adjudged entitled to a money judgment against cross complainant, that cross complainant is entitled
to a reduction in the amount of liability thereunder equal to the sums set forth in Item 1.]
3. For costs of suit herein incurred; and
______________________ [signature]
Attorney for Cross Complainant

[2] Use of Form
This cross complaint for declaratory relief should be used whenever a defendant transferee or obligee
in an action by a creditor to set aside the transfer or obligation as fraudulent, claims either (1) that the
transfer or obligation, which was allegedly made or incurred by the plaintiff's debtor with actual intent
to defraud, hinder, or delay a creditor, was taken by the cross complainant (defendant) in good faith
and for reasonably equivalent value and therefore may not be set aside [Civ. Code ß 3439.08(a); see
Judicial Council of California Civil Jury Instructions, CACI No. 4207 (LexisNexis Matthew Bender)
(related California Judicial Council jury instruction); ß 270.47[2]] or (2) that he or she is a good faith
transferee or obligee and is therefore entitled to retain an interest in or lien on the property, or to
enforce the obligation, or to a reduction in the amount of liability on any judgment in favor of the
creditor [Civ. Code ß 3439.08(d); see ß 270.47[3]]. Although the first of these contentions must also
Page 420 of 479

be raised as an affirmative defense, it is recommended that a cross complaint seeking affirmative relief
also be filed because the consequences of a finding that the transfer or obligation was not made for
reasonably equivalent value may be quite onerous if the rationale discussed in ß 270.198[3] is correct.
Civ. Code ß 3439.08(d)(2), allowing enforcement of the obligation, was added by the 1986
amendments. It is not clear whether the debtor/obligor is a necessary parrty to any action seeking a
declaration regarding the extent to which the obligation remains enforceable; therefore, this complaint
includes the debtor/obligor as a cross defendant. It does not appear that the debtor/transferor is a
necessary party to a cross complaint seeking other relief under Civ. Code ß 3439.08(d)(1) or (3).
In addition to the statutory authority granting the transferee or obligee the right to retain an interest or
lien, to enforce the obligation, or to reduction of liability on any judgment against him or her to the
extent of value given, case law has established the transferee's or obligee's right to interest on his or
her initial investment and has clarified specific elements of value such as amounts expended by the
transferee in the preservation and maintenance of the subject property, less the reasonable rental value
of the property while the transferee remains in possesson [see Patterson v. Missler (1965) 238 Cal.
App. 2d 759, 771-772, 48 Cal. Rptr. 215] or sums expended to pay encumbrances on the property at
the time of the transfer. Similarly, if a good faith obligee or assignee of a contract has assumed
obligations to suppliers or other parties under the contract, he or she is entitled to reimbursement or
credit for sums so paid [see Aggregates Associated, Inc. v. Packwood (1962) 58 Cal. 2d 580,
584-586, 589-591, 25 Cal. Rptr. 545, 375 P.2d 425] .
[3] Affirmative Relief
A judgment in favor of a creditor in a fraudulent transfer action sets aside the transfer or obligation
insofar as it affects the creditor, even though, as between the transferor or obligor and the transferee or
obligee, the transfer or obligation remains in full effect [ McGee v. Allen (1936) 7 Cal. 2d 468, 476,
60 P.2d 1026 ; Ahmanson Bank & Trust Co. v. Tepper (1969) 269 Cal. App. 2d 333, 344, 74 Cal.
Rptr. 774] . Because, as between the transferee and the creditor, the transfer or obligation is consid-
ered void, it could be reasoned that a transferee or obligee asserting the right to reimbursement or a
lien or reduction of liability under a judgment is seeking affirmative relief against the creditor. Such
affirmative relief must be sought by way of a cross complaint, rather than by way of an affirmative
defense in the answer, because affirmative relief may not be claimed in the answer [see Code Civ.
Proc. ß 431.30(c); see also Code Civ. Proc. ß 428.10(b) (permissive cross complaint may appropri-
ately assert claim, right, or interest in property which is subject of complaint)]. Still, if the transferee or
obligee is seeking reduction of liability under a money judgment, it could be argued that the relief
sought is in the nature of a set off, which can be asserted by way of affirmative defense [see Code
Civ. Proc. ß 431.70 (cross demand for money is properly asserted in answer)]. It should also be noted
that in cases decided prior to the addition of Code Civ. Proc. ß 431.30(c), the courts did not appear to
require the transferee to assert his or her right to such reimbursement by way of a cross complaint [see
Aggregates Associated, Inc. v. Packwood (1962) 58 Cal. 2d 580, 583-586, 25 Cal. Rptr. 545, 375 P.
2d 425 ; Patterson v. Missler (1965) 238 Cal. App. 2d 759, 763, 770-774, 48 Cal. Rptr. 215] .
Page 421 of 479

[4] State Statutes
Transfer made or obligation incurred by transferor with actual intent to hinder, delay, or defraud one
or more of his or her creditors is not voidable against person who took in good faith and for
reasonably equivalent value or against any subsequent transferee or obligee. Civ. Code ß 3439.08(a)
[5] Decisions
Fact that person is disposing of entire business is suspicious circumstance which imposes on vendee
obligation to made reasonable inquiry to determine liabilities of vendor. In re Baker (S.D. Cal.
1926) 13 F.2d 413, 414
Transfer was properly set aside as to purchaser who did not pay fair value or inquire as to vendor's
financial condition because vendee was put on notice and required to inquire by facts that transaction
involved entire assets of business and between purchaser's visits to business premises stock had
depleted so substantially as to indicate dispositions were not in ordinary course of business. In re
Baker (S.D. Cal. 1926) 13 F.2d 413, 414
Rule that fraudulent transferee is not entitled to reimbursement for outlays made in connection with
acquisition of property in fraud of creditors is inapplicable if title to property acquired only on
payment of such outlays or if property subject to mortgage and outlays constituted payment of such
mortgage. Aggregates Associated, Inc. v. Packwood (1962) 58 Cal. 2d 580, 585-586, 25 Cal. Rptr.
545, 375 P.2d 425
Good faith transferee is entitled to credit for sums expended in paying other debts of grantor.
Aggregates Associated, Inc. v. Packwood (1962) 58 Cal. 2d 580, 591, 25 Cal. Rptr. 545, 375 P.2d
425
Reasonably equivalent value of exchange is to be determined from standpoint of creditor. Hansen v.

Cramer (1952) 39 Cal. 2d 321, 324, 245 P.2d 1059 ; Patterson v. Missler (1965) 238 Cal. App. 2d
759, 766, 48 Cal. Rptr. 215
Page 422 of 479

Former Civ. Code ß 3439.09(b)(see now Civ. Code ß 3439.08(d)(1)), protecting innocent purchaser
or encumbrancer who wthout actual fraudulent intent has given less than fair consideration, confers on
purchaser lien on property to secure repayment of his or her investment. Patterson v. Missler (1965)
238 Cal. App. 2d 759, 771, 48 Cal. Rptr. 215
Any excess of income over expenses of maintaining property must be deducted from amount of good
faith transferee's original investment; sale of property to satisfy creditor may not be held unless
minimum bids would cover net amount of transferee's investment; net amount must be deducted from
any money judgment entered against good faith tranferee. Patterson v. Missler (1965) 238 Cal. App.
2d 759, 771-772, 48 Cal. Rptr. 215
Lien or credit of good faith transferee includes interest on amount of consideration paid (with
deductions, if any, as described in prior entry), but only expenses which maintain or preserve
property; legal fees and management fees pertaining to rental property are not maintanence or
preservation. Patterson v. Missler (1965) 238 Cal. App. 2d 759, 771-772, 48 Cal. Rptr. 215
Transferee who remains in possession of property pending appeal does so voluntarily and is not
entitled to lien or credit for expenses of maintanence or preservation after entry of judgment; similarly,
creditor is not entitled to account for value of transferee's use pending appeal. Patterson v. Missler
(1965) 238 Cal. App. 2d 759, 773, 48 Cal. Rptr. 215
Good faith transferee is one who is not aware of fraudulent intent of transferor and who has no notice
of facts or circumstances that would induce prudent person to inquire. Boness v. Richardson
Mineral Springs (1956) 141 Cal. App. 2d 251, 261, 296 P.2d 581
For a discussion and forms for cross complaints, see Ch. 123, Complaints and Cross Complaints .
For a discussion and forms for use in actions for declaratory relief, see Ch. 182, Declaratory Relief .
Page 423 of 479

PART IV. FORMS
ß 270.199 Affirmative Defense--To Action to Set Aside Fraudulent Transfer [Civ. Code ß
3439.07(a)(1)]--Transfer as Preference of Defendant Transferee Over Plaintiff [Civ. Code ß
3432]
[1] FORM Affirmative Defense--To Action to Set Aside Fraudulent Transfer [Civ. Code ß
3439.07(a)(1)]--Transfer as Preference of Defendant Transferee Over Plaintiff [Civ. Code ß 3432]
AS A [___________________ (if more than one, specify number, e.g., FIRST)] SEPARATE AND
AFFIRMATIVE DEFENSE [if more than one cause of action alleged, state TO THE
___________________ (specify, e.g., SECOND) CAUSE OF ACTION], DEFENDANT AL-
LEGES:
1. The ___________________ [transfer made to or obligation incurred in favor of] this defendant by
[defendant] ___________________ [name of tranferor or obligor], which ___________________
[transfer or obligation] was alleged to be in fraud of plaintiff's rights as creditor of [defendant]
___________________ [name of transferor], was in fact a mere preference of this defendant's claim
against [defendant] ___________________ [name of transferor].
2. This defendant's claim arose on or about ____________________[date], on which date [defendant]

____________________ [name of transferor or obligee] became indebted to this defendant in the
sum of $____________________ for [specify, e. g. work, labor, and services rendered by this
defendant to (defendant) ____________________ (name of transferor or obligee) at his/her special
request].
3. The ___________________ [transfer or obligation] sought to be set aside in fact operated to

___________________ [discharge this defendant's claim or reduce this defendant's claim to the sum
Page 424 of 479

of $____________________] [and was made for reasonably equivalent value in that it was
___________________ (a fair equivalent or not in an amount disproportionately small as compared)
to the value of the ___________________ (property transferred or obligation undertaken) and was
made in good faith].
[2] Use of Form
This form is an affirmative defense for use by a defendant transferee or obligee who was a creditor of
the transferor in an action by another creditor to set aside an allegedly fraudulent transfer by the
transferor. The defense raised is that the transfer or obligation was merely operated as a preference of
the transferee over the plaintiff creditor [see Civ. Code ß 3432]. Even though a transfer giving a
preference to one creditor was intended to make impossible the plaintiff creditor's claim and the
preferred creditor knew that such a consequence would follow, the preference is not subject to attack
except in supplementary proceedings in bankruptcy [see Aggregates Associated, Inc. v. Packwood
(1962) 58 Cal. 2d 580, 591, 25 Cal. Rptr. 545, 375 P.2d 425 ; United States Fid. & Guar. Co. v.
Postel (1944) 64 Cal. App. 2d 567, 571-572, 149 P.2d 183] .
[3] Allegations
In order for a preference to be valid, it must have reduced or extinguished the obligation owing to the
preferred creditor (Paragraph 3) [see Economy Ref. & Serv. Co. v. Royal Nat'l Bank of N.Y. (1971)
20 Cal. App. 3d 434, 441-442, 97 Cal. Rptr. 706] . In most instances the transferor's or obligor's
receipt of value reasonably equivalent to the amount of the debt extinguished or reduced will be an
issue. In those instances, the preferred creditor will have to use the optional allegation that the
preferential transfer was made for reasonably equivalent value (Paragraph 3) [see, e.g., Civ. Code ßß
3439.04(a)(2), 3439.05 (lack of receipt of reasonably equivalent value as element of fraudulent
transfer); Judicial Council of California Civil Jury Instructions, CACI Nos. 4202, 4203 (LexisNexis
Matthew Bender) (related California Judicial Council jury instructions)].
[4] State Statutes
Debtor is permitted to pay one creditor in preference to another, or give to one creditor security for
payment of his demand in preference to another. Civ. Code ß 3432
[5] Decisions
Although creditor may intend by transfer of assets to remove those assets and make impossible
collection of particular creditor's judgment, when transfer operates as mere preference, transfer is not
subject to attack except in bankruptcy proceedings. Aggregates Associated, Inc. v. Packwood
Postel (1944) 64 Cal. App. 2d 567, 571-572, 149 P.2d 183
When attorney's fees were reasonable, transfer of property to attorney in payment of fees, even
Page 425 of 479

though transfer rendered debtor insolvent, was preference and could not be set aside as fraudulent;
fact that debtor was son-in-law of transferee did not raise presumption of fraud. Hedden v. Waldeck
(1937) 9 Cal. 2d 631, 638-640, 72 P.2d 114
Assignment of rents and profits by insolvent corporation in payment of attorney's fees as preference
and could not be set aside as fraudulent when fees were not excessive and assignment was made in
good faith. Hibernia Sav. & Loan Soc. v. Belcher (1935) 4 Cal. 2d 268, 273-274, 48 P.2d 681
Preference rule inapplicable in cases in which debt of preferred creditor is not extinguished, or at least
diminished. Economy Ref. & Serv. Co. v. Royal Nat'l Bank of N.Y. (1971) 20 Cal. App. 3d 434, 442,
97 Cal. Rptr. 706
Page 426 of 479

PART IV. FORMS
3439.07(a)(1)]--Plaintiff Creditor Not Harmed by Fraudulent Transfer
LEGES:
1. Plaintiff was not harmed or injured in any manner by the allegedly fraudulent transfer since this
transfer did not put beyond the plaintiff's reach any property which he/she would have been able to
subject to the payment of his/her claim against [defendant] ___________________ [name of
transferor].
2. The property transferred was in fact not available or subject to the plaintiff's claim against
[defendant] ___________________ [name of transferor] because ___________________ [allege
facts showing that transfer did not injure plaintiff, e.g., the property conveyed was exempt from
attachment and execution under Code of Civil Procedure Sections 704.710-704.850 in that (defendant)
___________________ (name of transferor) actually resided in the dwelling on that property and
same constituted his/her principal residence and his/her equity in the property did not exceed
$____________________, the amount of the exemption to which he/she (as ___________________
(specify category of exemption, e.g., head of a household)) was entitled pursuant to Code of Civil
Procedure Section 704.730(a) ____________________ ((1) or (2) or (3))].
Page 427 of 479

[2] Use of Form
This affirmative defense is for use by a defendant transferee in a creditor's action to set aside a
fraudulent transfer when the property transferred in fact did not place any assets beyond the creditor's
reach which the creditor would have been able to subject to his or her claim. Types of situations in
which this defense is appropriate include the following:
The property transferred or the debtor's interest in that property is exempt from execution
by the creditor [see Civ. Code ß 3439.01(a)(2) (assets do not include property to extent it
is exempt under nonbankrutpcy law); Wells Fargo Bank v. PAL Investments, Inc.
(1979) 96 Cal. App. 3d 431, 434-438, 157 Cal. Rptr. 818 ; Putnam Sand & Gravel Co.
v. Albers (1971) 14 Cal. App. 3d 722, 725, 92 Cal. Rptr. 636 ; see ß 270.34[3], [4]].
The debtor in fact had no beneficial interest in the property transferred, such as when he
or she held title to the property as trustee for another person [see, e.g., Owings v.
Laugharn (1942) 53 Cal. App. 2d 789, 791, 128 P.2d 114 and ß 270.34[2]], or when the
property was fully encumbered by valid liens [see Civ. Code ß 3439.01(a)(1) discussed
in ß 270.34[5]].
The property transferred had previously been subjected to execution by the creditor on
that claim, as when only the transfer of the debtor's equity of redemption is under attack
[see, e.g., Costa v. Neves (1938) 12 Cal. 2d 121, 125, 82 P.2d 600] .
The value of the property could not support any net recovery for the creditor in the event
the conveyance was set aside [see, e.g., Mehrtash v. Mehrtash (2001) 93 Cal. App. 4th
75, 80-81, 112 Cal. Rptr. 2d 802] (plaintiff failed to show she was injured by transfer of
heavily mortgaged property when she produced no evidence that value of property could
support any net recovery for her in event conveyance were set aside); accord, Fidelity
Nat'l Title Ins. Co. v. Schroeder (2009) 179 Cal. App. 4th 834, 842-845, 101 Cal. Rptr.
3d 854 (trial court correctly followed Mehrtash decision in concluding that judgment
creditor failed to prove cause of action to set aside transfer of debtor's interest in his
residence because, assuming transfer were set aside and court-ordered sale of property
ensued forthwith, no proceeds would have been available to satisfy any portion of
creditor's claim; therefore no injury was shown)].
The creditor is otherwise uninjured by the transfer, as when he or she is already

adequately secured or when the transfer discharged a preexisting debt [ Hibernia Sav. &
Loan Soc'y. v. Belcher (1935) 4 Cal. 2d 268, 273-274, 48 P.2d 681] .
[3] State Statutes
Page 428 of 479

Assets of debtor for purposes of Uniform Fraudulent Transer Act does not include property to extent
encumbered by valid lien. Civ. Code ß 3439.01(a)(1)
Assets of debtor for purpose of Uniform Fraudulent Transfer Act means property not exempt from
liability for his or her debts. Civ. Code ß 3439.01(a)(2)
Assets of debtor for purposes of Uniform Fraudulent Transer Act does not include interest held in
tenancy by entireties to extent it is not subject to process by creditor holding claim against only one
tenant. Civ. Code ß 3439.01(a)(3)
Valid lien for purposes of Uniform Fraudulent Transer Act is one that is effective against holder of
subsequently obtained judicial lien. Civ. Code ß 3439.01(j)
Property exempt from execution is exempt from attachment. Code Civ. Proc. ß 487.020
Property exempt from execution. Code Civ. Proc. ß 703.010 et seq.
Provisions relating to homestead exemption. Code Civ. Proc. ß 704.710 et seq.
General provisions relating to declared homesteads. Code Civ. Proc. ß 704.910 et seq.
Conveyance of property subject to homestead. Code Civ. Proc. ß 704.940
Homestead is exempt from execution or forced sale. Code Civ. Proc. ß 704.950
[4] Decisions
[a] Exempt Property; Homesteads
Principles of fraudulent transfer are not applicable to homestead; fact that declaration of homestead
was filed to hinder or delay creditor did not affect validity of homestead or constitute grounds for it to
be set aside. Lucci v. United Credit and Collection Co. (1934) 220 Cal. 492, 496, 31 P.2d 369 ;
Wells Fargo Bank v. PAL Investments, Inc. (1979) 96 Cal. App. 3d 431, 434-438, 157 Cal. Rptr.
818 ; Putnam Sand & Gravel Co. v. Albers (1971) 14 Cal. App. 3d 722, 725, 92 Cal. Rptr. 636
Transfer of homestead protected property cannot be subject of fraudulent conveyance action by

creditors who do not have lien on that property. Tassone v. Tovar (1994) 28 Cal. App. 4th 765,
768-769, 33 Cal. Rptr. 2d 786
which court could determine whether there was excess value of property conveyed over homestead
exemption. McKnight v. Faber (1986) 185 Cal. App. 3d 639, 647, 230 Cal. Rptr. 57
Page 429 of 479

[b] No Injury Sustained by Creditor
To show injury from transfer, secured creditor is required to show that indebtedness owed to it is not
fully secured. Hibernia Sav. & Loan Soc'y. v. Belcher (1935) 4 Cal. 2d 268, 274, 48 P.2d 681
Plaintiff failed to show she was injured by transfer of heavily mortgaged property when she
produced no evidence that value of property could support any net recovery for her in event con-
veyance were set aside. Mehrtash v. Mehrtash (2001) 93 Cal. App. 4th 75, 80-81, 112 Cal. Rptr. 2d
802
[c] Property Previously Subjected to Execution
When creditor levied execution on real property encumbered by intentionally fraudulent mortgage, but
did not seek to have mortgage set aside, transfer of debtor's equity of redemption and redemption by
transferee could not be set aside as fraudulent transfer, since property had once been subjected to
creditor's judgment. Costa v. Neves (1938) 12 Cal. 2d 121, 125, 82 P.2d 600
Transfer without consideration by judgment debtor of equity of redemption in property intentionally

fraudulently conveyed and thereafter sold to creditor at execution sale is not fraudulent transfer;
execution sale to creditor terminated creditor's lien (created by recording abstract of judgment);
redemption by transferee frees property from claim of creditor's deficiency. Fry v. Bihr (1970) 6
Cal. App. 3d 248, 251-252, 85 Cal. Rptr. 742 (price bid/paid at execution sale and for redemption
amounted to value of debtor's interest); Moore v. Hall (1967) 250 Cal. App. 2d 25, 29-30, 58 Cal.
Rptr. 70 ; Siegel v. Farrar (1932) 120 Cal. App. 193, 196-197, 7 P.2d 319 (price bid/paid at
execution sale and for redemption was much less than value of debtor's interest)
For a discussion of property which is exempt from attachment or execution, see Ch. 254, Executions
and Enforcement of Judgments .
For a discussion and forms for use in actions against property on which homesteads have been
declared, see Ch. 294 Homesteads .
Page 430 of 479

PART IV. FORMS
3439.07(a)(1)]--Transfer Resulted From Termination of Lease on Debtor's Default [Civ. Code
ß 3439.08(e)(1)]
3439.07(a)(1)]--Transfer Resulted From Termination of Lease on Debtor's Default [Civ. Code ß
3439.08(e)(1)]
LEGES:
1. The transfer sought to be set aside is not voidable under Civil Code Section _____ [3439.04(a)(2)
or 3439.05] because it resulted from the termination of that certain lease by and between this
defendant as lessor and ___________________ [name of transferor] as lessee, dated
____________________ [date], a copy of which is attached as Exhibit _____ and incorporated by
reference, pursuant to ___________________ [specify, e.g, Paragraph 10] of that lease and applicable
law, specifically, ___________________ [specify, e.g, Code of Civil Procedure Sections
1161-1179a] at a time when ___________________ [name of transferor] was in default under the
provisions of that lease.
2. On or about ____________________ [date], when ___________________ [name of transferor]

was in default of his/her obligations under that lease for ___________________ [describe default,
e.g, failure to make rental payments for the months of July through September, _____ (year),
inclusive,] this defendant elected to terminate the lease and served ___________________ [name of
Page 431 of 479

transferor] a notice of that election [and notice to ____________________ (specify payment of rental
or other condition required to cure default, e.g., pay arrearages or quit)], a copy of which is attached
as Exhibit _____ and incorporated by reference.
3. Thereafter, ___________________ [describe final outcome by abandonment or surrender by

lessee or commencement and/or conclusion of unlawful detainer action, e.g., this defendant
commenced action number ____________________ in the ____________________ Court of
____________________ County, California, entitled ___________________ (title of case), for
possession of the premises and rents owed. That action was settled by a compromise agreement dated
____________________ (date) (, a copy of which is attached as Exhibit _____ and incorporated by
reference) by which ___________________ (name of transferor) surrendered any claim to his/her
interest in the premises (inlcuding fixtures and improvements) and lease and this defendant forgave all
rents then owing and unpaid].
[2] Use of Form
This affirmative defense is for use by a defendant lessor who has terminated a lease in a creditor's
action to set aside that termination as a fraudulent transfer because it was made without receiving a
reasonably equivalent value in exchange [see Civ. Code ßß 3439.04(a)(2), 3439.05,3439.08(e)(1);
Judicial Council of California Civil Jury Instructions, CACI Nos. 4202, 4203, 4207 (LexisNexis
Matthew Bender) (related California Judicial Council jury instructions); see also Civ. Code ß 3439.01
(i) (transfer includes involuntary transfers and disposition of or parting with any interest); Judicial
Council of California Civil Jury Instructions, CACI No. 4204 (LexisNexis Matthew Bender) (related
California Judicial Council jury instruction)]. This defense is not applicable to any transfer voidable
on the grounds of actual intent to defraud, hinder, or delay. In order to establish this defense, the
debtor's interest in the lease must have been terminated for default of the debtor/transferor pursuant to
a provision in the lease and applicable law [Civ. Code ß 3439.08(e)(1); see Judicial Council of
Judicial Council jury instruction)].
Civ. Code ß 3439.08(e)(1) was added by the UFTA and overrules In re Ferris (W.D. Okla. 1976)
415 F. Supp. 33, 39-41 and cases decided thereunder, which invalidated the termination of a lease in
the lessee's subsequent bankruptcy because the value of the remaining term and the improvements
which reverted to the lessor was not reasonably equivalent to the arrearages [see Kennedy, The
Uniform Fraudulent Transfer Act, 18 U.C.C. L.J. 195, 207-208].
[3] State Statutes
Transfer not voidable under Civ. Code ß 3439.04(a)(2) or Civ. Code ß 3439.05 if it results from
(1)
Page 432 of 479

For discussion and forms relating to termination of leases, see Ch. 332, Landlord and Tenant: The
Tenancy , and Ch. 333, Landlord and Tenant: Eviction Actions .
Page 433 of 479

PART IV. FORMS
3439.07(a)(1)]--Transfer Resulted from Noncollusive Enforcement of Lien in Accordance With
Applicable Law [Civ. Code ß 3439.08(e)(2)]
AS A [____________________ (if more than one, specify number, e.g., FIRST)] SEPARATE AND
____________________ (specify, e.g., SECOND) CAUSE OF ACTION], DEFENDANT alleges:
1. The transfer sought to be set aside is not voidable under Civil Code Section
___________________ [3439.04(a)(2) or 3439.05(b)] because it resulted from the noncollusive
___________________ [specify manner of enforcement, e.g., foreclosure at private sale] of that
certain ____________________ [specify instrument, act, or filing creating lien, e.g., deed of trust,
dated _____ (date), by and between ___________________ (specify, e.g., this defendant) as
beneficiary, ___________________ (name) as trustee, and ___________________ (name of
transferor) as trustor, which was recorded on ____________________ (date), at
____________________ (Book or Reel) ____________________ (Page or Image) of the Official
Records of the County recorder of ____________________ County, California, a copy of which is
attached as Exhibit _____ and incorporated by reference], pursuant to ___________________
[specify, e.g., Paragraph 10] of that ____________________[specify instrument, e.g., deed of trust]
and applicable law, specifically, ___________________ [specify, e.g., Civil Code Sections
2920-2944.5] at a time when there remained owing to ____________________ [specify, e.g., this
defendant] from ___________________ [name of transferor] the sum of $ ____________________
Page 434 of 479

under the ___________________ [specify obligation for which lien was security, e.g., note] which
was secured by the ___________________ [specify instrument evidencing lien, e.g., deed of trust].
That ___________________ [specify manner of enforcement, e.g., private foreclosure sale]
discharged ___________________ [all or $ ____________________ of] the obligation.

was in default of his/her obligations under that ____________________ [specify obligation for which
lien was security, e.g., note] for ___________________ [describe default, e.g., failure to make
payments of principal and interest for the months of July through September, _____ (year),
inclusive,] ____________________ [name of lienor or this defendant] ___________________
[descibe all actions taken prior to sale or other means of enforcement of lien, e.g., gave and recorded
notice of default as required by Civil Code Sections 2924 and 2924b. On ____________________
[date], when ___________________ (name of tranferor) had not cured the default, a notice of sale
was given, posted, and published as required by Civil Code Section 2924f.]
3. On ____________________ [date], ____________________ [describe sale or other method of

final enforcement of lien and evdience of transfer of title, e,g., ___________________ (name), as
trustee, sold ____________________'s (name of transferor) interest in the property to
___________________ (name or this defendant) as the highest bidder for $____________________
in accordance with the provisions of Civil Code Sections 2924g and 2924h. The trustee's deed was
given on ____________________ [date]. A copy of the trustee's deed is attached as Exhibit _____
and incorporated by reference].
[2] Use of Form
This affirmative defense is for use by a defendant who enforced a lien, or purchased property sold
pursuant to the en forcement of a lien, in an action by a creditor of the debtor to set aside the transfer
as fraudulent because it was made without receiving a reasonably equivalent value in exchange [see
Civ. Code ßß 3439.04(a)(2), 3439.05, 3439.08(e)(2); Judicial Council of California Civil Jury
Instructions, CACI Nos. 4202, 4203, 4207 (LexisNexis Matthew Bender) (related California Judicial
Council jury instructions); see also Civ. Code ß 3439.01(i) (transfer includes involuntary transfers
and disposition of or parting with any interest); Judicial Council of California Civil Jury Instructions,
CACI No. 4204 (LexisNexis Matthew Bender) (related California Judicial Council jury instruction)].
This defense is not applicable to any transfer voidable on the ground of actual intent to defraud,
hinder, or delay. Nor is it available if the collateral was retained by the secured party pursuant to Com.
Code ßß 9620 and 9621 or if the debtor voluntarily tranferred the collateral to the lienor, as by a deed
in lieu of foreclosure. In order to establish this defense, the debtor's interest in the collateral must have
been terminated in a noncollusive manner pursuant to applicable law, including Division 9 of the
Commercial Code [see Com. Code ß 9101 et seq.] other than as mentioned above, and the transfer
must have resulted in satisfaction of all or part of the secured obligation [Civ. Code ß 3439.08(e)(2);
see Judicial Council of California Civil Jury Instructions, CACI No. 4207 (LexisNexis Matthew
Bender) (related California Judicial Council jury instruction)].
Page 435 of 479

Civ. Code ß 3439.08(e)(2) was added by the UFTA and overrules Durrett v. Washington Nat'l Ins.
Co. (5th Cir. 1980) 621 F.2d 201, 203-204 and cases decided thereunder, to adopt the position of
California and the Ninth Circuit that reasonably equivalent value is presumed to be received by the
debtor at a noncollusive and regularly conducted foreclosure sale open to all bidders [see In re
Madrid (B.A.P. 9th Cir. 1982) 21 B.R. 424 , 6 C.B.C. 2d 1133, 1135-1136 , aff'd on other grounds
In re Madrid (9th Cir. 1984) 725 F.2d 1197, 1199 ; Engelbertson v. Loan & Bldg. Asso. (1936) 6
Cal. 2d 477, 479, 58 P.2d 647] .
[3] State Statutes
Recitals in trustee's deed of compliance with all requirements of law regarding serving, mailing, and
posting of notices constitute prima facie evidence of compliance, which is conclusive in favor of bona
fide purchaser or encumbrancer for value and without notice. Civ. Code ß 2924(c)
collateral under Com. Code ßß 9620 and 9621 or vouluntray transfer of collateral by debtor to lienor)
in satisfaction of all or part of secured obligation. Civ. Code ß 3439.08(e)(2)
[4] Decisions
Inadequacy of price is insufficient ground to set aside foreclosure sale unless inadequacy is caused by
some irregularity, fraud, unfairness, or oppression. Engelbertson v. Loan & Bldg. Asso. (1936) 6
Cal. 2d 477, 479, 58 P.2d 647 ; Oller v. Sonoma County Land Title Co. (1955) 137 Cal. App. 2d
633, 635-636, 290 P.2d 880
Recitals in trustee's deed of default, compliance with Civ. Code ßß 2924, 2924b, posting and
publishing of notice of sale after not less than three months from date of recording of notice of default,
and sale at public auction to highest bidder constituted conclusive proof of essential facts. Abra-
hamer v. Parks (1956) 141 Cal. App. 2d 82, 84, 296 P.2d 341
Beneficiary who purchases at foreclosure sale is not bona fide purchaser for purposes of presumption
of Civ. Code ß 2924(c); as to such a purchaser, recitals in trustee's deed are only prima facie evidence
of compliance and controvertable by trustor's evidence. Beck v. Reinholtz (1956) 138 Cal. App. 2d
719, 723, 292 P.2d 906
For discussion and forms relating to foreclosure of mechanics liens, see Ch. 361, Mechanics Liens .
For discussion and forms relating to foreclosure of other liens, see Ch. 342, Liens and Wage
Page 436 of 479

Preferences .
For discussion and forms relating to enforcement of liens under Article 9 or the Commercial Code,
see Ch. 503, Sales: Secured Transactions .
For discussion and forms relating to foreclosure of mortgages and deeds of trusts, see Ch. 555, Trust
Deeds and Real Property Mortgages .
Page 437 of 479

PART IV. FORMS
[Reserved]
Page 438 of 479

PART IV. FORMS
ß 270.220 Complaint to Set Aside Transfer of Personal Property--Transfer Made Without

Immediate Delivery Followed by Actual and Continued Change of Possession [Civ. Code ß
3440(a)]--By Creditor of Transferor
[1] FORM Complaint to Set Aside Transfer of Personal Property--Transfer Made Without
Immediate Delivery Followed by Actual and Continued Change of Possession [Civ. Code ß 3440
(a)]--By Creditor of Transferor
COUNTY OF ___________________
______________________ [name], )
Plaintiff, )
vs. ) NO. _____
______________________ [name(s)], ) COMPLAINT TO SET ASIDE VOID TRANSFER
[and DOES I through ______________________,] ) [Amount demanded ____________________ (ex-
Defendant(s). ) ceeds or does not exceed) $10,000]
)
__________________________________________________
Plaintiff alleges:
1. [Capacity and residence of defendants. See ß 270.190[1], First Cause of Action, Paragraph 1.]
2. [Fictitious name allegation, if appropriate. See ß 270.190[1], First Cause of Action, Paragraph 2.]
3. Plaintiff ___________________ [became or was] the holder of a certain claim against defendant
Page 439 of 479

___________________ [name of transferor] while that defendant remained in possession of the

personal property hereinafter described. This claim ___________________ [consists or consisted] of
___________________ [allege transaction or events which gave rise to claim. See ß 270.190[1],
First Cause of Action, Paragraph 4.]
4. [Describe status of claim, i.e., whether it has not matured, has matured, or has been reduced to
judgment. See ß 270.190[1], First Cause of Action, Paragraph 4.]

transferor] was the owner and in possession of ___________________ [state generally character of
personal property transferred].

transferor] and defendant ___________________ [name of transferee] entered into an agreement
whereby defendant ___________________ [name of transferor] ___________________ [promised
or intended] to ___________________ [transfer or state other form of transfer] the above-described
personal property to defendant ___________________ [name of transferee], which
___________________ [transfer or other] was to take place on ____________________ (date).
Pursuant to this agreement, a bill of sale was signed and executed [or allege other form of delivery of
title to property transferred].
7. On or about ____________________ [date of intended transfer or other as described above],

defendant ___________________ [name of transferor] did make the aforementioned
___________________ [transfer or other], but that ___________________ [transfer or other] was
not accompanied by an immediate delivery followed by an actual and continued change of possession
of the above-described property. In fact, defendant ___________________ [name of transferor]
remained in possession of this property.
1. That the ___________________ [transfer or other] from defendant ___________________

[name] to defendant ___________________ [name] be set aside, annulled, and declared void as to
plaintiff herein to the extent necessary to satisfy plaintiff's ___________________ [claim or
judgment] in the sum of $____________________ plus interest thereon at the rate of
____________________ percent per annum from _____ [year];
[2. For an order restraining and enjoining defendant(s, and each of them,) and his/her/their representa-
tives, attorneys, servants, and agents from selling, transferring, conveying, assigning, or otherwise
disposing of any of the property transferred until such time as plaintiff has had satisfied his/her claim
against defendant ___________________ (name of transferor);]
[3. That the judgment herein be declared a lien on the property conveyed.]
Page 440 of 479

5. For such other form of relief as the court may deem proper.
______________________ [signature]

[2] Use of Form
This complaint is for use by a creditor in an action to have declared void a transfer of personal
property made by a defendant transferor having at the time possession of the property and not
accompanied by an immediate delivery followed by an actual and continued change of possession of
the property [see Civ. Code ß 3440(a); Gray v. Little (1929) 97 Cal. App. 442, 444-446, 275 P.
870] . Both transferor and transferee are named as defendants. The transferee is a necessary party
[ TWM Homes, Inc. v. Atherwood Realty & Inv. Co. (1963) 214 Cal. App. 2d 826, 848, 29 Cal.
Rptr. 887 ; see ß 270.190[7]].
The complaint would also appear to state a cause of action for declaratory relief (declaration of rights
and duties as between parties) under Code Civ. Proc. ß 1060. A plaintiff who wishes to take
advantage of the calendar priority accorded actions for declaratory relief may modify the allegations of
Paragraphs 6 and 7 of ß 270.221[1] by replacing references to plaintiff as a purchaser with references
to plaintiff as a creditor and incorporate the allegations as modified in the form [Code Civ. Proc. ß
1062.3]. With appropriate modifications, the form may also be used as a separate count to be included
in a creditor's action against a defendant transferee under the Uniform Fraudulent Conveyance Act
[see ßß 270.190 -270.194].
Civ. Code ß 86(b)(1) provides that cases in equity to try title to personal property are limited civil
cases when the amount involved does not exceed $25,000.
[3] Allegations
This complaint alleges that plaintiff was a creditor of the defendant transferor while the defendant
remained in possession of the property (Paragraph 3) [see Civ. Code ß 3440(a); Brown v. O'Neal
(1892) 95 Cal. 262, 267, 30 P. 538] . By analogy to actions under the Uniform Fraudulent Con-
veyance Act, this allegation may show that plaintiff is the holder of a tort claim, and Paragraph 4 is
included to show the status of plaintiff's claim [see ß 270.190] since Civ. Code ß 3440 makes no
distinction among creditors holding secured or unsecured claims, tort or contract claims, or among
Page 441 of 479

creditors holding claims which have not matured or have matured or claims reduced to judgment. In
addition, this complaint alleges that defendant transferor was in possession of the property at the time
of the transfer of the property (Paragraphs 5, 7) [see Civ. Code ß 3440(a); Cosby v. Cline (1921)
186 Cal. 698, 701, 200 P. 801] , that defendants transferor and transferee entered into an agreement
for the transfer of the property (Paragraph 6), that the transfer was not accompanied by an immediate
delivery followed by an actual and continued change of possession of property transferred (Paragraph
7) [see Civ. Code ß 3440(a); Bunting v. Saltz (1890) 84 Cal. 168, 172, 24 P. 167 ; Southern Cal.
Collection Co. v. Napkie (1951) 106 Cal. App. 2d 565, 571, 235 P.2d 434] , and that defendant
transferor thereafter remained in possession of the property (Paragraph 7) [see Civ. Code ß 3440(a)].
[4] Remedies
When a transfer is void as to a creditor of the transferor under Civ. Code ß 3440 [see Civ. Code ß
3440], that creditor is entitled to have the transfer set aside [see Gray v. Little (1929) 97 Cal. App.
442, 444-446, 275 P. 870] . In addition, by analogy to the Uniform Fraudulent Conveyance Act, this
complaint prays for injunctive relief restraining the defendants from disposing of the property, and to
have a lien declared on the property [see ß 270.190]. For other forms of supplemental remedies
available in fraudulent conveyance actions, and for procedural requirements for such actions, see ß
270.190[8].
A creditor as to whom a transfer is void under Civ. Code ß 3440 may also disregard the transfer and
levy on the property in the hands of either the transferor or transferee [ Dot Records, Inc. v. Freeman
(1966) 247 Cal. App. 2d 204, 207-208, 55 Cal. Rptr. 455 (writ of attachment); Southern Cal.
Collection Co. v. Napkie (1951) 106 Cal. App. 2d 565, 568, 235 P.2d 434 (writ of execution)]. For
discussion and forms relating to attachment proceedings, see Ch. 62, Attachment . For discussion and
forms relating to levy by writ of execution, see Ch. 254, Executions and Enforcement of Judgments .
For discussion and forms relating to required responses to the transferee's third party claim after
service of the writ of execution, see Ch. 254, Executions and Enforcement of Judgments .
[5] State Statutes
Unless otherwise provided in Civ. Code ß 3440 et seq., transfers of personal property by persons
having at time possession of property are void as to creditors of transferor while transferor in
possession and purchasers for value in good faith subsequent to transfer when transfer not accompa-
nied by immediate delivery followed by actual and continued change of possession. Civ. Code ß 3440
Transfers to which Civ. Code ß 3440 et seq. do not apply. Civ. Code ßß 3440.1-3440.5, 3440.9
One-year statute of limitations for action brought or levy made under Civ. Code ß 3440 et seq.. Civ.
Code ß 3440.6
[6] Decisions
Page 442 of 479

Only creditor of transferor while transferor remains in possession of property is permitted to attack
transfer otherwise conclusively fraudulent under Civ. Code ß 3440. Brown v. O'Neal (1892) 95 Cal.
262, 267, 30 P. 538
Person is required to have had possession of personal property at time of transfer of such property in
order that transaction come within terms of Civ. Code ß 3440. Cosby v. Cline (1921) 186 Cal. 698,
701, 200 P. 801
Writings pertaining to transfer of personal property cannot create actual and continued change of
possession as to creditors of transferor. George v. Pierce (1898) 123 Cal. 172, 175, 55 P. 775, 56
P. 53
Civ. Code ß 3440makes no distinction between totally unsecured creditors and those creditors who
have realized upon their security and are seeking to recover deficiency. In re Trinity Tractor Co.
(1970) 3 Cal. App. 3d 428, 439-440, 83 Cal. Rptr. 783
[7] Text References
Witkin, Summary of California Law, Vol. 3, Sales, ßß 210, 211 (9th ed. 1987)
Page 443 of 479

PART IV. FORMS
ß 270.221 Complaint for Declaratory Relief [Code Civ. Proc. ß 1060]--To Determine Validity
of Transfer of Personal Property When There Was No Immediate Delivery Followed by Actual
and Continued Change of Possession--By Purchaser for Value in Good Faith Subsequent to
Transfer [Civ. Code ß 3440]
[1] FORM Complaint for Declaratory Relief [Code Civ. Proc. ß 1060]--To Determine Validity of
Transfer of Personal Property Where No Immediate Delivery Followed by Actual and Continued
Change of Possession--By Purchaser for Value in Good Faith Subsequent to Transfer [Civ. Code ß
3440]
COUNTY OF ___________________
______________________ [name], Plaintiff, )
vs. )
______________________ [name(s)], [and DOES I ) NO. _____
through ______________________,] Defendant(s). ) COMPLAINT FOR DECLARATORY RELIEF
)
__________________________________________________
Plaintiff alleges:
2. [Possession or control of property by defendant transferor. See ß 270.220[1], Paragraph 5.]
3. On the aforementioned date, defendant ___________________[name of transferor] did
Page 444 of 479

___________________ [transfer or describe other form of transfer] the above-described personal

property to defendant ___________________ [name of transferee], which ___________________
[transfer or other as described above] was not accompanied by an immediate delivery followed by an
actual and continued change of possession of the above-described property. Following this
___________________ [transfer or describe as above] defendant ___________________ [name of
transferor] in fact continued to remain in possession of this property.
4. On or about ____________________ [state date subsequent to transfer described above],

plaintiff, without notice of any prior ___________________ [transfer or other as described above] to
defendant ___________________ [name of transferee] or any interest that defendant
___________________ [name of transferee] claimed in the above-described property, entered into a
[n] [written] agreement with defendant ___________________ [name of transferor] who was still in
possession of the property, wherein defendant ___________________ [name of transferor] agreed to
___________________ [sell and deliver or grant an interest in the property] and plaintiff agreed to
___________________ [accept and purchase or acquire such interest in] the property for the sum of
$____________________. [A copy of this agreement is attached as Exhibit
____________________, and incorporated by reference.]
5. [EITHER, if transferor has transferred property to plaintiff]
On or about ____________________ [date], ___________________ [defendant

___________________ (name of transferor) did sell and deliver this property to plaintiff or plaintiff
did acquire this interest in the property from defendant ___________________ (name of transferor)].
[OR, if transferor has transferred property to transferee]
5. Plaintiff is informed and believes and thereon alleges that subsequent to the aforementioned
agreement with plaintiff, defendant ___________________ [name of transferor] did actually deliver
the above-described property to defendant ___________________ [name of transferee] who still
remains in possession of the property, and refuses to give up the property to plaintiff on plaintiff's
demand, although plaintiff was and is at all times ready, able, and willing to accept and have delivered
to him/her the property, pursuant to his/her agreement with defendant ___________________ [name
of transferor].
6. An actual controversy has arisen and now exists, therefore, between plaintiff and defendant
___________________ [name of transferee] concerning their respective rights and duties in that
plaintiff contends that the ___________________[transfer or describe as above] of the above-
described property to defendant ___________________ [name of transferee] was void under Section
3440 of the Civil Code as against plaintiff, who is a ___________________ purchaser for value in
good faith subsequent to the transfer, since this ___________________ [transfer or describe as
above] was not accompanied by an immediate delivery followed by an actual and continued change of
Page 445 of 479

possession of the property ___________________ [transferred or describe as above]; whereas

defendant ___________________ [name of transferee] dis putes this contention and contends that the
___________________ [transfer or describe as above] to him/her of the property by defendant
___________________[name of transferor] was a valid ___________________ [transfer or
describe as above] and that he/she is entitled to [remain in] possession of the property [free from any
interest which plaintiff claims in this property].
7. Plaintiff desires a judicial determination of his/her rights and duties and a declaration as to whether
the ___________________ [transfer or describe as above] of the above-described property on
____________________ [date], by defendant ___________________ [name of transferor] to
defendant ___________________ [name of transferee] was a valid ___________________ [transfer
or describe as above] of this property and whether the subsequent ___________________ [transfer
or describe as above] of [an interest in] the same property to plaintiff ___________________
[rendered void defendant ___________________'s (name of transferee) interest or title in the
property or subjected any interest which defendant ___________________ (name of transferee) may
have in the property to plaintiff's above-described interest].
8. Such a declaration is necessary and appropriate at this time in order that plaintiff may ascertain his/
her rights and duties.
WHEREFORE, plaintiff prays judgment against defendant(s) [, and each of them,] as follows:
1. For a declaration that the ___________________ [transfer or describe as above] on

____________________ [date], of the above-described property by defendant
___________________ [name of transferor] to defendant ___________________ [name of
transferee] was void as to plaintiff;
2. That the subsequent purchase by plaintiff of this property be declared a valid transfer as against any
interests defendant(s) ___________________ [name of transferor] and ___________________
[name of transferee] may claim in the property [, and that any interest which defendant
___________________(name of transferee) may have in the property be subjected to plaintiff's
claim];
[3. If defendant transferee remains in possession of property, add: For possession of the property or
its value in the sum of $____________________ in case delivery cannot be had;]
[4. For damages incurred to date in the sum of $____________________and for each day hereafter
until judgment is rendered for plaintiff, at the rate of $____________________ per day;]
6. For such other relief and further relief as the court may deem proper.
Page 446 of 479

______________________ [firm name, if any]
By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
This complaint for declaratory relief is for use by a good faith purchaser for value who purchased
personal property from a transferor who had previously transferred the property to a third party, but
who retained possession of the property after the earlier transfer. This complaint seeks a determination
that the earlier transfer is void. Under Civ. Code ß 3440(a), except as otherwise provided, a transfer of
personal property made by a person in possession of the property at the time of the transfer, and not
the property, is void as against:
The transferor's creditors (secured or unsecured) at the time of the transfer;
Those who become creditors while the transferor remains in possession;
The successors in interest of those creditors; and
Buyers from the transferor for value in good faith subsequent to the transfer.
[3] Alternative Remedies
A purchaser for value in good faith subsequent to a transfer which was void as to him or her under
Civ. Code ß 3440(a) may also, as alternative relief, bring an action to recover possession of the
property or its value and for damages for wrongful detention where the property remains in the
possession of the transferor or transferee [see Code Civ. Proc. ß 667]. For a complaint for use in such
an action, see Ch. 119, Claim and Delivery . The purchaser may also bring an action for cancellation
of a written instrument when the void transfer was based on a written instrument. For a complaint for
cancellation of a written instrument, see Ch. 107, Cancellation of Instruments . In addition, the
purchaser having possession of the property may bring an action to have the void transfer set aside
[see ß 270.220].
Page 447 of 479

See also ßß 270.190, 270.220.
For a discussion and forms for use in actions to recover possession of personal property or its value,
see Ch. 119, Claim and Delivery .
For a discussion and forms for use in actions to cancel written instruments, see Ch. 107, Cancellation
of Instruments .
Page 448 of 479

PART IV. FORMS
ß 270.222 Affirmative Defense--To Action to Set Aside or Declare Void Transfer of Personal
Property--Transfer of Property Excluded by Statute [Civ. Code ß 3440.1(a)-(g), (i)-(m)]
[1] FORM Affirmative Defense--To Action to Set Aside or Declare Void Transfer of Personal
Property--Transfer of Property Excluded by Statute [Civ. Code ß 3440.1(a)-(g), (i)-(l)]
___________________ (specify, e.g., SECOND) CAUSE OF ACTION], defendant alleges that the
transfer of property on or about ____________________ [date], from defendant
___________________ [name of transferor] to defendant herein is not void as to plaintiff in the
above-entitled action for any failure to accompany the transfer with an immediate delivery of the
property to defendant herein followed by an actual and continued change of possession of the
property in that the transfer was ___________________ [specify exempted transfer], the transfer of
which is not subject to the general provisions of Civil Code Section 3440 et seq.
[2] Use of Form
This affirmative defense is for use in an answer to a complaint brought by a creditor or subsequent
purchaser of personal property, the transfer of which is alleged to be void as to the creditor or
purchaser when the property was of a character specifically excluded from Civ. Code ß 3440 et seq.
under Civ. Code ß 3440.1(a)-(g) and (i)-(m). For a discussion of property excluded by statute from
the provisions of Civ. Code ß 3440 et seq., see ß 270.78[1].
Page 449 of 479

See also ßß 270.220, 270.221.
Page 450 of 479

PART IV. FORMS
Property--Transfer Occurred or Claim of Plaintiff Arose After Filing of Financing Statement
and Publication of Notice [Civ. Code ßß 3440.1(h), 3440.2]
Property--Transfer Occurred or Claim of Plaintiff Arose After Filing of Financing Statement and
Publication of Notice [Civ. Code ßß 3440.1(h), 3440.2]
___________________ (specify, e.g., SECOND) CAUSE OF ACTION], defendant alleges that:
1. In compliance with the provisions of Section 3440.1(h)(1) of the Civil Code, on or about
___________________[date], and before the date of the transfer of the personal property as
described in plaintiff's complaint, ___________________ [name of transferor or transferee] filed a
financing statement in the office of the Secretary of State. In compliance with the provisions of Section
3440.1(h)(2) of the Civil Code, on or about ___________________ [date], and not less than 10 days
before the transfer of the personal property described in plaintiff's complaint, ___________________
[name of transferor or transferee] caused notice of the intended transfer to be published in
___________________ [name of newspaper], a newspaper of general circulation published
___________________ [in the judicial district or, if there is none in the judicial district, in the county
embracing the judicial district] in which the personal property was located. Copies of the financing
statement and proof of publication of the notice of intended transfer are attached hetreto as Exhibits
"_____" and "_____," respectively, and made a part hereof.
[2. The transfer of property described in plaintiff's complaint is not void as to plaintiff herein in that
Page 451 of 479

plaintiff is not a "buyer in the ordinary course of business" as that term is defined by Subdivision (9)
of Section 1201 of the Commercial Code, and plaintiff's claim or right against (defendant)
___________________ (transferor or name of transferor) did not arise until after the dates of filing
of the financing statement and publication of the notice of intended transfer as set forth above in
Paragraph 1.]
[2] Use of Form
This affirmative defense is for use in an answer to a complaint brought by a creditor of a transferor or
by a purchaser of personal property from a transferor seeking to have the transfer or purchase set
aside or declared void, when the transfer or purchase is insulated from attack under Civ. Code ß 3440
et seq. either (1) because a financing statement was filed and notice of intended transfer was published
prior to the transfer in compliance with Civ. Code ß 3440.1(h) (Paragraph 1); or (2) because the
plaintiff's interest in the property did not arise until after the filing of the financing statement and
publication of notice of intended transfer (Paragraphs 1 and 2) [Civ. Code ß 3440.2]. For a discussion
of the notice requirements, fulfillment of which insulate a transfer from attack, see discussion in ß
270.78[5][a]. For a discussion of provisions insulating a transfer from attack if the plaintif's claim
arises after filing of the financing statement and publication of notice, see discussion in ß 270.78[2].
See also ßß 270.220 -270.222.
Page 452 of 479

PART IV. FORMS
[Reserved]
Page 453 of 479

PART IV. FORMS
C. Bulk Sales
ß 270.240 Notice of Intended Bulk Sale [Com. Code ß 6105]--For General Use
[1] FORM Notice of Intended Bulk Sale [Com. Code ß 6105]--For General Use
NOTICE IS HEREBY GIVEN that ___________________ [name of seller], whose business

address is ___________________ [street address], ___________________ [city],
___________________ County, California, intends to sell to ___________________ [name of
buyer], [a California corporation,] whose business address is ___________________ [street
address], ___________________ [city], ___________________ County, California, the following
property now located at ___________________ [street address], ___________________ [city],
___________________County, California: ___________________ [generally describe property,
e.g., all the trade, fixtures, equipment, inventory, and supplies of that certain business known as
___________________ (name of business) located at ___________________(street address),
___________________ (city), ___________________County, California].
During the three immediately preceding years, ___________________[name of seller] has conducted
business under the following names at the following addresses:
Dates Business Names Business Addresses

___________________ ___________________
_________
_________
__
___________________ ___________________
_________
_________
__
Page 454 of 479

It is anticipated that the aforementioned sale will occur on ___________________ [date at least 12
business days after recording, publishing, and mailing to county tax collector of this notice], at the
office of ___________________ [describe place sale will be consummated].
The aforementioned sale ___________________ [is or is not] subject to Section 6106.2 of the
Commercial Code. [If consideration is $2 million or less and is cash, or seller's obligation to pay
cash in future, or combination thereof, add: Claims of creditors may be filed with
___________________ (name) at ___________________ (address) on or before
____________________ (last business day before date given in preceding paragraph). Claims will
be deemed timely filed only if actually received by the person designated in this notice before the close
of business on ___________________ (date specified as last date for filing claims).]
Dated: ______________________.
______________________ [signature of buyer]

[2] Use of Form
This notice is for use by a buyer of a bulk sale that is subject to the Bulk Sales Law (Com. Code ß
6101 et seq.) [see Com. Code ß 6103(a), (b) (discussed in ß 270.103)] to comply with Com. Code ßß
6104(b), (c), 6105, and, if applicable, Com. Code ß 6106.2(f). Failure to publish, record, and deliver
the notice as required does not affect the validity of the sale to or the title of the purchasers [Com.
Code ß 6107(h)(1), (2)], but renders the buyer liable to any creditors of the seller for damages in the
amount of their claims, reduced by amounts that the claimants would not have realized if the buyer had
complied, and reduced pursuant to the limitations on a buyer's cumulative liability [see Com. Code ß
6107 (discussed in ß 270.102)].
In order to comply with its obligations with respect to this notice, the buyer must obtain from the
seller a list of all business names and addresses used by the seller within three years before the date
the list is sent or delivered to the buyer [Com. Code ß 6104(a)].
[3] Recording, Publication, and Delivery of Notice
This notice must be recorded by the buyer of a bulk sale that is subject to the Bulk Sales Law [see
Com. Code ß 6103(a), (b) (discussed in ß 270.103[1])] in the office of the county recorder in the
county or counties in California in which the tangible assets are located, and, if different, in the county
in which the seller is located [see Com. Code ß 6103(a)(2), (b) (location of seller, discussed in ß
270.103[1])] at least 12 business days before the date of the bulk sale [Com. Code ß 6105(b)(1)].
The notice in this form must also be published at least once at least 12 business days before the date of
the bulk sale. The notice must be published in a newspaper of general circulation published in the
judicial district in California in which the tangible assets are located and in the judicial district, if
Page 455 of 479

different, in which the seller is located [see Com. Code ß 6103(a)(2), (b)], if in either case there is
one, and if there is none, then in a newspaper of general circulation in the county in which the judicial
district is located [Com. Code ß 6105(b)(2)]. If the tangible assets are located in more than one judicial
district in California, the publication of the notice is required to be in a newspaper of general
circulation published in the judicial district in California in which a greater portion of the tangible
assets are located, on the date the notice is published, than in any other judicial district in California,
and, if different, in the judicial district in which the seller is located [Com. Code ß 6105(b); see Com.
Code ß 6103(a)(2), (b) (location of seller, discussed in ß 270.103[1])].
Finally, to be effective, the notice in this form must be delivered or sent by registered or certified mail
at least 12 business days before the the date of the bulk sale to the county tax collector in the county or
counties in California in which the tangible assets are located [Com. Code ß 6105(b)(3)]. If delivered
during the period from January 1 to May 7, inclusive, the notice must be accompanied by a completed
business property statement with respect to property involved in the bulk sale pursuant to Rev. & Tax.
Code ß 441 [Com. Code ß 6105(b)(3)].
The term "business day" in this context means any day other than a Saturday, a Sunday, or day
observed as a holiday by the state government [Com. Code ß 6105(b)].
[4] Contents of Notice
The notice of intended bulk sale must state each of the following [Com. Code ß 6105(a)]:
That a bulk sale is about to be made.
The names and business addresses of the seller and buyer, and any other business name
and address listed by the seller [see Com. Code ß 6104(a) (buyer's obligation to obtain
from seller list of all business names and addresses used by seller within three years of
date list is sent or delivered to buyer)].
The location and general description of the assets.
The place and anticipated date of the bulk sale.
Whether or not the bulk sale is subject to Com. Code ß 6106.2, and, if it is, the name and
address of the person with whom claims may be filed and the last date for filing claims,
which must be the business day before the date stated in the notice as the anticipated date
of sale.
Claims are deemed timely filed only if actually received by the person designated in the notice to
receive claims before the close of business on the day specified in the notice as the last date for filing
Page 456 of 479

claims [Com. Code ß 6106.2(f)]. A sale is subject to Com. Code ß 6106.2 if the consideration is $2
million or less and is substantially (1) all cash or (2) an obligation of the buyer to pay cash in the
future to the seller or a combination of those two forms of consideration [Com. Code ß 6106.2(a)].
[5] State Statutes
Buyer's obligations with respect to bulk sale. Com. Code ß 6104
Contents and requirements for recording and publishing notice to creditors of intended bulk sale.
Com. Code ß 6105
Failure to publish and record notice as provided in Com. Code ßß 6104, 6105 renders buyer liable to
creditors of seller. Com. Code ß 6107
Transition provisions governing sales under back sales agreements dated prior to January 1, 1991.
Com. Code ß 6111
[6] Text References
California Legal Forms, Ch. 17, Buying and Selling a Business or Professional Practice (Matthew
Bender).
Page 457 of 479

PART IV. FORMS
C. Bulk Sales
ß 270.241 Notice of Intended Bulk Sale [Com. Code ß 6105]--By Auction or Conducted by
Liquidator on Seller's Behalf [Com. Code ß 6108]
[1] FORM Notice of Intended Bulk Sale [Com. Code ß 6105]--By Auction or Conducted by

___________________ County, California, intends to sell ___________________ [at public auction
or by liquidation] the following described property now located at ___________________ [street
address], ___________________[city], ___________________ County, California:
___________________ [generally describe property].
business under the following names at the following business addresses:

___________________ ___________________
_________
_________
__
___________________ ___________________
_________
_________
__
The ___________________ [auction or liquidation sale(s)] will be conducted at
Page 458 of 479

___________________ [street address], ___________________ [city], ___________________

County, California, [if liquidation: beginning] on ___________________ [date at least 12 business
days after recording, publishing of, and mailing to county tax collector a copy of this notice],
beginning at ___________________ [time], and continuing thereafter until concluded].
The aforementioned sale is not subject to Section 6106.2 of the Commercial Code
The ___________________ [auctioneer(s) or liquidator(s)] will be ___________________ [name

(s)], whose address(es) is/are ___________________ [street address], ___________________
[city], ___________________ County, California, and the terms of the sale will be
___________________ [state terms, e.g., cash].
Dated: ______________________.
______________________ [signature(s) of
auctioneer(s) or liquidator(s)]
[2] Use of Form
This notice must be recorded, published, and delivered or mailed to the county tax collector in the
manner prescribed by Com. Code ß 6105(b) [see ß 270.240[3]] by the auctioneer or liquidator of a
bulk sale that is subject to the provisions of Com. Code ß 6101 et seq. [see Com. Code ß 6108(a)(1),
(3)]. A person engaged by the seller to direct, conduct, control, or be responsible for a sale by auction
is an auctioneer [Com. Code ß 6102(a)(2)]. A person who is regularly engaged in the business of
disposing of assets for businesses contemplating liquidation or dissolution is a liquidator [Com. Code
ß 6102(a)(10)].
The failure of the auctioneer or liquidator to give the foregoing notice does not affect the validity of the
sale to or the title of the purchasers [Com. Code ß 6107(h)(1), (2)], but renders the auctioneer or
liquidator liable to the creditors of the seller for damages in the amount of their claims, reduced by
amounts that the claimants would not have realized if the buyer had complied, and reduced pursuant to
the limitations on the auctioneer's or liquidator's cumulative liability [see Com. Code ßß 6107, 6108
(a), (b) (discussed in ßß 270.102, 270.107)].
This notice must contain the information required by Com. Code ß 6105(a) [see ß 270.240[4]] and, in
addition, the following information [Com. Code ß 6108(a)(3)]:
The sale is to be by auction or liquidation.
Page 459 of 479

The name of the auctioneer or liquidator.
The time and place of the auction or the time and place on or after which the liquidator
will begin to sell assets on the seller's behalf.
[4] State Statutes
Requirements of notice of bulk sale by auction or by liquidation. Com. Code ßß 6104, 6105, 6108(a)
Liability of auctioneer or liquidator. Com. Code ßß 6107, 6108

Page 460 of 479

PART IV. FORMS
C. Bulk Sales
ß 270.242 Complaint for Recovery of Claim--By Claimant Against Buyer of Bulk Sale [Com.
Code ß 6107]
[1] FORM Complaint for Recovery of Claim--By Claimant Against Buyer of Bulk Sale [Com.
Code ß 6107]
COUNTY OF ___________________
)
vs. ) COMPLAINT FOR RECOVERY OF CLAIM
______________________ [name], [and DOES I ) (Bulk Sale Law)
through ______________________,] Defendant(s). ) [Amount demanded ____________________ (ex-
__________________________________________________
Plaintiff alleges:
1. [Capacity and residence of defendant. See ß 270.190[1], First Cause of Action, Paragraph 1.]
3. Plaintiff ___________________ [became or was] the holder of a certain claim against

___________________ [name of seller] incurred by ___________________ [name of seller] in the
conduct of his/her/its business described in Paragraph 5. The claim arose before date of the bulk sale
described in Paragraphs 6 and 7. This claim consists/consisted of ___________________[allege
Page 461 of 479

transaction or events that gave rise to claim. See ß 270.190[1], First Cause of Action, Paragraph 3].
[EITHER, if claim not matured]
4. No part of the aforementioned claim has matured[, and no part of it is due and owing,] because
___________________ [specify nature of nonmaturity, if appropriate, e.g., the time fixed for
payment is ____________________(date)].
[OR, if claim has matured]
4. This claim for which ___________________ [name of seller] is indebted to plaintiff is in the sum
of $____________________. [Plaintiff has performed all conditions, covenants, and promises under
the contract, on his/her/its part to be performed(, except ___________________ (condition not
performed), the performance of which was excused on the ground that ___________________
(specify)).] Neither the whole nor any part of this sum has been paid [except the sum of
$____________________], and there is now due and unpaid the sum of $____________________
together with interest thereon at the rate of ____________________ percent per annum from
____________________ [date].
[OR, if claim was reduced to judgment]
4. On ___________________ [date], an action was commenced by plaintiff against

___________________ [name of seller] based on the aforementioned claim in the
___________________ [specify court], No. ____________________ in the files and records of this
court. Judgment in that action was duly rendered in favor of plaintiff for the sum of
sum of $____________________. The judgment became final on ___________________ [date],
the time for appealing has expired or was appealed and affirmed on ___________________(date)].
The judgment has never been vacated or modified. Plaintiff is still the owner of the judgment of which
no part has been satisfied. A certified copy of the judgment is attached hereto as Exhibit "B" and made
a part hereof.
[CONTINUE]
5. Prior to ___________________ [date], ___________________ [name of seller] was engaged in

the business of ___________________ [describe business] [under the business name of
___________________ (state name)] at ___________________[street address],
Page 462 of 479

___________________ [city], ___________________County, California.
6. On or about this date, ___________________ [name of seller] sold to defendant

___________________ [name of buyer] ___________________ [allege consideration for sale, e.g.,
for cash and notes] ___________________ [this business, including (all the) inventory and
equipment thereof or more than half of the inventory and equipment of this business] having the value
of $____________________, by a bill of sale dated on the same date.
7. This sale was not made in the ordinary course of ___________________'s [name of seller]
business in that it did not comport with the usual and customary practices of the kind of business in
which ___________________[name of seller] was engaged or with ___________________'s [name
of seller] usual and customary practices.
[EITHER, if there was failure to properly

record with county recorder]
8. Subsection (b)(1) of Section 6105 of the Commercial Code was not complied with, in that this sale
was not preceded by a notice of intended bulk sale recorded in the Office of the County Recorder of
___________________County, California [if assets were located in more than one county add:, and
in the Office of the County Recorder of ___________________ County, California,] in which
county/counties the tangible assets to be sold were located by defendant ___________________
[name of buyer] at least 12 business days before the date of the sale. [If seller was located in different
county than assets, add: Nor was any notice recorded in the Office of the County Recorder of
___________________ County, California, the county in which ___________________'s (name of
seller) ___________________ (chief executive office or major executive office in the United States)
was located.]
[OR, if there was failure to properly

publish notice of intended sale]
8. In noncompliance with Subsection (b)(2) of Section 6105 of the Commercial Code, this sale was
not preceded by a notice of intended bulk sale published at least once in a newspaper of general
circulation published in [the Judicial District of] ___________________ County, California, in which
___________________ [District or County] the tangible assets to be sold [or the greater portion of
them] were/was located by defendant ___________________ [name of buyer] at least 12 business
days before the date of the sale. [If seller was located in different judicial district than assets, add:
Nor was any notice published in a newspaper of general circulation published in (the
___________________ (name of district) Judicial District of) ___________________ County,
California, in which ___________________ (District or County) ___________________'s (name of
Page 463 of 479

was located.]
[OR, if there was failure to comply with other

requirements of Com. Code ß 6105 ]
8. In noncompliance with Subsection ____________________[specify subsection(s), e.g., (a)(2)] of

Section 6105 of the Commercial Code, this sale ___________________ [if notice was published and
recorded in compliance with Com. Code ß 6105, allege facts showing noncompliance with require-
ments of contents of notice so that plaintiff had no notice of intended bulk sale, e.g., did not contain all
prior business names and addresses used by ___________________ (name of seller) within three
immediately preceding years, under one of which names he/she/it was engaged in business at the time
plaintiff became the holder of his/her/its claim. Plaintiff is informed and believes and on such
information and belief alleges that defendant never obtained, or attempted to obtain from
___________________(name of seller) the list of its former business names and addresses as
required by Commercial CodeSection 6104(a)].
[OR, if there was failure to comply with

requirements of Com. Code ß 6106.2 ]
8. The consideration for the sale was less than two million dollars ($2,000,000) and consisted
substantially of ___________________ [cash or the seller's obligation to pay cash in the future or a
combination of cash and the seller's obligation to pay cash in the future]. In noncompliance with
subsection (f) of Section 6106.2 of the Commercial Code, ___________________ [specify nature of
noncompliance, e.g., the notice of the sale did not specify any person with whom creditors of
___________________ (name of seller) were to file claims].
[CONTINUE]
9. As a proximate result of defendant's noncompliance with the applicable statute, as alleged above,
plaintiff was prevented from duly filing a timely claim, to plaintiff's damage.
1. For the sum of $____________________ plus interest thereon at the rate of

____________________ percent per annum;
2. For the costs of suit incurred herein; and
Page 464 of 479

______________________ [signature]

[2] Use of Form
This form of complaint is for use by a creditor holding a claim, other than an unliquidated or
contingent one, against a seller of a bulk sale that was subject to the notice requirements of Com. Code
ßß 6104 and 6105 to recover the amount of the claim from a buyer who failed to publish, record, or
deliver the notice or to otherwise comply with the provisions of Com. Code ß 6104, 6105, or 6106.2
(f) [see Com. Code ß 6107(a), (g)]. The buyer is liable to the claimant for damages in the amount of
the claim, reduced by any amount that the claimant would not have realized if the buyer had complied
[Com. Code ß 6107(a)]. The claimant has the burden of establishing the validity and amount of the
claim. The buyer has the burden of establishing the amount that the claimant would not have realized if
the buyer had complied [Com. Code ß 6107(b); see ß 270.102].
This complaint is based on the requirements that went into effect on January 1, 1991, and is applicable
if the sale occurred on or after January 1, 1991, pursuant to a bulk sale agreement dated on or after
January 1, 1991. If the sale occurred on or after January 1, 1991, pursuant to a bulk sale agreement
dated before January 1, 1991, compliance with the former notice provisions (those set forth in former
Com. Code ßß 6106 and 6107) is required, and the form will have to be modified accordingly [see
Com. Code ß 6111 (discussed in ß 270.109)].
[3] Who May Be Plaintiff
[a] "Claimant" Defined
"Claimant" means a person holding a claim incurred in the seller's business other than any of the
following claims [Com. Code ß 6102(a)(5)]:
An unsecured and unmatured claim for employment compensation and benefits,

including commissions and vacation, severance, and sick-leave pay;
A claim for injury to an individual or to property, or for breach of warranty, unless (A) a
right of action for the claim has accrued, (B) the claim has been asserted against the seller,
and (C) the seller knows the identity of the person asserting the claim and the basis on
which the person has asserted it; or
Page 465 of 479

A claim for taxes owing to a governmental unit, if (A) a statute governing the enforce-
ment of the claim permits or requires notice of the bulk sale to be given to the govern-
mental unit in a manner other than by compliance with the requirements of Com. Code ß
6101 et seq., and (B) notice is given in accordance with that statute.
[b] "Claim" Defined
"Claim" means a right to payment from the seller, whether or not the right is reduced to judgment,
liquidated, fixed, matured, disputed, secured, legal, or equitable. The term includes costs of collection
and attorney's fees only to the extent that the California law permits the holder of the claim to recover
them in an action against the obligor [Com. Code ß 6102(a)(4)].
[c] Holders of Contingent and Unliquidated Claims Excepted
Note that no action may be brought under Com. Code ß 6107(a) by or on behalf of a claimant whose
claim is unliquidated or contingent [Com. Code ß 6107(g)].
[4] Allegations
This complaint alleges:
Plaintiff's status as a claimant (Paragraph 3) [see Com. Code ß 6102(a)(5) (discussed in

[a] above)].
The status of plaintiff's underlying claim against the seller (alternative Paragraphs 4) [see
Com. Code ß 6102(a)(4) (discussed above); but see Com. Code ß 6107(g) (no action
may be brought on unliquidated or contingent claim)].
The type and location of the seller's business (Paragraph 5).
The fact, date, consideration, and relevant characteristics of the sale, namely that it was of
all or a substantial part of the seller's business (Paragraph 6) and that it was not in the
ordinary course of that business (Paragraph 7) [see Com. Code ß 6102(a)(3)(ii) (defining
"bulk sale" other than by auction or through liquidator); see also Com. Code ß 6102(a)
(13) (defining "in the ordinary course of the seller's business")].
Defendant's failure to comply with the notice requirements of Com. Code ßß 6104 and
6105, including, if applicable, Com. Code ß 6106.2(f) (alternative Paragraphs 8).
The resulting damage to plaintiff (Paragraph 9) [see Com. Code ß 6107(b)].
More than one alternative Paragraph 8 may be used or any of the alternative Paragraphs 8 may be
Page 466 of 479

combined to reflect the actual noncompliance involved.

[a] One Year Period
Unless the buyer, auctioneer, or liquidator conceals the fact that the bulk sale occurred, an action under
Com. Code ß 6101 et seq. against a buyer, auctioneer, or liquidator must be commenced within one
year after the date of the bulk sale [Com. Code ß 6110(a)].
If the buyer, auctioneer, or liquidator conceals the fact that the sale has occurred, the limitation is tolled
and an action under Com. Code ß 6101 et seq. may be commenced within whichever of the following
periods is earlier [Com. Code ß 6110(b)]:
One year after the person bringing the action discovers that the sale has occurred; or
One year after the person bringing the action should have discovered that the sale has
occurred, but no later than two years after the date of the bulk sale.
Complete noncompliance with the requirements of Com. Code ß 6101 et seq. does not of itself
constitute concealment [Com. Code ß 6110(b); accord, In re Borba (9th Cir. 1984) 736 F.2d 1317,
1320 (decided under former Com. Code ß 6111)].
[b] "Date of Sale" Defined
Unless the sale is an auction or is conducted by a liquidator on the seller's behalf, the phrase "date of
the bulk sale" means the later of the date on which either of the following occurs: (1) more than 10
percent of the net contract price is paid to or for the benefit of the seller; or (2) more than 10 percent of
the assets, as measured by value, are transferred to the buyer [Com. Code ß 6102(a)(7)(i)(B); see
Com. Code ß 6102(a)(11) (defining "net contract price," discussed in ß 270.245[3][b]); see also
Com. Code ß 6102(a)(15) (defining "value" as fair market value)].
For purposes of determining the date of sale, delivery of a negotiable instrument [see Com. Code ß
3104(a)] to or for the benefit of the seller in exchange for assets constitutes payment of the contract
price to the extent of the amount of the note [Com. Code ß 6102(a)(7)(ii)(A)]. To the extent that the
contract price is deposited in an escrow, the contract price is paid to or for the benefit of the seller
when the seller acquires the unconditional right to receive the deposit or when the deposit is delivered
to the seller or for the benefit of the seller, whichever occurs first [Com. Code ß 6102(a)(7)(ii)(B)].
An asset is transferred when a person holding an unsecured claim can no longer obtain through
judicial proceedings rights to the asset that are superior to those of the buyer arising as a result of the
bulk sale [Com. Code ß 6102(a)(7)(ii)(C)]. A person holding an unsecured claim can obtain those
Page 467 of 479

superior rights to a tangible asset at least until the buyer has an unconditional right under the bulk-sale
agreement to possess the asset, and a person holding an unsecured claim can obtain those superior
rights to an intangible asset at least until the buyer has an unconditional right under the bulk-sale
agreement to use the asset [Com. Code ß 6102(a)(7)(ii)(C)].
[6] State Statutes
Buyer's liability to single claimant for failure to comply with Com. Code ßß 6104, 6105. Com. Code
ß 6107(a)
Burdens of proof. Com. Code ß 6107(b)
Buyer who made good faith attempt to comply or to bring sale within exception of Com. Code ß
6103(c) as not liable. Com. Code ß 6107(c)
Limits on buyer's cumulative liability. Com. Code ß 6107(d)-(f)
Action barred on unliquidated or contingent claim. Com. Code ß 6107(g)
Statute of limitations for action brought under bulk sale provisions of Com. Code ß 6101 et seq.
Com. Code ß 6110
[7] Text References
Witkin, Summary of California Law, vol. 3, Sales, ß 220 (9th ed. 1987)
See also ßß 270.190, 270.240.
Page 468 of 479

PART IV. FORMS
C. Bulk Sales
ß 270.243 Allegations--In Complaint for Recovery of Claim--By Claimant Against Auctioneer

or Liquidator Who Conducted Bulk Sale [Com. Code ßß 6107, 6108]
[1] FORM Allegations--In Complaint for Recovery of Claim--By Claimant Against Auctioneer
or Liquidator Who Conducted Bulk Sale [Com. Code ßß 6107, 6108]--Sale Occurred on or After
January 1, 1991 [Com. Code ß 6111]
1. Defendant ___________________ [name] was at all times mentioned in this complaint engaged in
business as ___________________ [an auctioneer or a liquidator] at the auction described herein,
having ___________________ [direction of or control of or responsibility for] this auction.
2. On or about ___________________ [date], ___________________ [name of seller] engaged

defendant ___________________ [name of auctioneer or liquidator] to sell [more than half of the
inventory and equipment of] the aforementioned business ___________________ [at an auction or
through a sale or series of sales] to be conducted at ___________________ [street address],
___________________ [city], ___________________ County, California, on
___________________ [date].
3. Defendant did ___________________ [auction or liquidate] ___________________ [more than

half of the inventory and equipment of] this business on [or after] that date, and did sell and deliver
[all the] goods, wares, merchandise, and fixtures thereof to ___________________ [various
purchasers, the identity of whom plaintiff does not know; nor does plaintiff know the amount of
consideration paid, but these facts are known by defendants ___________________ (name(s) of
auctioneer(s) and seller) or state names of purchasers and describe consideration paid, if known].
4. Section(s) ___________________ [specify subsections of Com. Code ßß 6104-6108 with which
Page 469 of 479

defendant failed to comply] of the Commercial Code was/were not complied with, in that defendant
did not give proper notice of the intended bulk sale ___________________ [by auction or through a
liquidator] because ___________________ [allege facts showing noncompliance with requirements
of recording, publishing, or mailing or delivering notice by defendant auctioneer or liquidator, or
his/her/its/their failure to comply with requirements of contents of the notice. See ß 270.242[1],
alternative Paragraphs 8.].
[2] Use of Form
These allegations may be used in place of Paragraphs 6-8 of ß 270.242[1] by a creditor holding a
claim, other than an unliquidated or contingent one, against a seller of a bulk sale that was conducted
by auction or through a liquidator when the auctioneer or liquidator failed to publish, record, or deliver
the notice, or otherwise to comply with the provisions of Com. Code ßß 6104-6108 relating to the
notice of intended bulk sale [see Com. Code ßß 6104-6108, and discussion in ß 270.107].
[3] Relevant Definitions
[a] Bulk Sale
In the case of a sale by auction or a sale or series of sales conducted by a liquidator on the seller's
behalf, a "bulk sale" means a sale or series of sales not in the ordinary course of the seller's business
of more than half of the seller's inventory and equipment, as measured by value on the date of the
bulk-sale agreement [Com. Code ß 6102(a)(3)(i); see also ß 270.103].
[b] Auctioneer
An auctioneer is a person whom the seller engages to direct, conduct, control, or be responsible for a
sale by auction [Com. Code ß 6102(a)(2)].
[c] Liquidator
A liquidator is a person who is regularly engaged in the business of disposing of assets for business-
es contemplating liquidation or dissolution [Com. Code ß 6102(a)(10)].
[d] Date of Bulk Sale
The date of a bulk sale by auction or one that is conducted by a liquidator on the seller's behalf is the
date on which more than 10 percent of the net proceeds is paid to or for the benefit of the seller [Com.
Code ß 6102(a)(7)(i)(A)].
See also ßß 270.241 and 270.242.
Page 470 of 479

PART IV. FORMS
C. Bulk Sales
ß 270.244 Affirmative Defense--To Action for Recovery of Claim by Claimant Against Buyer
of Bulk Sale [Com. Code ß 6107]--Sale Excluded by Stature [Com. Code ß 6103(c)]
[1] FORM Affirmative Defense--To Action for Recovery of Claim by Claimant Against Buyer
of Bulk Sale [Com. Code ß 6107]--Sale Statutorily Excluded [Com. Code ß 6103(c)]
AS A SEPARATE AND AFFIRMATIVE DEFENSE, defendant alleges that the bulk sale of
property on or about ___________________ [date] from ___________________ [name of seller] to
defendant herein was not in violation of Section(s) ___________________ [6104 or 6105 or 6106.2
and if defendant is auctioneer or liquidator, add and 6108] of the Commercial Code for any failure of
defendant to comply with the provisions of that statute relating to the requirements for recording,
publishing, or mailing or delivering a notice of bulk sale because the sale was specifically excluded
from the requirements of that notice by Section 6103(c) of the Commercial Code. Specifically, this
sale was excluded by Section 6103(c)(____________________) [specify subparagraph] of the
Commercial Code in that ___________________ [state generally character of sale and property
excluded as provided in Com. Code ß 6103(c)(1)-(16), e.g., the property sold was immediately leased
back to the transferor immediately following the transfer, a financing statement was filed, and notice
of intended transfer was published in compliance with Section 3440.1(h) of the Civil Code].
[2] Use of Form
This affirmative defense is for use in an answer to a complaint brought by a creditor of a seller of a
bulk sale against the buyer for failure of the buyer to comply with the bulk sale notice provisions of
Com. Code ß 6101 et seq. The defense asserted is that the sale was not subject to those provisions
because it was specifically excepted by Com. Code ß 6103(c)(1)-(16) [see ß 270.108].
Page 471 of 479

The foregoing form may also be modified for use when the sale was not subject to the bulk sale notice
requirements because it did not fall within the definition of bulk sale, such as when the inventory and
equipment sold were less than half, as valued on the date of the bulk sale agreement, of the seller's
inventory and equipment, or when the sale was one that comported with the usual or customary
practices in the kind of business in which the seller is engaged [Com. Code ßß 6102(a)(3), (13) 6103
(a)-(b); see ß 270.103].
[3] State Statutes
Bulk sale defined. Com. Code ß 6102(a)(3); see also Com. Code ßß 2106(1), 6102(a)(8), (13), (15)
(related definitions)
Sales to which Com. Code ß 6101 et seq. applies. Com. Code ß 6103(a)-(b)
Transfers not subject to bulk sale notice provisions of Com. Code ß 6101 et seq. Com. Code ß 6103
(c)
Page 472 of 479

PART IV. FORMS
C. Bulk Sales
of Bulk Sale [Com. Code ß 6107]--Statutory Limit on Cumulative Liability for Single Sale
Exceeded [Com. Code ß 6107(d)-(f)]
of Bulk Sale [Com. Code ß 6107]--Statutory Limit on Cumulative Liability for Single Sale Exceeded
[Com. Code ß 6107(d)-(f)]
AS A SEPARATE AND AFFIRMATIVE DEFENSE, defendant alleges:
1. The assets sold as the bulk sale described in the complaint consisted ___________________
[indicate whether assets consisted only of inventory and equipment, e.g., entirely of inventory and
equipment].
2. The net contract price was $_____.
[3. The net value of the inventory and equipment was $____________________.]
4. ___________________ [Specify amount or portion, e.g., All] of the [portion of the] net contract
price [that was allocable to inventory and equipment] was paid to or applied for the benefit of the
seller or creditors of the seller. ___________________ [Specify amount or portion, e.g., None] of
[that portion of] the net contract price was paid or applied towards debts that were secured by assets
that were part of the bulk sale and that were taken into consideration in determining the net contract
price.
5. Defendant has made payments to claimants other than plaintiff herein [and other than the payments
Page 473 of 479

on debts described in Paragraph 4][, and to persons it believed held bona fide claims,] in satisfaction
of claims owed[, or believed to be owed,] by ___________________ [name of seller], totalling
$____________________.
[2] Use of Form
The foregoing affirmative defense is for use in an answer to a complaint brought by a creditor of a
seller of a bulk sale against the buyer for failure of the buyer to comply with the bulk sale notice
provisions of Com. Code ß 6101 et seq. The defense asserted is that the buyer has already paid claims
in excess of the amount of its cumulative liability for a single bulk sale [see Com. Code ß 6107(d)-(f)].
The buyer's cumulative liability is generally limited to two times the net contract price, or if the sale
included property other than inventory and equipment, two times the value of the inventory and
equipment, less the portion of the net contract price paid to or applied for the benefit of the seller or its
creditors (or, again, in the case of a sale that included property other than inventory and equipment,
sums so paid or applied that were allocable to inventory and equipment,) excepting from that
deduction debts secured by the assets sold and taken into account in determining the net contract price
[Com. Code ß 6107(d); see ß 270.245[3]].
The foregoing form may also be modified for use when the limit on cumulative liability would be
exceeded if defendant had to pay plaintiff's claim and other claims made against it arising from the
same bulk sale. In that situation, the buyer may wish to consider answering, filing a cross complaint in
interpleader, depositing with the court an amount equal to its remaining exposure under the cumulative
limit, and asking the court to apportion that amount among the remaining claimants. For discussion
and forms relating to interpleader, see Ch. 314, Interpleader .
Paragraph 3 and the bracketed portions of Paragraph 4 are only applicable if the bulk sale involves
assets other than inventory and equipment [see Com. Code ß 6107(d)(2)].
A payment made by the buyer to a person to whom the buyer is, or believes it is, liable under Com.
Code ß 6107(a) reduces pro tanto the buyer's cumulative liability under Com. Code ß 6107(d)
(Paragraph 5) [Com. Code ß 6107(f)].
[3] Limit on Buyer's Cumulative Liability
[a] Sale Consists Only of Inventory and Equipment
In a single bulk sale in which the assets consist only of inventory and equipment, the buyer's
cumulative liability for failure to comply with the requirements of Com. Code ß 6104 may not exceed
an amount equal to twice the net contract price, less the amount of any part of the net contract price
paid to or applied for the benefit of the seller or a creditor except to the extent that the payment or
application is applied to a debt that is secured by the assets and that has been taken into consideration
in determining the net contract price [Com. Code ß 6107(d)(1)].
[b] Net Contract Price Defined
Page 474 of 479

The phrase "net contract price" means the new consideration the buyer is obligated to pay for the
assets less each of the following [Com. Code ß 6102(a)(11)]:
The amount of any proceeds of the sale of an asset, to the extent that the proceeds are
applied in partial or total satisfaction of a debt secured by the asset; and
The amount of any debt to the extent that it is secured by a security interest or lien that is
enforceable against the asset before and after it has been sold to a buyer. If a debt is
secured by an asset and by other property of the seller, the amount of the debt secured by
a security interest or lien that is enforceable against the asset is determined by multiplying
the debt by a fraction, the numerator of which is the value of the new consideration for
the asset on the date of the bulk sale and the denominator of which is the value of all
property securing the debt on the date of the bulk sale.
[c] Assets Sold Include Property Other Than Inventory and Equipment
In a single bulk sale in which the assets include property other than inventory and equipment, the
buyer's cumulative liability for failure to comply with the requirements of Com. Code ß 6104 may not
exceed an amount equal to twice the net value of the inventory and equipment less the amount of the
portion of any part of the net contract price paid to or applied for the benefit of the seller or a creditor
that is allocable to the inventory and equipment, except to the extent that the payment or application is
applied to a debt that is secured by the assets and that has been taken into consideration in determining
the net contract price [Com. Code ß 6107(d)(2)].
[d] Net Value Calculation
The phrase "net value" of an asset within the meaning of Com. Code ß 6107(d)(2) (sale that includes
property other than inventory and equipment) is the value of the asset less each of the following
[Com. Code ß 6107(e)]:
secured by an asset and other property of the seller, the amount of the debt secured by a
security interest or lien that is enforceable against the asset is determined by multiplying
the debt by a fraction, the numerator of which is the value of the asset on the date of the
bulk sale and the denominator of which is the value of all property securing the debt on
the date of the bulk sale. The portion of a part of the net contract price paid to or applied
for the benefit of the seller or a creditor that is "allocable to the inventory and equipment"
Page 475 of 479

is the portion that bears the same ratio to that part of the net contract price as the net value
of the inventory and equipment bears to the net value of all of the assets.
[4] State Statutes
Buyer's payment to person to whom buyer is, or believes it is, liable under Com. Code ß 6107(a) as
reducing pro tanto buyer's cumulative liability. Com. Code ß 6107(f)
Action as barred on unliquidated or contingent claim. Com. Code ß 6107(g)

See also ßß 270.240 and 270.242.
Page 476 of 479

PART IV. FORMS
C. Bulk Sales
of Bulk Sale [Com. Code ß 6107]--Good Faith Attempt to Comply With, or to Exclude Sale
From, Bulk Sale Notice Requirements [Com. Code ß 6107(c)]
of Bulk Sale [Com. Code ß 6107]--Good Faith Attempt to Comply With, or to Exclude Sale From,
Bulk Sale Notice Requirements [Com. Code ß 6107(c)]
1. On or about ___________________ [date], and prior to the time of the transaction described in the
complaint as a bulk sale, defendant made a good faith and commercially reasonable attempt to
___________________ [comply with the requirements of Section(s) ____________________ (6104
and/or 6105) of the Commercial Code or bring the transaction within the exclusion of Section(s)
6103(c)_____ (specify subparagraph) of the Commercial Code].
[Describe, in as many paragraphs as necessary, all elements

necessary to establish a good faith and commercially reasonable
attempt at compliance or exclusion. The following, by way of
example, are allegations relating to the exclusion of Com. Codeß 6103(c)(9).]
2. Defendant's principal place of business is ___________________.
3. On ___________________ [date not earlier than 21 days before the date of the bulk sale],
defendant demanded of ___________________ [name of seller] and received from
Page 477 of 479

___________________[name of seller] a verified and dated list of claimants of whom the seller had
notice three days' before the seller delivered the list to the buyer. A true and correct copy of that list is
attached hereto marked Exhibit "A" and made a part hereof.
4. Defendant assumed in full all debts on that list, and sent notice of its assumption to all creditors on
that list, in the form of the letter, a true copy and correct copy of which is attached hereto marked
Exhibit "B" and made a part hereof.
5. Defendant is, and has at all times relevant hereto, been solvent and able to meet its current
obligations as they mature.
6. On ___________________ [date not later than 30 days after sale], defendant caused a notice of
assumption to be recorded in the Office of the County Recorder of ___________________ County,
California, [if assets were located in more than one county add and in the Office of the County
Recorder of ___________________ County, California,] in which county/counties the tangible assets
sold were located. [If seller was located in different county than assets, add: The same form of notice
of assumption was also recorded, on ___________________ (date not later than 30 days after sale),
in the Office of the County Recorder of ___________________County, California, the county in
which ___________________'s (name of seller) ___________________ (chief executive office or
major executive office in the United States) was located.] A true copy and correct copy of that notice
is attached hereto marked Exhibit "C" and made a part hereof.
7. Defendant caused a notice of assumption to be published in the ___________________ [name of

newspaper], a newspaper of general circulation published in [the ___________________ (name)
Judicial District of] ___________________ County, California, in which ___________________
[District or County] the tangible assets sold[, or the greater portion of them,] were located. The notice
was published on ___________________ [date not later than 30 days after sale]. [If seller was
located in different judicial district than assets, add: Defendant also caused the same form of notice of
assumption to be published on ___________________ (date not later than 30 days after sale), in the
___________________ (name of newspaper), a newspaper of general circulation published in (the
was located.] A true copy and correct copy of that notice is attached hereto marked Exhibit "D" and
made a part hereof.
[2] Use of Form
Com. Code ß 6101 et seq. The defense asserted is that the buyer made a good faith and commercially
reasonable attempt to comply with the requirements of Com. Code ß 6104or to exclude the sale from
the application of the Bulk Sales Law under Com. Code ß 6103(c) (discussed in ß 270.170[8]) [Com.
Page 478 of 479

Code ß 6107(c)]. The buyer has the burden of establishing the good faith and commercial reasonable-
ness of the effort [Com. Code ß 6107(c)]. Good faith was not a defense under prior versions of the
Bulk Transfer Law [see Danning v. Daylin, Inc. (9th Cir. 1973) 488 F.2d 185, 190] .
All allegations except those in Paragraph 1 will vary depending on the particular exclusion attempted
or insufficiency in compliance with the requirements of Com. Code ßß 6104, 6105. In the foregoing
form, Paragraphs 2-7 are based on an attempt to bring the transaction within the exclusion set forth in
Com. Code ß 6103(c)(9) (discussed in ß 270.108[4]). The individualized assumption agreements
alleged in Paragraph 4 are not required by the statute, but the allegations may be included if desired
whenever such agreements are utilized.
[3] State Statutes
Good faith attempt to comply or to exclude transaction from scope of Bulk Sales Law as complete
defense. Com. Code ß 6107(c)
Burden of establishing good faith and commercial reasonableness of effort as on buyer asserting it.
Com. Code ß 6107(c)
Exclusions
Page 479 of 479

Contracts procedural checklists45 9/27/11 2:05 AM
1 of 184 DOCUMENTS

NOTE:


Page 1 of 593
Assignees.
Heirs.
PRACTICE TIP:
68 Cal. Rptr. 3d 295, 171 P.3d 20 ; see ß 140.55[5]].

Page 2 of 593

form.
PRACTICE TIP:
the contract.
contract.
NOTE:
Page 3 of 593


contract.
plaintiffs:

369].

372(a)].
Page 4 of 593

Instruments ].
Instruments ].


Page 5 of 593


ment).



marine insurance).
Page 6 of 593
(2)]; and


PRACTICE TIP:

PRACTICE TIP:
Page 7 of 593
on:

citizens)]; or

following factors:
22, 582 P.2d 109 ;
Page 8 of 593

478] ;

the parties;
[d]].

Page 9 of 593

(Paragraph 4).
(Paragraph 4).



graph 7).

140.101[1] (Paragraph 8).
Complaints .

Page 10 of 593
Legal Topics:
Page 11 of 593
2 of 184 DOCUMENTS

NOTE:

contract Actions.
Page 12 of 593

140.140].

140.151].

Page 13 of 593
(rescission)].
Page 14 of 593

(1991) 229 Cal. App. 3d 764, 767-768, 280 Cal. Rptr. 355] .
Legal Topics:
Page 15 of 593
3 of 184 DOCUMENTS

[Reserved]
Page 16 of 593
4 of 184 DOCUMENTS

PART V. FORMS
PLD-C-001, PLD-C-001(1)]
C-001, PLD-C-001(1)]
[2] Use of Form
PLD-C-001(1)].
140.101 -140.106.
269.90.
Page 17 of 593

[a] Heading
must be filled in.
graph 6)
Page 18 of 593
(c)].
following rules:

Page 19 of 593
Code ßß 1812.10(a) and 2984.4(a).
Page 20 of 593
to interest.
App. 2d 703, 708, 196 P.2d 143 ].
[a] Heading
cross complaint.
Page 21 of 593
Cal. App. 4th 506 (2009) .
300, 303-304, 289 P. 242] .
Page 22 of 593
Page 23 of 593
[6] Verification
Page 24 of 593
Page 25 of 593
5 of 184 DOCUMENTS

PART V. FORMS
General Form
Form
COUNTY OF ___________________
______________________ [name], )
__________________________________________________
Plaintiff alleges:
Page 26 of 593



[date];

to proof).]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
VERIFICATION
Page 27 of 593
to be true.
and correct.
___________________ [date]
______________________ [signature]
______________________ [typed name]
[2] Use of Form
[3] Allegations
[a] In General
(1969) 273 Cal. App. 2d 286, 290, 78 Cal. Rptr. 6] :
PRACTICE TIP:
Page 28 of 593
122, 128, 132, 226 Cal. Rptr. 321] .
Cal. App. 2d 286, 291, 78 Cal. Rptr. 6] .
Page 29 of 593
(1919) 44 Cal. App. 69, 71, 185 P. 1008] .
[e] Consideration
Cal. 429, 433, 34 P. 1089] .
Page 30 of 593
Cal. App. 3d 875, 883, 268 Cal. Rptr. 505] .
[f] Damages
396a(a)].
[5] Verification
Page 31 of 593
[6] Jurisdiction
[7] Attorney's Fees
Commonly Used
Complaints
Page 32 of 593
Filing of Papers
Jurisdiction
and Papers
Page 33 of 593
6 of 184 DOCUMENTS

PART V. FORMS


Page 34 of 593
[Prayer. See ß 140.101[1].]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
graph 6).

Page 35 of 593
229 P.2d 434] .
Page 36 of 593
7 of 184 DOCUMENTS

PART V. FORMS


[Prayer. See ß 140.101[1].]
Page 37 of 593
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations

[see [c], below].
Page 38 of 593
Page 39 of 593
916, 919-920, 136 Cal. Rptr. 890] .
560] .
Page 40 of 593
133] .
796, 112 Cal. Rptr. 195, 518 P.2d 1147] .
Page 41 of 593
8 of 184 DOCUMENTS

PART V. FORMS
1622]--General Form
___________________ [specify].
___________________ (specify)].

Page 42 of 593
[Prayer. See ß 140.101[1].]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
583] .
Page 43 of 593
140.110[1].
Page 44 of 593
9 of 184 DOCUMENTS

PART V. FORMS
[EITHER]

[OR]
Page 45 of 593
[CONTINUE]
[Prayer. See ß 140.101[1].]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
1440].
Page 46 of 593

[3] Allegations
Page 47 of 593
10 of 184 DOCUMENTS

PART V. FORMS


Page 48 of 593
or representation].

$____________________.

[Prayer. See ß 140.101[1].]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
tion is missing.
232 Cal. App. 3d 816, 830, 283 Cal. Rptr. 551] .
[a] Burden
366, 111 Cal. Rptr. 468] .
Page 49 of 593
[b] Allegations
Rptr. 785] :
(Paragraph 7).

(Paragraph 8).
Page 50 of 593
11 of 184 DOCUMENTS

PART V. FORMS

Action Is Commenced
Action Is Commenced
[EITHER]
[OR]
[OR]
Page 51 of 593
[2] Use of Form
140.108[1].
Page 52 of 593
12 of 184 DOCUMENTS

PART V. FORMS

COUNTY OF ___________________
______________________ [name], )
Plaintiff, )
vs. )
______________________ [names], ) NO. _____
)
)
__________________________________________________________________
I ___________________ [name], declare:
Section 395(b)].
Page 53 of 593
and correct.
___________________ [date]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
[2] Use of Form
Proc. ß 396a(a)].
[3] Venue
Page 54 of 593
Page 55 of 593
13 of 184 DOCUMENTS

PART V. FORMS

[2] Use of Form
98 Cal. Rptr. 414] .
Page 56 of 593
Cal. App. 300, 304, 289 P. 242] .
Page 57 of 593
14 of 184 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 58 of 593
254 Cal. Rptr. 211, 765 P.2d 373] .
789-791, 201 Cal. Rptr. 640] .
298 P.2d 555] .
Cal. App. 3d 36, 42, 201 Cal. Rptr. 870] .
Page 59 of 593
15 of 184 DOCUMENTS

PART V. FORMS

1656]
1656]
[2] Use of Form
Page 60 of 593
4th 880, 892-893, 41 Cal. Rptr. 2d 740] .
Page 61 of 593
16 of 184 DOCUMENTS

PART V. FORMS

[Civ. Code ß 1698]

Code ß 1698]
[EITHER]
[OR]
Page 62 of 593
defendant].
[OR]
[2] Use of Form
Page 63 of 593
14 Cal. Rptr. 523] ;
314, 325, 95 P. 159] ;
and Restitution ];

Page 64 of 593
Page 65 of 593
17 of 184 DOCUMENTS

PART V. FORMS

[2] Use of Form
Page 66 of 593
Page 67 of 593
18 of 184 DOCUMENTS

PART V. FORMS

of this pleading.
[EITHER]
[OR]

[2] Use of Form
Page 68 of 593
159-160, 11 P. 592] .
Page 69 of 593
19 of 184 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 70 of 593
20 of 184 DOCUMENTS

PART V. FORMS

$____________________.
[2] Use of Form
Page 71 of 593
Page 72 of 593
21 of 184 DOCUMENTS

PART V. FORMS
[Reserved]
Page 73 of 593
22 of 184 DOCUMENTS

PART V. FORMS

COUNTY OF ___________________
)
) NO. _____
______________________ [name], ) MEMORANDUM]
Plaintiff, ) Date: ____________________
vs. ) Time: ____________________
______________________[name], ) Location: ____________________
Defendant. ) Judge: ____________________
) Trial Date: ____________________
__________________________________________________
Page 74 of 593
Dated: ___________________.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
[2] Use of Form
3.1113(a), 3.1320].
Page 75 of 593
23 of 184 DOCUMENTS

PART V. FORMS
COUNTY OF ___________________
)
) NO. _____
vs. ) Date: ____________________
______________________ [name], ) Time: ____________________
) Judge: ____________________
Trial Date: ____________________
__________________________________________________
Dated: ___________________.
______________________ [firm name, if any]
Page 76 of 593
By: ______________________ [signature]

______________________ [typed name]
[2] Use of Form
3.1320].
4th 100, 106-108, 26 Cal. Rptr. 2d 133] .
Page 77 of 593
24 of 184 DOCUMENTS

PART V. FORMS
[2] Use of Form
425.12].

Page 78 of 593
[a] Heading
Paragraph 2.
Page 79 of 593

Page 80 of 593
Page 81 of 593
25 of 184 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 82 of 593
26 of 184 DOCUMENTS

PART V. FORMS


Page 83 of 593
plaintiff].

[2] Use of Form
Page 84 of 593

Page 85 of 593
27 of 184 DOCUMENTS

PART V. FORMS

[2] Use of Form
Page 86 of 593
28 of 184 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 87 of 593
(1957) 153 Cal. App. 2d 707, 713, 315 P.2d 67] .
Page 88 of 593
29 of 184 DOCUMENTS

PART V. FORMS
[EITHER]
[OR]

[2] Use of Form
Page 89 of 593


Thornton (1902) 136 Cal. 232, 235, 68 P. 708] .
Page 90 of 593
Page 91 of 593
30 of 184 DOCUMENTS

PART V. FORMS
[2] Use of Form
other thing)].
Page 92 of 593
67 P. 681] .
Page 93 of 593
31 of 184 DOCUMENTS

PART V. FORMS


pleading.
[2] Use of Form
Page 94 of 593
Houston (1932) 215 Cal. 742, 745-746, 12 P.2d 952] .
Rptr. 421] .
Page 95 of 593
32 of 184 DOCUMENTS

PART V. FORMS


[2] Use of Form
Page 96 of 593
(Paragraph 4).
Page 97 of 593
33 of 184 DOCUMENTS

PART V. FORMS

[2] Use of Form
Page 98 of 593
238] .
Page 99 of 593
Page 100 of 593

34 of 184 DOCUMENTS

PART V. FORMS
[2] Use of Form
2d 869, 874, 309 P.2d 147] .
Page 101 of 593

Page 102 of 593

35 of 184 DOCUMENTS

PART V. FORMS
[2] Use of Form
writing.
Page 103 of 593

of Frauds .
(1903) 141 Cal. 109, 112, 74 P. 695] .
Page 104 of 593

36 of 184 DOCUMENTS

PART V. FORMS

1667(1)]
1667(1)]
[2] Use of Form
Page 105 of 593

App. 3d 832, 838, 247 Cal. Rptr. 340] .


Page 106 of 593

Page 107 of 593

37 of 184 DOCUMENTS

PART V. FORMS
ß 1667(2), (3)]
ß 1667(2), (3)]

[2] Use of Form
Page 108 of 593

Cal. Rptr. 519] .
Page 109 of 593



Page 110 of 593

527, 161 P.3d 1095] .


1563-1564, 274 Cal. Rptr. 647] .
Page 111 of 593

38 of 184 DOCUMENTS

PART V. FORMS
___________________ [specify facts].
[2] Use of Form
140.25].
Page 112 of 593

[Civ. Code ß 1670.5(b)].
3d 542] .
(1990) 219 Cal. App. 3d 97, 101, 268 Cal. Rptr. 207] .
Cal. Rptr. 207] .

Page 113 of 593

(1991) 227 Cal. App. 3d 1578, 1588, 278 Cal. Rptr. 570] .
Page 114 of 593

1805, 23 Cal. Rptr. 2d 80] .

83, 117, 6 P.3d 669] .

716] .
Page 115 of 593

24-25, 262 Cal. Rptr. 716] .

1076, 130 Cal. Rptr. 2d 892, 63 P.3d 979] .
Page 116 of 593

Page 117 of 593

Cal. Rptr. 345, 702 P.2d 503 .


Page 118 of 593

123 Cal. Rptr. 2d 288] .

1099-1102, 118 Cal. Rptr. 2d 862] .


be unconscionable:


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1803-1805, 23 Cal. Rptr. 2d 80] .

Cal. App. 3d 802, 820-821, 238 Cal. Rptr. 806] .
Page 120 of 593

by other means)].


Page 121 of 593




Rptr. 498] .
227 Cal. App. 3d 1578, 1586-1588, 278 Cal. Rptr. 570] .

789] .
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647-648, 225 Cal. Rptr. 742] .
442-444, 216 Cal. Rptr. 462] .
Cal. App. 3d 385, 389, 198 Cal. Rptr. 523] .
Page 123 of 593

39 of 184 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 124 of 593

40 of 184 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 125 of 593

Cal. Rptr. 508 ; see ß 140.46].
5-6, 263 Cal. Rptr. 373] .
Page 126 of 593

41 of 184 DOCUMENTS

PART V. FORMS

[2] Use of Form
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42 of 184 DOCUMENTS

PART V. FORMS


[EITHER]

[OR]
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[OR]
[CONTINUE]
[2] Use of Form
9, 128 Cal. Rptr. 109] .
Page 129 of 593

Rptr. 518] .
Cal. Rptr. 820] .
Page 130 of 593

43 of 184 DOCUMENTS

PART V. FORMS



[2] Use of Form
432, 246 P.2d 946] .
Page 131 of 593

16] .
Cal. App. 3d 695, 704-705, 228 Cal. Rptr. 518] .
Page 132 of 593

44 of 184 DOCUMENTS

PART V. FORMS

1700]
1700]
[2] Use of Form
Page 133 of 593

87 P. 59] .
746, 16 P.2d 737] .
Page 134 of 593

45 of 184 DOCUMENTS
Volume 16: Depositions and Discovery-Chs. 190-204

Chapter 190 DISCOVERY: SCOPE, REGULATION, AND TIMING
ß 190.syn Synopsis to Chapter 190: DISCOVERY: SCOPE, REGULATION, AND TIMING

[1] Related Discovery Chapters
[2] Discovery in Particular Proceedings
[3] Other Related Chapters

ßß 190.03-190.09 [Reserved]
ß 190.10 Governing Law
[1] Discovery Act
[2] Related Statutes
[a] Rules of Court
[b] Evidentiary Privileges and Other Protections Against Disclosure
[c] Provisions Governing Subpoenas Generally

ß 190.11 Application of Discovery Act
[1] Civil Actions and Proceedings Generally
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[2] Limited Civil Cases
[3] Particular Proceedings
[a] Enforcement of Money Judgments
[b] Judicial Arbitration Proceedings
[c] Sexually Violent Predators Act
[d] Competency Determination Under Penal Code ß 1367 et seq.
[e] Other Proceedings

ß 190.12 Purpose of Discovery Act
ß 190.13 Interpretation of Discovery Act
[1] Liberal Construction to Further Purpose of Act
[2] Reporter's Notes to Proposed Discovery Act
[3] Case Law Interpreting Prior Acts
[4] Case Law Interpreting Federal Discovery Rules
[5] Definitions Generally Applicable in Construing Discovery Act Provisions

ß 190.14 Effect of Discovery Act on Informal Investigation
[1] Lawful Informal Investigation Not Precluded
[2] Illegal "Self-Help" Precluded

ß 190.15 Effect of Trial Delay Reduction Programs
ßß 190.16-190.19 [Reserved]
ß 190.20 General Scope of Civil Discovery
[1] Matter That Is Relevant
[a] General Rule
[b] Relevance to Subject Matter
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[c] Matter Need Not Be Admissible at Trial
[2] Matter That Is Not Privileged

ß 190.21 Specific Limits on General Scope
[1] Insurance Coverage
[2] Defendant's Financial Condition
[3] Civil Action Involving Sexual Misconduct

ß 190.22 Particular Methods of Discovery Authorized Under Discovery Act
ß 190.23 Discovery in Limited Civil Cases
[1] Limited Civil Cases Subject to Economic Litigation Provisions
[2] Discovery Act Modified by Economic Litigation Provisions
[3] Restrictions on Discovery Under Economic Litigation Provisions
[a] Notice and Format Requirements of Discovery Act Apply
[b] Interrogatories, Demands for Production and Inspection of Tangible Evidence, and Requests for
Admissions
[c] Depositions
[d] Subpoena Duces Tecum
[e] Physical and Mental Examinations
[f] Exchange of Expert Witness Information
[4] Authorization for Additional Discovery
[a] By Motion
[b] By Stipulation
[5] Motion to Withdraw Action From Limited Civil Case Procedures

ß 190.24 Discovery of Electronically Stored Information
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[1] Governing Law
[2] Electronic Discovery Act

ß 190.25 Discovery in Actions Pending Outside California
ßß 190.26-190.29 [Reserved]
ß 190.30 Proceeding to Limit General Scope When Hardship Outweighs Usefulness
ß 190.31 Proceeding to Restrict Frequency or Extent of Use of Discovery Methods
ß 190.32 Proceeding to Establish Manner, Sequence, or Timing of Discovery
[1] General Rule
[2] Electronic Filing and Service Generally
[a] Rules for Electronic Filing
[b] Rules for Electronic Service
[3] Use of Technology in Certain Cases

ß 190.33 General Provisions for Regulating Discovery Proceedings
[1] Requirement of Good-Faith Effort at Informal Resolution of Disputes
[2] Discovery Sanctions

ß 190.34 Protective Orders in Context of Particular Discovery Proceedings
ß 190.35 Regulating Discovery by Stipulation
ß 190.36 Limiting Disclosure of Discovered Matter for Nonlitigation Purposes
ß 190.37 Procedure to Seal Confidential Records
ß 190.38 Stay of Discovery
[1] Pending Determination of Validity of Cause of Action
[2] Pending Parallel Criminal Action

ß 190.39 Delegation of Discovery Matters by Discovery Referee
[1] Referee Appointment and Challenge Procedures
[2] Trial Court Acceptance of Referee's Report
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[3] Allocating Costs of Reference

ßß 190.40-190.49 [Reserved]
ß 190.50 Requirements for Completing Discovery Before Trial
[1] General Requirements
[2] Requirements Applicable to Judicial Arbitration Proceedings
[3] Inapplicability to Proceedings for Eminent Domain or Possession of Real Property

ß 190.51 Extending, Shortening or Modifying Time Requirements
[1] Motion Proceeding
[2] Stipulation
[3] Automatic Extension of Time
[4] Time Extensions When Service Is by Mail

ßß 190.52-190.59 [Reserved]
ß 190.60 Matthew Bender Publications
ß 190.61 California Constitution
[1] Discovery Act Provisions
[2] Other Statutes Relating to Civil Discovery

ß 190.63 California Rules of Court
ß 190.64 Decisions
[1] General Principles of Discovery
[3] International Discovery
[4] Juveniles
[5] Limitations on Discovery Generally
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[6] Protective Orders
[7] Relevance to Subject Matter
[8] Stay of Discovery

ß 190.65 Attorney General Opinions
ßß 190.68-190.79 [Reserved]
ß 190.80 Proceedings for Protective Order Limiting Scope of Discovery [Code Civ. Proc. ß
2017.020] or Restricting Extent or Use of Discovery Methods [Code Civ. Proc. ß 2019.030]--Motion
and Supporting Declaration
[1] FORM
[2] Use of Form
[3] Monetary Sanction

2017.020] or Restricting Extent or Use of Discovery Methods [Code Civ. Proc. ß 2019.030]--Order
[1] FORM
[2] Use of Form

ßß 190.82-190.89 [Reserved]
ß 190.90 Proceedings for Order Extending Time for Discovery or Reopening Discovery
Proceedings [Code Civ. Proc. ß 2024.050]--Motion and Supporting Declaration
[1] FORM
[2] Use of Form
[3] Notice

Proceedings [Code Civ. Proc. ß 2024.050]--Order
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[1] FORM
[2] Use of Form
Page 141 of 593

46 of 184 DOCUMENTS

PART I. SCOPE
This chapter introduces the coverage of civil discovery continued in Chapters 191-200.
Part II includes discussion of general provisions of the Civil Discovery Act and related law in the
following subparts:
Subpart A (see ß 190.10 et seq.) covers the general applicability, purpose, and interpreta-
tion of the Civil Discovery Act.
Subpart B (see ß 190.20 et seq.) discusses the general provisions of the Civil Discovery
Act that delineate the permissible scope of discovery, the methods of discovery that may
be utilized, and the limits on the extent of discovery imposed by the economic litigation
provisions that generally govern limited civil cases. Also included is coverage of the
Interstate and International Depositions and Discovery Act, Code Civ. Proc. ß 2029.100
et seq., governing civil discovery in actions pending outside California.
Subpart C (see ß 190.30 et seq.) discusses the general provisions of the Civil Discovery
Act and related law by which the trial court may regulate civil discovery proceedings that
are otherwise conducted informally by the parties.
Subpart D (see ß 190.50 et seq.) discusses the general provisions of the Civil Discovery
Act that set out the deadlines for completing civil discovery as well as procedures for
reopening or conducting late discovery.
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The forms in Part IV include the following:
A motion and related papers for use in obtaining a protective order that generally limits
the scope of discovery in a particular case or that generally establishes the manner,
sequence, and timing of discovery in a particular case [see ßß 190.80, 190.81].
A motion and related papers for use in obtaining leave to reopen discovery or to conduct
discovery beyond the general deadlines for completing discovery [see ßß 190.90,
190.91].
Legal Topics:
Civil ProcedureDiscoveryGeneral Overview
Page 143 of 593

47 of 184 DOCUMENTS

PART I. SCOPE
For detailed discussion of evidentiary privileges and other statutory or constitutional

protections against disclosure, see Ch. 191, Discovery: Privileges and Other Discovery
Limitations .
For discussion and forms relating to discovery sanctions generally, see Ch. 192,
Discovery: Sanctions for Discovery Misuse .
For detailed discussion of discovery of electronically stored evidence (e-discovery), see

Ch. 195A, Discovery: Discovery of Electronically Stored Evidence (E-Discovery).
For discussion and forms relating to the use of particular discovery methods authorized
by the Civil Discovery Act, see the following chapters covering each method:
Ch. 193, Discovery: Depositions.
Ch. 194, Discovery: Interrogatories.
Ch. 195, Discovery: Inspection of Tangible Evidence.
Ch. 196, Discovery: Requests for Admissions.
Page 144 of 593

Ch. 197, Discovery: Physical and Mental Examinations.
Ch. 198, Discovery: Exchange of Expert Witness Information.
For discussion and forms relating to the use of specified discovery methods for the
purpose of preserving testimony or other evidence prior to the commencement of an
action or pending an appeal, see Ch. 199, Discovery: Preservation of Evidence .
For discussion and forms relating to the review of interlocutory discovery orders in
certain circumstances by petition for writ of mandate or prohibition, see Ch. 200,
Discovery: Review of Discovery Orders .
For discussion and forms relating to discovery in particular actions or proceedings, see the following:
Ch. 7, Accounting, Action for (discussion of discovery in an action for accounting).
Ch. 33, Contractual Arbitration: Appointment of Arbitrator and Conduct of Proceeding

(discussion of discovery in arbitration proceedings).
Ch. 70, Attorney Admission and Ch. 71, Attorney Discipline (discussion of discovery in
State Bar disciplinary proceedings).
Ch. 85, Automobiles: Discovery (discussion and forms relating to discovery in vehicle
collision actions).
Ch. 295, Hospitals (discussion of discovery of hospital records).
Ch. 345A, Limited Civil Cases (additional discussion and forms relating to the Econom-
ic Litigation procedures under Code Civ. Proc. ß 90 et seq. applicable in limited civil
cases).
Ch. 473B, Discovery in Agency Adjudications (discussion forms relating to discovery in

administrative trials under the Administrative Procedure Act of Gov. Code ß 11340 et
seq.).
Ch. 577, Workers' Compensation (discussion and forms relating to discovery in

workers' compensation proceedings).
Page 145 of 593

For discussion of and general forms relating to law and motion procedures generally, see
Ch. 372, Motions and Orders .
For discussion of and forms for stipulation and orders shortening and extending time
generally, see Ch. 524, Shortening and Extension of Time .
For discussion and forms relating to subpoenas and subpoena duces tecum generally,
see Ch. 535, Subpoena .
Legal Topics:
Civil ProcedurePleading & PracticeMotion PracticeGeneral OverviewCivil ProcedureDiscoveryGen-
eral OverviewCivil ProcedureDiscoveryMisconductCivil ProcedureDiscoveryPrivileged MattersGen-
eral OverviewCivil ProcedurePretrial MattersSubpoenas
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PART I. SCOPE
[Reserved]
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49 of 184 DOCUMENTS

A. Overview of Discovery Act and Related Law
[1] Discovery Act
Civil discovery is generally governed by Code Civ. Proc. ßß 2016.010 et seq. These provisions are
otherwise known as the Civil Discovery Act [Code Civ. Proc. ß 2016.010].
Code Civ. Proc. ßß 94 and 95, part of the provisions entitled Economic Litigation for Limited Civil
Cases (Code Civ. Proc. ß 90 et seq.), apply in limited civil cases to limit the discovery otherwise
permitted under the Discovery Act [see ß 190.23].
[2] Related Statutes
[a] Rules of Court
Statewide rule provisions relating to the format of discovery papers and motions, the service of
discovery papers on nonparty deponents, and discovery sanctions are set out in Cal. Rules of Ct.,
Rules 3.1000, 3.1345, 3.1346, 3.1347, and 3.1348.
Case management requirements relating to discovery of electronically stored information are set out in
Cal. Rules of Ct., Rule 3.724(8). For detailed discussion of these requirements, see Ch. 195A,
Discovery: Discovery of Electronically Stored Evidence (E-Discovery), ß 195A.14.
Local rules of court relating to the field of pretrial civil discovery are preempted by the Judicial
Council, and any such rule is void unless permitted or required by statute or statewide rule [see Cal.
Rules of Ct., Rule 3.20].
[b] Evidentiary Privileges and Other Protections Against Disclosure
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Evidentiary privileges are governed by Evid. Code ßß 900-1070. The protection against disclosure of
an attorney's work product is set out in the Discovery Act under Code Civ. Proc. ß 2018.010 et seq.
Various other statutory provisions also provide protection against disclosure of certain matters. For
example, Civ. Code ß 3295(c) sets out a procedure protecting against unrestricted pretrial discovery of
a defendant's financial information in an action seeking punitive damages.
Evidentiary privileges and similar protections against disclosure are covered in detail in Ch. 191,
Discovery: Privileges and Other Discovery Limitations .
[c] Provisions Governing Subpoenas Generally
Deposition subpoenas are governed by Code Civ. Proc. ß 2020.010 et seq. Discovery subpoenas in
actions pending outside California are governed by the Interstate and International Depositions and
Discovery Act, Code Civ. Proc. ß 2029.100 et seq. Subpoenas in discovery proceedings are also
governed by the provisions applicable to subpoenas generally, Code Civ. Proc. ß 1985 et seq., to the
extent these are not superseded by more specifically applicable provisions of Code Civ. Proc. ß
2020.010 et seq. For detailed coverage of Code Civ. Proc. ß 2020.010 et seq. and Code Civ. Proc. ß
1985 et seq., see respectively Ch. 193, Discovery: Depositions , and Ch. 535, Subpoena .
Legal Topics:
Civil ProcedurePleading & PracticeMotion PracticeGeneral OverviewCivil ProcedureDiscoveryGen-
eral OverviewCivil ProcedureDiscoveryPrivileged MattersGeneral OverviewCivil ProcedureDiscov-
eryPrivileged MattersWork ProductGeneral OverviewCivil ProcedurePretrial MattersSubpoenas
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50 of 184 DOCUMENTS

ß 190.11 Application of Discovery Act
[1] Civil Actions and Proceedings Generally
In view of the definition of "action" [see Code Civ. Proc. ß 2016.020(a) and ß 190.13[4]], discovery
under the Civil Discovery Act is available in special civil proceedings as well as in civil actions.
Counsel should consult the provisions governing a particular special proceeding to determine if they
modify, in the context of that proceeding, the application of Code Civ. Proc. ß 2016.010 et seq. [see,
e.g., discussion in [3], below].
The Civil Discovery Act governs all discovery proceedings filed on or after its operative date, July 1,
2005 [Stats. 2004, ch. 182, ß 64].
[2] Limited Civil Cases
Code Civ. Proc. ß 2016.010 et seq. applies to limited civil cases only to the extent provided in Code
Civ. Proc. ßß 94 and 95 [see Code Civ. Proc. ß 94]. Limited civil cases are those cases involving a
limited amount in controversy, formerly in the jurisdiction of the municipal courts and now within the
jurisdiction of the unified superior courts [see Code Civ. Proc. ß 86; see also Ch. 345A, Limited Civil
Cases ].
For more detailed discussion of the restrictions imposed on the extent of discovery in limited civil
cases, see ß 190.23.
[3] Particular Proceedings
[a] Enforcement of Money Judgments
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Code Civ. Proc. ß 2016.010 et seq. apply to discovery in aid of enforcement of a money judgment
only to the extent provided in Code Civ. Proc. ßß 708.010-708.020 (written interrogatories to
judgment debtor) [Code Civ. Proc. ß 2016.070]. For further discussion of Code Civ. Proc. ß 708.010
et seq., see Ch. 254, Executions and Enforcement of Judgments .
[b] Judicial Arbitration Proceedings
Parties to judicial arbitration under Code Civ. Proc. ß 1141.10 et seq. are entitled to obtain discovery
in accordance with the Discovery Act, except that all discovery must be completed no later than 15
days before the date set for the arbitration absent an order extending the time [Cal. Rules of Ct., Rule
3.822]. Other modifications of the general discovery provisions include, for example, a prohibition of
discovery after an arbitration award, absent a stipulation or court order to the contrary [see Code Civ.
Proc. ß 1141.24; but see McMillan v. Superior Court (1983) 146 Cal. App. 3d 1014, 1019, 194 Cal.
Rptr. 670 (Code Civ. Proc. ß 1141.24 not applicable when plaintiff has requested expedited
arbitration); see also Roe v. Superior Court (1990) 224 Cal. App. 3d 642, 645-647, 273 Cal. Rptr.
745 (discovery permissible after arbitration proceedings have been completely vacated)].
In any judicial arbitration proceeding, no party may require the production of evidence specified in
Civ. Code ß 3295(a) (regarding a claim for punitive damages) at the arbitration, unless the court enters
an order permitting pretrial discovery of that evidence pursuant to Civ. Code ß 3295(c) [Code Civ.
Proc. ß 1141.19.5].
All discovery disputes involving an arbitration proceeding must be submitted first to the arbitrator, not
to the court [ Berglund v. Arthroscopic & Laser Surgery Center of San Diego, L.P. (2008) 44 Cal.
4th 528, 532, 79 Cal. Rptr. 3d 370, 187 P.3d 86 ; see Code Civ. Proc. ß 1283.05]. While a party is
entitled to only limited judicial review of arbitrator discovery orders, a nonparty is entitled to full
judicial review of an arbitrator's adverse discovery order [ Berglund v. Arthroscopic & Laser
Surgery Ct. of San Diego (2008) 44 Cal. 4th 528, 532, 534-536, 79 Cal. Rptr. 3d 370, 187 P.3d 86 ].
For further discussion of the rules and procedures for discovery in judicial arbitration proceedings,
see ß 190.50[2] and Ch. 36, Judicial Arbitration .
[c] Sexually Violent Predators Act
The Third and Sixth Appellate Districts have held that the Discovery Act applies to proceedings under
the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code ß 6600 et seq.). The Third Appellate
District held the trial court erred denying a motion to compel exchange of expert witness information
based on its erroneous conclusion that the civil discovery procedures did not apply [ Leake v.
Superior Court (2001) 87 Cal. App. 4th 675, 682, 104 Cal. Rptr. 2d 767 , overruled on other
grounds, People v. Yartz (2005) 37 Cal. 4th 529, 537, 36 Cal. Rptr. 3d 328, 123 P.3d 604] . The
Sixth Appellate District agreed that the Civil Discovery Act (Code of Civ. Proc. ß 2016.010 et seq.)
applies to proceedings under the SVPA, including the right to notice depositions; however, the court
noted that the right to discovery in SVPA proceedings is also subject to those provisions of the Civil
Page 151 of 593

Discovery Act which expressly authorize the trial court to manage discovery and to prevent misuse of
discovery procedures; accordingly, in managing discovery in SVPA proceedings, the trial court must
keep in mind both the narrow scope of permissible discovery and the need for expeditious adjudica-
tion. The scope of discovery in SVPA proceedings is circumscribed by the two narrow issues
presented at trial: (1) whether the person sought to be committed has been convicted of a sexually
violent offense against two or more victims, and (2) whether the person has a diagnosed mental
disorder that makes the person a danger to the health and safety of others in that it is likely that he or
she will engage in sexually violent criminal behavior [ Lee v. Superior Court (2009) 177 Cal. App.
4th 1108, 1128, 99 Cal. Rptr. 3d 712 (scope of appropriate discovery in SVPA proceedings is
limited, citing Cheek); People v. Superior Court (Cheek) (2001) 94 Cal. App. 4th 980, 987-991, 114
However, the Fourth Appellate District, Division Three, held, as a matter of first impression, that
requests for admissions may not be propounded in SVPA proceedings because their use would
eviscerate the SVPA's requirement that the state prove its case beyond a reasonable doubt and, when
the case is tried to a jury, obtain a unanimous verdict before a person may be committed. To relieve the
state of this burden would deprive a person of liberty interests in violation of the right to due process
[ Murillo v. Superior Court (2006) 143 Cal. App. 4th 730, 739-740, 49 Cal. Rptr. 3d 511] . The
Fourth Appellate District, Division Two, held that a civil commitment proceeding under the SVPA
requires application of the civil discovery rules, because it is a special proceeding of a civil nature
[ People v. Dixon (2007) 148 Cal. App. 4th 414, 443, 56 Cal. Rptr. 3d 33 ]. However, the court did
not address whether all of the specific procedures afforded under the Civil Discovery Act apply to
SVPA proceedings, noting Division Three's holding that, in SVPA proceedings, the use of requests
for admission under Code Civ. Proc. ß 2019.010(e) would violate defendant's due process rights
[ People v. Dixon (2007) 148 Cal. App. 4th 414, 442 n.2, 56 Cal. Rptr. 3d 33 ; see Murillo v.
Superior Court (2006) 143 Cal. App. 4th 730, 740, 49 Cal. Rptr. 3d 511 ].
[d] Competency Determination Under Penal Code ß 1367 et seq.
The First Appellate District has held that the Discovery Act applies to competency hearings under
Penal Code ß 1369 [ Baqleh v. Superior Court (People) (2002) 100 Cal. App. 4th 478, 122 Cal
Rptr. 2d 673 ; see Penal Code ß 1367 et seq. (mentally incompetent immune from trial or punishment;
determination of competency)]. The appellate court ruled the trial court may order a criminal defendant
to submit to a mental examination by an expert designated by the prosecution in order to evaluate
mental competence under Pen. Code ß 1369, but the order must comply with Discovery Act,
specifying the time, place, manner, conditions, scope and nature of the examination, and the identity
and specialty of persons performing the examination, in accordance with Code Civ. Proc. ß 2032.310
(b) [ Baqleh v. Superior Court (People) (2002) 100 Cal. App. 4th 478, 506, 122 Cal Rptr. 2d 673
(decided under former Code Civ. Proc. ß 2032(d))].
[e] Other Proceedings
Code Civ. Proc. ß 2016.010 et seq. apply to discovery in probate proceedings except as otherwise
Page 152 of 593

provided by the Probate Code or by the rules adopted by the Judicial Council [Prob. Code ß 1000;
see, e.g., Mota v. Superior Court (2007) 156 Cal. App. 4th 351, 353, 67 Cal. Rptr. 3d 303
(petitioner was entitled to conduct discovery relevant to her objections to distribution petition)]. They
apply in uninsured motorist proceedings as provided for and limited by Ins. Code ß 11580.2(f) [see
Mallard v . Progressive Choice Ins. Co. (2010) 188 Cal. App. 4th 531, 540 (Ins Code ß 11580.2
authorizes use of subpoenas and other discovery devices in litigating uninsured motorist claim
disputes through contractual arbitration, citing Code Civ Proc. ßß 1985 and 2016.010 et seq.);
Miranda v. 21st Century Ins. Co. (2004) 117 Cal. App. 4th 913, 926 (superior court has exclusive
jurisdiction under uninsured motorist law to hear discovery matters arising in uninsured motorist
arbitrations; thus, court had power to dismiss case as terminating sanction)].
The Discovery Act also applies in a formal State Bar proceeding as adopted or limited by the Rules of
Procedure of the State Bar of California, such as Rule 300 et seq. [Rules of Procedure, Rule 315; see
Ch. 70, Attorney Admission , and Ch. 71, Attorney Discipline ].
Depositions are available under some circumstances in proceedings before the Workers' Compensa-
tion Appeals Board [see Lab. Code ß 5710]. Discovery procedures, except those provided for by
Code Civ. Proc. ß 2030.010 et seq. (interrogatories), may be authorized to apply if deemed appropri-
ate in proceedings by the New Motor Vehicle Board [Veh. Code ßß 3050.1, 3050.2; see, e.g., Nader
Automotive Group, LLC v. New Motor Vehicle Bd. (2009) 178 Cal. App. 4th 1478, 1486, 101 Cal.
Rptr. 3d 152 (dismissing plaintiffs' protests under Veh. Code ß 3050.2(b), based on plaintiffs' failure
to comply with authorized discovery without substantial justification)].
Family law litigants are entitled to all the discovery provided by the Civil Discovery Act (Code Civ.
Proc. ß 2016.010 et seq.) [ Schnabel v. Superior Court (1993) 5 Cal. 4th 704, 711, 21 Cal. Rptr. 2d
200, 854 P.2d 1117] . For example, Fam. Code ß 3666 specifically makes the usual practices of civil
discovery applicable to the enforcement of expedited family law discovery [Fam. Code ß 3666; see
In re Marriage of Loh (2002) 93 Cal. App. 4th 325, 327, 330-331, 112 Cal. Rptr. 2d 893 (reversing
child support order based on "lifestyle" evidence consisting of photos of ex-spouse at his girlfriend's
home and with different cars, because such evidence "is not a cheap substitute for proper discovery of
income reported on tax returns," when ex-wife made no motions to compel production of those
documents)].
The family court, like any other court presiding over a civil proceeding, also has discretion to limit
discovery [see, e.g., In re Marriage of Hixson (2003) 111 Cal. App. 4th 1116, 1121, 4 Cal. Rptr. 3d
483 (family court did not abuse its discretion in preventing unnecessary discovery with respect to
parties' stock)].
Legal Topics:
Civil ProcedureDiscoveryGeneral OverviewCivil ProcedureDiscoveryMethodsExpert Witness
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DiscoveryEstate, Gift & Trust LawProbateProcedures in ProbateGeneral OverviewFamily LawGen-

eral OverviewLegal EthicsSanctionsDisciplinary ProceedingsInvestigations
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51 of 184 DOCUMENTS

ß 190.12 Purpose of Discovery Act
The Civil Discovery Actis intended, among other things, to accomplish the following [ Province v.
Center for Women's Health & Family Birth (1993) 20 Cal. App. 4th 1673, 1683-1684, 25 Cal. Rptr.
2d 667 , disapproved on other grounds in Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal. 4th 30,
41, 32 Cal. Rptr. 2d 200, 876 P.2d 999 ; Beverly Hospital v. Superior Court (1993) 19 Cal. App.
4th 1289, 1294-1296, 24 Cal. Rptr. 2d 238] :
Assist the parties and the trier of fact in ascertaining the truth.
Encourage settlement by educating the parties as to the strengths of their claims and
defenses.
Expedite and facilitate preparation and trial.
Prevent delay.
Safeguard against surprise.
In addition, the current Act was intended to reduce the voluminous litigation generated by the former
Discovery Act of 1956 [ Beverly Hospital v. Superior Court (1993) 19 Cal. App. 4th 1289, 1296, 24
Page 155 of 593

The Supreme Court interpreted the former Discovery Act to accomplish similar goals: primarily to
educate the parties concerning their claims and defenses so as to encourage settlements and to expedite
and facilitate trial. Other related goals included the following [ Greyhound Corp. v. Superior Court
(1961) 56 Cal. 2d 355, 376, 15 Cal. Rptr. 90, 364 P.2d 266] :
Prevent perjury.
Detect and expose false, fraudulent, and sham claims and defenses.
Make available facts that otherwise could not be proved except with great difficulty.
Simplify and narrow the issues.
The Supreme Court has since stated that its conclusions in Greyhound apply equally to the Discovery
Act, which retains the same expansive scope as the former act [ Emerson Electric Co. v. Superior
Court (1997) 16 Cal. 4th 1101, 1107-1108, 68 Cal. Rptr. 2d 883, 946 P.2d 841 ; see also ß 190.13
[1]].
Legal Topics:
Page 156 of 593

52 of 184 DOCUMENTS

ß 190.13 Interpretation of Discovery Act
[1] Liberal Construction to Further Purpose of Act
Courts held that the former Discovery Act of 1956 was to be construed liberally in favor of
disclosure, and that disclosure is a matter of right unless statutory or public policy considerations
clearly prohibit it [see Shepherd v. Superior Court (1976) 17 Cal. 3d 107, 118, 130 Cal. Rptr. 257,
550 P.2d 161 ; Greyhound Corp. v. Superior Court (1961) 56 Cal. 2d 355, 377-378, 15 Cal. Rptr.
90, 364 P.2d 266] . They also held that, as a matter of general statutory construction, the interpretation
of any one discovery section should be determined in context with the entire Discovery Act [ Grey-
hound Corp. v. Superior Court (1961) 56 Cal. 2d 355, 371, 15 Cal. Rptr. 90, 364 P.2d 266] .
These general propositions of liberal construction apply equally to the Civil Discovery Act [see
Emerson Electric Co. v. Superior Court (1997) 16 Cal. 4th 1101, 1107-1108, 68 Cal. Rptr. 2d 883,
946 P.2d 841 (affirming that its conclusions in prior landmark decision of Greyhound apply equally
to Discovery Act, which retains expansive scope of former act, and that Discovery Act must similarly
be construed liberally in favor of disclosure)].
[2] Reporter's Notes to Proposed Discovery Act
A State Bar-Judicial Council Joint Commission on Discovery proposed the Civil Discovery Act of
1986 (the predecessor to the current Civil Discovery Act) to the Legislature. This commission also
published the notes of its Reporter, Professor James Hogan, which explained many of the proposed
sections. These "Reporter's Notes to Proposed Code Civ. Proc. ßß 2016-2036" are sometimes cited as
a guide in interpreting the 1986 Act, whenever they appear to remain consistent with the Act as it is
currently constituted. For the full text of the Reporter's Notes, together with text of the Discovery Act
Page 157 of 593

as proposed by the Joint Commission, see Hogan and Weber, California Civil Discovery, Appendix
C (Matthew Bender).
[3] Case Law Interpreting Prior Acts
The Civil Discovery Act was passed in 2004 and became effective July 1, 2005. It repealed and
renumbered the Civil Discovery Act of 1986 but did not substantively change the law of civil
discovery [Stats. 2004, ch. 182 ßß 22, 23, 61]. Thus cases decided under the Civil Discovery Act of
1986 remain controlling authority. The 1986 Act repealed and replaced the Discovery Act of 1956 and
related statutes (former Code Civ. Proc. ßß 2016-2037.9) [see Stats. 1986, chs. 1334, 1336, as
amended by Stats. 1987, ch. 86]. Although the 1986 Act implemented numerous changes in the prior
law, in many instances it also continued provisions of the prior law or codified decisions construing
prior law. Decisions construing the 1956 Discovery Act are thus sometimes cited in this chapter as
persuasive, rather than controlling, authority to the extent that they appear to remain consistent with
the provisions of the 1986 and 2004 Acts.
[4] Case Law Interpreting Federal Discovery Rules
The Discovery Act of 1956 essentially adapted the federal rules relating to civil discovery existing at
that time [see Report of the Committee on Administration of Justice, 31 State BJ 204-231 (1956)].
Thus, courts held that the Act had the same meaning, force, and effect as that which the federal courts
gave to the federal rules on which the Act was based [see Gorman Rupp Industries, Inc. v. Superior
Court (1971) 20 Cal. App. 3d 28, 30, 97 Cal. Rptr. 377 ; see also Kahn v. Kahn (1977) 68 Cal.
App. 3d 372, 387, 137 Cal. Rptr. 332 (federal interpretations made after adoption of Act deemed
persuasive but not binding authority)].
The state and federal discovery provisions have since diverged in a number of particulars. Neverthe-
less, the Civil Discovery Act of 1986 in some instances adopted or continued provisions that reflect
the federal rules [see Reporter's Notes to Proposed Code Civ. Proc. ßß 2017(a), (b), 2019(a), (b), (d),
2021, 2023(b), 2025(l), 2028(a), 2030(f), (m), (n), 2031(a), (c), (g), 2033(m)-(o); see also [2],
above]. Thus, federal case law may sometimes be useful as persuasive authority in interpreting
provisions of the current Discovery Act, to the extent it construes federal rules that are substantially
identical. For further discussion comparing the state and federal discovery provisions, see DeMeo,
California Deposition and Discovery Practice, Ch. 7, Discovery in Federal Actions Compared
(Matthew Bender).
[5] Definitions Generally Applicable in Construing Discovery Act Provisions
The following definitions apply to the Civil Discovery Act:
"Action" includes a civil action and any special proceeding of a civil nature [Code Civ.
Proc. ß 2016.020(a)].
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"Court" means the trial court in which the action is pending, unless otherwise specified
[Code Civ. Proc. ß 2016.020(b)].
"Document" and "writing" mean a writing as defined in Evid. Code ß 250 [Code Civ.
Proc. ß 2016.020(c); see Rubio v. Superior Court (1988) 202 Cal. App. 3d 1343, 1347,
249 Cal. Rptr. 419 (Evid. Code ß 250 definition of "writing" includes videotapes)].
"Electronic" means relating to technology having electrical, digital, magnetic, wireless,

optical, electromagnetic, or similar capabilities [Code Civ. Proc. ß 2016.020(d)].
"Electronically stored information" is information that is stored in an electronic medium

[Code Civ. Proc. ß 2016.020(e)].
Legal Topics:
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53 of 184 DOCUMENTS

ß 190.14 Effect of Discovery Act on Informal Investigation
[1] Lawful Informal Investigation Not Precluded
Informal discovery techniques, such as interviews and investigations, remain a viable and often
important alternative or adjunct to formal discovery under the Discovery Act [see Pillsbury, Madison
& Sutro v. Schectman (1997) 55 Cal. App. 4th 1279, 1289, 64 Cal. Rptr. 2d 698 (dictum); see also
Pullin v. Superior Court (2000) 81 Cal. App. 4th 1161, 1164-1165, 97 Cal. Rptr. 2d 447 (noting that
there is little authority on the distinction between formal discovery and informal investigation, "with
everyone apparently assuming that everyone else knows the difference"; citing examples)].
For example, one court has held that there is nothing in the Discovery Act to prevent a party from
conducting a unilateral investigation without resort to any statutory discovery device, provided that the
investigation is otherwise lawful. In that case, a plaintiff's expert in a slip-and-fall case successfully
conducted tests on the floor of defendant store, when the store was open to the public during business
hours, without recourse to a formal demand to inspect the premises under former Code Civ. Proc. ß
2031 (now see Code Civ. Proc. ß 2031.010 et seq.) [ Pullin v. Superior Court (2000) 81 Cal. App.
4th 1161, 1164-1165, 97 Cal. Rptr. 2d 447 (defendant had denied prior formal demand for
inspection)]. The court in Pullin noted also that, since a lawful investigation of this type does not
constitute "discovery" within the meaning of the Discovery Act, it is immaterial to the conduct of the
investigation that the cut-off date may have passed for completing formal discovery prior to trial
[ Pullin v. Superior Court (2000) 81 Cal. App. 4th 1161, 1165 n.4, 97 Cal. Rptr. 2d 447] .
Similarly, a plaintiff in an action against a public agency may, either directly or indirectly through a
representative such as his or her counsel, file a request under the Public Records Act (Gov. Code ß
6250 et seq.) to obtain public records for use in the plaintiff's civil action. The requested documents
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must be produced unless one of the statutory exemptions set forth in the Public Records Act applies
or the documents are otherwise privileged [ County of Los Angeles v. Superior Court (2000) 82 Cal.
App. 4th 819, 826-830, 98 Cal. Rptr. 2d 564 (holding that plaintiff could seek discovery of public
records under Public Records Act, even though previous motions for formal discovery of the identical
documents had been denied, when not all elements of collateral estoppel doctrine were present)].
Public agencies have argued that they need not comply with requests for documents under the Public
Records Act when the requests originate from litigants, because of an exemption applicable to records
pertaining to pending litigation [see Gov. Code ß 6254(b)]. This exemption, however, applies only to
records prepared specifically for the purpose of the pending litigation, and not to records created in the
ordinary course of business before the pending litigation began [see Fairley v. Superior Court
(1998) 66 Cal. App. 4th 1414, 1419-1421, 78 Cal. Rptr. 2d 648 ; Wilder v. Superior Court (1998)
66 Cal. App. 4th 77, 83, 77 Cal. Rptr. 2d 629 ; 71 Ops. Cal. Att'y Gen. 235, 238-239 (1988) ;
Hansen, Using the Public Records Act to Supplement Discovery, 22 Civil Litigation Reporter 201
(Cal. CEB 2000); ß 191.128]. For further discussion of the Public Records Act and its procedures
and exemptions, see Ch. 470C, Public Records Act .
Informal discovery using online sources may be particularly useful in finding and investigating
corporate and business records and filings. For further discussion of these options, see Matthew
Bender [(R)] Practice Guide: California Civil Discovery, Ch. 5, Discovery of Electronic Information .
For discussion of electronic discovery ("e-discovery") generally, see Ch. 195A, Discovery: Discovery
of Electronically Stored Evidence (E-Discovery).
[2] Illegal "Self-Help" Precluded
The fact that counsel still conduct much pretrial preparation and discovery without judicial assistance
does not mean parties to litigation can operate outside the applicable parameters of the Discovery Act
or may violate other laws or common law strictures in their zeal to pursue litigation [ Pillsbury,
Madison & Sutro v. Schectman (1997) 55 Cal. App. 4th 1279, 1288, 64 Cal. Rptr. 2d 698] . Any
"self-help" discovery that violates ownership or privacy interests, or that is unjustified by any
exception to the jurisdiction of the courts to administer the orderly resolution of disputes, is not
permitted. For example, any litigant or potential litigant who, acting outside the legal process,
converts, interdicts, or otherwise purloins documents in the pursuit of litigation does so without the
general protections afforded by the laws of discovery. That litigant risks being found to have violated
protected rights [ Pillsbury, Madison & Sutro v. Schectman (1997) 55 Cal. App. 4th 1279, 1289, 64
Cal. Rptr. 2d 698] . Thus, self-help evidence gathering by employees for use in contemplated
litigation against their soon-to-be former employer, through the unauthorized removal of confidential
personnel documents from the employer's offices, was wrong. Discovery in the litigation context
presupposes ownership of documents will remain with whomever holds title, while allowing access to
the trier of fact, and litigants, in specifically delineated legal proceedings [ Pillsbury, Madison &
Sutro v. Schectman (1997) 55 Cal. App. 4th 1279, 1284-1289, 64 Cal. Rptr. 2d 698 (injunction
requiring return to status quo existing at time documents were taken was least severe sanction)].
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Legal Topics:
Civil ProcedureDiscoveryGeneral OverviewGovernmentsCourtsCourt RecordsLabor & Employment
LawEmployment RelationshipsEmployment ContractsConditions & TermsTrade Secrets & Unfair
CompetitionTrade Secrets
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54 of 184 DOCUMENTS

ß 190.15 Effect of Trial Delay Reduction Programs
Under the Trial Court Delay Reduction Act (Gov. Code ß 68600 et seq.), many local courts have
adopted delay reduction or "fast track" programs for non-complex cases. The Discovery Act,
however, continues to govern discovery in cases subject to these programs, except in arbitration
proceedings. Local rules are not allowed to shorten time periods set forth in the Discovery Act [Gov.
Code ß 68616(f); see, e.g., Wagner v. Superior Court (1993) 12 Cal. App. 4th 1314, 1317-1320, 16
Cal. Rptr. 2d 534 (trial court erred when it set discovery cutoff date when no trial date had been set, in
conflict with former Code Civ. Proc. ß 2024(a) (now see Code Civ. Proc. ß 2024.020)]. In limited
civil cases, discovery is governed in addition by the economic litigation provisions of Code Civ. Proc.
ßß 94 and 95, and discovery subject to these provisions is also not affected by the provisions of a trial
court delay reduction program [Gov. Code ß 68620(c)].
Nonetheless, local delay reduction programs may include rules providing for the court to regulate all
discovery, consistent with these laws [see, e.g., Code Civ. Proc. ß 2017.730 (allowing use of
technology); Code Civ. Proc. ß 2019.020(b) (court may make order establishing particular sequence
and timing for discovery in interests of justice); see also ß 190.32]. In such cases, the trial court may,
for example, inquire of the parties at status conferences as to the nature and extent of discovery
remaining [Los Angeles Super. Ct. Rules, Rule 7.9(b)(2)].
For further coverage of the trial delay reduction programs and rules, see Ch. 552, Trial Court Delay
Reduction .
Legal Topics:
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Civil ProcedureDiscoveryGeneral OverviewCivil ProcedurePretrial MattersConferencesCase
Management
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55 of 184 DOCUMENTS

[Reserved]
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56 of 184 DOCUMENTS

B. General Scope of Civil Discovery
ß 190.20 General Scope of Civil Discovery
[1] Matter That Is Relevant

[a] General Rule
Except when limited by a court order in accordance with the Discovery Act, any party may obtain
discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the
pending action or to the determination of any motion made in that action if the matter either is itself
admissible in evidence or appears to be reasonably calculated to lead to the discovery of admissible
evidence [Code Civ. Proc. ß 2017.010]. For discussion relating to the admissibility of evidence
generally, see Ch. 551, Trial .
Discovery may relate to [Code Civ. Proc. ß 2017.010]:
The claim or defense of the party seeking discovery or of any other party to the action.
The identity and location of persons having knowledge of any discoverable matter.
The existence, description, nature, custody, condition, and location of any document,
tangible thing, or land or other property.
[b] Relevance to Subject Matter
The "subject matter" of the action is the circumstances and facts out of which the cause of action
arises. It is the property, contract, or other thing involved in the dispute, and describes physical facts
Page 166 of 593

in relation to which the suit is prosecuted [ Darbee v. Superior Court (1962) 208 Cal. App. 2d 680,
688, 25 Cal. Rptr. 520] . Subject matter is therefore broader than the precise issues presented by the
pleading, and relevance to the subject matter, for the purpose of determining whether an unprivileged
matter is subject to discovery, is a broader concept than relevance to the issues [see Pettie v. Superior
Court (1960) 178 Cal. App. 2d 680, 687, 3 Cal. Rptr. 267 ; see also Reporter's Notes to Proposed
Code Civ. Proc. ß 2017 and discussion in ß 190.13[2]]. Thus, for example, relevance to the subject
matter includes relevance to potential as well as to actual issues in the case [see Pacific Tel. & Tel.
Co. v. Superior Court (1970) 2 Cal. 3d 161, 172-173, 84 Cal. Rptr. 718, 465 P.2d 854 ; Union Mut.
Life Ins. Co. v. Superior Court (1978) 80 Cal. App. 3d 1, 10, 145 Cal. Rptr. 316] . For discovery
purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing
for trial, or facilitating settlement [ Lipton v. Superior Court (1996) 48 Cal. App. 4th 1599, 1616, 56
On the other hand, a court should sustain an objection to discovery based on lack of relevance to the
subject matter when the information sought relates to matters of little or no practical benefit to the
party seeking disclosure [ Covell v. Superior Court (1984) 159 Cal. App. 3d 39, 42-43, 205 Cal.
Rptr. 371] . For example, an attorney's profit margin is not relevant to the issue of whether the
attorney's fee is unconscionable; what is relevant is whether the client received the services he or she
paid for, as measured in the marketplace [ Shaffer v. Superior Court (1995) 33 Cal. App. 4th 993,
1000-1003, 39 Cal. Rptr. 2d 506 (case of first impression)].
The question of relevance to subject matter is determined in each case according to reason and judicial
experience [ Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal. 3d 161, 172, 84 Cal. Rptr. 718,
465 P.2d 854 ; Morris Stulsaft Foundation v. Superior Court (1966) 245 Cal. App. 2d 409, 416, 54
Cal. Rptr. 12] . The standard of relevance to the subject matter must be reasonably applied according
to the liberal policies in favor of discovery, and any doubts are generally to be resolved in favor of
permitting discovery [ Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal. 3d 161, 173, 84 Cal.
Rptr. 718, 465 P.2d 854] .
Courts take the view that, whenever possible, objections to discovery should be resolved by protective
orders addressing the specific harm shown by the objecting party, as opposed to a more general attack
on the relevancy of the information the proponent seeks to discover [ Norton v. Superior Court
[c] Matter Need Not Be Admissible at Trial
A determination of "admissibility" is not a prerequisite to determining whether a discovery request is

proper. At this early stage of a case, it is difficult to define exactly what evidence is needed, and the
party seeking discovery is entitled to substantial leeway [ Norton v. Superior Court (1994) 24 Cal.
App. 4th 1750, 1761, 30 Cal. Rptr. 2d 217] . The possibility that the material a party seeks to discover
might be excluded at trial pursuant to an evidentiary objection is not a proper consideration for the trial
court in ruling on a discovery motion [ Volkswagen of Am., Inc. v. Superior Court, (2006) 139 Cal.
App. 4th. 1481, 1497, 43 Cal. Rptr. 3d 723 (trial court erroneously limited discovery on basis that
Page 167 of 593

documents might be inadmissible at trial or because they were prepared or signed by plaintiff's
attorney rather than plaintiff; accordingly, discovery order had to be reevaluated based on whether
requested information was reasonably calculated to lead to admissible evidence, as provided by Code
Civ. Proc. ß 2017.010); Norton v. Superior Court (1994) 24 Cal. App. 4th 1750, 1760-1761, 30
Cal. Rptr. 2d 217 (evidence inadmissible under collateral source rule was discoverable for purpose of
determining plaintiff's motive in bringing malpractice action)].
[2] Matter That Is Not Privileged
As discussed in [1], above, relevant matter is discoverable so long as it is "not privileged" [Code Civ.
Proc. ß 2017.010]. Thus, the evidentiary privileges and related provisions protecting against
disclosure are the chief means of resisting discovery. For detailed discussion of privileges, see Ch.
191, Discovery: Privileges and Other Discovery Limitations .
Legal Topics:
Civil ProcedureDiscoveryGeneral OverviewCivil ProcedureDiscoveryPrivileged MattersGeneral
OverviewCivil ProcedureDiscoveryRelevance
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57 of 184 DOCUMENTS

ß 190.21 Specific Limits on General Scope
A party may obtain discovery of the existence and contents of any agreement under which any
insurance carrier may be liable to satisfy in whole or in part a judgment that may be entered in the
action or to indemnify or reimburse for payments made to satisfy the judgment. The discovery may
include the identity of the carrier and the nature and limits of the coverage. A party may also obtain
discovery concerning whether that insurance carrier is disputing the agreement's coverage of the claim
involved in the action, but not concerning the nature and substance of the dispute. Information
concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial
[Code Civ. Proc. ß 2017.210; see also Smith v. Superior Court (1961) 189 Cal. App. 2d 6, 11, 11
Cal. Rptr. 165 ; Pettie v. Superior Court (1960) 178 Cal. App. 2d 680, 683, 3 Cal. Rptr. 267] .
A party does not have the same broad right to discover an insurance company's reinsurance agree-
ments. Reinsurance is a "contract ... by which an insurer procures a third person to insure him against
loss or liability by reason of such original insurance" [Ins. Code ß 620]. A reinsurance contract is a
contract of indemnity for the benefit of the insurance company. The original "insured" has no interest
in it [Ins. Code ß 623; Ascherman v. Gen. Reinsurance Corp. (1986) 183 Cal. App. 3d 307, 312,
228 Cal. Rptr. 1 ("The reinsurance contract is not with the insured/policyholder. When a valid claim is
made, the insurance company pays the first level insured, and the reinsurance company pays the
insurance company. The reinsurance company's obligation is to the insurance company, and the
insurance company vis-a-vis the reinsurer is thus the insured, or more appropriately, the 'reinsured.'
")]. Accordingly, Code Civ. Proc. ß 2017.210 does not authorize discovery of reinsurance policies by
an injured plaintiff to facilitate settlement of the underlying tort action [ Catholic Mut. Relief Soc'y v.
Superior Court (2007) 42 Cal. 4th 358, 372-374, 64 Cal. Rptr. 3d 434, 165 P.3d 154 (nonparty
Page 169 of 593

insurer's reinsurance information generally is irrelevant to plaintiff in tort actions brought against
liability insurance policyholder and could lead to burdensome discovery requests directed at nonpar-
ties)].
The California Supreme Court has observed in dicta that there may be "unusual circumstances" in
which the discovery of reinsurance agreements would be appropriate, as when, for example, those
agreements are "directly on the risk to satisfy a judgment" or are the subject matter of the litigation, as
in a coverage dispute between a liability insurer and its reinsurer [ Catholic Mut. Relief Soc'y v.
Superior Court (2007) 42 Cal. 4th 358, 374, 64 Cal. Rptr. 3d 434, 165 P.3d 154 (dicta)]. However,
in the only reported California decision to allow the discovery of an insurer's reinsurance information
[ Lipton v. Superior Court (1996) 48 Cal. App. 4th 1599, 1611-1612, 56 Cal. Rptr. 2d 341] ,
discoverability turned on whether the requested information was relevant to an issue in the case. In
that case, the discovery was allowed because the insurer was the defendant in a bad faith action and
the information was relevant to the issues in the case. Discovery was limited to unprivileged
communications between the insurer and reinsurer concerning coverage issues and potential liability.
That discovery was allowed under the general relevancy test of former Code Civ. Proc. ß 2017(a)
(now see Code Civ. Proc. ß 2017.010), without reference to former Code Civ. Proc. ß 2017(b) (now
see Code Civ. Proc. ß 2017.210) [ Lipton v. Superior Court (1996) 48 Cal. App. 4th 1599,
1617-1618, 56 Cal. Rptr. 2d 341 (observing that before ordering production of any such documents,
trial court should conduct in camera review and tailor its order based on their contents); see
Fireman's Fund Insurance Co. v. Superior Court (1991) 233 Cal. App. 3d 1138, 1141, 286 Cal.
Rptr. 50 (because case involved request for production of documents, court premised its discussion
on requirements of protective order authorized by former Code Civ. Proc. ß 2031(e)(5), (6) (now see
Code Civ. Proc. ßß 2031.060(b)(5), 2031.060(b)(6)))].
[2] Defendant's Financial Condition
In an action for damages, a plaintiff generally is entitled to seek information directly relevant to the
issue of damages even though the issue of defendant's liability has not been tried and determined
[ Columbia Broadcasting Sys., Inc. v. Superior Court (1968) 263 Cal. App. 2d 12, 22, 69 Cal. Rptr.
348] . Thus, he or she may discover information relating to defendant's financial condition in an action
in which plaintiff is seeking punitive damages because that condition is relevant to the issue of
punitive damages [ Coy v. Superior Court (1962) 58 Cal. 2d 210, 223, 23 Cal. Rptr. 393, 373 P.2d
457 ; cf. Doak v. Superior Court (1968) 257 Cal. App. 2d 825, 828, 838, 65 Cal. Rptr. 193
(defendant's assets not discoverable absent claim for punitive damages)].
Pretrial discovery of a defendant's financial condition or the profits that he or she has gained by means
of the wrongful course of conduct, is, however, regulated by statute. The plaintiff seeking discovery
must obtain an order permitting discovery, based on a showing of substantial probability that he or
she will prevail on the punitive damages claim under Civ. Code ß 3294 [Civ. Code ß 3295(c); but see
Rawnsley v. Superior Court (1986) 183 Cal. App. 3d 86, 90-91, 227 Cal. Rptr. 806 (Civ. Code ß
3295(c) not applicable when financial information sought is fundamental to establish plaintiff's case)].
For further discussion and forms relating to a motion for an order permitting discovery under Civ.
Page 170 of 593

Code ß 3295(c), see Ch. 177, Damages ß 213.10 et seq.
Before a trial court may enter an order allowing discovery of financial condition information under
Civ. Code ß 3295(c), it must weigh the evidence presented by both sides, and make a finding that it is
very likely the plaintiff will prevail on his or her claim for punitive damages [ Jabro v. Superior
Court (2002) 95 Cal. App. 4th 754, 755, 115 Cal. Rptr. 2d 843] .
[3] Civil Action Involving Sexual Misconduct
In any civil action alleging conduct that constitutes sexual harassment, sexual assault, or sexual
battery, any party seeking discovery concerning the plaintiff's sexual conduct with individuals other
than the alleged perpetrator is required to establish specific facts showing good cause for that
discovery, and that the matter sought to be discovered is relevant to the subject matter of the action and
reasonably calculated to lead to the discovery of admissible evidence [Code Civ. Proc. ß 2017.220(a);
see Barrenda L. v. Superior Court (1998) 65 Cal. App. 4th 794, 800-803, 76 Cal. Rptr. 2d 727
(discovery solely for impeachment purposes is improper)].The sexual conduct protected from
discovery includes nonconsensual, as well as consensual, sexual activity [ Knoettgen v. Superior
Court (1990) 224 Cal. App. 3d 11, 13-14, 273 Cal. Rptr. 636] . This showing must be made by
noticed motion and shall not be made or considered by the court at an ex parte hearing [Code Civ.
Proc. ß 2017.220(a); Mendez v. Superior Court (1988) 206 Cal. App. 3d 557, 567-574, 253 Cal.
Rptr. 731 (good cause not shown)]. The motion must be accompanied by a declaration stating facts
showing a good faith attempt at an informal resolution of each issue presented by the motion.
The court is required to impose a monetary sanction under Code Civ. Proc. ß 2023.010 et seq. against
any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order,
unless it finds that the one subject to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust [Code Civ. Proc. ß 2017.220(b); for
discussion of monetary sanctions under Code Civ. Proc. ß 2023.010 et seq., see Ch. 192, Discovery:
Sanctions for Discovery Misuse, ßß 192.13[2], 192.15[2]].
If an action for sexual harassment, sexual assault, or sexual battery is combined with a related cause of
action such as intentional infliction of emotional distress, the individual may waive some of his or her
privacy rights in view of the importance of allowing necessary discovery, although any waiver will be
very narrowly drawn. Thus, in a case involving an action for sexual harassment and intentional
infliction of severe emotional distress, since the plaintiff's mental and emotional condition was directly
relevant to her emotional distress claim and essential to a fair resolution of her suit, she waived her
right to privacy in that respect, and discovery of those issues was allowed. However, she did not
waive her right to privacy with respect to her sexual history and practices since she had made no
contention that the alleged acts were detrimental to her present sexuality, and neither her sexual history
nor practices were relevant, and discovery was not permitted [see Vinson v. Superior Court (1987)
43 Cal. 3d 833, 840-844, 239 Cal. Rptr. 292, 740 P.2d 404 (decided under prior law)].
There are also compelling social interests in disclosing information relating to sexual predators of
Page 171 of 593

children that outweigh the individual perpetrator's privacy interests [see Welf. & Inst. Code ß 300.2
(dependency laws to protect children from abuse); Penal Code ß 647.6 (criminal penalty for child
sexual molestation); Penal Code, ß 290 et seq. (Sex Offender Registration Act); In re The Clergy
Cases I (2010) 188 Cal. App. 4th 1224, 1235, 116 Cal. Rptr. 3d 360 (psychiatric and other confiden-
tial records of child-abusing clergymen could be publicly released)].
A patient may have a cause of action against his or her psychotherapist or former psychotherapist for
injury caused by sexual contact with the psychotherapist [see Civ. Code ß 43.93; for discussion and
forms relating to actions for sexual contact, see Ch. 414, Physicians: Licensing and Discipline ]. In an
action for sexual contact, evidence of the plaintiff's sexual history is not subject to discovery and is not
admissible as evidence unless the plaintiff claims damage to sexual functioning, or the defendant
requests a hearing prior to conducting discovery and makes an offer of proof of the relevancy of the
history, and the court finds that the history is relevant and the probative value of the history outweighs
its prejudicial effect. The court will allow the discovery or introduction as evidence only of specific
information or examples of the plaintiff's conduct that are determined by the court to be relevant. The
court's order must detail the information or conduct that is subject to discovery [Civ. Code ß 43.93
(d)].
Courts do not have the power to expand the methods of discovery beyond those authorized by statute.
Similarly, the courts' power to compel discovery is circumscribed by statute. A court has no
jurisdiction to compel a party to perform acts that are beyond the scope of the Discovery Act
[ Stermer v. Superior Court (1993) 20 Cal. App. 4th 777, 781, 24 Cal. Rptr. 2d 577 (disapproved
on other grounds in Emerson Electric Co. v. Superior Court (1997) 16 Cal. 4th 1101, 1113, 68
Cal. Rptr. 2d 883, 946 P.2d 841 )].
Legal Topics:
Civil ProcedureDiscoveryGeneral OverviewCivil ProcedureDiscoveryDisclosuresMandatory
DisclosuresCivil ProcedureDiscoveryRelevanceTortsIntentional TortsAssault & BatteryGeneral
Overview
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58 of 184 DOCUMENTS

ß 190.22 Particular Methods of Discovery Authorized Under Discovery Act
The available methods of discovery are [Code Civ. Proc. ß 2019.010]:
Oral and written depositions [see Ch. 193, Discovery: Depositions ].
Interrogatories to a party [see Ch. 194, Discovery: Interrogatories ].
Inspections of documents, things, and land [see Ch. 195, Discovery: Inspection of
Tangible Evidences ].
Requests for admissions [see Ch. 196, Discovery: Requests for Admissions ].
Physical and mental examinations [see Ch. 197, Discovery: Physical and Mental
Examinations ].
Exchange of expert witness information [see Ch. 198, Discovery: Exchange of Expert
Witness Information ].
In general, any of these methods is available to obtain discovery from another party in a pending
action. By contrast, only (1) oral and written depositions, (2) inspections of documents, things, and
places, and (3) physical and mental examination are available for the purpose of perpetuating
testimony or preserving evidence before an action has been filed or pending appeal [Code Civ. Proc.
Page 173 of 593

ßß 2035.020, 2036.020; for further discussion, see Ch. 199, Discovery: Preservation of Evidence ].
The methods available to obtain discovery from a nonparty are further limited to oral and written
depositions and to depositions limited to or including the production of documents or things [Code
Civ. Proc. ß 2020.010; for further discussion, see Ch. 193, Discovery: Depositions ].
Legal Topics:
Civil ProcedureDiscoveryMethodsExpert Witness DiscoveryCivil ProcedureDiscoveryMethodsInter-
rogatoriesGeneral OverviewCivil ProcedureDiscoveryMethodsPerpetuation of TestimonyCivil
ProcedureDiscoveryMethodsRequests for Production & InspectionCivil ProcedureDiscoveryMeth-
odsWritten Depositions
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59 of 184 DOCUMENTS

ß 190.23 Discovery in Limited Civil Cases
[1] Limited Civil Cases Subject to Economic Litigation Provisions
An limited civil case is one in which the following apply [Code Civ. Proc. ß 85]:
The amount in controversy does not exceed $25,000, that is, the amount of the demand,
the recovery sought, the value of the property, or the amount of the lien, exclusive of
attorney's fees, interest, and costs.
The relief sought is a type that may be granted in a limited civil case, and is exclusively
of a type described in one or more statutes that classify an action or special proceeding as
a limited civil case or that provide that an action or special proceeding is within the
original jurisdiction of the municipal court.
Thus, a limited civil cases is one involving a limited amount in controversy, which was formerly
within the jurisdiction of the municipal courts and now within the jurisdiction of the unified superior
courts [see Code Civ. Proc. ß 86; see also Ch. 345A, Limited Civil Cases ].
Limited civil cases, with certain exceptions, are subject to the provisions entitled Economic Litigation
for Limited Civil Cases (Code Civ. Proc. ß 90 et seq.) [Code Civ. Proc. ß 91(a); see Code Civ. Proc.
ß 91(b) (economic litigation provisions do not apply to small claims actions or unlawful detainer
proceedings)].
Page 175 of 593

[2] Discovery Act Modified by Economic Litigation Provisions
The economic litigation provisions (see [1], above) modify the application of the Discovery Act in
limited civil cases. Parties to limited civil cases that are subject to these provisions may conduct
discovery only to the extent permitted by Code Civ. Proc. ßß 94 and 95 [Code Civ. Proc. ß 94(a); see
discussion in [3] and [4], below].
[3] Restrictions on Discovery Under Economic Litigation Provisions
[a] Notice and Format Requirements of Discovery Act Apply
Discovery in a limited civil case must comply with the notice and format requirements of the particular
method of discovery as provided in the Discovery Act [Code Civ. Proc. ß 94].
[b] Interrogatories, Demands for Production and Inspection of Tangible Evidence, and
Requests for Admissions
In a limited civil case, each party, as to each adverse party, may use any combination of 35 of the
following forms of discovery [Code Civ. Proc. ß 94(a)]:
Interrogatories (with no subparts) under Code Civ. Proc. ß 2030.010 et seq. [see Ch.
194, Discovery: Interrogatories ].
Demands to produce documents, things, and electronically stored information under

Code Civ. Proc. ß 2031.010 et seq. [see Ch. 195, Discovery: Inspection of Tangible
Evidence ].
Requests for admissions (with no subparts) under Code Civ. Proc. ß 2033.010 et seq.
[see Ch. 196, Discovery: Requests for Admissions ].
[c] Depositions
In a limited civil case, each party, as to each adverse party, may use one oral or written deposition
under Code Civ. Proc. ßß 2025.010 et seq.-2028.010 et seq. [Code Civ. Proc. ß 94(b); see Ch. 193,
Discovery: Depositions ].
[d] Subpoena Duces Tecum
In a limited civil case, each party, as to each adverse party, may serve on any person a deposition
subpoena duces tecum requiring the person served to mail copies of documents, books or records to
the party's counsel at a specified address, along with an affidavit complying with Evid. Code ß 1561
[Code Civ. Proc. ß 94(c)]. The party who issues the deposition subpoena must mail a copy of the
response to any other party who tenders the reasonable cost of copying it [Code Civ. Proc. ß 94(c)].
For discussion and forms relating to deposition subpoenas, see Ch. 193, Discovery: Depositions .
Page 176 of 593

[e] Physical and Mental Examinations
In a limited civil case, each party, as to each adverse party, may obtain discovery by means of physical
and mental examinations under Code Civ. Proc. ß 2032.010 et seq. [Code Civ. Proc. ß 94(d); see Ch.
197, Discovery: Physical and Mental Examinations ].
[f] Exchange of Expert Witness Information
In a limited civil case, each party, as to each adverse party, may obtain discovery relating to the
identity of expert witnesses under Code Civ. Proc. ß 2034.010 et seq. [Code Civ. Proc. ß 94(e); see
Ch. 198, Discovery: Exchange of Expert Witness Information ].
[4] Authorization for Additional Discovery
[a] By Motion
The court, on noticed motion and subject to just terms and conditions, may authorize a party to
conduct additional discovery, but only on a showing that the moving party will be unable to prosecute
or defend the action effectively without the additional discovery. In making the determination, the
court must take into account whether the moving party has used all applicable discovery in good faith,
and has attempted to secure the additional discovery by stipulation or by means other than formal
discovery [Code Civ. Proc. ß 95(a)]. For a general discussion and forms relating to noticed motions,
see Ch. 372, Motions and Orders .
[b] By Stipulation
The parties may stipulate to additional discovery [Code Civ. Proc. ß 95(b)]. For a general discussion
and forms relating to stipulations, see Ch. 533, Stipulations .
[5] Motion to Withdraw Action From Limited Civil Case Procedures
A limited civil case may, on noticed motion, be withdrawn from the economic litigation provisions of
Code Civ. Proc. ß 90 et seq., on a showing that it is impractical to prosecute or defend the action
within the limitations of these provisions [Code Civ. Proc. ß 91(c); for general discussion and forms
relating to noticed motions, see Ch. 372, Motions and Orders ]. If the action is withdrawn, it becomes
subject to the provisions of the Discovery Act for purposes of discovery.
Legal Topics:
Civil ProcedureDiscoveryMethodsAdmissionsGeneral OverviewCivil ProcedureDiscoveryMethod-
sInterrogatoriesGeneral OverviewCivil ProcedureDiscoveryMethodsMental & Physical Examination-
sCivil ProcedureDiscoveryMethodsOral DepositionsCivil ProcedurePretrial MattersSubpoenas
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60 of 184 DOCUMENTS

ß 190.24 Discovery of Electronically Stored Information
[1] Governing Law
Discovery of electronically stored information (ESI) pursuant to the Civil Discovery Act [Code Civ.
Proc. ßß 2016.010-2036.050] is governed generally by the Electronic Discovery Act [Code Civ.
Proc. ßß 1985.8, 2031.010-2031.510], which was enacted in 2009.
Related provisions of the Civil Discovery Act include the provisions governing discovery generally,
set out in Code Civ. Proc. ßß 2016.010-2019.030, 2023.010-2023.040.
The extent of discovery permitted under the Civil Discovery Act is restricted in limited civil cases by
the economic litigation provisions of Code Civ. Proc. ßß 94 and 95. The use of demands for the
production or inspection of tangible evidence is limited specifically by Code Civ. Proc. ß 94(a). For
further discussion, see ßß 190.11[2], 190.23[2][a].
Case management requirements regarding discovery of electronically stored information is set out in
Cal. Rules of Ct., Rule 3.724(8). Statewide rule provisions relating to the format, content, and service
of discovery papers and motions, and to discovery sanctions, are set out in Cal. Rules of Ct., Rules
3.1000, 3.1020, 3.1025, and 3.1030.
"[E]lectronic evidence is no less discoverable than paper evidence" [ Advante Int'l Corp. v. Mintel
Learning Tech. (N.D. Cal. 2006) 2006 U.S. Dist. LEXIS 45859, at *3 , quoting Zubulake v. UBS
Warburg LLC (S.D.N.Y. 2003) 217 F.R.D. 309, 317 ; see [2], below]. However, the computer age
has generated "new and challenging" issues for attorneys, clients, and courts during the civil
discovery process [ Advante Int'l Corp. v. Mintel Learning Tech. (N.D. Cal. 2006) 2006 U.S. Dist.
Page 178 of 593

LEXIS 45859, at *3 ]. "As individuals and corporations increasingly do business electronically--using

computers to create and store documents, make deals, and exchange e-mails--the universe of
discoverable material has expanded exponentially" [ Zubulake v. UBS Warburg LLC (S.D.N.Y. 2003)
217 F.R.D. 309, 311 ]. Electronic data in discovery presents particular problems with respect to
preservation and production or spoliation of evidence, privacy, and privilege.
[2] Electronic Discovery Act
For many years before the passage of the Electronic Discovery Act, California courts allowed
discovery and often admission of electronically stored information into evidence under prior discovery
statutes [see, e.g., People v. Lugashi (1988) 205 Cal. App. 3d 632, 640, 252 Cal. Rptr. 434
(allowing admission of bank computer records); R.S. Creative v. Creative Cotton (1999) 75 Cal.
App. 4th 486, 89 Cal. Rptr. 2d 353 (terminating sanctions for actions including spoliation of evidence
on computers)]. However, there are few reported California state court decisions on this topic, and
trial courts had to apply general discovery principles to electronic evidence on a case by case basis.
In 2009, the California legislature passed the Electronic Discovery Act to address the problems
created by application of the general Discovery Act rules to the specific issues that typically arise in e-
discovery. The Electronic Discovery Act is modeled on federal rules governing e-discovery that took
effect December 1, 2006 [see Fed. R. Civ. P., Rules 16(b)(3)(B)(iii), (iv), 26(b)(2)(B), (b)(5), (f)(3)(c),
34(b)(1)(C), (b)(2)(D), (b)(2)(E), 37(e)]. The federal rules were one of the first attempts nationally to
address e-discovery in a comprehensive manner, and as a result state courts have often looked to these
rules in attempting to resolve e-discovery issues in the absence of state law. As a result, California
courts may be expected to look to federal decisions construing the federal rules for guidance, at least
until California courts have had a chance to interpret its Electronic Discovery Act.
For more detailed discussion of the Electronic Discovery Act and related cases, see Ch. 195A,
Discovery: Discovery of Electronically Stored Evidence (E-Discovery).
For a detailed step-by-step guide to the discovery of electronic evidence, see Matthew Bender(R)
Practice Guide: California E-Discovery and Evidence.
Legal Topics:
Civil ProcedureDiscoveryElectronic Discovery
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61 of 184 DOCUMENTS

ß 190.25 Discovery in Actions Pending Outside California
Effective January 1, 2010 [Stats. 2008 ch. 231, ß 3; Code Civ. Proc. ß 2029.900], the Interstate and
International Depositions and Discovery Act [Code Civ. Proc. ß 2029.100 et seq.] governs deposi-
tions in California for out-of-state actions. The Act is California's version of the Uniform Interstate
Depositions and Discovery Act [see Code Civ. Proc. ß 2029.700]. The Act governs depositions for
the production of tangible items and inspection of premises, in addition to those requiring testimony
[see Code Civ. Proc. ß 2029.200(e)]. The Act broadens the range of documents issued by an out-of-
state court pursuant to which a California court may issue a subpoena, and includes electronically
stored information [see Code Civ. Proc. ß 2029.200(e)(2)]. The Act clarifies that a request for the
issuance of a subpoena does not constitute an appearance in a California court [see Code Civ. Proc. ß
2029.300(a)].
The Act specifies the process for obtaining a subpoena--requiring payment of a fee, to be deposited in
the Trial Court Trust Fund, and submitting the subpoena of the out-of-state court with a specified
application [see Code Civ. Proc. ß 2029.300]. A party is not required to retain a local attorney to
depose a witness in these circumstances. The Act permits an active member of the California State Bar
who is retained by a party to an out-of-state court proceeding to issue a deposition subpoena [Code
Civ. Proc. ß 2029.350(a); see Code Civ. Proc. ß 2029.350(b) (content and format requirements)].
The Act provides a dispute resolution process for discovery conducted in California in connection
with an out-of-state proceeding [see Code Civ. Proc. ßß 2029.600-2029.630]. It permits a party to
appeal court orders in connection with a dispute by extraordinary writ to the court of appeal [see Code
Civ. Proc. ß 2029.650].
Page 180 of 593

For a detailed discussion of the Act, see Ch. 193, Discovery: Depositions, ß 193.130 et seq. Judicial
Council forms (application and subpoenas) for use under the Interstate and International Depositions
and Discovery Act are reproduced in Ch. 193, Discovery: Depositions, ßß 280-282, Ch. 195,
Discovery: Inspection of Tangible Evidence, ß 195.70, and Ch. 535, Subpoena, ß 535.85.
Legal Topics:
Civil ProcedureDiscoveryMethods
Page 181 of 593

62 of 184 DOCUMENTS

[Reserved]
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63 of 184 DOCUMENTS

C. General Regulatory Provisions and Procedures
ß 190.30 Proceeding to Limit General Scope When Hardship Outweighs Usefulness
The court is required to limit the scope of discovery if it determines that the burden, expense, or
intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to
the discovery of admissible evidence [Code Civ. Proc. ß 2017.020(a); see Calcor Space Facility,
Inc. v. Superior Court (1997) 53 Cal. App. 4th 216, 223, 61 Cal. Rptr. 2d 567] .
The court may make this determination pursuant to a motion for protective order by a party or other
affected person [Code Civ. Proc. ß 2017.020(a); see also Greyhound Corp. v. Superior Court
(1961) 56 Cal. 2d 355, 383-384, 15 Cal. Rptr. 90, 364 P.2d 266] .
This motion must be accompanied by a declaration stating facts showing a good faith attempt at an
informal resolution of each issue presented by the motion. The court is required to impose a monetary
sanction under Code Civ. Proc. ß 2023.010 et seq. against any party, person, or attorney who
unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to
the sanction acted with substantial justification or that other circumstances make the imposition of the
sanction unjust [Code Civ. Proc. ß 2017.020(b)]. For further discussion of these general provisions
for a declaration regarding attempt at informal resolution and for monetary sanctions, see ß 190.33 and
Ch. 192, Discovery: Sanctions for Discovery Misuse, ßß 192.13[2], 192.15[2].
For a form for a motion for a protective order under Code Civ. Proc. ß 2017.020, see ß 190.80.
Legal Topics:
Page 183 of 593

Civil ProcedureDiscoveryGeneral OverviewCivil ProcedureDiscoveryProtective OrdersCivil

ProcedureDiscoveryUndue BurdensCriminal Law & ProcedureDiscovery & InspectionDiscovery
MisconductGeneral Overview
Page 184 of 593

64 of 184 DOCUMENTS

ß 190.31 Proceeding to Restrict Frequency or Extent of Use of Discovery Methods
The court, on motion for a protective order by a party or other affected person, must restrict the
frequency or extent of use of the discovery methods if it determines either of the following [Code Civ.
Proc. ß 2019.030(a)]:
The discovery sought is unreasonably cumulative or duplicative, or is obtainable from

some other source that is more convenient, less burdensome, or less expensive.
The selected method of discovery is unduly burdensome or expensive, taking into

account the needs of the case, the amount in controversy, and the importance of the issues
at stake in the litigation.
This motion must be accompanied by a declaration stating facts showing a good faith attempt at an
informal resolution of each issue presented by the motion. The court is required to impose a monetary
sanction under Code Civ. Proc. ß 2023.010 et seq. against any party, person, or attorney who
unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to
the sanction acted with substantial justification or that other circumstances make the imposition of the
sanction unjust [Code Civ. Proc. ß 2019.030(c)]. For further discussion of these general provisions
for a declaration re attempt at informal resolution and for monetary sanctions, see ß 190.33 and Ch.
192, Discovery: Sanctions for Discovery Misuse, ßß 192.13[2], 192.15[2].
The trial court has considerable discretion under Code Civ. Proc. ß 2019.030 [ Carter v. Superior
Page 185 of 593

Court (1990) 218 Cal. App. 3d 994, 998, 267 Cal. Rptr. 290 (interpreting former Code Civ. Proc. ß
2019(b))]. This discretion may, however, be limited to the extent that a more specific provision
limiting discovery applies. For example, if a party propounding interrogatories fails to follow the
procedure for obtaining further responses, he or she waives any right to compel further responses
under Code Civ. Proc. ß 2030.300. In this situation, the court essentially has no discretion to permit
the propounding party to avoid the waiver under Code Civ. Proc. ß 2030.300(c) by serving the same
questions in a second set of interrogatories [see Professional Career Colleges, Magna Institute, Inc.
v. Superior Court (1989) 207 Cal. App. 3d 490, 493-494, 255 Cal. Rptr. 5] .
On the other hand, a specific provision limiting one method of discovery does not apply to the use of
other methods. For example, if a party has waived its right to compel further inspection of documents
under Code Civ. Proc. ß 2031.310(c), that party is not automatically barred from employing another
method to obtain disclosure of those documents, such as a deposition at which the deponent is
required to produce the records. In this situation the court may exercise its discretion under Code Civ.
Proc. ß 2019.030 to determine whether use of the second method of discovery is burdensome or
duplicative [see Carter v. Superior Court (1990) 218 Cal. App. 3d 994, 996-998, 267 Cal. Rptr. 290
(interpreting former Code Civ. Proc. ß 2019(b))].
For a form for a motion for a protective order under Code Civ. Proc. ß 2019.030, see ß 190.80.
Legal Topics:
Civil ProcedureJudicial OfficersJudgesDiscretionCivil ProcedureDiscoveryProtective OrdersCivil
ProcedureDiscoveryUndue BurdensCriminal Law & ProcedureDiscovery & InspectionDiscovery
MisconductGeneral Overview
Page 186 of 593

65 of 184 DOCUMENTS

ß 190.32 Proceeding to Establish Manner, Sequence, or Timing of Discovery
[1] General Rule
As a general rule, the methods of discovery may be used in any sequence, and the fact that a party is
conducting discovery, whether by deposition or another method, will not operate to delay the
discovery of any other party. This is the rule unless there is a Judicial Council or local court rule or
local uniform written policy to the contrary [Code Civ. Proc. ß 2019.020(a)].
However, on motion and for good cause shown, the court may establish the sequence and timing of
discovery for the convenience of parties and witnesses and in the interests of justice [Code Civ. Proc.
ß 2019.020(b)].
For a form for a motion that may be modified for use as a motion under Code Civ. Proc. ß 2019.020
(b), see ß 190.80.
[2] Electronic Filing and Service Generally
[a] Rules for Electronic Filing
Electronic filing and service are governed by Cal. Rules of Ct., Rule 2.250 et seq. In general, a court
may permit electronic filing of a document in any action or proceeding, unless the rules in Cal. Rules
of Ct., Rule 2.250 et seq. or other legal authority expressly prohibit electronic filing [Cal. Rules of Ct.,
Rule 2.252(a)]. In a proceeding that requires the filing of an original document, an electronic filer may
file an electronic copy of a document if the original document is then filed with the court within 10
calendar days [Cal. Rules of Ct., Rule 2.252(b)]. The court may file electronically any notice, order,
minute order, judgment, or other document prepared by the court [Cal. Rules of Ct., Rule 2.252(d)].
Page 187 of 593

Proposed orders may be filed electronically [Cal. Rules of Ct., Rule 2.252(e); see Cal. Rules of Ct.,
Rule 3.1312 (procedure)].
A document that the court or a party files electronically under these rules has the same legal effect as a
document in paper form [Cal. Rules of Ct., Rule 2.252(f)(1)]. Moreover, filing a document electroni-
cally does not alter any filing deadline [Cal. Rules of Ct., Rule 2.252(f)(2) ].
In specified actions, a court, on the motion of any party or on its own motion, provided that the order
would not cause undue hardship or significant prejudice to any party, may order all parties to file all
documents electronically. These actions include any class action, a consolidated action, a group of
actions, a coordinated action, or an action that is complex under Cal. Rules of Ct., Rule 3.403 [Cal.
Rules of Ct., Rule 2.253(a)(1)(B), (C)]. Filing in paper format may be allowed when it is not feasible
to convert a document to electronic form [see Cal. Rules of Ct., Rule 2.253(c)].
A document that is filed electronically with the court must be in a format specified by the court unless
it cannot be created in that format [see Cal. Rules of Ct., Rule 2.256(b)].
Additional rules concerning signature requirements and payment of filing fees are covered in Cal.
Rules of Ct., Rule 2.257 and Rule 2.258, respectively.
[b] Rules for Electronic Service
In specified types of actions, the court, on the motion of any party or on its own motion, after finding
that such an order would not cause undue hardship or significant prejudice to any party, may order all
parties to serve all documents electronically, unless personal service is required by statute or rule [Cal.
Rules of Ct., Rule 2.253(a)(1)(A), (C) ]. These actions include any class action, a consolidated action,
a group of actions, a coordinated action, or an action that is complex under Cal. Rules of Ct., Rule
3.403 [Cal. Rules of Ct., Rule 2.253(a)(1)]. The court also may order that when the court sends
confirmation of filing to all parties, receipt of the confirmation constitutes service of the filing, if the
filed document is available electronically [Cal. Rules of Ct., Rule 2.253(b)(2)].
When a document may be served by mail, express mail, overnight delivery, or fax transmission,
electronic service of the notice is permitted when authorized by the rules governing electronic service
and filing [Cal. Rules of Ct., Rule 2.251(a)(1); see Code Civ. Proc. ß 1013(h); Cal. Rules of Ct., Rule
2.250 et seq. (electronic filing and service rules)]. A party indicates that he or she agrees to accept
electronic service by [Cal. Rules of Ct., Rule 2.251(a)(2)]:
Serving a notice on all parties that the party accepts electronic service; or
Electronically filing any document with the court.
Page 188 of 593

The notice also must include the electronic service address at which the party agrees to accept service
[Cal. Rules of Ct., Rule 2.251(a)(2)(A)].
In any action in which a party has agreed to accept electronic service, or in which the court has
ordered electronic service [see Code Civ. Proc. ß 1010.6(c)], the court is authorized to electronically
serve any court-issued document that is not required to be served personally, in the same manner that
the parties electronically serve documents [Code Civ. Proc. ß 1010.6(a)(3)].
A party that has consented to electronic service and has used an electronic filing service provider serve
and file documents in a case consents to service on that electronic filing service provider as the
designated agent for service for the party in the case, until the party designates a different agent for
service [Cal. Rules of Ct., 2.251(a)(3)].
A party that serves a document by means of electronic notification must [Cal. Rules of Ct., Rule 2.251
(e)]:
Ensure that the documents served can be viewed and downloaded using the hyperlink
provided.
Preserve the document served without any change, alteration, or modification from the
time the document is posted until the time the hyperlink is terminated. and
Maintain the hyperlink until either:
All parties in the case have settled or the case has ended and the time for
appeals has expired; or
If the party is no longer in the case, the party has provided notice to all
other parties that it is no longer in the case and that they have 60 days to
download any documents, and 60 days have passed after the notice was
given.
Electronic service of a document is complete at the time of the electronic transmission of the document
or at the time that the electronic notification of service of the document is sent [Cal. Rules of Ct., Rule
2.251(f)(1); see Code Civ. Proc. ß 1010.6(a)(4) (exceptions)].
If a document is served electronically, any period of notice, or any right or duty to act or respond
within a specified period or on a date certain after service of the document, is extended by two court
days, unless otherwise provided by a statute or a rule [Cal. Rules of Ct., Rule 2.251(f)(2); Code Civ.
Page 189 of 593

Proc. ß 1010.6(a)(4); see Cal. Rules of Ct., Rule 2.251(f)(3) (this extension does not extend time for
filing (1) notice of intent to move for new trial, (2) notice of intent to move to vacate judgment under
Code Civ. Proc. ß 663a; or (3) notice of appeal)]. Service that occurs after the close of business is
deemed to have occurred the next court day [Cal. Rules of Ct., Rule 2.251(f)(4)].
Proof of electronic service may be by any of the methods provided in Code Civ. Proc. ß 1013a (see ß
190.51[4]), except that the proof of service must state [Cal. Rules of Ct., Rule 2.251(g)(1)]:
The electronic service address of the person making the service, in addition to that
person's residence or business address;
The date and time of the electronic service, instead of the date and place of deposit in the
mail;
The name and electronic service address of the person served, in place of that person's
name and address as shown on the envelope; and
That the document was served electronically, in place of the statement that the envelope
was sealed and deposited in the mail with postage fully prepaid.
Proof of electronic service may be in electronic form and may be filed electronically with the court
[Cal. Rules of Ct., Rule 2.251(g)(2)]. Proof of service of the moving papers must be filed at least five
court days before the hearing [Cal. Rules of Ct., Rule 2.251(g)(3); see Cal. Rules of Ct., Rule 3.1300
(c) (proof of service of moving papers must be filed no later than five court days before time of
hearing)]. The party filing the proof of electronic service must maintain the printed form of the
document bearing the declarant's original signature and must make the document available for
inspection and copying on the request of the court or any party to the action or proceeding in which it
is filed, in the manner provided in Cal. Rules of Ct., Rule 2.257(a) [Cal. Rules of Ct., Rule 2.251(g)
(4)].
The court may serve electronically any notice, order, judgment, or other document prepared by the
court in the same manner as parties may serve documents by electronic service [Cal. Rules of Ct., Rule
2.251(h)].
[3] Use of Technology in Certain Cases
In certain cases under Code Civ. Proc. ß 2017.730(a) (cases designated as complex pursuant to
Section 19 of the Judicial Administration Standards, cases ordered to be coordinated pursuant to Code
Civ. Proc. ß 404 et seq., exceptional cases exempt from case disposition time goals pursuant to Gov.
Code ß 68600 et seq., or cases assigned to Plan 3 pursuant to Cal. Rules of Ct., Rule ß 2105(b)(3)),
the court may enter orders for the use of technology in conducting discovery. Technology includes
Page 190 of 593

such devices as telephone, e-mail, CD-ROM, Internet web sites, electronic documents, electronic
document depositories, Internet depositions and storage, videoconferencing, and other electronic
technology [Code Civ. Proc. ß 2017.710]. The technology service provider must be appointed by the
court under a contract approved by the court. Under Code Civ. Proc. ß 2017.730(c), the court must
find, or the parties must stipulate, that the procedures adopted in the order do all of the following:
Promote cost-effective and efficient discovery or related motions.
Do not impose or require undue expenditures of time or money.
Do not create an undue economic burden or hardship on any person.
Promote open competition among vendors and providers of services in order to facilitate
the highest quality service at the lowest reasonable cost to the litigants.
Do not require parties or counsel to purchase exceptional or unnecessary services,

hardware, or software.
The court may prescribe procedures relating to the use of electronic technology in conducting
discovery, including orders for the service of requests for discovery and responses, service and
presentation of motions, production, storage, and access to information in electronic form, and the
conduct of discovery in electronic media [Code Civ. Proc. ß 2017.730(d)].
The court must appoint any technology provider agreed upon by the parties, and must approve the
contract agreed upon by the parties and the service provider. If the parties do not agree on a provider,
each party must submit to the court up to three nominees together with a contract acceptable to the
nominee and the court will make an appointment from among the nominees. If there are no nominees,
the court will appoint the provider. The court may condition its appointment on the acceptance of
modifications in the terms of the contract. Pursuant to noticed motion at any time and upon a showing
of good cause, the court may order the removal of the service provider or vacate any agreement
between the parties and the service provider, or both, effective as of the date of the order. The
continued service of the service provider is subject to review periodically, as agreed by the parties and
the service provider, or annually if they do not agree. Any disputes involving the contract or the
duties, rights, and obligations of the parties or service providers may be determined on noticed motion
in the action [Code Civ. Proc. ß 2017.740(b)].
The rights and duties of the parties must not be diminished by the use of technology [Code Civ. Proc.
ß 2017.720(a)], and allowing its use has no bearing on the appointment or requirement for a
stenographic court reporter [Code Civ. Proc. ß 2017.720(b), (c); see Code Civ. Proc. ß 2025.330(b)].
Page 191 of 593

For a detailed discussion of electronic discovery (e-discovery), see Ch. 195A, Discovery: Discovery
of Electronically Stored Evidence (E-Discovery).
Legal Topics:
Civil ProcedureDiscoveryMethodsGeneral OverviewCivil ProcedureDiscoveryProtective OrdersCivil
ProcedureDiscoveryUndue Burdens
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66 of 184 DOCUMENTS

ß 190.33 General Provisions for Regulating Discovery Proceedings
[1] Requirement of Good-Faith Effort at Informal Resolution of Disputes
The Discovery Act is designed so that civil discovery will be self-executing, that is, that it will be
conducted as much as possible by the parties without assistance from the courts. A party may always
obtain the trial court's assistance or intervention by making a motion for a discovery order, but the
Discovery Act utilizes two general devices to discourage unmerited recourse to motion proceedings.
The first device requires that a moving party generally show that he or she has initiated a motion
proceeding only after making an attempt to resolve the discovery dispute informally. In most instances
in which the Civil Discovery Act provides for a particular motion for a discovery order, particularly
those which compel or limit discovery, the motion must be accompanied by a declaration stating facts
that show a "reasonable and good faith attempt at an informal resolution of each issue presented by the
motion" as required by Code Civ. Proc. ß 2016.040 [see Code Civ. Proc. ßß 2017.020(a), 2019.030
(b) (protective orders generally), 2024.050(a) (motion to hear discovery motion closer to trial date or
to reopen discovery), 2025.260(a), 2025.410(c), 2025.420(a), 2025.450(b)(2), 2025.480(b),
2025.520(g) (depositions), 2028.040(b) (deposition by written questions), 2030.090(a), 2030.300(b),
2030.310(a) (interrogatories), 2031.060(a), 2031.310(b)(2) (inspection, copying, testing, or sampling
of documents, tangible things, places, or electronically stored information), 2032.250(a), 2032.310(b),
2032.620(a), 2032.650(a) (physical or mental examinations), 2033.080(a), 2033.290(b) (requests for
admission), 2034.250(a), 2034.470(b), 2034.610(c), 2034.710(c) (exchange of expert witness lists)].
In the case of a party who is served a notice of deposition and fails to attend the deposition or produce
the documents or things described in the deposition notice without serving a valid objection, a motion
to compel must be accompanied by a declaration showing a reasonable and good faith attempt at an
informal resolution or by a declaration stating that the petitioner contacted the deponent to inquire
Page 193 of 593

about the nonappearance [Code Civ. Proc. ß 2025.450(b)(2)]. One court has held that implicit in the
requirement of former Code Civ. Proc. ß 2025(j)(3)(B) (now see Code Civ. Proc. ß 2025.450(b)(2))
that counsel contact the deponent about a nonappearance is the requirement that counsel listen to the
reasons offered and make a good faith attempt to resolve the issue. Accordingly, either declaration
submitted with a motion of compel under Code Civ. Proc. ß 2025.450(b)(2) must show a reasonable
and good faith attempt to resolve each issue presented, including those relating to the nonappearance
[ Blago Leko v. Cornerstone Home Inspection (2001) 86 Cal. App. 4th 1109, 1124, 103 Cal. Rptr.
2d 858 (attorney sanctioned under former Code Civ. Proc. ß 2023(a)(3), (9) (now see Code Civ.
Proc. ß 2023.010(c), (i)) for improperly filing motion to compel attendance when attorney completely
disregarded his obligation to attempt to informally resolve discovery issue)].
For discussion of monetary sanctions for failure to attempt an informal resolution as a misuse of the
discovery process, pursuant to Code Civ. Proc. ß 2023.020, see Ch. 192, Discovery: Sanctions for
Discovery Misuse, ßß 192.13[2], 192.15[2].
[2] Discovery Sanctions
Of the two general devices designed to make discovery proceedings self-executing [see [1], above],
the second is the provision for monetary sanctions in most motion proceedings. The trial court in a
discovery motion proceeding generally is required to impose such sanctions against the losing party,
that is, the party who unsuccessfully brought or opposed the motion. The court may decline to impose
the sanction only if it finds explicitly that the party subject to the sanction acted with substantial
justification or that other circumstances exist that would make imposition of the sanction unjust [see
Code Civ. Proc. ßß 2017.020(b), 2019.030(c) (protective orders generally), 2024.050(c) (motion to
hear discovery motion closer to trial date or to reopen discovery), 2025.260(d), 2025.410(d),
2025.420(d), 2025.450(c), 2025.420(d), 2025.480(f), 2025.520(h) (depositions), 2028.040(c),
2028.050(c) (deposition by written questions), 2030.090(d), 2030.300(d), 2030.310(d) (interrogato-
ries), 2031.060(h), (i), 2031.300(c), (d), 2031.310(h), (j), 2031.320(b), (d) (inspection, copying,
testing, sampling of documents, tangible things, places, or electronically stored information),
2032.250(b), 2032.620(b), 2032.650(b) (physical or mental examinations), 2033.080(d), 2033.290(d)
(requests for admission), 2034.250(d)), 2034.470(g), 2034.630, 2034.730 (exchange of expert
witness lists)].
For further discussion of these provisions for monetary sanctions for unsuccessful prosecution of or
opposition to a discovery motion, see Ch. 192, Discovery: Sanctions for Discovery Misuse, ß 192.15
[2].
Legal Topics:
Civil ProcedureDiscoveryMethodsGeneral OverviewCivil ProcedureDiscoveryMisconductCivil
ProcedureDiscoveryMotions to Compel
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ß 190.34 Protective Orders in Context of Particular Discovery Proceedings
In addition to the protective orders available under the general provisions of Code Civ. Proc. ßß
2017.020 and 2019.030 [see ßß 190.30, 190.31], the code sections governing each particular
discovery method also provide for a motion for a protective order within the context of that particular
method. These generally provide that the court, for good cause shown, may make any order that
justice requires to protect any party or person from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense. They also enumerate specific orders that are included
within, but which do not exclusively limit, the court's power to fashion an order as justice requires
[see Code Civ. Proc. ßß 2025.420, 2025.470, 2028.070 (depositions), 2030.090(b) (interrogatories),
2031.060(b) (inspection, copying, testing, sampling of documents, tangible things, places, or
electronically stored information), 2033.080(b) (requests for admission), 2034.250(b) (exchange of
expert witness information); see also Code Civ. Proc. ß 2032.510 (protective order during physical or
mental examination)]. For further discussion of these provisions, see the chapter discussing the
pertinent discovery method [see Ch. 193, Discovery: Depositions , through Ch. 198, Discovery:
Exchange of Expert Witness Information ].
Code Civ. Proc. ß 2018.010 et seq., governing attorneys' work product protection, also authorizes a
protective order on good cause shown to ensure the confidentiality of an attorney's work product that
is relevant to issues of breach of duty by the attorney in a disciplinary hearing [see Code Civ. Proc. ß
2018.070(b); see also discussion in ß 190.11[3][c]].
Legal Topics:
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Civil ProcedureDiscoveryProtective Orders
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68 of 184 DOCUMENTS

ß 190.35 Regulating Discovery by Stipulation
Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions
may be taken before any person, at any time or place, on any notice, and in any manner, and when so
taken may be used like other depositions; and (2) modify the procedures provided under Code Civ.
Proc. ß 2016.010 et seq. for other methods of discovery [Code Civ. Proc. ß 2016.030].
Stipulations relating to discovery, and notices of these stipulations, are not to be filed with the court
unless offered as relevant to the determination of an issue in a law and motion proceeding or other
hearing, or ordered filed for good cause [Cal. Rules of Ct., Rule 3.250(a)(7), (18); see also Cal. Rules
of Ct., Rule 3.250(b) (retention of originals)].
For discussion and forms relating to stipulations generally, see Ch. 533, Stipulations .
Legal Topics:
Civil ProcedureDiscoveryMethodsStipulations
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ß 190.36 Limiting Disclosure of Discovered Matter for Nonlitigation Purposes
A litigant's right of freedom of speech under U.S. Const., amend. I, does not include an absolute right
to use information obtained by discovery for nonlitigation purposes. A protective order does not
violate U.S. Const., amend. I, if it prohibits the dissemination, publication, or use of discovered
information for any purpose other than the litigation at hand, when that order has been entered on a
showing of good cause, is limited to the context of pretrial discovery, and does not restrict the
dissemination of the information if gained from other sources [ Seattle Times Co. v. Rhinehart
(1984) 467 U.S. 20, 36-37, 104 S. Ct. 2199, 81 L. Ed. 2d 17 (upholding order issued in libel action
that prohibited defendant publisher from making use of specified information obtained by court
ordered discovery); see also Coalition Against Police Abuse v. Superior Court (1985) 170 Cal. App.
3d 888, 896-906, 216 Cal. Rptr. 614 (relying on Seattle Times in upholding order issued after
litigation requiring return of documents not already disseminated that had been discovered subject to
protective orders)].
Legal Topics:
Civil ProcedureDiscoveryGeneral OverviewCivil ProcedureDiscoveryProtective Orders
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70 of 184 DOCUMENTS

ß 190.37 Procedure to Seal Confidential Records
Court records of a civil proceeding generally are available to the public unless otherwise provided by
law [see NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal. 4th 1178, 1212,
1217-1218, 86 Cal. Rptr. 2d 778, 980 P.2d 337] . Cal. Rules of Ct., Rules 2.550-2.551 establish a
procedure for obtaining a court order to seal otherwise public court records when there is an
overriding interest that overcomes the general right of public access to court records [see Cal. Rules of
Ct., Rule 2.550(d)]. "Overriding interests" that support such an order may include privileges, trade
secrets, contractual nondisclosure obligations, privacy interests, and other similar protections against
the disclosure of confidential material [see NBC Subsidiary (KNBC-TV), Inc. v. Superior Court
(1999) 20 Cal. 4th 1178, 1222 n.46, 86 Cal. Rptr. 2d 778, 980 P.2d 337 ; see, e.g., Huffy Corp. v.
Superior Court (2003) 112 Cal. App. 4th 97, 105-111, 4 Cal. Rptr. 3d 823 (documents in insurance
coverage dispute, including settlement agreement with confidentiality clause which contained
exception for court-ordered disclosure; papers revealing sources of payments to settle claims;
documents containing admissions that defendant may have violated pollution laws; papers revealing
identity of witnesses to possible violations of laws; and documents disclosing identity of other entities
that may have violated laws, could not remain sealed, absent Rule 243.1 showing of prejudice to an
overriding interest); see also Advisory Committee Comment to Cal. Rules of Ct., Rule 2.550].
The procedure for sealing court records under Cal. Rules of Ct., Rules 2.550-2.551, does not apply to
discovery motions, nor to records filed or lodged in court in connection with discovery motions or
proceedings [Cal. Rules of Ct., Rule 2.550(a)(3)]. Thus, the presumed right of public access discussed
in NBC Subsidiary, discussed above, and Cal. Rules of Ct., Rules 2.550-2.551, did not apply to
discovery materials designated confidential under a protective order and later filed with the court and
not used at trial or submitted as a basis for adjudication [ Mercury Interactive Corp. v. Klein (2007)
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158 Cal. App. 4th 60, 103-108, 70 Cal. Rptr. 3d 88 (stressing that "the issue we decide here is a
rather narrow one" and acknowledging that "there may exist instances in which an attachment to a
complaint to which a demurrer is interposed may constitute a document submitted as a basis for
adjudication and thereby fall within the presumption of public access," such as "a challenged
complaint in which a contract is attached and in which the demurrer concerns the viability of the
contract"; remanding case to allow defendants to challenge plaintiff's confidentiality designations by
following procedures in stipulated protective order)]. Accordingly, the procedures under the
Discovery Act for obtaining protective orders remain the chief means of protecting against public
disclosure of sensitive or confidential materials during pretrial discovery.
The procedure for sealing records under Cal. Rules of Ct., Rules 2.550-2.551, does apply to discovery
materials, however, once a party seeks to use them at trial or otherwise submit them to the court as a
basis for adjudication [Cal. Rules of Ct., Rule 2.550(a)(3); see also Advisory Committee Comment to
Cal. Rules of Ct., Rule 2.550, citing NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20
Cal. 4th 1178, 1208-1209 n.25, 86 Cal. Rptr. 2d 778, 980 P.2d 337] . For detailed discussion and
forms relating to the procedure for sealing records under Cal. Rules of Ct., Rules 2.550-2.551, see Ch.
551, Trial .
Legal Topics:
Civil ProcedureDiscoveryGeneral OverviewCivil ProcedureDiscoveryProtective OrdersGovern-
mentsCourtsCourt RecordsTrade Secrets LawCivil ActionsDiscovery
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ß 190.38 Stay of Discovery
[1] Pending Determination of Validity of Cause of Action
If a potential plaintiff is unable to state a viable cause of action on the basis of the facts already
available to him or her, that individual will be unable to employ any of the discovery methods in order
to ascertain the facts essential to state a cause of action [see generally Terminals Equipment Co. v.
City and County of San Francisco (1990) 221 Cal. App. 3d 234, 247, 270 Cal. Rptr. 329] . This is in
keeping with the general purpose of discovery, that of clarifying the underlying facts and the
contentions of the parties in litigation [see discussion in ß 190.12]. Indeed, most of the methods of
discovery link the timing of permissible discovery to the service of summons on, or appearance by,
the party from whom discovery is sought [see, e.g., Code Civ. Proc. ßß 2025.210 (oral deposition),
2030.020 (written interrogatories), 2031.020 (inspection, copying, testing, or sampling), 2032.220(b)
(physical examination), 2033.020 (request for admission)]. Thus, unless and until a plaintiff files a
viable complaint stating at least one triable cause of action, permitting discovery of the purported
defendant would only be an unnecessary and burdensome expense to that individual [see Terminals
Equipment Co. v. City and County of San Francisco (1990) 221 Cal. App. 3d 234, 247, 270 Cal.
Rptr. 329] .
Frequently, however, discovery is sought after the validity of the cause of action alleged in the
plaintiff's complaint has been challenged, and before a determination of validity has been made. In
such a case, a stay of discovery is an appropriate method of preserving the rights of both parties. For
example, in an inverse condemnation action, during the course of discovery, the plaintiffs filed a far-
reaching demand for inspection of documents. After the defendant city responded, the plaintiffs
sought to have the city produce additional materials, and filed a motion to compel production of those
documents. The city refused to produce them, asserting that they were confidential documents
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protected by Evid. Code ß 1040, and demurred on the ground that the complaint failed to state a cause
of action. The trial court stayed the plaintiffs' motion to compel production, pending resolution of the
demurrer, which was eventually sustained with leave to amend. After a hearing on the plaintiff's
motion to compel production, the court ordered that the discovery stay remain in effect until the
plaintiffs filed an amended complaint that was not subject to demurrer. The court of appeal upheld the
continuance of the stay. It said that if the plaintiffs were unable to state a viable cause of action on the
basis of the facts already available, nothing in the disputed documents could do anything to change
that. Once it is recognized that a complaint shows that a plaintiff has no claim, all concerned should be
spared the expense of further proceedings [ Terminals Equipment Co. v. City and County of San
Francisco (1990) 221 Cal. App. 3d 234, 247, 270 Cal. Rptr. 329 (plaintiffs elected to stipulate to
judgment and appealed that judgment to the court of appeal)].
The party resisting discovery may choose to file an application for a stay either as an initial response
to the discovery request, or in response to a motion to compel discovery. In either case, it is advisable
to make a good faith attempt at some sort of dispute resolution with the other party in order to avoid
sanctions [see Code Civ. Proc. ß 2023.020, discussed in Ch. 192, Discovery: Sanctions for Discovery
Misuse, ßß 192.13[2], 192.15[2]; see also ß 190.33[1]]. When the discovery is sought through the
use of an oral deposition, and the notice of deposition is not in statutory compliance, there is specific
authority for imposing a stay on the taking of that deposition and the quashing of that deposition
notice [see Code Civ. Proc. ß 2025.410, discussed in Ch. 193, Discovery: Depositions ].
As an alternative to seeking a stay of discovery, the party resisting discovery may seek a protective
order that limits the scope or the extent of discovery [see Code Civ. Proc. ßß 2017.020, 2019.030; see
discussion in ßß 190.30, 190.31].
[2] Pending Parallel Criminal Action
In Avant! Corp. v. Superior Court (2000) 79 Cal. App. 4th 876, 94 Cal. Rptr. 2d 505 , one court of
appeal considered, as an issue of first impression in California, whether a corporation that is a
defendant in related criminal and civil actions may obtain stay of discovery in a civil action while the
criminal action is pending. In this case, petitioner corporation sought a writ of mandate to vacate an
order denying its motion to stay civil proceedings or to stay discovery in respondent's suit for
defamation, intentional infliction of emotional distress, and other torts, pending the disposition of a
related criminal case [ Avant! Corp. v. Superior Court (2000) 79 Cal. App. 4th 876, 878-879, 94
Cal. Rptr. 2d 505] . Petitioner argued that the Fifth Amendment privilege against self-incrimination of
the corporation's employees compelled a stay. The court denied the writ of mandate, holding that the
trial court did not abuse its discretion in denying the stay because a corporation has no right against
self-incrimination and the employees' Fifth Amendment rights were protected by the trial court's
discovery order, which provided that the corporation's officers, employees, and agents were required
to provide only non-privileged information in their custody or control [ Avant! Corp. v. Superior
The court articulated the standard to be applied in deciding whether to stay civil proceedings until
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disposition of the criminal matter. In the discovery context, the trial court's decisions on these matters
are reviewed under the abuse of discretion standard, not on Fifth Amendment grounds [ Avant! Corp.
v. Superior Court (2000) 79 Cal. App. 4th 876, 886, 94 Cal. Rptr. 2d 505] . The court explained that
the weight of authority holds that while the implication of the right against self-incrimination must be
given serious consideration, staying a civil discovery process to await the outcome of a related
criminal case does not implicate constitutional issues, even when the defendant raising the question is
an individual defendant [ Avant! Corp. v. Superior Court (2000) 79 Cal. App. 4th 876, 882-886, 94
Cal. Rptr. 2d 505 (citing cases)]. A court, however, has discretion to stay civil proceedings, to
postpone discovery, or to impose protective orders and conditions when the interests of justice seem
to require such action. In making that decision, the court should consider five factors, including the
plaintiff's interest in proceeding expeditiously with the litigation, the burden on the defendants, the
court's convenience in managing its cases, the interests of nonparties to the civil litigation, and the
interest of the public in the pending civil and criminal litigation [ Avant! Corp. v. Superior Court
In another case, plaintiffs sued for tort damages based on an alleged beating by store security guards
and sought to depose defendant guards. Fearing criminal prosecution, these defendants sought a stay
until the criminal statute of limitations expired. The stay was denied, in that it would run counter to the
courts' interest in expeditious and efficient resolution of cases, and expose both sides of the litigation
to the risk of diminished memory and lost records. Instead, during the defendants' depositions, they
could claim their privilege against self-incrimination and the trial court could then fashion whatever
protective order it deemed reasonable to balance the interests of the parties and the judicial system
[ Fuller v. Superior Court (2001) 87 Cal. App. 4th 299, 302, 309-310, 104 Cal. Rptr. 2d 525] .
Legal Topics:
Civil ProcedureDiscoveryGeneral OverviewCivil ProcedureDiscoveryPrivileged MattersGeneral
OverviewCivil ProcedureDiscoveryProtective OrdersEvidencePrivilegesSelf-Incrimination Privi-
legeScope
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ß 190.39 Delegation of Discovery Matters by Discovery Referee
[1] Referee Appointment and Challenge Procedures
A trial court, on a determination that it is necessary, may appoint a referee in any pending action in
order to hear and determine any and all discovery motions and disputes relevant to discovery in the
action and to report findings and make a recommendation on them [Code Civ. Proc. ß 639(a)(5); see
Taggares v. Superior Court (1998) 62 Cal. App. 4th 94, 104, 72 Cal. Rptr. 2d 387 (emphasizing use
of word "necessary" in former Code Civ. Proc. ß 639(e) (see now Code Civ. Proc. ß 639(a)(5))]. The
court may appoint a referee on the written motion of any party, or on its own motion, when the parties
do not consent to it [Code Civ. Proc. ß 639(a); see, e.g., Sauer v. Superior Court (1987) 195 Cal.
App. 3d 213, 216, 225-226, 240 Cal. Rptr. 489] .
When a referee is appointed under Code Civ. Proc. ß 639(a)(5), the order must indicate whether the
referee is being appointed for all discovery purposes in the action [Code Civ. Proc. ß 639(c); see also
Code Civ. Proc. ß 639(d) (required contents of written order)].
The court may appoint a referee even in the absence of a current discovery dispute. Such an appoint-
ment may be very helpful because complex cases will invariably involve complex discovery disputes,
and unless managed, a case with many separately represented parties has the potential for burdensome
and duplicative discovery. Even in the unlikely absence of disputes, the referee can work with the
attorneys in developing a discovery plan and scheduling discovery in the most efficient, rational, and
least oppressive manner [ Lu v. Superior Court (1997) 55 Cal. App. 4th 1264, 1269-1270, 64 Cal.
Rptr. 2d 561] .
A peremptory challenge under Code Civ. Proc. ß 170.6 may be made against a discovery referee
Page 204 of 593

[ Autoland, Inc. v. Superior Court (1988) 205 Cal. App. 3d 857, 859-862, 252 Cal. Rptr. 662] . If a
discovery referee has been appointed for all discovery purposes, any motion to disqualify the referee
by peremptory challenge under Code Civ. Proc. ß 170.6 must be made to the court by a party either
(1) within 10 days after notice of the appointment or (2) within 10 days after the party's appearance if
the party had not yet appeared in the action at the time of notice of appointment [Code Civ. Proc. ß
639(b)(A)]. If the discovery referee has been assigned only for limited discovery purposes and the
referee assigned is known at least 10 days before the date set for hearing, a motion to disqualify the
referee by peremptory challenge under Code Civ. Proc. ß 170.6 must be made at least five days before
the date set for hearing [Code Civ. Proc. ß 639(b)(B)].
For forms that may be adapted for use in obtaining the appointment of a referee, see Ch. 38,
Reference . For discussion and forms relating to disqualification under Code Civ. Proc. ß 170.6
generally, see Ch. 317, Judges .
[2] Trial Court Acceptance of Referee's Report
A trial court may accept a discovery referee's report without holding a hearing. Although the report is
advisory rather than determinative, and the trial court must independently consider the referee's
findings before acting on his or her recommendations, the trial court is not required to hold a hearing
as a matter of law. If the court's order demonstrates a considered and careful review, not only of the
referee's report, but also of the transcript of the proceedings before the referee, and of the objections,
replies, and other papers filed after the referee's report was submitted, the court fulfills its judicial
responsibilities [ Marathon Nat. Bank v. Superior Court (1993) 19 Cal. App. 4th 1256, 1260-1261,
24 Cal. Rptr. 2d 40] .
[3] Allocating Costs of Reference
The prevailing party may not recover the costs of a discovery referee as a matter of right [ Baker-
Hoey v. Lockheed Martin Corp. (2003) 111 Cal. App. 4th 592, 594, 3 Cal. Rptr. 3d 593 (rejecting
defendant's argument that it was entitled to recover costs of discovery referee as expert witness fees
under Code Civ. Proc. ß 1033.5(a)(8))].
The trial court may order the party who requests the referee to pay the referee's fees [ Marathon Nat.
Bank v. Superior Court (1993) 19 Cal. App. 4th 1256, 1261-1262, 24 Cal. Rptr. 2d 40] . However, it
is the trial court's responsibility to form a fair means of discovery dispute resolution that considers the
parties' financial status. If appointment of a discovery referee is inappropriate because of the costs that
would be incurred by the parties, the trial court should consider alternatives, including a pro bono
referee, a retired judge of the superior court sitting by assignment, or retention of the matter by the trial
court [ Solorzano v. Superior Court (1993) 18 Cal. App. 4th 603, 616, 22 Cal. Rptr. 2d 401 (abuse
of discretion to order indigent plaintiffs to pay half of referee's fee)].
It is an abuse of discretion for a trial court to order discovery disputes to be heard by a private referee,
with the parties sharing the costs equally, without considering the economic impact on the parties. If
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the issue of economic hardship is raised by a party before the referee commences work, the referring
court must determine a fair and reasonable apportionment of the reference costs before issuing its
order [ McDonald v. Superior Court (1994) 22 Cal. App. 4th 364, 368-370, 27 Cal. Rptr. 2d 310
(plaintiff's declaration was competent evidence of her ability to pay referee's fees)]. "Fair and
reasonable" does not necessarily mean, however, that the court should impose the entire cost of
reference on an objecting party that is financially able to pay because the other party is indigent
[ Taggares v. Superior Court (1998) 62 Cal. App. 4th 94, 104, 72 Cal. Rptr. 2d 387] .
In determining whether a party has established an inability to pay the referee's fees [see Code Civ.
Proc. ß 639(d)(6)(A) (requiring that court to make this determination)], the court must consider only
the ability of the party, not the party's counsel, to pay these fees. If a party is proceeding in forma
pauperis, the party must be deemed by the court to have an economic inability to pay the referee's
fees. However, a determination of economic inability to pay the fees is not limited to parties that
proceed in forma pauperis. For those parties who are not proceeding in forma pauperis, the court, in
determining whether a party has established an inability to pay the fees, must consider, among other
things, the estimated cost of the referral and the impact of the proposed fees on the party's ability to
proceed with the litigation [Code Civ. Proc. ß 639(d)(6)(B)]. For discussion and forms relating
generally to proceedings in forma pauperis, see Ch. 174, Costs and Attorney's Fees .
The allocation of the referee's fees must be made by the court and not by the referee [ McDonald v.
Superior Court (1994) 22 Cal. App. 4th 364, 370, 27 Cal. Rptr. 2d 310] .
One court, in dictum, has suggested that, in a proper case, the burden of paying referee's fees may be
placed on an erring attorney under the sanction provisions of the Discovery Act [see Andrews v.
Superior Court (2000) 82 Cal. App. 4th 779, 782-783, 98 Cal. Rptr. 2d 426 (holding, however, that
trial court erred in imposing such sanctions on attorney under Code Civ. Proc. ß 128 rather than under
relevant discovery statutes)].
Legal Topics:
Civil ProcedureJudicial OfficersRefereesAppointmentsCivil ProcedureJudicial OfficersRefer-
encesCivil ProcedureDiscoveryGeneral OverviewCivil ProcedureRemediesCosts & Attorney
FeesCostsGeneral Overview
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[Reserved]
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74 of 184 DOCUMENTS

D. General Timing Requirements
ß 190.50 Requirements for Completing Discovery Before Trial
[1] General Requirements
Any party is entitled as a matter of right to complete discovery proceedings on or before the 30th day,
and to have motions concerning discovery heard on or before the 15th day, before the date initially set
for the trial of the action, except as otherwise provided in Code Civ. Proc. ß 2024.010 et seq. [Code
Civ. Proc. ß 2024.020(a)]. When either of these deadline dates falls on a Saturday, Sunday, or
holiday, the deadline date in that instance becomes the next court day closer to the trial date [Code Civ.
Proc. ß 2016.060; see also Code Civ. Proc. ß 10 (designated holidays)].
A given instance of discovery is considered completed on the day a response is due or on the day a
deposition begins. Except as provided in Code Civ. Proc. ß 2024.050 (discussed in ß 190.51), a
continuance or postponement of the trial date does not operate to reopen discovery proceedings [Code
Civ. Proc. ß 2024.020(b)].
Any party is entitled as a matter of right to complete discovery proceedings pertaining to a witness
identified under Code Civ. Proc. ß 2034.010 et seq. on or before the 15th day, and to have motions
concerning that discovery heard on or before the 10th day, before the date initially set for the trial of
the action [Code Civ. Proc. ß 2024.030]. If either of those days falls on a Saturday, Sunday, or
holiday, the last day becomes the next court day closer to the trial date [Code Civ. Proc. ß 2016.060;
see Code Civ. Proc. ß 10 (designated holidays); see also Ch. 198, Discovery: Exchange of Expert
Witness Information ].
The deadlines for completing discovery proceedings and motions are determined by reference to the
"date initially set for the trial of the action" [Code Civ. Proc. ß 2024.020(a)]. When a new trial or
Page 208 of 593

retrial has been ordered, this refers to date initially set for the new trial or retrial, and not to the date
initially set for the original trial. Thus, in the case of mistrial, an order granting a new trial, or remand
for new trial after reversal of judgment on appeal, the last day for completing discovery is 15 days
before the date initially set for the new trial [ Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.
4th 245, 247-249, 92 Cal. Rptr. 2d 70, 991 P.2d 156] .
[2] Requirements Applicable to Judicial Arbitration Proceedings
The time limit on completing discovery in an action to be arbitrated under Code Civ. Proc. ß 1141.10
et seq. is subject to Judicial Council Rule [Code Civ. Proc. ß 2024.040(a); see Cal. Rules of Ct., Rule
3.822]. When all arbitration proceedings have been completely vacated by the striking of the at-issue
memorandum, discovery is permissible following the vacation. The timing of that discovery is then
limited only by any new dates set either for trial or arbitration [ Roe v. Superior Court (1990) 224
Cal. App. 3d 642, 645-647, 273 Cal. Rptr. 745] . After an award in a case ordered to judicial
arbitration, completion of discovery is limited by Code Civ. Proc. ß 1141.24 [Code Civ. Proc. ß
2024.040(a)]. For further discussion, see ß 190.11[3][b].
[3] Inapplicability to Proceedings for Eminent Domain or Possession of Real Property
The time limits for completing discovery under Code Civ. Proc. ß 2024.010 et seq. do not apply to
summary proceedings for obtaining possession of real property governed by Code Civ. Proc. ß 1159
et seq., in which discovery must be completed on or before the fifth day before the date set for trial
except as provided in Code Civ. Proc. ßß 2024.050 and 2024.060; or eminent domain proceedings
governed by Code Civ. Proc. ß 1230.010 et seq. [Code Civ. Proc. ß 2024.040(b)]. For discussion
relating to these proceedings generally see respectively Ch. 333, Landlord and Tenant: Eviction
Actions , and Ch. 247, Eminent Domain .
Legal Topics:
Civil ProcedureDiscoveryGeneral OverviewCivil ProcedureAlternative Dispute ResolutionArbitra-
tionsGeneral OverviewCivil ProcedurePretrial MattersConferencesCase ManagementReal Property
LawEminent Domain ProceedingsProcedureReal Property LawLandlord & TenantLandlord's
Remedies & RightsEviction ActionsForcible Entry & Detainer
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75 of 184 DOCUMENTS

ß 190.51 Extending, Shortening or Modifying Time Requirements
[1] Motion Proceeding
On motion of any party, the court may grant leave to complete discovery proceedings, or to have a
motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new
trial date has been set. The motion must be accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each issue presented by the motion
[Code Civ. Proc. ß 2024.050(a); see Pelton-Shepherd Industries, Inc. v. Delta Packaging Products,
Inc. (2008) 165 Cal. App. 4th 1568, 1587, 82 Cal. Rptr. 3d 64 (trial court erred by granting
defendant's motion to compel discovery filed after discovery motion cutoff date, because defendant
failed to file motion to reopen discovery under Code Civ. Proc. ß 2024.050 before or simultaneously
with filing its motion to compel)].
In exercising its discretion to grant or to deny the motion, the court must take into consideration any
relevant matter, including, but not limited to, the following: [Code Civ. Proc. ß 2024.050(b)]:
The necessity and the reasons for the discovery;
The diligence or lack of diligence of the moving party, and the reasons that the discovery
was not completed or that the discovery motion was not heard earlier;
Any likelihood that granting the motion will prevent the case from going to trial on the
date set, or otherwise interfere with the trial calendar, or result in prejudice to any other
party; and
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The length of time that has elapsed between any date previously set, and the date
presently set, for the trial of the action; see Pelton-Shepherd Industries, Inc. v. Delta
Packaging Products, Inc. (2008) 165 Cal. App. 4th 1568, 1571, 1587-1588, 82 Cal.
Rptr. 3d 64 (trial court abused its discretion by granting defendant's motion to compel
discovery filed after discovery motion cutoff date, without requiring defendant to file
motion to reopen discovery under Code Civ. Proc. ß 2024.050; trial court should have
considered all relevant circumstances in determining whether to hear motion after cutoff
date, including plaintiff's reasons for seeking discovery, and its diligence or lack of
diligence)].
For example, death or serious illness of a trial attorney or a party should, under normal
circumstances, be considered good cause for granting the continuance of a trial date, as
well as good cause to reopen discovery after a trial date has been continued [ Hernandez
v. Superior Court (2004) 115 Cal. App. 4th 1242, 1247-1248, 9 Cal. Rptr. 3d 821 ; see
Cal. Stds. Jud. Admin., ß 9, Code Civ. Proc. ß 2024.050(b)].
any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or reopen
discovery, unless it finds that the one subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust [Code Civ. Proc. ß 2024.050(c)]. For
further discussion of these general provisions for monetary sanctions, see ß 190.33[2] and Ch. 192,
Discovery: Sanctions for Discovery Misuse, ßß 192.13[2], 192.15[2].
For a form for a motion for use in obtaining leave to extend the time completing discovery, or to
reopen discovery, see ß 190.90.
[2] Stipulation
The parties to the action may agree to extend the time for the completion of discovery proceedings or
for the hearing of motions concerning discovery, or to reopen discovery after a new date for trial of
the action has been set. The agreement may be informal, but it must be confirmed in a writing that
specifies the extended date, and must be consented to by any party affected by it. The agreement does
not under any circumstances require a court to grant a continuance or postponement of the trial of the
action [Code Civ. Proc. ß 2024.060]. For discussion and forms relating to stipulations generally, see
Ch. 533, Stipulations .
[3] Automatic Extension of Time
When the last day to perform or complete any act provided for in the California Civil Discovery Act
(Code Civ. Proc. ß 2016.010 et seq.), falls on a Saturday, Sunday, or holiday, the time limit is
extended until the next court day closer to the trial date that is not a Saturday, Sunday, or holiday
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[Code Civ. Proc. ß 2016.060; see Code Civ. Proc. ß 10 (definition of holiday)].
[4] Time Extensions When Service Is by Mail
The provisions of Code Civ. Proc. ß 1013(a) that relate to extensions of time when service is made by
mail apply to any discovery method or motion in Code Civ. Proc. ßß 2016.010-2036.010 et seq. [see
Code Civ. Proc. ß 2016.050]. Under Code Civ. Proc. ß 1013(a), any period of notice prescribed by
statute or court rule and any right or duty to do any act or make any response is extended by five
calendar days, upon service by mail, if the place of address and the place of mailing is in California,
10 calendar days if either the place of mailing or the place of address is outside California but within
the United States, and 20 calendar days if either the place of mailing or the place of address is outside
the United States. This extension applies in the absence of a specific exception provided for by any
statute or court rule [Code Civ. Proc. ß 1013(a)]. The period is extended two court days if service is
by Express Mail or by fax [Code Civ. Proc. ß 1013(c), (e)]. For further discussion of Code Civ. Proc.
ß 1013, see Ch. 518, Service of Summons and Papers .
Legal Topics:
Civil ProcedurePleading & PracticePleadingsTime LimitationsComputationCivil ProcedurePleading &
PracticePleadingsTime LimitationsExtensionsCivil ProcedureDiscoveryGeneral OverviewCivil
ProcedureDiscoveryDisclosuresSanctionsCivil ProcedureDiscoveryMethodsStipulations
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[Reserved]
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77 of 184 DOCUMENTS

For comprehensive discussion and forms relating to discovery under the California Civil Discovery
Act and related California law, see DeMeo, California Deposition and Discovery Practice (Matthew
Bender), and Hogan & Weber, California Civil Discovery (Matthew Bender)
For memoranda relating to discovery under the California Civil Discovery Act and related California
law, see California Points and Authorities, Ch. 80, Discovery: Scope, Regulation and Timing ,
through Ch. 89A, Discovery: Review of Discovery Orders (Matthew Bender)
For discussion of and forms relating to civil discovery, see Bender's Forms of Discovery, vols. 1-16
(Matthew Bender)
For detailed discussion, procedural checklists, practice tips, and forms covering all aspects of the
discovery of electronically stored information (e-discovery), see Matthew Bender(R) Practice Guide:
California E-Discovery and Evidence
Legal Topics:
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78 of 184 DOCUMENTS

Right to privacy. Cal. Const., art. I, ß 1
Immunity from contempt for press and media for refusal to disclose source or unpublished informa-
tion. Cal. Const., art. I, ß 2(b)
Legal Topics:
Civil ProcedureDiscoveryGeneral OverviewCivil ProcedureSanctionsContemptCivil ContemptEvi-
dencePrivilegesJournalist's PrivilegeGeneral Overview
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79 of 184 DOCUMENTS

[1] Discovery Act Provisions
Reference of discovery matters. Code Civ. Proc. ß 639
Scope of discovery. Code Civ. Proc. ß 2017.010 et seq.
Work product protection. Code Civ. Proc. ß 2018.010 et seq.
Methods of discovery. Code Civ. Proc. ß 2019.010 et seq.
Stipulation modifying procedures. Code Civ. Proc. ß 2016.030
Sanctions. Code Civ. Proc. ß 2023.010 et seq.
Time limitations. Code Civ. Proc. ß 2024.010 et seq.
Depositions. Code Civ. Proc. ßß 2025.010 et seq.
Discovery subpoenas in actions pending outside California. Code Civ. Proc. ß 2029.100 et seq.
Interrogatories. Code Civ. Proc. ß 2030.010 et seq.
Inspection of documents, tangible things, land, and electronically stored information. Code Civ. Proc.
ß 2031.010 et seq.
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Physical, mental, and blood examinations. Code Civ. Proc. ß 2032.010 et seq.
Requests for admission of matters of fact or genuineness of documents. Code Civ. Proc. ß 2033.010
et seq.
Exchange of expert lists. Code Civ. Proc. ß 2034.010 et seq.
Perpetuation of testimony. Code Civ. Proc. ßß 2035.010 et seq., 2036.010 et seq.

[2] Other Statutes Relating to Civil Discovery
Records pertaining to treatment of persons who are impaired by alcohol or dangerous drugs and who
are subject to licensing governed by Departmentof Consumer Affairs are not subject to discovery.
Bus. & Prof. Code ß 156.1(b)
Records pertaining to treatment of pharmacist under Pharmacists Recovery Program (Bus. & Prof.
Code ß 4360 et seq.) are not discoverable. Bus. & Prof. Code ß 4372
Written offer or required communication of settlement offer are discoverable by either party in action
where existence or communication of offer is issue. Bus. & Prof. Code ß 6103.5(b)
Records of video recording sales or rental services are discoverable without written consent of
individual who is subject of records when disclosure is made pursuant to proper use of discovery.
Civ. Code ß 1799.3(b)(2)
Restrictions on application of Discovery Act in limited civil cases. Code Civ. Proc. ßß 94-95
Subpoenas. Code Civ. Proc. ß 1985 et seq.
Privileges. Evid. Code ßß 900-1170
Evidence of anything said or admission in course of mediation or mediation consultation is not

admissible or discoverable and disclosure of evidence cannot be compelled. Evid. Code ß 1119(a)
Records and proceedings of specified committees organized to evaluate quality of health care are not
discoverable. Evid. Code ßß 1157-1157.7
Special procedure to obtain inexpensive discovery of income and expenses prior to action to modify
order for child or spousal support. Fam. Code ß 3660 et seq.
Assets of public employer are not discoverable in action in which it is alleged that public employee is
Page 217 of 593

liable for punitive damages. Gov. Code ß 825(b)
Public Records Act. Gov. Code ß 6250 et seq.
Court is authorized to limit discovery by person initiating false claims action under Gov. Code ß
12652. Gov. Code ß 12652(h), (i)
Legal Topics:
Civil ProcedureDiscoveryDisclosuresSanctionsCivil ProcedureDiscoveryMethodsAdmissionsGener-
al OverviewCivil ProcedureDiscoveryMethodsOral DepositionsCivil ProcedureDiscoveryMethod-
sRequests for Production & InspectionCivil ProcedureDiscoveryMethodsStipulations
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80 of 184 DOCUMENTS

ß 190.63 California Rules of Court
Filing records under seal. Cal. Rules of Ct., Rules 2.550-2.551
Format of supplemental and further interrogatories and responses. Cal. Rules of Ct., Rule 3.1000
Format of discovery motions; separate statement required to accompany motion to compel. Cal. Rules
of Ct., Rule 3.1345
Service of motion papers on nonparty deponent. Cal. Rules of Ct., Rule 3.1346
Discovery motions in summary proceedings (unlawful detainer or other actions brought under Code
Civ. Proc. ß 1159 et seq.) involving possession of real property. Cal. Rules of Court, Rule 3.1347
Discovery sanctions; effect of lack of opposition to motion to compel. Cal. Rules of Ct., Rule 3.1348
Filing and retention of specified discovery papers. Cal. Rules of Ct., Rule 3.250(a)(1)-(19), (b)
Case management requirements, including those relating to e-discovery. Cal. Rules of Ct., Rule 3.724,
3.728
Legal Topics:
Civil ProcedureDiscoveryGeneral OverviewCivil ProcedureDiscoveryDisclosuresMotions to
Page 219 of 593

CompelCivil ProcedureDiscoveryDisclosuresSanctionsCriminal Law & ProcedureDiscovery &

InspectionDiscovery MisconductGeneral Overview
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81 of 184 DOCUMENTS

ß 190.64 Decisions
[1] General Principles of Discovery
In case of mistrial, order granting new trial, or remand for new trial after reversal of judgment on
appeal, last day for completing discovery is 15 days before date initially set for the new trial, not the
date initially set for the original trial. Fairmont Ins. Co. v. Superior Court (2000) 22 Cal. 4th 245,
247, 249, 92 Cal. Rptr. 2d 70, 991 P.2d 156 (construing language in former Code Civ. Proc. ß 2024
(a) (now see Code Civ. Proc. ß 2024.020(a)) referring to date action was "initially" set for trial in
calculating discovery cutoff)
Information is discoverable under discovery statutes if unprivileged and either relevant to subject
matter of action or reasonably calculated to reveal admissible evidence. Schnabel v. Superior Court
(1993) 5 Cal. 4th 704, 711, 21 Cal. Rptr. 2d 200, 854 P.2d 1117 ; Valley Bank of Nevada v.
Superior Court (1975) 15 Cal. 3d 652, 655-656, 125 Cal. Rptr. 553, 542 P.2d 977 (interpreting
statutes before enactment of Discovery Act of 1986)
California discovery statutes are liberally construed in favor of disclosure. Shepherd v. Superior
Court (1976) 17 Cal. 3d 107, 118, 130 Cal. Rptr. 257, 550 P.2d 161 ; Greyhound Corp. v.
Superior Court (1961) 56 Cal. 2d 355, 377-378, 15 Cal. Rptr. 90, 364 P.2d 266
Trial court erred reversibly by granting defendant's motion to compel discovery filed after discovery
motion cutoff date, without requiring defendant to file motion to reopen discovery under Code Civ.
Proc. ß 2024.050; trial court should have considered all relevant circumstances in determining
whether to hear motion after cutoff date, including plaintiff's reasons for seeking discovery, and its
diligence or lack of diligence. Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc.
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(2007) 165 Cal. App. 4th 1568, 1571, 1587-1588, 82 Cal. Rptr. 3d 64
As a special proceeding of a civil nature, civil commitment proceeding under SVPA requires
application of civil discovery rules. People v. Dixon (2007) 148 Cal. App. 4th 414, 443, 56 Cal.
Rptr. 3d 33
In SVPA proceedings, use of requests for admission under Code Civ. Proc. ß 2019.010(e) would
violate defendant's due process rights. Murillo v. Superior Court (2006) 143 Cal. App. 4th 730,
740, 49 Cal. Rptr. 3d 511
Trial court erroneously limited discovery on basis that documents might be inadmissible at trial or
because they were prepared or signed by plaintiff's attorney rather than plaintiff; accordingly,
discovery order had to be reevaluated based on whether requested information was reasonably
calculated to lead to admissible evidence, as provided in Code Civ. Proc. ß 2017.010. Volkswagen of
Am., Inc. v. Superior Court (2006) 139 Cal. App. 4th. 1481, 1497, 43 Cal. Rptr. 3d 723
Trial court did not abuse its discretion in permitting discovery to ascertain suitable class
representative, provided that letter to be sent to prospective class action plaintiffs protected their
privacy interests by stating that recipients were free to ignore information request and that neutral third
party sender would not disclose their identities. Best Buy Stores, L.P. v. Superior Court (2006) 137
Cal. App. 4th 772, 779, 40 Cal. Rptr. 3d 575
Appellant attorney's false assurances that he would produce documents after they were due, along
with other delaying conduct, estopped him from relying on discovery motion cut-off date specified in
former Code Civ. Proc. ß 2024(a) (now see Code Civ. Proc. ß 2024.020(a)). Sears, Roebuck and
Co. v. Nat'l Union Fire Ins. Co. (2005) 131 Cal. App. 4th 1342, 1351-1352, 32 Cal. Rptr. 3d 717
In determining whether to grant to party responding to summary judgment motion a continuance for
discovery under Code Civ. Proc. ß 437c(h), trial court may consider whether that party has been
diligent in completing discovery. Cooksey v. Alexakis (2004) 123 Cal. App. 4th 246, 257, 19 Cal.
Rptr. 3d 810
Death or serious illness of trial attorney or party should, under normal circumstances, be considered
good cause for granting the continuance of trial date, as well as good cause to reopen discovery after a
trial date has been continued. Hernandez v. Superior Court (2004) 115 Cal. App. 4th 1242,
1247-1248, 9 Cal. Rptr. 3d 821 (attorney suffered from pancreatic cancer during closing phases of
discovery and died five days after initial trial date)
Trial court has inherent power to issue injunction to prevent potential destruction of evidence pending
discovery, based on trial court's inherent power to make orders facilitating discovery and presentation
of evidence, when Discovery Act does not provide an adequate remedy at law. Dodge, Warren &
Peters Ins. Serv., Inc. v. Riley (2003) 105 Cal. App. 4th 1414, 1419-1420, 130 Cal. Rptr. 2d 385 (in
Page 222 of 593

action by employer against terminated employees for misappropriation of trade secrets, unfair
business practices, breach of fiduciary duty and breach of contract, trial court properly issued
preliminary injunction against defendants, requiring preservation of electronic evidence by prohibiting
defendants from destroying, deleting or secreting from discovery any of their electronic storage
media)
Discovery Act applies to competency hearings under Penal Code ß 1369; thus, trial court may order
criminal defendant to submit to mental examination by expert designated by prosecution in order to
evaluate mental competence under Pen. Code ß 1369, but order must comply with Discovery Act,
specifying time, place, manner, conditions, scope and nature of examination, and identity and specialty
of persons performing examination, in accordance with Code Civ. Proc. ß 2032.310(b). Baqleh v.
Superior Court (People) (2002) 100 Cal. App. 4th 478, 506, 122 Cal Rptr. 2d 673 (interpreting
former Code Civ. Proc. ß 2032(d))
Discovery Act applies to proceedings under Sexually Violent Predators Act (Welf. & Inst. Code ß
6600 et seq.), including right to notice depositions. People v. Superior Court (Cheek) (2001) 94 Cal.
App. 4th 980, 987-991
Discovery Act applies to Sexually Violent Predators Act (Welf. & Inst. Code ß 6600 et seq.); trial
court erred in concluding that civil discovery procedures do not apply to SVPA proceedings and in
denying petitioner's motion to compel exchange of expert witness information. Leake v. Superior
Court (2001) 87 Cal. App. 4th 675, 682, 104 Cal. Rptr. 2d 767 , overruled on other grounds,
People v. Yartz (2005) 37 Cal. 4th 529, 537, 36 Cal. Rptr. 3d 328, 123 P.3d 604
Implicit in requirement under Code Civ. Proc. ß 2025.450(b)(2) that counsel contact deponent to
inquire about nonappearance is requirement that counsel make a good faith effort to resolve the issue.
Blago Leko v. Cornerstone Home Inspection (2001) 86 Cal. App. 4th 1109, 1124, 103 Cal. Rptr. 2d
858 (interpreting former Code Civ. Proc. ß 2025(j)(3)(B))
Initial burden of determining whether potentially relevant documents exist should lie with the party
demanding the information. While it may be necessary to take a preliminary deposition of a records
custodian prior to issuing a subpena for documents or making a request under Code Civ. Proc. ß
2031.010 et seq., this procedure is preferable to serving unduly burdensome document requests
accompanied by lengthy lists of definitions and instructions. Calcor Space Facility, Inc. v. Superior
Court (1997) 53 Cal. App. 4th 216, 223-223, 61 Cal. Rptr. 2d 567 (interpreting former Code Civ.
Proc. ß 2031)
Pleading deficiencies does not affect right to discovery and defendant is obliged to comply with
discovery request despite defendant's pending demurrer to complaint. Mattco Forge, Inc. v. Arthur
Young & Co. (1990) 223 Cal. App. 3d 1429, 1436, 1436 n.3, 273 Cal. Rptr. 262
Discovery is not permitted in either small claims action itself or de novo proceeding on appeal.
Page 223 of 593

Bruno v. Superior Court (1990) 219 Cal. App. 3d 1359, 1362-1364, 269 Cal. Rptr. 142
Even though discovery remains to be done, granting of summary judgment is not premature unless
discovery is relevant to issues on summary judgment. Korens v. R.W. Zukin Corp. (1989) 212 Cal.
App. 3d 1054, 1061-1062, 261 Cal. Rptr. 137
Discovery statutes are designed to educate parties before trial about real value of their claims and
defenses, thereby encouraging settlements. Lehman v. Superior Court (1986) 179 Cal. App. 3d 558,
564, 224 Cal. Rptr. 572
When demurrer with leave to amend has been granted, plaintiff is entitled to reasonable discovery,
even to disclose facts essential to stating cause of action. Budget Fin. Plan v. Superior Court (1973)
34 Cal. App. 3d 794, 797-798, 110 Cal. Rptr. 302
In a legal malpractice action brought by real party in interest client against attorneys who represented
him in obtaining settlement from another law firm that had represented him in real estate deal, non-
party law firm's subpoenaed business records, including information about its financial condition and
liability insurance polices, were discoverable, subject to protective order, because information was
relevant and material to prove that better result should have been obtained for him by current attorney
defendants. Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Superior Court (2006) 137 Cal
App. 4th 579, 595, 40 Cal. Rptr. 3d 446
In suit alleging bad faith based on unpleaded theory that defendant insurer had pattern and practice of
discriminatory claims handling practice for auto theft claims filed by Hispanic, African-American,
and/or low income insured, plaintiff could discover theft claim files because they could lead to
information supporting plaintiff's discrimination theory, but she could do so only after obtaining
authorizations from all of the insureds whose claims files were to be produced. Permanent Gen.
Assurance Corp. v. Superior Court (2004) 122 Cal. App. 4th 1493, 1495, 19 Cal. Rptr. 3d 597
In insurance bad faith claim, insurer's loss reserves could be discoverable; state law requires insurers
to set aside funds sufficient to cover all pending claims, and loss reserves established for particular
claim may be evidence of how insurer viewed potential obligations to insured, whether it had
conducted proper investigation, and whether it recognized likelihood that the insured could face excess
verdict. Lipton v. Superior Court (1996) 48 Cal. App. 4th 1599, 1613-1618, 56 Cal. Rptr. 2d 341
[3] International Discovery
Discovery in foreign country subscribing to Hague Convention is not required to proceed first under
Hague Convention before discovery is attempted under federal rules, specifically rejecting rule of first
Page 224 of 593

resort announced in Volkswagenwerk Aktiengesellschaft v. Superior Court (1981) 123 Cal. App. 3d
840, 176 Cal. Rptr. 874 ; rather, interests of international comity demand "a more particularized
analysis" involving "prior scrutiny in each case of the particular facts, sovereign interests, and
likelihood that resort to [Hague Convention] procedures will prove effective." Societe Nationale
Industrielle Aerospatiale v. United States District Court (1987) 482 U.S. 522, 544, 107 S. Ct. 2542,
96 L. Ed. 2d 461
Trial court properly refused to apply Hague Convention discovery procedures in suit against French
corporation, after performing Aerospatiale's prescribed case-by-case balancing of facts, sovereign
interests, and likelihood of successful discovery, disapproving Volkswagenwerk Aktiengesellschaft v.
Superior Court (1981) 123 Cal. App. 3d 840, 858, 176 Cal. Rptr. 874 ; and terminating sanction for
discovery abuses was not abuse of discretion. American Home Assurance Co. v. Societe Commer-
ciale Toutelectric (2002) 104 Cal. App. 4th 406, 436-437, 128 Cal. Rptr. 2d 430
Party seeking to utilize Hague Convention procedures has burden of convincing the trial court that
they are justified by considerations of international comity. American Home Assurance Co. v.
Societe Commerciale Toutelectric (2002) 104 Cal. App. 4th 406, 427, 128 Cal. Rptr. 2d 430
[4] Juveniles
When juvenile court records are sealed under Welf. & Inst. Code ß 781, juvenile's privacy rights are
subject to constitutional confrontation rights ofcriminal defendant in event of conflict, but civil party's
ability to establish constitutional right to sealed information is doubtful. Parmett v. Superior Court
(1989) 212 Cal. App. 3d 1261, 1269, 262 Cal. Rptr. 387
[5] Limitations on Discovery Generally
Neither California nor federal law recognizes union representative-union member evidentiary
privilege that would prevent disclosure of relevant information in civil action, and court was not free
to create new privilege as matter of judicial policy, unless constitutionally compelled. American
Airlines v. Superior Court (2003) 114 Cal. App. 4th 881, 891-895, 8 Cal. Rptr. 3d 146
Courts are precluded from creating exceptions to privileges not specified by statute by policy of Evid.
Code ß 911 (limiting privileges to those specified by statute). Dickerson v. Superior Court (1982)
135 Cal. App. 3d 93, 99, 185 Cal. Rptr. 97
[6] Protective Orders
Preexisting secrecy agreement between parties is extinguished when incorporated into protective
order and violation of agreement will not support a breach of contract action. Westinghouse Electric
Corp. v. Newman & Holtzinger (1995) 39 Cal. App. 4th 1194, 1206, 46 Cal. Rptr. 2d 151
Page 225 of 593

Superior court was within its discretion in issuing protective order providing that certain discovery
produced by defendants (1) may be designated by defendants as confidential or trade secret, (2) may
be used by plaintiffs solely for purposes of this litigation, and (3) may be disclosed by plaintiff's
counsel to counsel in other pending similar litigation if plaintiff's counsel notifies defense counsel.
Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal. App. 4th 584, 588-590, 45 Cal.
Rptr. 2d 885
Declaration in support of motion for protective order that contains no facts except for conclusion of
necessity for order and other statements made on information and belief is not a sufficient basis for
court to grant protective order on basis of annoyance, embarrassment, or oppression. Goodman v.
Citizens Life & Cas. Ins. Co. (1967) 253 Cal. App. 2d 807, 819-820, 61 Cal. Rptr. 682 (decided
under prior law)
[7] Relevance to Subject Matter
Even assuming non-party petitioner law firm had protectible financial privacy rights, those rights did
not preclude discovery that was relevant to essential issues, such as collectibility, in this legal
malpractice action brought by real party in interest client against other attorneys, because malpractice
plaintiff could show that requested financial and insurance information was relevant and material to
prove that better result should have been obtained for him by current attorney defendants (or would
lead to admissible evidence). Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Superior Court
(2006) 137 Cal App. 4th 579, 595, 40 Cal. Rptr. 3d 446
Trustee beneficiary was not entitled to conduct discovery related to trustees' accounting, without first
filing "response and objections" under Prob. Code ß 1043(a). Absent specific objections, there was
no contested proceeding that would require assignment for trial and conduct of discovery, and no way
to determine what discovery, if any, was "relevant to the subject matter involved in the pending
action" (quoting former Code Civ. Proc. ß 2017(a) (now see Code Civ. Proc. ß 2017.010), italics
added). Forthmann v. Boyer (2002) 97 Cal. App. 4th 977, 985, 118 Cal. Rptr. 2d 715
In wrongful termination action for violation of employer's policy against misuse of office equipment,
trial court erred in denying production of employee's employer-provided home computer; computer
was indisputably relevant, as its hard drive could confirm that employee had accessed sexually explicit
web-sites at home, thereby undermining his story that, at work, such sites "popped up" involuntarily.
TBG Ins. Serv. Corp. v. Superior Court (2002) 96 Cal. App. 4th 443, 449, 117 Cal. Rptr. 2d 155
Transcripts of testimony given before the SEC in the course of an investigation were relevant and
discoverable in a civil litigation where the party from whom discovery was sought failed to show that
any parties to the testimony believed the SEC investigation to be private or confidential, and the party
had possession and ready access to the documents and transcripts. Kirkland v. Superior Court
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Objections to discovery should be resolved by protective orders addressing the specific harm shown
by the objecting party, as opposed to a more general attack on the relevancy of the information the
proponent seeks to discover. Norton v. Superior Court (1994) 24 Cal. App. 4th 1750, 1761, 30 Cal.
Rptr. 2d 217
Research and opinions of city attorney concerning intent in drafting ordinance as neither relevant nor
calculated to lead to discovery of admissible evidence on issue of interpretation of ordinance. City of
Los Angeles v. Superior Court (1985) 170 Cal. App. 3d 744, 752-753, 216 Cal. Rptr. 311
[8] Stay of Discovery
Security guards who feared criminal prosecution arising from alleged beating incident that formed
basis of civil suit against them were not entitled to stay of discovery in civil action until the criminal
statute of limitations expired; such a stay would run count to courts' interest in expeditious and
efficient resolution of cases, and expose both side of litigation to risk of diminished memory and lost
records. Fuller v. Superior Court (2001) 87 Cal. App. 4th 299, 302, 309-310, 104 Cal. Rptr. 2d
525
Corporation that was defendant in related criminal and civil actions could not obtain stay of discovery
in civil action while criminal action was pending; however, trial court has discretion to stay civil
proceedings, to postpone discovery, or to impose protective orders and conditions when interests of
justice so require. Avant! Corp. v. Superior Court (2000) 79 Cal. App. 4th 876, 885, 94 Cal. Rptr.
2d 505
Legal Topics:
Civil ProcedureJudicial OfficersJudgesDiscretionCivil ProcedureDiscoveryGeneral OverviewCivil
ProcedureDiscoveryDisclosuresMandatory DisclosuresCivil ProcedureDiscoveryProtective
OrdersCivil ProcedureDiscoveryRelevance
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82 of 184 DOCUMENTS

With respect to employment discrimination complaint filed against county employee who is a peace
officer, county affirmative action officer may not lawfully furnish copy of completed investigation
report to complainant who is not a peace officer. 73 Ops. Cal. Att'y Gen. 90 (1990)
Person appointed as referee to hear and determine discovery motions and paid by parties is not
entitled by statute to defense and indemnification by county against claims or actions seeking
monetary damages in connection with duties as referee. 72 Ops. Cal. Att'y Gen. 94 (1989)
City attorney's advice to city council member regarding whether or not official action taken by that
member violates Political Reform Act is protected by attorney-client privilege. 71 Ops. Cal. Att'y
Gen. 255 (1988)
Confidentiality and disclosure provisions of Penal Code ß 832.7 bar public agency from compiling or
releasing statistical information regarding types of citizen complaints and from releasing summary of
records maintained pursuant to Penal Code ß 832.5. 71 Ops. Cal. Att'y Gen. 247 (1988)
Lawyer-client privilege and work product rule, when relied on by public officer, do not automatically
terminate with settlement or adjudication of underlying claim. 71 Ops. Cal. Att'y Gen. 5 (1988)
Legal Topics:
Civil ProcedureJudicial OfficersRefereesAppointmentsGovernmentsLocal GovernmentsClaims By &
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AgainstGovernmentsLocal GovernmentsEmployees & OfficialsLabor & Employment LawAffirma-

tive ActionCourt & Government Imposed PlansLabor & Employment LawAffirmative ActionDis-
crimination
Page 229 of 593

83 of 184 DOCUMENTS

Stuart, Inadvertent Disclosure of Confidential Information: What Does a California Lawyer Need to
Know? 37 Santa Clara L. Rev. 547 (1997)
Frank, Discovery Made Easier by Computer, 22 Colorado Lawyer 2419(2) (1993)
Comment, The California Discovery Act of 1986: Discovery the New-Fashioned Way! 18 Sw. U.L.
Rev. 233 (1990)
Comment, Judicial Misapplication of State of Mind Discovery in Media Libel Cases: The Actual
Malice Standard Betrayed, 26 Santa Clara L. Rev. 643 (1986)
Lay, Plaintiff's Practical Uses of Discovery Techniques, 30(5) The Practical Lawyer 61 (1984)
Underwood, The New Federal Civil Procedure Rules: Greater Attorney Responsibility and More
Judicial Control, 29 The Practical Lawyer 13 (l983)
Note, A Balanced Approach to Affirmative Action Plan Discovery in Title VII Suits, 32 Hastings L.J.
1013 (1981)
Note, Pretrial Discovery of Net Worth in Punitive Damages Cases, 54 So. Cal. L. Rev. 1141 (1981)
Levine, Using the Freedom of Information Act as a Discovery Device, 36 The Business Lawyer 45
(1980)
Page 230 of 593

Note, Discovery of Internal Corporate Investigations, 32 Stan. L. Rev. 1163 (1980)
Legal Topics:
Civil ProcedureJudicial OfficersRefereesGeneral OverviewCivil ProcedureDiscoveryPrivileged
MattersAttorney-Client PrivilegeCivil ProcedureDiscoveryPrivileged MattersWork ProductGeneral
OverviewGovernmentsCourtsCourt RecordsGovernmentsLocal GovernmentsEmployees & Officials
Page 231 of 593

84 of 184 DOCUMENTS

California Civil Discovery Practice, Ch. 1, Planning Discovery, Ch. 2, Understanding Key Discovery
Principles (3d ed. Cal. CEB 2000)
Witkin, California Evidence, Ch. X, Discovery, ßß 1-28 (4th ed. 2000)
Legal Topics:
Page 232 of 593

85 of 184 DOCUMENTS

[Reserved]
Page 233 of 593

86 of 184 DOCUMENTS

PART IV. FORMS
2017.020] or Restricting Extent or Use of Discovery Methods [Code Civ. Proc. ß 2019.030]--
Motion and Supporting Declaration
[1] FORM Proceedings for Protective Order Limiting Scope of Discovery [Code Civ. Proc. ß
2017.020] or Restricting Extent or Use of Discovery Methods [Code Civ. Proc. ß 2019.030]--Motion
and Supporting Declaration
COUNTY OF ____________________
)
) NO. _____
) NOTICE OF MOTION AND MOTION FOR PRO-
) TECTIVE ORDER RESTRICTING DISCOVERY,
) SUPPORTING
) DECLARATION OF
______________________ [name],
) ___________________ [name], AND MEMO-
Plaintiff,
) RANDUM OF POINTS AND AUTHORITIES
vs.
) (Limiting Scope of Discovery
______________________ [name],
) or Restricting Extent or Use of Discovery Method)
Defendant.
) Date: ___________________
) Time: ___________________
) Location: ___________________
) Judge: ___________________
Date Action Filed: ___________________
Trial Date: ___________________
__________________________________________________
To ___________________ [identify party, e.g., plaintiff] ___________________ [name] and to his/

her attorney of record:
Page 234 of 593

NOTICE IS HEREBY GIVEN that on ___________________ [date], at ____________________

[time], or as soon thereafter as the matter may be heard, in [___________________ (Department or
Division) ____________________ of] this court, located at ___________________ [street address],
___________________ [city], ___________________ [identify moving party or other affected
person, e.g., Defendant] will, and hereby does, move for a protective order ___________________
[limiting the scope of discovery or restricting the frequency and extent of use of discovery methods],
specifically, that ___________________ [specify order sought, e.g., the deposition of Defendant,
which was to be taken on ____________________ (date), at ____________________ (time), at
___________________ (place), pursuant to notice served on ____________________ (date), not be
taken at all]. ___________________ [Identify moving party, e.g., Defendant] will also move for the
imposition of a monetary sanction against ___________________ [identify opposing party and/or
his/her attorney, e.g., Plaintiff ___________________ (name) and his/her attorney
___________________ (name)]. The motion for protective order will be made on the ground that
___________________ [specify, grounds, e.g., the selected method of discovery is unduly burden-
some or expensive, taking into account the needs of the case, the amount in controversy, and the
importance of the issues at stake in the litigation].
The motion will be based on this notice of motion, on the declaration(s) of ___________________
[name (s)] and the memorandum of points and authorities served and filed herewith, on the papers
and records on file herein, and on such oral and documentary evidence as may be presented at the
hearing of the motion.
Dated: ____________________.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
Attorney for ______________________ [moving party's status and name]
SUPPORTING DECLARATION OF ___________________ [name]
I, ___________________ [name], declare:
1. I am ___________________ [identify declarant, e.g., an attorney at law duly admitted to practice

before all the courts of the State of California and the attorney of record herein for
___________________ (identify party or other affected person, e.g., Defendant) in the above-
described action].
2. Good cause exists for the protective order sought by ___________________ [identify moving
party or person, e.g., Defendant] in that ___________________ [set forth facts showing good cause
Page 235 of 593

for particular order sought, e.g., the amount in controversy is less than $7,000, and the sole question
in issue is whether ___________________ (name) was employed by defendant at the time of the
alleged accident].
3. ___________________ [State facts showing reasonable and good faith attempt to resolve
informally issues presented by motion, including description of conferring or attempting to confer
with other parties in person, by telephone, or by letter.]
4. [Statement of expenses incurred as result of opposing party's conduct. See Form 1, Paragraph 7.]
and correct.
______________________ [date]
______________________ [signature]
______________________ [typed name]
MEMORANDUM IN SUPPORT OF MOTION
[Add memorandum supporting motion.]

[2] Use of Form
The motion and supporting declaration set out in [1], above, is for use by any party or other affected
person, to obtain a protective order that either limits the scope of discovery under Code Civ. Proc. ß
2017.020, or restricts the frequency or extent of use of a particular discovery method or methods
under Code Civ. Proc. ß 2019.030. The motion must be made in the court in which the action is
pending [see Code Civ. Proc. ß 2019.030].
For discussion of the bases for a protective order under Code Civ. Proc. ß 2017.020 or Code Civ.
Proc. ß 2019.030, see ßß 190.30 and 190.31, respectively.
The motion must be accompanied by a declaration stating facts showing a good faith attempt at an
informal resolution of each issue presented by the motion (Paragraph 3 of Supporting Declaration)
[Code Civ. Proc. ßß 2017.020(a), 2019.030(b)]. The declaration must also set forth facts supporting
the amount of any monetary sanction sought (Paragraph 4 of Supporting Declaration) [Code Civ.
Proc. ß 2023.040].
Usually this form may be combined with a motion for a protective order authorized under the more
specific provisions governing each particular method of discovery [see discussion in ß 190.34]. For
further discussions and forms, see the Chapter discussing the pertinent discovery method [see Ch.
Page 236 of 593

193, Discovery: Depositions , through Ch. 198, Discovery: Exchange of Expert Witness
Information ].
A supporting memorandum is required to be served and filed with this form [Cal. Rules of Ct., Rule
3.1113(a); see Code Civ. Proc. ßß 1005(b), 1010, 2023.040; see also discussion and forms in Ch.
417, Points and Authorities ].
any party, person, or attorney who unsuccessfully makes or opposes this motion, unless the court
finds that the one subject to the sanction acted with substantial justification or that other circumstances
make imposition of the sanction unjust [Code Civ. Proc. ßß 2017.020(b), 2019.030(c); see Code Civ.
Proc. ß 2023.030(a) (monetary sanction)].
Under Code Civ. Proc. ß 2023.020, the court is required to impose a monetary sanction against any
party or attorney who fails to confer in an attempt to resolve informally any dispute concerning
discovery, in favor of anyone who incurs expenses, including attorney's fees, as a result of that
conduct, when the section of the Civil Discovery Act governing a particular discovery motion requires
a declaration showing that an attempt has been made. This sanction is to be imposed regardless of the
outcome of the particular discovery motion [Code Civ. Proc. ß 2023.020].
A monetary sanction under Code Civ. Proc. ß 2023.010 et seq. is an order that one who engaged in a
misuse of the discovery process, his or her attorney if the attorney advised the conduct, or both, pay
the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct
[Code Civ. Proc. ß 2023.030(a)].
A monetary sanction may only be imposed after notice to any affected party, person, or attorney, and
after opportunity for hearing [Code Civ. Proc. ß 2023.030].
A request for a sanction, in the notice of motion, must identify every party, person, and attorney
against whom the sanction is sought, and specify the type of sanction sought. The notice of motion
must be supported by a memorandum of points and authorities, and accompanied by a declaration
setting forth facts supporting the amount of any monetary sanction sought [Code Civ. Proc. ß
2023.040].
For further discussion of monetary sanctions, see Ch. 192, Discovery: Sanctions for Discovery
Misuse, ßß 192.13[2], 192.15[2].
Page 237 of 593

87 of 184 DOCUMENTS

PART IV. FORMS
2017.020] or Restricting Extent or Use of Discovery Methods [Code Civ. Proc. ß 2019.030]--
Order
[1] FORM Proceedings for Protective Order Limiting Scope of Discovery [Code Civ. Proc. ß
2017.020] or Restricting Extent or Use of Discovery Methods [Code Civ. Proc. ß 2019.030]--Order
COUNTY OF ___________________
)
) NO. _____
) ORDER
______________________ [name], ) Date: ___________________
Plaintiff, ) Time: ___________________
vs. ) Location: ___________________
______________________ [name], ) Judge: ___________________
Defendant. ) Date Action Filed: ___________________
) Trial Date: ___________________
)
__________________________________________________
The motion of ___________________ [identify moving party or person, e.g., Defendant] for a
protective order directing that the ___________________ [scope of discovery be limited or frequency
or extent of use of discovery methods be restricted], specifically, that ___________________
[describe motion, e.g., the deposition of ____________________ (name), set to be taken on
____________________ (date), not be taken], came on regularly for hearing by the court on
____________________ [date]. Plaintiff appeared by counsel ___________________ [name];
defendant appeared by counsel ___________________ [name].
Page 238 of 593

[EITHER]
On proof made to the satisfaction of the court that the motion ought to be denied,
IT IS ORDERED that the motion be, and hereby is, denied.
[OR]
On proof made to the satisfaction of the court, and good cause appearing therefor, that the motion
ought to be granted,
IT IS ORDERED that the motion be, and it hereby is, granted and that ___________________
[describe order, e.g., the deposition of ____________________ (name), set to be taken on
____________________ (date), is hereby directed not to be taken].
[EITHER, if imposing sanctions]
IT IS FURTHER ORDERED that ___________________ [identify unsuccessful party, person, or

attorney, e.g., Plaintiff ___________________ (name) and his/her attorney ___________________
(name)] pay forthwith to ___________________ [identify successful party, e.g., Defendant]
___________________ [name] the sum of $____________________ as reasonable expenses and
attorney's fees.
[OR, if not ordering sanctions]
On further proof made to the satisfaction of the court that ___________________ [identify unsuccess-
ful party, person, or attorney, e.g., pPlaintiff ___________________ (name) and his/her attorney
___________________ (name)] ___________________ [acted with substantial justification or
specify other circumstances making imposition of a sanction unjust],
IT IS FURTHER ORDERED that no monetary sanction be imposed on ___________________

[identify unsuccessful party, person, or attorney, e.g., plaintiff ___________________ (name) and
his/her attorney ___________________ (name)].
Dated: ____________________.
______________________ [signature]
Judge of the Superior Court
Page 239 of 593

[2] Use of Form
The proposed order set our in [1], above, is for use when the court has granted or denied a motion by
a party or other person for a protective order pursuant to the general provisions of Code Civ. Proc. ßß
2017.020 and 2019.030 [see ß 190.80].
Page 240 of 593

88 of 184 DOCUMENTS

PART IV. FORMS
[Reserved]
Page 241 of 593

89 of 184 DOCUMENTS

PART IV. FORMS
[1] FORM Proceedings for Order Extending Time for Discovery or Reopening Discovery
COUNTY OF ___________________
)
) NO. _____
) NOTICE OF MOTION AND MOTION FOR OR-
) DER ___________________
) [EXTENDING TIME FOR DISCOVERY or RE-
) OPENING DISCOVERY
______________________ [name],
) PROCEEDINGS], SUPPORTING DECLARA-
Plaintiff,
) TION OF ___________________
vs.
) [name], AND SUPPORTING
______________________ [name],
) MEMORANDUM
Defendant.
) Date: ___________________
) Time: ___________________
) Location: ___________________
) Judge: ___________________
Date Action Filed: ___________________
Trial Date: ___________________
__________________________________________________
To ___________________ [identify party, e.g., Defendant] ___________________ [name] and to

his/her attorney of record:
NOTICE IS HEREBY GIVEN that on ___________________ [date], at ____________________
Page 242 of 593

[time], or as soon thereafter as the matter may be heard, in [___________________ (Department or

Division) ____________________ of] this court, located at ___________________ [street address],
___________________ [city], ___________________ [identify party, e.g., Plaintiff] will, and hereby
does, move for an order granting him/her leave to ___________________ [complete discovery
proceedings after ____________________ (date), or have a motion concerning discovery heard after
____________________ (date), or reopen discovery after the setting of the new trial date on
____________________ (date). ___________________ [Identify moving party, e.g., Plaintiff] will
also move for the imposition of a monetary sanction against ___________________ [identify
opposing party and/or his/her attorney, e.g., Defendant ___________________ (name) and his/her
attorney ___________________ (name)]. The motion will be made on the ground that
___________________ [specify ground (s), e.g., Defendant's amended answer to Interrogatory No.
_____ in Plaintiff's first set of interrogatories to Defendant has raised issues of which Plaintiff was
previously unaware. Plaintiff requires the additional discovery to learn facts and determine issues
relevant to the subject matter involved in the pending action prior to trial].
The motion will be based on this notice of motion, on the declaration(s) of ___________________
[name (s)] and the memorandum served and filed herewith, on the records and file herein, and on
such evidence as may be presented at the hearing of the motion.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
SUPPORTING DECLARATION OF ___________________ [name]
1. I ___________________ [name], declare:
2. I am ___________________ [identify declarant, e.g., an attorney at law duly admitted to practice

before all the courts of the State of California and the attorney of record herein for
___________________ (identify moving party, e.g., Defendant) ___________________ (name)].
3. ___________________ [Set forth basis for motion, e.g., On ___________________ (date),

Plaintiff ___________________ (name) served his first set of interrogatories on Defendant
___________________ (name). A copy of Interrogatory No. _____ is attached as Exhibit A and
incorporated by reference. On ___________________ (date), Defendant ___________________
(name) served plaintiff ___________________ (name) with his initial response to the interrogatories,
a copy of which is attached as Exhibit B and incorporated by reference; and on
___________________ (date), served plaintiff ___________________ (name) with his amended
answer to Interrogatory No. _____, a copy of which is attached as Exhibit C and incorporated by
Page 243 of 593

reference].
4. The trial in the above-entitled action is set for ___________________ [date].
5. There is good cause for the order sought by ___________________ [identify party, e.g., Plaintiff]
___________________ [name] in that ___________________ [set forth facts, e.g., Defendant's
amended answer to Interrogatory No. _____ of the above-described set of interrogatories sets forth
facts relating to several accidents involving a vehicle manufactured by Defendant that are relevant to
the above-entitled action in that plaintiff was injured by a similar vehicle and in a similar manner as
those described in the amended answer. Plaintiff requires additional time for discovery regarding
those accidents, in order to ascertain whether any issues may be resolved with respect thereto prior to
trial]. Therefore, justice requires that ___________________ [identify, e.g., plaintiff] be allowed to
___________________ [continue or reopen] discovery after ___________________, [date].
6. ___________________ [State facts showing reasonable and good faith attempt to resolve
informally issues presented by motion, including description of conferring or attempting to confer
with other parties in person, by telephone, or by letter.]
7. ___________________ [Identify moving party, e.g., Plaintiff] has incurred expenses as follows in
making this motion: ___________________ [itemize reasonable expenses, including attorney's fees,
and explain basis of computing each expense], for a total of $____________________.
and correct.
______________________ [date]
______________________ [signature]
______________________ [typed name]
MEMORANDUM IN SUPPORT OF MOTION
[Add memorandum supporting motion.]

[2] Use of Form
The notice of motion and motion set out in [1], above, is for use by a party to seek an order granting
leave to complete discovery proceedings or to have a motion concerning discovery heard closer to the
initial trial date than otherwise allowed, or to reopen discovery after a new trial date has been set
[Code Civ. Proc. ß 2024.050]. The motion must be brought in the court in which the action is pending
[Code Civ. Proc. ß 2019.030].
Page 244 of 593

For further discussion, including the factors to be considered in granting or denying a motion under
Code Civ. Proc. ß 2024.050, see ß 190.51.
The supporting declaration in this form includes a statement of facts showing a reasonable and good
faith attempt at an informal resolution of any issue presented by the motion, as required by Code Civ.
Proc. ß 2024.050(a) (Paragraph 6 of Supporting Declaration). The declaration must also set forth
facts supporting the amount of any monetary sanction sought (Paragraph 7 of Supporting Declaration)
[Code Civ. Proc. ß 2023.040]. For discussion of a stipulation to the relief sought in this form, see ß
190.51[2].
A supporting memorandum is required to be served and filed with this form [Cal. Rules of Ct., Rule
3.1113(a); see Code Civ. Proc. ßß 1005(b), 1010, 2023.040; see also discussion and forms in Ch.
417, Points and Authorities ].
[3] Notice
Although Code Civ. Proc. ß 2024.050 does not specifically require that this motion be noticed, the
imposition of a monetary sanction requires notice and an opportunity for hearing [see Code Civ. Proc.
ß 2023.030; see [4], below].
Generally, Code Civ. Proc. ß 1013, regarding methods of service, applies to any method of discovery
or service of a motion for discovery in Code Civ. Proc. ßß 2016.010 et seq.-2036.010 et seq. [Code
Civ. Proc. ß 2016.050]. However, the provisions of Code Civ. Proc. ß 1013(a) that relate to
extensions of time when service is made by mail apply only in the absence of a specific exception
provided for by any statute or court rule [Code Civ. Proc. ß 1013(a)]. For example, the extensions do
not apply to the 16-court-day notice period of Code Civ. Proc. ß 1005 because that section specifically
states that Code Civ. Proc. ß 1013 does not apply [Code Civ. Proc. ß 1005(b)]. For further discussion
of Code Civ. Proc. ß 2016.050, see ß 190.51[4]. For general discussion of Code Civ. Proc. ßß 1005
(b) and 1013(a), see Ch. 372, Motions and Orders .
any party, person, or attorney who unsuccessfully makes or opposes this motion, unless it finds that
the one subject to the sanction acted with substantial justification of the sanction unjust [Code Civ.
Proc. ß 2024.050(c); see further discussion in ß 190.80[4]].
Page 245 of 593

90 of 184 DOCUMENTS

PART IV. FORMS
[1] FORM Proceedings for Order Extending Time for Discovery or Reopening Discovery
COUNTY OF ___________________
______________________ [name], )
Plaintiff, )
vs. )
______________________ [name], ) NO. _____
Defendant. ) ORDER ___________________
)
)
__________________________________________________
The motion of ___________________ [identify party, e.g., plaintiff] ___________________ [name]

for an order granting him/her leave to ___________________ [complete discovery proceedings after
____________________ (date) or have a motion concerning discovery heard after
____________________ (date), or reopen discovery after the setting of the new trial date on
____________________ (date)], came on regularly for hearing on ____________________ (date).
Plaintiff appeared by counsel ___________________ [name]; defendant appeared by counsel
___________________ [name].
[EITHER]
Page 246 of 593

On proof made to the satisfaction of the court that the motion ought to be denied,
IT IS ORDERED that the motion be, and hereby is, denied.
[OR]
On proof made to the satisfaction of the court, and good cause appearing therefor, that the motion
ought to be granted,
IT IS ORDERED that the motion be, and it hereby is, granted, and that ___________________
[identify party, e.g., Plaintiff] is permitted to ___________________ [complete discovery proceedings
until ____________________ (date) or have a motion concerning discovery heard until
____________________ (date) or reopen discovery after the setting of the new trial date on
____________________ (date)].
[EITHER, if imposing sanctions]
IT IS FURTHER ORDERED that ___________________ [identify unsuccessful party, person, or

attorney, e.g., Defendant ___________________ (name) and his/her attorney
___________________ (name)] pay forthwith to ___________________ [identify successful party,
e.g., plaintiff] ___________________ [name] the sum of $____________________ as reasonable
expenses and attorney's fees.
[OR, if not ordering sanctions]
On further proof made to the satisfaction of the court that ___________________ [identify unsuccess-
ful party, person, or attorney, e.g., Defendant ___________________ (name) and his/her attorney
___________________ (name)] ___________________ [acted with substantial justification or
specify other circumstances making imposition of a sanction unjust],
IT IS FURTHER ORDERED that no monetary sanction be imposed on ___________________

[identify unsuccessful party, person, or attorney, e.g., defendant ___________________ (name) and
his/her attorney ___________________ (name)].
Dated: ____________________.
______________________ [signature]
Judge of the Superior Court
[2] Use of Form
Page 247 of 593

The proposed order set out in [1], above, is for use by a party to grant or deny leave to complete
discovery proceedings or to have a motion concerning discovery heard closer to the initial trial date
than otherwise allowed, or to reopen discovery after a new trial date has been set [Code Civ. Proc. ß
2024.050; see ß 190.90].
Page 248 of 593

91 of 184 DOCUMENTS

ßß 269.03-269.09 [Reserved]
[1] Fraud
[2] Deceit
ß 269.13 Elements
Page 249 of 593


[1] General Rule

[1] Subjective Test
[a] In General
[b] Class Actions

Page 250 of 593


[1] General Rule
[2] Exceptions
[1] General Rule

[1] Definition
[4] Defenses
ß 269.23 Evidence
[1] Burden of Proof


Page 251 of 593


[1] General Rule
[3] Sale of Goods



ß 269.31 Defenses
[1] In General
Page 252 of 593

[6] Implied Waiver

ßß 269.35-269.49 [Reserved]
ß 269.53 Decisions
[2] Actual Reliance
[a] Breach of Duty
[b] General Rule
[c] Loss of Profits
[d] Sale of Goods
[4] Attorney's Fees
Page 253 of 593

[b] Breach of Duty
[c] Defenses
[8] Defendants
[9] Defenses
[a] Generally
[b] Late Discovery
[10] Definitions
[12] Elements
[13] Evidence
[17] Intent
Page 254 of 593

[b] Class Actions
[20] Materiality
[a] In General
[29] Public Policy
Page 255 of 593

[a] Generally
[33] Venue
ßß 269.56-269.69 [Reserved]


ßß 269.72-269.89 [Reserved]
[1] FORM
[3] Use of Form
Page 256 of 593

[b] Alleging Deceit
[i] In General
[7] Verification

[1] FORM
[2] Use of Form
[3] Allegations
[6] Damages
[7] Verification
Page 257 of 593

[8] Jurisdiction
[9] Copies

[1] FORM
[2] Use of Form
[3] Text References

[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References

[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References
Page 258 of 593


Acreage
[1] FORM
[2] Use of Form
[3] Allegations
[4] Venue
[5] Text References

[1] FORM
[2] Use of Form
[3] Allegations

[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References
Page 259 of 593

[1] FORM
[2] Use of Form
[3] Allegations
[5] Text References

[1] FORM
[2] Use of Form
[3] Allegations
[6] Text References

[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References
Page 260 of 593


[1] FORM
[2] Use of Form
[3] Allegations
[4] Damages
[5] Text References

[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References

[1] FORM
[2] Use of Form
[3] Text References

Page 261 of 593

[1] FORM
[2] Use of Form
[3] Allegations
Page 262 of 593

92 of 184 DOCUMENTS
PART I. SCOPE
Page 263 of 593

Legal Topics:
Page 264 of 593

93 of 184 DOCUMENTS
PART I. SCOPE
for.
Advertising .
Page 265 of 593

Auctioneers .
Brokers .
Counts .
Conversion .
Page 266 of 593

Insurance .
Insurance .
Insurance .
Negligence .
Quieting Title .
Page 267 of 593

Transactions .
and Purchaser .
and Purchaser .
Page 268 of 593

Legal Topics:
Page 269 of 593

94 of 184 DOCUMENTS
PART I. SCOPE
[Reserved]
Page 270 of 593

95 of 184 DOCUMENTS
Legal Topics:
Page 271 of 593

96 of 184 DOCUMENTS
[1] Fraud
562, 568, 220 P.2d 950] .
[2] Deceit
Legal Topics:
Page 272 of 593

Page 273 of 593

97 of 184 DOCUMENTS
(1968) 266 Cal. App. 2d 570, 588, 72 Cal. Rptr. 273] .
(1972) 25 Cal. App. 3d 750, 765, 102 Cal. Rptr. 286] .
Legal Topics:
Page 274 of 593

Page 275 of 593

98 of 184 DOCUMENTS
ß 269.13 Elements
227 Cal. App. 2d 173, 192-193, 38 Cal. Rptr. 525] .
Legal Topics:
Page 276 of 593

99 of 184 DOCUMENTS
Rptr. 288] .
Page 277 of 593

of property)].
Page 278 of 593

Rptr. 547] .
Page 279 of 593

1066, 1081, 60 Cal. Rptr. 2d 263, 929 P.2d 582] .
P.2d 582] .
and Slander .
(1966) 241 Cal. App. 2d 571, 573, 50 Cal. Rptr. 727] .
Page 280 of 593

921] .
Page 281 of 593

Legal Topics:
Page 282 of 593

[1] General Rule
Page 283 of 593

1640, 1660-1661, 26 Cal. Rptr. 3d 638] .
Page 284 of 593

Rptr. 2d 490, 65 P.3d 1255] .
Legal Topics:
Page 285 of 593

[1] Subjective Test
Page 286 of 593

808, 66 Cal. Rptr. 3d 543] .
322, 328, 112 Cal. Rptr. 366] .
had not obtained)].
Page 287 of 593

275 Cal. App. 2d 90, 105, 79 Cal. Rptr. 816] .

1502-1503, 55 Cal. Rptr. 3d 59] .
Page 288 of 593

Sale
App. 4th 312, 313, 316-318, 28 Cal. Rptr. 2d 242] .
[a] In General
(1971) 4 Cal. 3d 800, 814, 94 Cal. Rptr. 796, 484 P.2d 964] .
[b] Class Actions
Page 289 of 593

1082, 1095, 23 Cal. Rptr. 2d 101, 858 P.2d 568] .
Legal Topics:
Page 290 of 593

Cal. Rptr. 681, 534 P.2d 377] .
Page 291 of 593


Cal. Rptr. 670] .
Legal Topics:
Page 292 of 593

[1] General Rule
App. 2d 382, 388, 319 P.2d 721] .
[2] Exceptions
Page 293 of 593

(1957) 156 Cal. App. 2d 382, 388, 319 P.2d 721] .
Legal Topics:
Overview
Page 294 of 593

[1] General Rule
(1975) 48 Cal. App. 3d 73, 82-86, 121 Cal. Rptr. 144] .
111 Cal. Rptr. 2d 711] .
Page 295 of 593

Rptr. 871] .
858 P.2d 568 ; see also ß 269.15[2]].
Legal Topics:
Page 296 of 593

P.2d 567] .
Page 297 of 593

Legal Topics:
Page 298 of 593

(1972) 22 Cal. App. 3d 721, 728, 99 Cal. Rptr. 488] .
Legal Topics:
FraudRemedies
Page 299 of 593

[1] Definition
Page 300 of 593

(1966) 247 Cal. App. 2d 272, 290-291, 55 Cal. Rptr. 610] .

334] .
[4] Defenses
P. 317] .
Page 301 of 593

Legal Topics:
Page 302 of 593

ß 269.23 Evidence
[1] Burden of Proof
Legal Topics:
Page 303 of 593


Page 304 of 593

Page 305 of 593

879] .
Page 306 of 593

582] .
Legal Topics:
Page 307 of 593

partners)].
Legal Topics:
Page 308 of 593

Page 309 of 593

449-450, 21 Cal. Rptr. 2d 313] .
Page 310 of 593

Legal Topics:
Page 311 of 593

[1] General Rule
220, 119 Cal. Rptr. 288] .
Page 312 of 593


the reliance on it.
1228] .
Page 313 of 593

53-56, 19 Cal. Rptr. 2d 771] .
70 Cal. Rptr. 472] .
160 Cal. App. 3d 548, 559, 206 Cal. Rptr. 641] .
[3] Sale of Goods
Page 314 of 593

624 ; see Com. Code ß 2715(2)(a)].
Page 315 of 593

1802, 1808, 27 Cal. Rptr. 2d 47] .
Legal Topics:
dies
Page 316 of 593

303, 98 Cal. Rptr. 547] .
Legal Topics:
Page 317 of 593

(1979) 26 Cal. 3d 86, 103, 160 Cal. Rptr. 733, 603 P.2d 1329] .
Legal Topics:
Page 318 of 593

tual FraudRemedies
Page 319 of 593

Cal. App. 2d 807, 812, 58 Cal. Rptr. 772] .
Page 320 of 593


Legal Topics:
Page 321 of 593

ß 269.31 Defenses
[1] In General
Rptr. 440] .
Page 322 of 593

see ß 269.16.
(1918) 178 Cal. 653, 656, 174 P. 311] .
Page 323 of 593

875-876, 191 Cal. Rptr. 619, 663 P.2d 177] .
[6] Implied Waiver
1175, 1190-1191, 51 Cal. Rptr. 3d 144] .
Page 324 of 593

Legal Topics:
Page 325 of 593

651] .
1] .
Legal Topics:
Page 326 of 593

General Overview
Page 327 of 593

Desire
Legal Topics:
Page 328 of 593

Legal Topics:
fenses
Page 329 of 593

[Reserved]
Page 330 of 593

Bender)
Legal Topics:
Page 331 of 593

(Matthew Bender)
Legal Topics:
Page 332 of 593

17511-17511.10
Page 333 of 593

1134.5(h)
1695.16, 1695.17
1709
Page 334 of 593

2945.10, 2945.11
ß 3333
3344.6; Penal Code ß 115.2
Proc. ß 395(a)

1974
Page 335 of 593

ß 18496.1
Legal Topics:
dies
Page 336 of 593

ß 269.53 Decisions
Rptr. 402
(1983) 145 Cal. App. 3d 369, 385, 193 Cal. Rptr. 422
[2] Actual Reliance
Page 337 of 593

Rptr. 2d 101, 858 P.2d 568
3d 399

[a] Breach of Duty
Cal. 2d 736, 741-742, 336 P.2d 534
App. 3d 1204, 1214, 238 Cal. Rptr. 130
Page 338 of 593

315, 298 P.2d 667
[b] General Rule

App. 3d 780, 790-791, 231 Cal. Rptr. 72
232, 237, 198 Cal. Rptr. 494
(1975) 45 Cal. App. 3d 214, 219-220, 119 Cal. Rptr. 288
Rptr. 288
214, 220, 119 Cal. Rptr. 288
[c] Loss of Profits
Page 339 of 593

[d] Sale of Goods
(1989) 216 Cal. App. 3d 388, 432-433, 264 Cal. Rptr. 779
(1978) 22 Cal. 3d 718, 729-730, 150 Cal. Rptr. 637, 586 P.2d 1228
Cal. 2d 736, 741, 336 P.2d 534
(1933) 218 Cal. 780, 782-783, 25 P.2d 2
Page 340 of 593


665, 96 Cal. Rptr. 197
App. 2d 942, 968, 72 Cal. Rptr. 722
Rptr. 722
Page 341 of 593

App. 2d 667, 677-678, 70 Cal. Rptr. 472
Rptr. 125
Cal. Rptr. 851
159 Cal. App. 2d 196, 205, 323 P.2d 843
[4] Attorney's Fees
Cal. App. 3d 38, 61-62, 248 Cal. Rptr. 217
Cal. Rptr. 547
Page 342 of 593

(1990) 219 Cal. App. 3d 926, 938, 268 Cal. Rptr. 609
1533, 264 Cal. Rptr. 740
Page 343 of 593

879, 889, 124 Cal. Rptr. 577
708, 69 Cal. Rptr. 222
290-291, 55 Cal. Rptr. 610
950
[b] Breach of Duty
Cal. Rptr. 401, 519 P.2d 161
Page 344 of 593

Rptr. 513
Rptr. 483
App. 3d 172, 182, 111 Cal. Rptr. 334
22 Cal. App. 3d 626, 634-635, 99 Cal. Rptr. 393
Cal. Rptr. 872
Page 345 of 593

14 P.2d 146
[c] Defenses
489, 89 P. 317
Cal. Rptr. 155
App. 3d 837, 844, 199 Cal. Rptr. 830
513, 517-519, 42 Cal. Rptr. 883
Rptr. 852
1185, 88 Cal. Rptr. 2d 718
Page 346 of 593

202-203, 5 Cal. Rptr. 2d 615
(1972) 22 Cal. App. 3d 721, 728, 99 Cal. Rptr. 488
84 Cal. Rptr. 98
[8] Defendants
Rptr. 136
(1980) 112 Cal. App. 3d 158, 174, 169 Cal. Rptr. 136
2d 942, 960, 72 Cal. Rptr. 722
Page 347 of 593

Rptr. 472
App. 2d 173, 192, 38 Cal. Rptr. 525
Rptr. 463
875, 247 Cal. Rptr. 504
320-321, 198 Cal. Rptr. 483
409, 123 Cal. Rptr. 669
Page 348 of 593

[9] Defenses
[a] Generally
1502, 1506-1507, 278 Cal. Rptr. 386

Rptr. 816
Rptr. 441
266 Cal. App. 2d 942, 964-965, 72 Cal. Rptr. 722
Page 349 of 593

App. 2d 942, 964-965, 72 Cal. Rptr. 722
Rptr. 681
[b] Late Discovery
1990) 912 F.2d 357, 362
1423, 1432, 117 Cal. Rptr. 3d 597
Cal. Rptr. 3d 892
Cal. Rptr. 3d 9
Page 350 of 593

4th 1369, 1374, 105 Cal. Rptr. 2d 699
3d 915, 920-922, 259 Cal. Rptr. 117
Rptr. 857
86 Cal. Rptr. 872
Page 351 of 593

F.2d 454, 460
F.2d 1434, 1436
128-129, 271 Cal. Rptr. 434
Rptr. 14
Page 352 of 593

(1951) 103 Cal. App. 2d 651, 659, 230 P.2d 25
[10] Definitions
126, 136, 64 Cal. Rptr. 845
Cal. App. 3d 412, 419, 174 Cal. Rptr. 608
[12] Elements
4th 1082, 1088, 1095, 1100, 1108, 23 Cal. Rptr. 2d 101, 858 P.2d 568

Page 353 of 593

n.3, 10 Cal. Rptr. 2d 465
1046-1047, 281 Cal. Rptr. 640
App. 3d 1102, 1111, 234 Cal. Rptr. 853

Cal. Rptr. 308
Page 354 of 593

Cal. App. 4th 573,
Cal. App. 3d 155, 158, 263 Cal. Rptr. 473
Rptr. 72
Page 355 of 593

(1985) 165 Cal. App. 3d 120, 131-134, 211 Cal. Rptr. 271
(1975) 48 Cal. App. 3d 73, 82-86, 121 Cal. Rptr. 144
101 Cal. Rptr. 499
2d 102, 109, 38 Cal. Rptr. 440
[13] Evidence
Page 356 of 593

(1964) 227 Cal. App. 2d 102, 111, 38 Cal. Rptr. 440
Cal. App. 2d 173, 192, 38 Cal. Rptr. 525
748, 39 Cal. Rptr. 101
1363-1365
4th 1692, 1719-1720, 19 Cal. Rptr. 2d 555
(1975) 48 Cal. App. 3d 73, 82-86, 121 Cal. Rptr. 144
102 Cal. Rptr. 286
Cal. App. 3d 888, 892, 91 Cal. Rptr. 142
Page 357 of 593

[17] Intent
App. 3d 388, 411-412, 264 Cal. Rptr. 779
Rptr. 779

813, 97 Cal. Rptr. 164
Cal. App. 3d 803, 813, 97 Cal. Rptr. 164

Page 358 of 593

783
837, 843-844, 2 Cal. Rptr. 2d 437
264 Cal. Rptr. 779
App. 3d 38, 56-57, 248 Cal. Rptr. 217
55, 248 Cal. Rptr. 217
Page 359 of 593

275 Cal. App. 2d 90, 105, 79 Cal. Rptr. 816
[b] Class Actions
(1972) 7 Cal. 3d 232, 237, 102 Cal. Rptr. 1, 497 P.2d 225
219, 119 Cal. Rptr. 288
72 Cal. Rptr. 722

Page 360 of 593

38, 55 n.10, 248 Cal. Rptr. 217
(1971) 19 Cal. App. 3d 803, 811, 97 Cal. Rptr. 164
134 P.2d 764
Page 361 of 593

Odell (1941) 18 Cal. 2d 409, 415, 115 P.2d 977
1486, 1500-1502, 55 Cal. Rptr. 3d 59
3d 684, 693-696, 237 Cal. Rptr. 667
355
(1971) 16 Cal. App. 3d 391, 403, 94 Cal. Rptr. 33
722
Page 362 of 593

2d 275, 279, 25 Cal. Rptr. 217
74
Rptr. 22, 743 P.2d 1279 )
784, 793-797, 71 Cal. Rptr. 3d 885
Page 363 of 593


Cal. App. 2d 942, 964-965, 72 Cal. Rptr. 722
(1968) 266 Cal. App. 2d 942, 964-965, 72 Cal. Rptr. 722
845
Page 364 of 593

(1974) 37 Cal. App. 3d 322, 325, 327-328, 112 Cal. Rptr. 366
Rptr. 490
Rptr. 722
103, 109, 19 Cal. Rptr. 78
[20] Materiality
(1970) 12 Cal. App. 3d 888, 892-893, 91 Cal. Rptr. 142
App. 3d 593, 597-598, 86 Cal. Rptr. 52
Page 365 of 593

746, 3 Cal. Rptr. 910

79, 326 P.2d 229
824-825, 323 P.2d 567
App. 2d 684, 689, 313 P.2d 592

Cal. Rptr. 217
Page 366 of 593

(1967) 257 Cal. App. 2d 126, 136, 64 Cal. Rptr. 845
(1954) 43 Cal. 2d 481, 487-489, 275 P.2d 15
855, 68 Cal. Rptr. 3d 828

112 Cal. Rptr. 2d 657
3d 468, 473, 476, 260 Cal. Rptr. 513
Page 367 of 593

Cal. App. 3d 388, 404, 264 Cal. Rptr. 779
App. 3d 388, 404, 264 Cal. Rptr. 779
858, 864, 245 Cal. Rptr. 211
App. 3d 780, 785-786, 231 Cal. Rptr. 72

Page 368 of 593

173, 192-193, 38 Cal. Rptr. 525
(1963) 221 Cal. App. 2d 197, 206, 34 Cal. Rptr. 334
377
489, 275 P.2d 15

64 Cal. Rptr. 845
Page 369 of 593

App. 2d 275, 280, 25 Cal. Rptr. 217
(1967) 257 Cal. App. 2d 126, 136, 64 Cal. Rptr. 845
(1958) 164 Cal. App. 2d 636, 645, 331 P.2d 89
574
766, 451 P.2d 406

Page 370 of 593

873
206, 34 Cal. Rptr. 334

197, 206, 34 Cal. Rptr. 334
P.2d 231
Page 371 of 593

Cal. App. 3d 243, 249, 84 Cal. Rptr. 800
2d 680, 687, 81 Cal. Rptr. 519
[a] In General
110-111, 49 Cal. Rptr. 3d 122
3d 1493, 1502-1504, 231 Cal. Rptr. 446
(1964) 227 Cal. App. 2d 741, 747-748, 39 Cal. Rptr. 101
Page 372 of 593


133, 72 Cal. Rptr. 670
App. 2d 702, 708, 72 Cal. Rptr. 441
266 Cal. App. 2d 702, 707, 72 Cal. Rptr. 441
P.2d 212
Page 373 of 593

97 Cal. Rptr. 30
573, 50 Cal. Rptr. 727

(1988) 202 Cal. App. 3d 38, 62-65, 248 Cal. Rptr. 217
Cal. Rptr. 217
[29] Public Policy
1269-1270, 258 Cal. Rptr. 787
[a] Generally
Page 374 of 593

(1978) 84 Cal. App. 3d 982, 996, 149 Cal. Rptr. 119
605, 610, 225 Cal. Rptr. 624
Rptr. 142
807, 812, 58 Cal. Rptr. 772
Page 375 of 593

(1971) 21 Cal. App. 3d 541, 549, 98 Cal. Rptr. 588
Cal. App. 2d 102, 125, 38 Cal. Rptr. 440
2d 481, 488, 275 P.2d 15
(1972) 22 Cal. App. 3d 721, 728, 99 Cal. Rptr. 488
Page 376 of 593

232
4th 1141, 1164-1165, 23 Cal. Rptr. 3d 335
292-294, 17 Cal. Rptr. 3d 26
Page 377 of 593

(1986) 181 Cal. App. 3d 646, 650-651, 226 Cal. Rptr. 509
Rptr. 624
469, 223 Cal. Rptr. 734
1159, 220 Cal. Rptr. 507
Page 378 of 593

Cal. App. 3d 261, 265, 193 Cal. Rptr. 130
551, 121 Cal. Rptr. 214
367-368, 72 Cal. Rptr. 157
243, 251, 84 Cal. Rptr. 800
75 Cal. Rptr. 871
231, 261, 73 Cal. Rptr. 127
367-368, 72 Cal. Rptr. 157
Cal. Rptr. 458
Page 379 of 593

Rptr. 458
2d 247, 250, 35 Cal. Rptr. 681
[33] Venue
Brisson (1946) 27 Cal. 2d 760, 764, 167 P.2d 481
P.2d 779
Legal Topics:
Page 380 of 593

37 UCLA L. Rev. 883 (1990)
1861 (1986)
L. Rev. 809 (1984)
325 (1974)
Page 381 of 593


(1972)
UCLA L. Rev. 78, 138 (1963)
(1960)
(1959)
Page 382 of 593

22 S. Cal. L. Rev. 77 (1948)
Legal Topics:
Page 383 of 593


1-5
ßß 572-593, 779, 780, 911, 936
Torts, ßß 1710-1716 (10th ed. 2005)
Legal Topics:
Page 384 of 593

[Reserved]
Page 385 of 593

NOTE:

NOTE:

Page 386 of 593



Cal. App. 2d 942, 966, 72 Cal. Rptr. 722] .)
Rptr. 872] .
NOTE:
Page 387 of 593


Howard (1889) 79 Cal. 525, 529, 21 P. 984] .
409, 123 Cal. Rptr. 669] .


Code ß 1573].
Page 388 of 593


Cal. Rptr. 800] ?
App. 2d 465, 477, 45 Cal. Rptr. 458] ?

(1962) 208 Cal. App. 2d 275, 279, 25 Cal. Rptr. 217] ?
215, 255, 90 Cal. Rptr. 490] ?
Cal. Rptr. 458] ?
Page 389 of 593

Cal. App. 3d 995, 999, 84 Cal. Rptr. 98] .
3343]:
Code ß 3343(a)].

Rptr. 288] .

NOTE:
Page 390 of 593


ate.

want to consider:

Common Counts .

Page 391 of 593

Contracts .
structive Trusts .




App. 2d 684, 689, 313 P.2d 592] ;
Page 392 of 593


Cal. Rptr. 670] ;

(1968) 267 Cal. App. 2d 127, 130, 72 Cal. Rptr. 670] ;

(1972) 25 Cal. App. 3d 1, 12, 101 Cal. Rptr. 499] .
487-488, 275 P.2d 15] .
Bertran (1954) 43 Cal. 2d 481, 488 n. 5, 275 P.2d 15] .

Code ß 1710(3)]:
Page 393 of 593


27-28, 39 Cal. Rptr. 125] ;

above).
was made:


494] .


494] .

Rptr. 577] .

Page 394 of 593

833, 839, 254 P.2d 949] .
710-711, 69 Cal. Rptr. 222] .
NOTE:
Legal Topics:
Page 395 of 593

NOTE:

NOTE:
ings.

NOTE:
Page 396 of 593



NOTE:
person.
falsity of.

NOTE:

Page 397 of 593

2d 275, 279, 25 Cal. Rptr. 217] .
Legal Topics:
Page 398 of 593

[Reserved]
Page 399 of 593

PART V. FORMS
C-001(3)]
[3] Use of Form

Page 400 of 593

this sample form.
is attached.
269.27, 269.30].
888, 892, 91 Cal. Rptr. 142 ; see ß 269.28].
Page 401 of 593

complaint.
[b] Alleging Deceit
[i] In General
see ßß 269.12, 269.13].
[2]; see also ßß 269.91, 269.92].
Page 402 of 593

FR-6.
fraud or deceit.
Page 403 of 593

Attachment.
Code ß 3295(f)].
[7] Verification
Page 404 of 593

PART V. FORMS
COUNTY OF ___________________
)
__________________________________________________
[EITHER]
[AND/OR]
Page 405 of 593

[EITHER]
dant.
[OR]
[CONTINUE]
[EITHER]

false].
[OR]
Page 406 of 593


[CONTINUE]
___________________ [specify].
[EITHER]
[OR]
they would so act.
[CONTINUE]
Page 407 of 593

______________________ [firm name, if any]

By:______________________ [signature]
______________________ [typed name]
VERIFICATION
Page 408 of 593

correct.
______________________ [date]
______________________ [signature]
[2] Use of Form
[3] Allegations

Code ß 1711];

Rptr. 670] ;


Page 409 of 593

App. 2d 336, 344, 31 Cal. Rptr. 873] .

3d 768 ].
[6] Damages
[7] Verification
Page 410 of 593

[8] Jurisdiction
[9] Copies

Complaints
Page 411 of 593

Matter
and Papers

Page 412 of 593

PART V. FORMS
[EITHER]
[OR]
would so act.
[2] Use of Form
Page 413 of 593

accordingly.
[3] Text References

Page 414 of 593

PART V. FORMS

Page 415 of 593

property)].
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
[4] Text References
Page 416 of 593


Page 417 of 593

PART V. FORMS

position)].
performing it.
Page 418 of 593

employment].
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
Page 419 of 593

Cal. Rptr. 494] :
(Paragraph 6).

[4] Text References
Page 420 of 593

PART V. FORMS
senting Acreage


Page 421 of 593


sum of $____________________.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
Page 422 of 593

[3] Allegations
[4] Venue
[5] Text References
Page 423 of 593

PART V. FORMS
FIRST COUNT
Page 424 of 593



Page 425 of 593

$____________________.
SECOND COUNT
THIRD COUNT
Page 426 of 593


______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
Page 427 of 593

Page 428 of 593

PART V. FORMS

Page 429 of 593



Page 430 of 593

herein alleged.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
Page 431 of 593


[2] Use of Form
[3] Allegations
[4] Text References

Page 432 of 593

PART V. FORMS
Page 433 of 593

the land].
property.
viewing it].

$____________________.
Page 434 of 593

______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
260-261, 73 Cal. Rptr. 127] .
[5] Text References

Page 435 of 593

Page 436 of 593

PART V. FORMS
Page 437 of 593

[EITHER]
[OR]
___________________ [specify].

showing duty)].

plaintiff].

appropriate].
Page 438 of 593

______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations

Page 439 of 593

[6] Text References

Page 440 of 593

PART V. FORMS

Page 441 of 593

alleged.
______________________ [signature]

[2] Use of Form
Page 442 of 593

the business.
[3] Allegations
[4] Text References

Page 443 of 593

PART V. FORMS
Purchaser
Page 444 of 593


in the sum of $____________________.
Page 445 of 593

______________________ [signature]

[2] Use of Form
[3] Allegations
graphs 11, 12).
[4] Damages
[5] Text References

Page 446 of 593

PART V. FORMS

Page 447 of 593

defendant.
therefor.
of $____________________.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
Page 448 of 593


[2] Use of Form
[3] Allegations
Code ßß 1709, 3333].
[4] Text References

Page 449 of 593

PART V. FORMS
[EITHER]
[OR]
Page 450 of 593

[2] Use of Form
338(d)].
[3] Text References

Page 451 of 593

PART V. FORMS
Person

Page 452 of 593


children].

proof).]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
[2] Use of Form
Page 453 of 593

[3] Allegations



1066, 1081, 60 Cal. Rptr. 2d 263, 929 P.2d 582] .
and 9).
Page 454 of 593

Civ. Code ß 3439.07(a)(2), (b)
[2] Definitions
Page 455 of 593


3439.04(a)(2)(B)
3439.05
[4] Insolvency
Page 456 of 593

[5] Preferences
Code ß 3432
(a)
Page 457 of 593

(1)
Legal Topics:
Page 458 of 593

Legal Topics:
Page 459 of 593

910, 913
[a] In General

Page 460 of 593

389, 152 P.2d 490
(1957) 153 Cal. App. 2d 379, 380-381, 314 P.2d 812
2d 185, 191, 295 P.2d 12

[b] Assignment
App. 2d 382, 388, 152 P.2d 490
221 Cal. App. 2d 278, 289, 34 Cal. Rptr. 326
(1957) 148 Cal. App. 2d 670, 674, 307 P.2d 734
[e] Jury Trial
Page 461 of 593

Rptr. 3d 523
915-916
2d 846
862, 489 P.2d 1126
670, 675, 307 P.2d 734
App. 2d 178, 184, 146 P.2d 482
Page 462 of 593

[3] Burden of Proof
(1986) 185 Cal. App. 3d 639, 646-647, 230 Cal. Rptr. 57
[4] Conspiracy
53 Cal. App. 2d 789, 791, 128 P.2d 114
Page 463 of 593

193, 196-197, 7 P.2d 319
(1958) 158 Cal. App. 2d 644, 649, 323 P.2d 150
Cir. 1989) 884 F.2d 464, 466
[d] Required Injury

(1971) 5 Cal. 3d 892, 895-897, 97 Cal. Rptr. 862, 489 P.2d 1126
Cramer (1952) 39 Cal. 2d 321, 323, 245 P.2d 1059
[6] Insolvency
Page 464 of 593


804
Cal. Rptr. 482
2d 547
225 P.2d 233
[a] In General
1986) 786 F.2d 910, 913
Page 465 of 593

269 Cal. App. 2d 333, 344-345, 74 Cal. Rptr. 774
180
Cal. Rptr. 323
122
[9] Lis Pendens
[10] Preferences
Cal. 2d 457, 461, 65 P.2d 1316
Page 466 of 593

P.2d 641
Cal. App. 2d 567, 572, 149 P.2d 183
[a] In General
Page 467 of 593

Cir. 1986) 786 F.2d 910, 916
App. 2d 759, 767, 48 Cal. Rptr. 215
Cal. App. 2d 759, 767, 48 Cal. Rptr. 215

Page 468 of 593

Cal. Rptr. 331
Cal. App. 3d 1026, 1040, 190 Cal. Rptr. 54
(1971) 20 Cal. App. 3d 434, 441, 97 Cal. Rptr. 706


910, 914-915
P.2d 822
Page 469 of 593

108
App. 2d 350, 354, 291 P.2d 987
Cir. 1986) 786 F.2d 910, 913
[a] In General

846
Page 470 of 593

[b] Exceptions
Rptr. 545, 375 P.2d 425
141 P. 818
774
Page 471 of 593

(9th Cir. 1988) 845 F.2d 842, 849-850
(1955) 132 Cal. App. 2d 776, 781, 283 P.2d 301
[a] In General
(1971) 20 Cal. App. 3d 434, 441-442, 97 Cal. Rptr. 706
(1966) 244 Cal. App. 2d 696, 727, 53 Cal. Rptr. 482
[b] Burden of Proof

Page 472 of 593


Rptr. 876
1115, 1118-1121, 213 Cal. Rptr. 597
1034-1039, 190 Cal. Rptr. 54
917
Page 473 of 593

700-701, 176 P.2d 77
(1960) 178 Cal. App. 2d 227, 231, 2 Cal. Rptr. 917
(1955) 131 Cal. App. 2d 542, 547, 280 P.2d 844
580, 587-588, 25 Cal. Rptr. 545, 375 P.2d 425
Page 474 of 593

P.2d 425
468, 476, 60 P.2d 1026

934
Legal Topics:
Page 475 of 593

Legal Topics:
lent Transfers
Page 476 of 593

(4th ed. 1997)
Legal Topics:
Page 477 of 593

[Reserved]
Page 478 of 593


[a] In General
3440.1, 3440.2
Page 479 of 593

3440.6
3440-3440.9. Civ. Code ß 3440.9
Legal Topics:
Page 480 of 593


Page 481 of 593

899, 107 P.2d 933
App. 2d 204, 207, 55 Cal. Rptr. 455
Page 482 of 593

235 P.2d 434
Legal Topics:
lent Transfers
Page 483 of 593

Legal Topics:
Page 484 of 593

[Reserved]
Page 485 of 593

C. Bulk Sales
[1] Attachment
ß 6106.2(c)
6103(a)
[3] Definitions
Page 486 of 593


Page 487 of 593

ßß 6107, 6108

[5] Notice
Code ßß 6104(a), 6105
Page 488 of 593

[7] Tax Liability

Page 489 of 593

Civ. Proc. ß 1205
Legal Topics:
Page 490 of 593

C. Bulk Sales
1455 (1991)
L.J. 195 (1990)
Law. 1445 (1989)
Legal Topics:
Page 491 of 593

C. Bulk Sales
Legal Topics:
Page 492 of 593

PART IV. FORMS
COUNTY OF ___________________
)
) NO. _____
) COMPLAINT TO ____________________
______________________[name], Plaintiff, ) [SET ASIDE or ANNUL] FRAUDULENT
vs. ) ____________________
______________________ [name (s)], Defendant ) [TRANSFER or
(s). ) OBLIGATION] AND FOR DAMAGES
__________________________________________________
Plaintiff alleges:
Page 493 of 593


Obligation])

[EITHER]
[OR]

[OR]
Page 494 of 593


[CONTINUE]

[EITHER]
[OR]
Page 495 of 593

[CONTINUE]


___________________ [specify, e.g., land].

(Conspiracy)
Page 496 of 593


transferor.]
Action.

the sum of $____________________.

special damages.]

Page 497 of 593


transferred;]
Page 498 of 593

______________________ [firm name, if any]
By: ______________________ [signature]
______________________ [typed name]
VERIFICATION
it to be true.
and correct.
______________________ [date]
______________________ [signature]
[2] Use of Form
Page 499 of 593

[3] Allegations
instruction)].
Page 500 of 593

[4] Jurisdiction
[5] Venue
Page 501 of 593

Cal. Rptr. 2d 841 ); see ß 270.49].
Page 502 of 593

600, 610-611, 64 P.2d 776] .
[8] Other Remedies
Page 503 of 593


Civ. Proc. ß 564(b)(9)].
649-650 15 Cal. Rptr. 3d 805, 93 P.3d 395] .
Page 504 of 593

[11] State Statutes
(a)(1), 3439.08
[12] Decisions
Page 505 of 593

[f] Receivership
Cal. App. 2d 759, 771, 48 Cal. Rptr. 215
Page 506 of 593

221 Cal. App. 2d 278, 289, 34 Cal. Rptr. 326
2d 178, 184, 146 P.2d 482
[i] Venue
398, 402-403, 23 Cal. Rptr. 662

445-453, 459, 473 (4th ed.)
Page 507 of 593

Page 508 of 593

PART IV. FORMS

Code ßß 3439.02(a), (c)-(e), 3439.05]

[EITHER]
Page 509 of 593

[OR]
[2] Use of Form
Rptr. 804] .
Page 510 of 593

2d 987] .
[4] State Statutes
(a)
Page 511 of 593


3439.05
[5] Decisions

141 Cal. App. 3d 169, 172, 190 Cal. Rptr. 198
291 P.2d 987
Page 512 of 593

Cal. Rptr. 366
[6] Text References
Page 513 of 593

PART IV. FORMS

Code ßß 3439.02, 3439.05]
3439.02, 3439.05]

Page 514 of 593


[EITHER]
[OR]
___________________ [specify, e.g., lease].
[CONTINUE]
Page 515 of 593

claims.
[EITHER]
[OR]
her/its claim.
Page 516 of 593

[2] Use of Form
[3] Allegations
This form contains:
instructions)]; and

Page 517 of 593

See also ßß 270.190 and 270.191.
Page 518 of 593

PART IV. FORMS

(B)]

[2] Use of Form
instruction)].
Page 519 of 593

[3] State Statutes
[4] Decisions
Rptr. 233
Page 520 of 593

PART IV. FORMS

COUNTY OF ___________________
______________________ [name], )
Plaintiff, )
vs. ) NO. _____
______________________[name(s)], ) COMPLAINT TO HAVE FRAUDULENT
Defendant(s). ) TRANSFER SET ASIDE
__________________________________________________
Plaintiff alleges:
[EITHER]
Page 521 of 593


[OR]


and 6.]
Page 522 of 593


[Prayer. See ß 270.190[1].]
______________________ [signature]

[2] Use of Form
[3] State Statutes
Code ß 3439.04(a)(2)(A)
[4] Decisions
Page 523 of 593

P.2d 301
Page 524 of 593

PART IV. FORMS
[2] Use of Form
Page 525 of 593

v. Duffet (1920) 48 Cal. App. 674, 678, 192 P. 298] .
[3] State Statutes
3439.08(d)
[4] Decisions
P.2d 425
Page 526 of 593

PART IV. FORMS
(a), (c)]

[2] Use of Form
Page 527 of 593

937, 60 Cal. Rptr. 2d 841] .
Page 528 of 593

PART IV. FORMS

[2] Use of Form
Page 529 of 593

[3] State Statutes

[4] Decisions
Cal. App. 639, 645, 9 P.2d 860
for.
Page 530 of 593

PART IV. FORMS
3439.08(d)]
COUNTY OF ___________________
______________________ [name], )
vs. ) NO. _____
______________________ [name], ) CROSS COMPLAINT FOR DECLARATORY
Defendant [and Cross Complainant] ) RELIEF
__________________________________________________

Page 531 of 593





Page 532 of 593

e.g., contract)].
Page 533 of 593

[CONTINUE]
______________________ [signature]

[2] Use of Form
Page 534 of 593

584-586, 589-591, 25 Cal. Rptr. 545, 375 P.2d 425] .
Page 535 of 593

[4] State Statutes
[5] Decisions
1926) 13 F.2d 413, 414
Baker (S.D. Cal. 1926) 13 F.2d 413, 414
545, 375 P.2d 425
425

759, 766, 48 Cal. Rptr. 215
Page 536 of 593

238 Cal. App. 2d 759, 771, 48 Cal. Rptr. 215
2d 759, 771-772, 48 Cal. Rptr. 215
(1965) 238 Cal. App. 2d 759, 773, 48 Cal. Rptr. 215
Page 537 of 593

PART IV. FORMS
3432]
LEGES:

request].

Page 538 of 593

[2] Use of Form
[3] Allegations
[4] State Statutes
[5] Decisions
Page 539 of 593

(1937) 9 Cal. 2d 631, 638-640, 72 P.2d 114
97 Cal. Rptr. 706
Page 540 of 593

PART IV. FORMS
LEGES:
transferor].
Page 541 of 593

[2] Use of Form
in ß 270.34[5]].

[3] State Statutes
Page 542 of 593

[4] Decisions

768-769, 33 Cal. Rptr. 2d 786
Page 543 of 593

802

Page 544 of 593

PART IV. FORMS
ß 3439.08(e)(1)]
3439.08(e)(1)]
LEGES:

Page 545 of 593


[2] Use of Form
[3] State Statutes
(1)
Page 546 of 593

Page 547 of 593

PART IV. FORMS
Page 548 of 593



[2] Use of Form
Page 549 of 593

Cal. 2d 477, 479, 58 P.2d 647] .
[3] State Statutes
[4] Decisions
633, 635-636, 290 P.2d 880
719, 723, 292 P.2d 906
Page 550 of 593

Preferences .
Page 551 of 593

PART IV. FORMS
[Reserved]
Page 552 of 593

PART IV. FORMS

COUNTY OF ___________________
______________________ [name], )
Plaintiff, )
vs. ) NO. _____
______________________ [name(s)], ) COMPLAINT TO SET ASIDE VOID TRANSFER
[and DOES I through ______________________,] ) [Amount demanded ____________________ (ex-
Defendant(s). ) ceeds or does not exceed) $10,000]
)
__________________________________________________
Plaintiff alleges:
Page 553 of 593






Page 554 of 593

______________________ [signature]

[2] Use of Form
Rptr. 887 ; see ß 270.190[7]].
[see ßß 270.190 -270.194].
[3] Allegations
Page 555 of 593

[4] Remedies
270.190[8].
[5] State Statutes
Code ß 3440.6
[6] Decisions
Page 556 of 593

262, 267, 30 P. 538
701, 200 P. 801
P. 53
(1970) 3 Cal. App. 3d 428, 439-440, 83 Cal. Rptr. 783
[7] Text References
Page 557 of 593

PART IV. FORMS
3440]
COUNTY OF ___________________
______________________ [name], Plaintiff, )
vs. )
______________________ [name(s)], [and DOES I ) NO. _____
through ______________________,] Defendant(s). ) COMPLAINT FOR DECLARATORY RELIEF
)
__________________________________________________
Plaintiff alleges:
Page 558 of 593




of transferor].
Page 559 of 593



claim];
Page 560 of 593

______________________ [firm name, if any]
By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[see ß 270.220].
Page 561 of 593

See also ßß 270.190, 270.220.
of Instruments .
Page 562 of 593

PART IV. FORMS
[2] Use of Form
Page 563 of 593

See also ßß 270.220, 270.221.
Page 564 of 593

PART IV. FORMS
Page 565 of 593

Paragraph 1.]
[2] Use of Form
See also ßß 270.220 -270.222.
Page 566 of 593

PART IV. FORMS
[Reserved]
Page 567 of 593

PART IV. FORMS
C. Bulk Sales


___________________ ___________________
_________
_________
__
___________________ ___________________
_________
_________
__
Page 568 of 593

Dated: ______________________.

[2] Use of Form
6107 (discussed in ß 270.102)].
Page 569 of 593

Code ß 441 [Com. Code ß 6105(b)(3)].
of sale.
Page 570 of 593

[5] State Statutes
Com. Code ß 6105
Com. Code ß 6111
[6] Text References
Bender).
Page 571 of 593

PART IV. FORMS
C. Bulk Sales


___________________ ___________________
_________
_________
__
___________________ ___________________
_________
_________
__
Page 572 of 593



Dated: ______________________.
______________________ [signature(s) of
[2] Use of Form
ß 6102(a)(10)].
Page 573 of 593

[4] State Statutes

Page 574 of 593

PART IV. FORMS
C. Bulk Sales
Code ß 6107]
Code ß 6107]
COUNTY OF ___________________
)
vs. ) COMPLAINT FOR RECOVERY OF CLAIM
______________________ [name], [and DOES I ) (Bulk Sale Law)
through ______________________,] Defendant(s). ) [Amount demanded ____________________ (ex-
__________________________________________________
Plaintiff alleges:

Page 575 of 593

payment is ____________________(date)].
____________________ [date].

a part hereof.
[CONTINUE]

Page 576 of 593



was located.]

Page 577 of 593

was located.]



[CONTINUE]

Page 578 of 593

______________________ [signature]

[2] Use of Form

Page 579 of 593

[b] "Claim" Defined
[4] Allegations

[a] above)].
Page 580 of 593


[a] One Year Period
Page 581 of 593

[6] State Statutes
ß 6107(a)
Com. Code ß 6110
[7] Text References
See also ßß 270.190, 270.240.
Page 582 of 593

PART IV. FORMS
C. Bulk Sales


___________________ [date].

Page 583 of 593

[2] Use of Form
[a] Bulk Sale
[b] Auctioneer
[c] Liquidator
Code ß 6102(a)(7)(i)(A)].
See also ßß 270.241 and 270.242.
Page 584 of 593

PART IV. FORMS
C. Bulk Sales
[2] Use of Form
Page 585 of 593

(a)-(b); see ß 270.103].
[3] State Statutes
(c)
Page 586 of 593

PART IV. FORMS
C. Bulk Sales
equipment].
price.
Page 587 of 593

$____________________.
[2] Use of Form
[Com. Code ß 6107(d); see ß 270.245[3]].
Page 588 of 593

Page 589 of 593

[4] State Statutes

See also ßß 270.240 and 270.242.
Page 590 of 593

PART IV. FORMS
C. Bulk Sales

Page 591 of 593


made a part hereof.
[2] Use of Form
Page 592 of 593

[3] State Statutes
Exclusions
Page 593 of 593

Contracts part IV Procedural Checklists-46 9/27/11 2:06 AM
1 of 142 DOCUMENTS

NOTE:


Page 1 of 495
Assignees.
Heirs.
PRACTICE TIP:
68 Cal. Rptr. 3d 295, 171 P.3d 20 ; see ß 140.55[5]].

Page 2 of 495

form.
PRACTICE TIP:
the contract.
contract.
NOTE:
Page 3 of 495


contract.
plaintiffs:

369].

372(a)].
Page 4 of 495

Instruments ].
Instruments ].


Page 5 of 495


ment).



marine insurance).
Page 6 of 495
(2)]; and


PRACTICE TIP:

PRACTICE TIP:
Page 7 of 495
on:

citizens)]; or

following factors:
22, 582 P.2d 109 ;
Page 8 of 495

478] ;

the parties;
[d]].

Page 9 of 495

(Paragraph 4).
(Paragraph 4).



graph 7).

140.101[1] (Paragraph 8).
Complaints .

Page 10 of 495
Legal Topics:
Page 11 of 495
2 of 142 DOCUMENTS

NOTE:

contract Actions.
Page 12 of 495

140.140].

140.151].

Page 13 of 495
(rescission)].
Page 14 of 495

(1991) 229 Cal. App. 3d 764, 767-768, 280 Cal. Rptr. 355] .
Legal Topics:
Page 15 of 495
3 of 142 DOCUMENTS

[Reserved]
Page 16 of 495
4 of 142 DOCUMENTS

PART V. FORMS
PLD-C-001, PLD-C-001(1)]
C-001, PLD-C-001(1)]
[2] Use of Form
PLD-C-001(1)].
140.101 -140.106.
269.90.
Page 17 of 495

[a] Heading
must be filled in.
graph 6)
Page 18 of 495
(c)].
following rules:

Page 19 of 495
Code ßß 1812.10(a) and 2984.4(a).
Page 20 of 495
to interest.
App. 2d 703, 708, 196 P.2d 143 ].
[a] Heading
cross complaint.
Page 21 of 495
Cal. App. 4th 506 (2009) .
300, 303-304, 289 P. 242] .
Page 22 of 495
Page 23 of 495
[6] Verification
Page 24 of 495
Page 25 of 495
5 of 142 DOCUMENTS

PART V. FORMS
General Form
Form
COUNTY OF ___________________
______________________ [name], )
__________________________________________________
Plaintiff alleges:
Page 26 of 495



[date];

to proof).]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
VERIFICATION
Page 27 of 495
to be true.
and correct.
___________________ [date]
______________________ [signature]
______________________ [typed name]
[2] Use of Form
[3] Allegations
[a] In General
(1969) 273 Cal. App. 2d 286, 290, 78 Cal. Rptr. 6] :
PRACTICE TIP:
Page 28 of 495
122, 128, 132, 226 Cal. Rptr. 321] .
Cal. App. 2d 286, 291, 78 Cal. Rptr. 6] .
Page 29 of 495
(1919) 44 Cal. App. 69, 71, 185 P. 1008] .
[e] Consideration
Cal. 429, 433, 34 P. 1089] .
Page 30 of 495
Cal. App. 3d 875, 883, 268 Cal. Rptr. 505] .
[f] Damages
396a(a)].
[5] Verification
Page 31 of 495
[6] Jurisdiction
[7] Attorney's Fees
Commonly Used
Complaints
Page 32 of 495
Filing of Papers
Jurisdiction
and Papers
Page 33 of 495
6 of 142 DOCUMENTS

PART V. FORMS


Page 34 of 495
[Prayer. See ß 140.101[1].]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
graph 6).

Page 35 of 495
229 P.2d 434] .
Page 36 of 495
7 of 142 DOCUMENTS

PART V. FORMS


[Prayer. See ß 140.101[1].]
Page 37 of 495
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations

[see [c], below].
Page 38 of 495
Page 39 of 495
916, 919-920, 136 Cal. Rptr. 890] .
560] .
Page 40 of 495
133] .
796, 112 Cal. Rptr. 195, 518 P.2d 1147] .
Page 41 of 495
8 of 142 DOCUMENTS

PART V. FORMS
1622]--General Form
___________________ [specify].
___________________ (specify)].

Page 42 of 495
[Prayer. See ß 140.101[1].]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
583] .
Page 43 of 495
140.110[1].
Page 44 of 495
9 of 142 DOCUMENTS

PART V. FORMS
[EITHER]

[OR]
Page 45 of 495
[CONTINUE]
[Prayer. See ß 140.101[1].]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
1440].
Page 46 of 495

[3] Allegations
Page 47 of 495
10 of 142 DOCUMENTS

PART V. FORMS


Page 48 of 495
or representation].

$____________________.

[Prayer. See ß 140.101[1].]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
tion is missing.
232 Cal. App. 3d 816, 830, 283 Cal. Rptr. 551] .
[a] Burden
366, 111 Cal. Rptr. 468] .
Page 49 of 495
[b] Allegations
Rptr. 785] :
(Paragraph 7).

(Paragraph 8).
Page 50 of 495
11 of 142 DOCUMENTS

PART V. FORMS

Action Is Commenced
Action Is Commenced
[EITHER]
[OR]
[OR]
Page 51 of 495
[2] Use of Form
140.108[1].
Page 52 of 495
12 of 142 DOCUMENTS

PART V. FORMS

COUNTY OF ___________________
______________________ [name], )
Plaintiff, )
vs. )
______________________ [names], ) NO. _____
)
)
__________________________________________________________________
I ___________________ [name], declare:
Section 395(b)].
Page 53 of 495
and correct.
___________________ [date]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
[2] Use of Form
Proc. ß 396a(a)].
[3] Venue
Page 54 of 495
Page 55 of 495
13 of 142 DOCUMENTS

PART V. FORMS

[2] Use of Form
98 Cal. Rptr. 414] .
Page 56 of 495
Cal. App. 300, 304, 289 P. 242] .
Page 57 of 495
14 of 142 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 58 of 495
254 Cal. Rptr. 211, 765 P.2d 373] .
789-791, 201 Cal. Rptr. 640] .
298 P.2d 555] .
Cal. App. 3d 36, 42, 201 Cal. Rptr. 870] .
Page 59 of 495
15 of 142 DOCUMENTS

PART V. FORMS

1656]
1656]
[2] Use of Form
Page 60 of 495
4th 880, 892-893, 41 Cal. Rptr. 2d 740] .
Page 61 of 495
16 of 142 DOCUMENTS

PART V. FORMS

[Civ. Code ß 1698]

Code ß 1698]
[EITHER]
[OR]
Page 62 of 495
defendant].
[OR]
[2] Use of Form
Page 63 of 495
14 Cal. Rptr. 523] ;
314, 325, 95 P. 159] ;
and Restitution ];

Page 64 of 495
Page 65 of 495
17 of 142 DOCUMENTS

PART V. FORMS

[2] Use of Form
Page 66 of 495
Page 67 of 495
18 of 142 DOCUMENTS

PART V. FORMS

of this pleading.
[EITHER]
[OR]

[2] Use of Form
Page 68 of 495
159-160, 11 P. 592] .
Page 69 of 495
19 of 142 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 70 of 495
20 of 142 DOCUMENTS

PART V. FORMS

$____________________.
[2] Use of Form
Page 71 of 495
Page 72 of 495
21 of 142 DOCUMENTS

PART V. FORMS
[Reserved]
Page 73 of 495
22 of 142 DOCUMENTS

PART V. FORMS

COUNTY OF ___________________
)
) NO. _____
______________________ [name], ) MEMORANDUM]
Plaintiff, ) Date: ____________________
vs. ) Time: ____________________
______________________[name], ) Location: ____________________
Defendant. ) Judge: ____________________
) Trial Date: ____________________
__________________________________________________
Page 74 of 495
Dated: ___________________.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
[2] Use of Form
3.1113(a), 3.1320].
Page 75 of 495
23 of 142 DOCUMENTS

PART V. FORMS
COUNTY OF ___________________
)
) NO. _____
vs. ) Date: ____________________
______________________ [name], ) Time: ____________________
) Judge: ____________________
Trial Date: ____________________
__________________________________________________
Dated: ___________________.
______________________ [firm name, if any]
Page 76 of 495
By: ______________________ [signature]

______________________ [typed name]
[2] Use of Form
3.1320].
4th 100, 106-108, 26 Cal. Rptr. 2d 133] .
Page 77 of 495
24 of 142 DOCUMENTS

PART V. FORMS
[2] Use of Form
425.12].

Page 78 of 495
[a] Heading
Paragraph 2.
Page 79 of 495

Page 80 of 495
Page 81 of 495
25 of 142 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 82 of 495
26 of 142 DOCUMENTS

PART V. FORMS


Page 83 of 495
plaintiff].

[2] Use of Form
Page 84 of 495

Page 85 of 495
27 of 142 DOCUMENTS

PART V. FORMS

[2] Use of Form
Page 86 of 495
28 of 142 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 87 of 495
(1957) 153 Cal. App. 2d 707, 713, 315 P.2d 67] .
Page 88 of 495
29 of 142 DOCUMENTS

PART V. FORMS
[EITHER]
[OR]

[2] Use of Form
Page 89 of 495


Thornton (1902) 136 Cal. 232, 235, 68 P. 708] .
Page 90 of 495
Page 91 of 495
30 of 142 DOCUMENTS

PART V. FORMS
[2] Use of Form
other thing)].
Page 92 of 495
67 P. 681] .
Page 93 of 495
31 of 142 DOCUMENTS

PART V. FORMS


pleading.
[2] Use of Form
Page 94 of 495
Houston (1932) 215 Cal. 742, 745-746, 12 P.2d 952] .
Rptr. 421] .
Page 95 of 495
32 of 142 DOCUMENTS

PART V. FORMS


[2] Use of Form
Page 96 of 495
(Paragraph 4).
Page 97 of 495
33 of 142 DOCUMENTS

PART V. FORMS

[2] Use of Form
Page 98 of 495
238] .
Page 99 of 495
Page 100 of 495

34 of 142 DOCUMENTS

PART V. FORMS
[2] Use of Form
2d 869, 874, 309 P.2d 147] .
Page 101 of 495

Page 102 of 495

35 of 142 DOCUMENTS

PART V. FORMS
[2] Use of Form
writing.
Page 103 of 495

of Frauds .
(1903) 141 Cal. 109, 112, 74 P. 695] .
Page 104 of 495

36 of 142 DOCUMENTS

PART V. FORMS

1667(1)]
1667(1)]
[2] Use of Form
Page 105 of 495

App. 3d 832, 838, 247 Cal. Rptr. 340] .


Page 106 of 495

Page 107 of 495

37 of 142 DOCUMENTS

PART V. FORMS
ß 1667(2), (3)]
ß 1667(2), (3)]

[2] Use of Form
Page 108 of 495

Cal. Rptr. 519] .
Page 109 of 495



Page 110 of 495

527, 161 P.3d 1095] .


1563-1564, 274 Cal. Rptr. 647] .
Page 111 of 495

38 of 142 DOCUMENTS

PART V. FORMS
___________________ [specify facts].
[2] Use of Form
140.25].
Page 112 of 495

[Civ. Code ß 1670.5(b)].
3d 542] .
(1990) 219 Cal. App. 3d 97, 101, 268 Cal. Rptr. 207] .
Cal. Rptr. 207] .

Page 113 of 495

(1991) 227 Cal. App. 3d 1578, 1588, 278 Cal. Rptr. 570] .
Page 114 of 495

1805, 23 Cal. Rptr. 2d 80] .

83, 117, 6 P.3d 669] .

716] .
Page 115 of 495

24-25, 262 Cal. Rptr. 716] .

1076, 130 Cal. Rptr. 2d 892, 63 P.3d 979] .
Page 116 of 495

Page 117 of 495

Cal. Rptr. 345, 702 P.2d 503 .


Page 118 of 495

123 Cal. Rptr. 2d 288] .

1099-1102, 118 Cal. Rptr. 2d 862] .


be unconscionable:


Page 119 of 495


1803-1805, 23 Cal. Rptr. 2d 80] .

Cal. App. 3d 802, 820-821, 238 Cal. Rptr. 806] .
Page 120 of 495

by other means)].


Page 121 of 495




Rptr. 498] .
227 Cal. App. 3d 1578, 1586-1588, 278 Cal. Rptr. 570] .

789] .
Page 122 of 495

647-648, 225 Cal. Rptr. 742] .
442-444, 216 Cal. Rptr. 462] .
Cal. App. 3d 385, 389, 198 Cal. Rptr. 523] .
Page 123 of 495

39 of 142 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 124 of 495

40 of 142 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 125 of 495

Cal. Rptr. 508 ; see ß 140.46].
5-6, 263 Cal. Rptr. 373] .
Page 126 of 495

41 of 142 DOCUMENTS

PART V. FORMS

[2] Use of Form
Page 127 of 495

42 of 142 DOCUMENTS

PART V. FORMS


[EITHER]

[OR]
Page 128 of 495

[OR]
[CONTINUE]
[2] Use of Form
9, 128 Cal. Rptr. 109] .
Page 129 of 495

Rptr. 518] .
Cal. Rptr. 820] .
Page 130 of 495

43 of 142 DOCUMENTS

PART V. FORMS



[2] Use of Form
432, 246 P.2d 946] .
Page 131 of 495

16] .
Cal. App. 3d 695, 704-705, 228 Cal. Rptr. 518] .
Page 132 of 495

44 of 142 DOCUMENTS

PART V. FORMS

1700]
1700]
[2] Use of Form
Page 133 of 495

87 P. 59] .
746, 16 P.2d 737] .
Page 134 of 495

45 of 142 DOCUMENTS

Chapter 191 DISCOVERY: PRIVILEGES AND OTHER DISCOVERY LIMITATIONS
ß 191.syn Synopsis to Chapter 191: DISCOVERY: PRIVILEGES AND OTHER DISCOV-

ERY LIMITATIONS


ßß 191.03-191.09 [Reserved]
[1] Civil Discovery Act
[2] Evidentiary Privileges and Other Protections Against Disclosure

ß 191.11 General Scope of Discovery Limited by Privileges and Other Protections
ß 191.12 Privileges Exist Only by Express Statutory Provision
[1] General Rule
[2] Exception for Privilege Required by Constitutional Law

ß 191.13 Burden of Proof Relating to Privilege
Page 135 of 495

[1] Burden on Claiming Party to Show Existence of Privilege
[2] Burden on Opposing Party to Show Lack of Confidentiality or Exception to Privilege

ß 191.14 Standing of Non-Party to Assert Privilege
ß 191.15 Waiver of Privileges Generally
[1] Waiver for Failure to Make Timely Objection or Response to Discovery Demand
[2] Waiver by Disclosure or Consent to Disclosure
[a] Applicable to Confidential Communications
[b] Statement or Conduct Must Indicate Consent to Effect Waiver
[3] Waiver Implied by Placing Privileged Matter in Issue
[a] General Rule
[b] Scope of Implied Waiver Narrowly Construed
[4] Disclosure by One of Two or More Joint Holders
[5] Necessary Disclosure Does Not Constitute Waiver
[6] Disclosure That Is Privileged Does Not Waive Privilege
[7] Inadvertent Disclosure Absent Consent Does Not Waive Privilege
[a] General Rule
[b] Ethical Duty of Attorney Who Receives Inadvertent Disclosure

ß 191.16 Presumptions Involving Confidential Relationship Privileges
ßß 191.17-191.29 [Reserved]
ß 191.30 Privilege Against Self-Incrimination
ß 191.31 Privilege Limited to Matters Subjecting Holder to Criminal, Not Civil, Liability
ß 191.32 Privilege May Be Asserted Only in Reference to Particular Questions or Demands for
Disclosure
ß 191.33 Plaintiff May Not Use Privilege to Avoid Discovery Relevant to His or Her Action
ß 191.34 Personal Nature of Privilege
Page 136 of 495

ß 191.35 Compelling Disclosure During Civil Discovery

ßß 191.36-191.39 [Reserved]
ß 191.40 Attorney-Client Privilege
[1] Purpose of Privilege: To Foster Open Communications With Counsel
[2] Privilege Held by Client to Prevent Disclosure of Confidential Communications
[3] Protected Communications

ß 191.41 Claiming the Attorney-Client Privilege
[1] General Rule
[2] When Attorney Must Claim Privilege
[3] Claim of Privilege by Non-Party
[4] Claim of Privilege in Conjunction With Attorney Work Product Claim

ß 191.42 Privilege Held by Client Corporation or Similar Entity
[1] Shareholder of Corporate Client May Not Claim or Waive Privilege
[2] Members of Client Unincorporated Association May Not Claim or Waive Privilege
ß 191.43 Situations in Which Privilege Does Not Exist
ß 191.44 Termination of Privilege Subsequent to Death of Client
ß 191.45 Application of Privilege to Recipient of Paralegal Services
ß 191.46 Application of Privilege to Client of Tax Practitioner
[1] Statutory Extension of Privilege
[2] Extension Under Case Law

ß 191.47 Application of Privilege to Welfare Recipient
ß 191.48 Application of Privilege to Trustee
[1] Privilege Held by Office of Trustee Rather Than by Individual Trustee
[2] Trustee's Confidential Communications to Attorney Are Privileged Against Trust Beneficiaries
ßß 191.49-191.59 [Reserved]
Page 137 of 495

ß 191.60 Physician-Patient Privilege
[1] Privilege Held by Patient to Prevent Disclosure of Confidential Communications

ß 191.61 Claiming the Physician-Patient Privilege
[1] General Rule
[2] When Physician Must Claim Privilege
[3] Claim of Privilege by Parent as Guardian of Child Patient
[4] Claim of Privilege by Third-Party Recipient of Confidential Communication

[1] When Patient Is Litigant
[a] General Rule
[b] Exception to Privilege Narrowly Construed
[2] Other Situations When Privilege Does Not Exist

ß 191.63 Subpoena of Confidential Communication for Coroner's Inquest
ßß 191.64-191.69 [Reserved]
ß 191.70 Psychotherapist-Patient Privilege
[3] Scope of Privilege

ß 191.71 Claiming the Psychotherapist-Patient Privilege
[1] General Rule
[2] When Psychotherapist Must Claim Privilege
[3] Existence of Privilege Subsequent to Death of Client
Page 138 of 495

[4] Burden of Proving Claim of Privilege
[a] Claimant Has Burden
[b] Dominant Purpose Test
[c] Effect When Burden Met


ßß 191.73-191.79 [Reserved]
ß 191.80 Other Confidential Relationship Privileges
[1] Confidential Relationship Privileges Generally
[2] Confidential Marital Communications
[3] Privilege Not to Testify Against Spouse
[4] Clergy-Penitent Privilege
[5] Sexual Assault Counselor-Victim Privilege
[6] Domestic Violence Counselor-Victim Privilege
[7] Human Trafficking Caseworker-Victim Privilege

ß 191.81 Official Information Privilege
[1] Definition
[2] When Privilege Is Absolute
[3] When Privilege Is Conditional
[4] Waiver of Conditional Official Information Privilege

ß 191.82 Trade Secret Privilege
[1] General Rule
Page 139 of 495

[2] Effect of Privilege in Action for Misappropriation of Trade Secret
[3] Limiting Disclosure After Waiver of Privilege

ßß 191.83-191.99 [Reserved]
ß 191.100 Attorney Work Product Protection
ß 191.101 Policy Considerations Underlying Work Product Protection
ß 191.102 Definition of Work Product
ß 191.103 Discovery of Work Product
[1] General Rule of Conditional Protection
[2] Expert Consultants
[3] Attorney's Written Opinions and Legal Theories

ß 191.104 State Bar Disciplinary Investigations
ß 191.105 Action Involving Client
ß 191.106 Standing to Claim Work Product Protection
ßß 191.107-191.119 [Reserved]
ß 191.120 Right to Privacy
[1] Nonstatutory Privilege Based on Constitutional Guarantee of Privacy
[2] Examples of Matters Protected From Disclosure
[3] Balancing of Privacy Interest With State Interest in Disclosure
[4] Disclosure Required by Compelling State Interest May Be Limited by Protective Order or
Similar Measures
[5] Waiver of Privacy Right
[6] Assertion of Third Person's Privacy Rights
[a] Availability and Balancing Conflicting Interests
[b] Dissolution of Marriage Proceedings

ß 191.121 Statutory Protections Relating to Subpoenaed Records Containing Personal Informa-
Page 140 of 495

tion
[1] Consumer Records
[2] Employee Records
[3] In Connection With Actions Involving Free Speech Rights

ß 191.122 News Reporter's Qualified First Amendment Privilege
ß 191.123 Newsperson's Immunity From Contempt
[1] "Shield Law" Protection Against Disclosure of Sources or Unpublished Information
[2] Scope of Immunity
[a] Limited to Protection From Contempt Proceedings
[b] Unpublished Information
[c] Identity of Source
[3] Determining When Shield Law Applies
[4] Limitations on Contempt Immunity
[a] Criminal Activity
[b] Violation of Court Order
[c] Newsperson Not Engaged in News Gathering
[5] Related Subpoena Procedures
[6] Appellate Review

ß 191.124 Tax Returns
[1] Protected Documents and Information
[2] Waiver or Inapplicability of Protection

ß 191.125 Settlement Efforts
ß 191.125A Mediation Efforts
Page 141 of 495

[2] Communications Subject to Discovery
[3] Noncommunicative Conduct Is Subject to Discovery

ß 191.126 Medical or Other Health Care Committees
ß 191.127 Information Pertaining to AIDS Blood Test
ß 191.128 Litigation Documents of Public Agency
ß 191.129 Defendant's Financial Information in Action Seeking Punitive Damages
ßß 191.130-191.149 [Reserved]
[1] Disclosure Limits Under Discovery Act and Evidence Code
[2] Other Statutes Relating to Disclosure Limitations

[1] Discovery Permitted If Matter Is Relevant and Unprivileged
[2] Privileges Generally
[3] Privilege Against Self Incrimination
[4] Attorney-Client Privilege
[a] Claiming the Attorney-Client Privilege
[b] Corporation or Unincorporated Association as Client
[c] Crime or Fraud Exception
[d] Disclosure to Third Persons
[e] Joint Client Exception
[f] Initial Consultation
Page 142 of 495

[g] Legal Malpractice Action
[h] Matter Put in Issue
[i] Public Entity Client
[j] Scope of Privilege
[k] Trustee
[l] Waiver
[6] Marital Privileges
[a] Confidential Marital Communication
[b] Privilege Not to Testify Against Spouse
[7] Medical or Other Health Care Committee Records
[8] Newsperson's Immunity From Contempt
[a] In General
[b] Limitations on Scope of Immunity
[c] Scope of Contempt Immunity
[9] News Reporter's Qualified First Amendment Privilege
[10] Official Information Privilege
[11] Peer Review Records of Hospitals and Medical Organizations
[12] Physician-Patient Privilege
[13] Police Officer Personnel Records
[14] Privacy
Page 143 of 495

[15] Psychotherapist-Patient Privilege
[16] Sealed Court Records
[16A] Settlement or Mediation Efforts
[17] State Secret Privilege
[18] Tax Returns
[19] Vehicle Accident Reports
[20] Waiver of Privilege Generally
[21] Trade Secrets Privilege
[22] Work Product Protection

Page 144 of 495

46 of 142 DOCUMENTS

PART I. SCOPE
This chapter discusses the evidentiary privileges set out in Evid. Code ß 900 et seq., the attorney
work-product protection of Code Civ. Proc. ß 2018.010 et seq., and similar statutes and provisions
that protect against disclosure and therefore limit the scope of matters otherwise subject to civil
discovery.
The legal background is divided into subparts discussing:
General principles applicable to evidentiary privileges [see ß 191.10 et seq.].
The privilege against self-incrimination [see ß 191.30 et seq.].
The attorney-client privilege [see ß 191.40 et seq.].
The physician-patient privilege [see ß 191.60 et seq.].
The psychotherapist-patient privilege [see ß 191.70 et seq.].
Other evidentiary privileges [see ß 191.80 et seq.].
The attorney work product protection [see ß 191.100].
Other miscellaneous protections against disclosure [see ß 191.120 et seq.].
Page 145 of 495

Legal Topics:
Civil ProcedureDiscoveryPrivileged MattersWork ProductGeneral OverviewEvidencePrivilegesGen-
eral Overview
Page 146 of 495

47 of 142 DOCUMENTS

PART I. SCOPE
For discussion and forms relating to the general provisions of the Civil Discovery Act,
including the provisions relating to the purpose, general scope, general regulation, and
timing of civil discovery, see Ch. 190, Discovery: Scope, Regulation, and Timing .
For discussion and forms relating to discovery sanctions generally, see Ch. 192,
Discovery: Sanctions for Discovery Misuse .
For detailed discussion of discovery of electronically stored evidence (e-discovery),

including the special rules governing inadvertent disclosure of privileged electronically
stored information, see Ch. 195A, Discovery: Discovery of Electronically Stored
Evidence (E-Discovery).
For discussion and forms relating to the use of particular discovery methods authorized
by the Civil Discovery Act, see the following chapters covering each method:
Ch. 193, Discovery: Depositions.
Ch. 194, Discovery: Interrogatories.
Ch. 195, Discovery: Inspection of Tangible Evidence.
Page 147 of 495

Ch. 196, Discovery: Requests for Admissions.
Ch. 197, Discovery: Physical and Mental Examinations.
Ch. 198, Discovery: Exchange of Expert Witness Information.
For discussion and forms relating to the use of specified discovery methods for the
purpose of preserving testimony or other evidence prior to the commencement of an
action or pending an appeal, see Ch. 199, Discovery: Preservation of Evidence .
For discussion and forms relating to the review of interlocutory discovery orders in
certain circumstances by petition for writ of mandate or prohibition, see Ch. 200,
Discovery: Review of Discovery Orders .
For discussion and forms relating to discovery and privileges or other protections
against disclosure in particular actions or proceedings, see the following:
Ch. 71, Attorney Discipline (discussion of discovery in State Bar disci-

plinary proceedings).
Ch. 295, Hospitals (discussion of discovery of hospital records).
Ch. 473B, Discovery in Agency Adjudications (discussion forms relating to

discovery in administrative trials under the Administrative Procedure Act of
Gov. Code ß 11340 et seq.).
Ch. 577, Workers' Compensation (discussion and forms relating to

discovery in workers' compensation proceedings).
For discussion and forms relating to subpoenas and subpoenas duces tecum generally,
including discussion of the notice and objection provisions that provide procedural
protections in the disclosure, by production pursuant to subpoena duces tecum, of
business records containing personal information about consumers or employees, see Ch.
535, Subpoena .
Page 148 of 495

Legal Topics:
Civil ProcedureDiscoveryMethodsAdmissionsGeneral OverviewCivil ProcedureDiscoveryMethod-
sInterrogatoriesGeneral OverviewCivil ProcedureDiscoveryMethodsOral DepositionsCivil Proce-
dureDiscoveryMethodsRequests for Production & InspectionCivil ProcedurePretrial MattersSubpoe-
nas
Page 149 of 495

48 of 142 DOCUMENTS

PART I. SCOPE
[Reserved]
Page 150 of 495

49 of 142 DOCUMENTS

ßß 269.03-269.09 [Reserved]
[1] Fraud
[2] Deceit
ß 269.13 Elements
Page 151 of 495


[1] General Rule

[1] Subjective Test
[a] In General
[b] Class Actions

Page 152 of 495


[1] General Rule
[2] Exceptions
[1] General Rule

[1] Definition
[4] Defenses
ß 269.23 Evidence
[1] Burden of Proof


Page 153 of 495


[1] General Rule
[3] Sale of Goods



ß 269.31 Defenses
[1] In General
Page 154 of 495

[6] Implied Waiver

ßß 269.35-269.49 [Reserved]
ß 269.53 Decisions
[2] Actual Reliance
[a] Breach of Duty
[b] General Rule
[c] Loss of Profits
[d] Sale of Goods
[4] Attorney's Fees
Page 155 of 495

[b] Breach of Duty
[c] Defenses
[8] Defendants
[9] Defenses
[a] Generally
[b] Late Discovery
[10] Definitions
[12] Elements
[13] Evidence
[17] Intent
Page 156 of 495

[b] Class Actions
[20] Materiality
[a] In General
[29] Public Policy
Page 157 of 495

[a] Generally
[33] Venue
ßß 269.56-269.69 [Reserved]


ßß 269.72-269.89 [Reserved]
[1] FORM
[3] Use of Form
Page 158 of 495

[b] Alleging Deceit
[i] In General
[7] Verification

[1] FORM
[2] Use of Form
[3] Allegations
[6] Damages
[7] Verification
Page 159 of 495

[8] Jurisdiction
[9] Copies

[1] FORM
[2] Use of Form
[3] Text References

[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References

[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References
Page 160 of 495


Acreage
[1] FORM
[2] Use of Form
[3] Allegations
[4] Venue
[5] Text References

[1] FORM
[2] Use of Form
[3] Allegations

[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References
Page 161 of 495

[1] FORM
[2] Use of Form
[3] Allegations
[5] Text References

[1] FORM
[2] Use of Form
[3] Allegations
[6] Text References

[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References
Page 162 of 495


[1] FORM
[2] Use of Form
[3] Allegations
[4] Damages
[5] Text References

[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References

[1] FORM
[2] Use of Form
[3] Text References

Page 163 of 495

[1] FORM
[2] Use of Form
[3] Allegations
Page 164 of 495

50 of 142 DOCUMENTS
PART I. SCOPE
Page 165 of 495

Legal Topics:
Page 166 of 495

51 of 142 DOCUMENTS
PART I. SCOPE
for.
Advertising .
Page 167 of 495

Auctioneers .
Brokers .
Counts .
Conversion .
Page 168 of 495

Insurance .
Insurance .
Insurance .
Negligence .
Quieting Title .
Page 169 of 495

Transactions .
and Purchaser .
and Purchaser .
Page 170 of 495

Legal Topics:
Page 171 of 495

52 of 142 DOCUMENTS
PART I. SCOPE
[Reserved]
Page 172 of 495

53 of 142 DOCUMENTS
Legal Topics:
Page 173 of 495

54 of 142 DOCUMENTS
[1] Fraud
562, 568, 220 P.2d 950] .
[2] Deceit
Legal Topics:
Page 174 of 495

Page 175 of 495

55 of 142 DOCUMENTS
(1968) 266 Cal. App. 2d 570, 588, 72 Cal. Rptr. 273] .
(1972) 25 Cal. App. 3d 750, 765, 102 Cal. Rptr. 286] .
Legal Topics:
Page 176 of 495

Page 177 of 495

56 of 142 DOCUMENTS
ß 269.13 Elements
227 Cal. App. 2d 173, 192-193, 38 Cal. Rptr. 525] .
Legal Topics:
Page 178 of 495

57 of 142 DOCUMENTS
Rptr. 288] .
Page 179 of 495

of property)].
Page 180 of 495

Rptr. 547] .
Page 181 of 495

1066, 1081, 60 Cal. Rptr. 2d 263, 929 P.2d 582] .
P.2d 582] .
and Slander .
(1966) 241 Cal. App. 2d 571, 573, 50 Cal. Rptr. 727] .
Page 182 of 495

921] .
Page 183 of 495

Legal Topics:
Page 184 of 495

58 of 142 DOCUMENTS
[1] General Rule
Page 185 of 495

1640, 1660-1661, 26 Cal. Rptr. 3d 638] .
Page 186 of 495

Rptr. 2d 490, 65 P.3d 1255] .
Legal Topics:
Page 187 of 495

59 of 142 DOCUMENTS
[1] Subjective Test
Page 188 of 495

808, 66 Cal. Rptr. 3d 543] .
322, 328, 112 Cal. Rptr. 366] .
had not obtained)].
Page 189 of 495

275 Cal. App. 2d 90, 105, 79 Cal. Rptr. 816] .

1502-1503, 55 Cal. Rptr. 3d 59] .
Page 190 of 495

Sale
App. 4th 312, 313, 316-318, 28 Cal. Rptr. 2d 242] .
[a] In General
(1971) 4 Cal. 3d 800, 814, 94 Cal. Rptr. 796, 484 P.2d 964] .
[b] Class Actions
Page 191 of 495

1082, 1095, 23 Cal. Rptr. 2d 101, 858 P.2d 568] .
Legal Topics:
Page 192 of 495

60 of 142 DOCUMENTS
Cal. Rptr. 681, 534 P.2d 377] .
Page 193 of 495


Cal. Rptr. 670] .
Legal Topics:
Page 194 of 495

61 of 142 DOCUMENTS
[1] General Rule
App. 2d 382, 388, 319 P.2d 721] .
[2] Exceptions
Page 195 of 495

(1957) 156 Cal. App. 2d 382, 388, 319 P.2d 721] .
Legal Topics:
Overview
Page 196 of 495

62 of 142 DOCUMENTS
[1] General Rule
(1975) 48 Cal. App. 3d 73, 82-86, 121 Cal. Rptr. 144] .
111 Cal. Rptr. 2d 711] .
Page 197 of 495

Rptr. 871] .
858 P.2d 568 ; see also ß 269.15[2]].
Legal Topics:
Page 198 of 495

63 of 142 DOCUMENTS
P.2d 567] .
Page 199 of 495

Legal Topics:
Page 200 of 495

64 of 142 DOCUMENTS
(1972) 22 Cal. App. 3d 721, 728, 99 Cal. Rptr. 488] .
Legal Topics:
FraudRemedies
Page 201 of 495

65 of 142 DOCUMENTS
[1] Definition
Page 202 of 495

(1966) 247 Cal. App. 2d 272, 290-291, 55 Cal. Rptr. 610] .

334] .
[4] Defenses
P. 317] .
Page 203 of 495

Legal Topics:
Page 204 of 495

66 of 142 DOCUMENTS
ß 269.23 Evidence
[1] Burden of Proof
Legal Topics:
Page 205 of 495


Page 206 of 495

67 of 142 DOCUMENTS
Page 207 of 495

879] .
Page 208 of 495

582] .
Legal Topics:
Page 209 of 495

68 of 142 DOCUMENTS
partners)].
Legal Topics:
Page 210 of 495

Page 211 of 495

69 of 142 DOCUMENTS
449-450, 21 Cal. Rptr. 2d 313] .
Page 212 of 495

Legal Topics:
Page 213 of 495

70 of 142 DOCUMENTS
[1] General Rule
220, 119 Cal. Rptr. 288] .
Page 214 of 495


the reliance on it.
1228] .
Page 215 of 495

53-56, 19 Cal. Rptr. 2d 771] .
70 Cal. Rptr. 472] .
160 Cal. App. 3d 548, 559, 206 Cal. Rptr. 641] .
[3] Sale of Goods
Page 216 of 495

624 ; see Com. Code ß 2715(2)(a)].
Page 217 of 495

1802, 1808, 27 Cal. Rptr. 2d 47] .
Legal Topics:
dies
Page 218 of 495

71 of 142 DOCUMENTS
303, 98 Cal. Rptr. 547] .
Legal Topics:
Page 219 of 495

72 of 142 DOCUMENTS
(1979) 26 Cal. 3d 86, 103, 160 Cal. Rptr. 733, 603 P.2d 1329] .
Legal Topics:
Page 220 of 495

tual FraudRemedies
Page 221 of 495

73 of 142 DOCUMENTS
Cal. App. 2d 807, 812, 58 Cal. Rptr. 772] .
Page 222 of 495


Legal Topics:
Page 223 of 495

74 of 142 DOCUMENTS
ß 269.31 Defenses
[1] In General
Rptr. 440] .
Page 224 of 495

see ß 269.16.
(1918) 178 Cal. 653, 656, 174 P. 311] .
Page 225 of 495

875-876, 191 Cal. Rptr. 619, 663 P.2d 177] .
[6] Implied Waiver
1175, 1190-1191, 51 Cal. Rptr. 3d 144] .
Page 226 of 495

Legal Topics:
Page 227 of 495

75 of 142 DOCUMENTS
651] .
1] .
Legal Topics:
Page 228 of 495

General Overview
Page 229 of 495

76 of 142 DOCUMENTS
Desire
Legal Topics:
Page 230 of 495

77 of 142 DOCUMENTS
Legal Topics:
fenses
Page 231 of 495

78 of 142 DOCUMENTS
[Reserved]
Page 232 of 495

79 of 142 DOCUMENTS
Bender)
Legal Topics:
Page 233 of 495

80 of 142 DOCUMENTS
(Matthew Bender)
Legal Topics:
Page 234 of 495

81 of 142 DOCUMENTS
17511-17511.10
Page 235 of 495

1134.5(h)
1695.16, 1695.17
1709
Page 236 of 495

2945.10, 2945.11
ß 3333
3344.6; Penal Code ß 115.2
Proc. ß 395(a)

1974
Page 237 of 495

ß 18496.1
Legal Topics:
dies
Page 238 of 495

82 of 142 DOCUMENTS
ß 269.53 Decisions
Rptr. 402
(1983) 145 Cal. App. 3d 369, 385, 193 Cal. Rptr. 422
[2] Actual Reliance
Page 239 of 495

Rptr. 2d 101, 858 P.2d 568
3d 399

[a] Breach of Duty
Cal. 2d 736, 741-742, 336 P.2d 534
App. 3d 1204, 1214, 238 Cal. Rptr. 130
Page 240 of 495

315, 298 P.2d 667
[b] General Rule

App. 3d 780, 790-791, 231 Cal. Rptr. 72
232, 237, 198 Cal. Rptr. 494
(1975) 45 Cal. App. 3d 214, 219-220, 119 Cal. Rptr. 288
Rptr. 288
214, 220, 119 Cal. Rptr. 288
[c] Loss of Profits
Page 241 of 495

[d] Sale of Goods
(1989) 216 Cal. App. 3d 388, 432-433, 264 Cal. Rptr. 779
(1978) 22 Cal. 3d 718, 729-730, 150 Cal. Rptr. 637, 586 P.2d 1228
Cal. 2d 736, 741, 336 P.2d 534
(1933) 218 Cal. 780, 782-783, 25 P.2d 2
Page 242 of 495


665, 96 Cal. Rptr. 197
App. 2d 942, 968, 72 Cal. Rptr. 722
Rptr. 722
Page 243 of 495

App. 2d 667, 677-678, 70 Cal. Rptr. 472
Rptr. 125
Cal. Rptr. 851
159 Cal. App. 2d 196, 205, 323 P.2d 843
[4] Attorney's Fees
Cal. App. 3d 38, 61-62, 248 Cal. Rptr. 217
Cal. Rptr. 547
Page 244 of 495

(1990) 219 Cal. App. 3d 926, 938, 268 Cal. Rptr. 609
1533, 264 Cal. Rptr. 740
Page 245 of 495

879, 889, 124 Cal. Rptr. 577
708, 69 Cal. Rptr. 222
290-291, 55 Cal. Rptr. 610
950
[b] Breach of Duty
Cal. Rptr. 401, 519 P.2d 161
Page 246 of 495

Rptr. 513
Rptr. 483
App. 3d 172, 182, 111 Cal. Rptr. 334
22 Cal. App. 3d 626, 634-635, 99 Cal. Rptr. 393
Cal. Rptr. 872
Page 247 of 495

14 P.2d 146
[c] Defenses
489, 89 P. 317
Cal. Rptr. 155
App. 3d 837, 844, 199 Cal. Rptr. 830
513, 517-519, 42 Cal. Rptr. 883
Rptr. 852
1185, 88 Cal. Rptr. 2d 718
Page 248 of 495

202-203, 5 Cal. Rptr. 2d 615
(1972) 22 Cal. App. 3d 721, 728, 99 Cal. Rptr. 488
84 Cal. Rptr. 98
[8] Defendants
Rptr. 136
(1980) 112 Cal. App. 3d 158, 174, 169 Cal. Rptr. 136
2d 942, 960, 72 Cal. Rptr. 722
Page 249 of 495

Rptr. 472
App. 2d 173, 192, 38 Cal. Rptr. 525
Rptr. 463
875, 247 Cal. Rptr. 504
320-321, 198 Cal. Rptr. 483
409, 123 Cal. Rptr. 669
Page 250 of 495

[9] Defenses
[a] Generally
1502, 1506-1507, 278 Cal. Rptr. 386

Rptr. 816
Rptr. 441
266 Cal. App. 2d 942, 964-965, 72 Cal. Rptr. 722
Page 251 of 495

App. 2d 942, 964-965, 72 Cal. Rptr. 722
Rptr. 681
[b] Late Discovery
1990) 912 F.2d 357, 362
1423, 1432, 117 Cal. Rptr. 3d 597
Cal. Rptr. 3d 892
Cal. Rptr. 3d 9
Page 252 of 495

4th 1369, 1374, 105 Cal. Rptr. 2d 699
3d 915, 920-922, 259 Cal. Rptr. 117
Rptr. 857
86 Cal. Rptr. 872
Page 253 of 495

F.2d 454, 460
F.2d 1434, 1436
128-129, 271 Cal. Rptr. 434
Rptr. 14
Page 254 of 495

(1951) 103 Cal. App. 2d 651, 659, 230 P.2d 25
[10] Definitions
126, 136, 64 Cal. Rptr. 845
Cal. App. 3d 412, 419, 174 Cal. Rptr. 608
[12] Elements
4th 1082, 1088, 1095, 1100, 1108, 23 Cal. Rptr. 2d 101, 858 P.2d 568

Page 255 of 495

n.3, 10 Cal. Rptr. 2d 465
1046-1047, 281 Cal. Rptr. 640
App. 3d 1102, 1111, 234 Cal. Rptr. 853

Cal. Rptr. 308
Page 256 of 495

Cal. App. 4th 573,
Cal. App. 3d 155, 158, 263 Cal. Rptr. 473
Rptr. 72
Page 257 of 495

(1985) 165 Cal. App. 3d 120, 131-134, 211 Cal. Rptr. 271
(1975) 48 Cal. App. 3d 73, 82-86, 121 Cal. Rptr. 144
101 Cal. Rptr. 499
2d 102, 109, 38 Cal. Rptr. 440
[13] Evidence
Page 258 of 495

(1964) 227 Cal. App. 2d 102, 111, 38 Cal. Rptr. 440
Cal. App. 2d 173, 192, 38 Cal. Rptr. 525
748, 39 Cal. Rptr. 101
1363-1365
4th 1692, 1719-1720, 19 Cal. Rptr. 2d 555
(1975) 48 Cal. App. 3d 73, 82-86, 121 Cal. Rptr. 144
102 Cal. Rptr. 286
Cal. App. 3d 888, 892, 91 Cal. Rptr. 142
Page 259 of 495

[17] Intent
App. 3d 388, 411-412, 264 Cal. Rptr. 779
Rptr. 779

813, 97 Cal. Rptr. 164
Cal. App. 3d 803, 813, 97 Cal. Rptr. 164

Page 260 of 495

783
837, 843-844, 2 Cal. Rptr. 2d 437
264 Cal. Rptr. 779
App. 3d 38, 56-57, 248 Cal. Rptr. 217
55, 248 Cal. Rptr. 217
Page 261 of 495

275 Cal. App. 2d 90, 105, 79 Cal. Rptr. 816
[b] Class Actions
(1972) 7 Cal. 3d 232, 237, 102 Cal. Rptr. 1, 497 P.2d 225
219, 119 Cal. Rptr. 288
72 Cal. Rptr. 722

Page 262 of 495

38, 55 n.10, 248 Cal. Rptr. 217
(1971) 19 Cal. App. 3d 803, 811, 97 Cal. Rptr. 164
134 P.2d 764
Page 263 of 495

Odell (1941) 18 Cal. 2d 409, 415, 115 P.2d 977
1486, 1500-1502, 55 Cal. Rptr. 3d 59
3d 684, 693-696, 237 Cal. Rptr. 667
355
(1971) 16 Cal. App. 3d 391, 403, 94 Cal. Rptr. 33
722
Page 264 of 495

2d 275, 279, 25 Cal. Rptr. 217
74
Rptr. 22, 743 P.2d 1279 )
784, 793-797, 71 Cal. Rptr. 3d 885
Page 265 of 495


Cal. App. 2d 942, 964-965, 72 Cal. Rptr. 722
(1968) 266 Cal. App. 2d 942, 964-965, 72 Cal. Rptr. 722
845
Page 266 of 495

(1974) 37 Cal. App. 3d 322, 325, 327-328, 112 Cal. Rptr. 366
Rptr. 490
Rptr. 722
103, 109, 19 Cal. Rptr. 78
[20] Materiality
(1970) 12 Cal. App. 3d 888, 892-893, 91 Cal. Rptr. 142
App. 3d 593, 597-598, 86 Cal. Rptr. 52
Page 267 of 495

746, 3 Cal. Rptr. 910

79, 326 P.2d 229
824-825, 323 P.2d 567
App. 2d 684, 689, 313 P.2d 592

Cal. Rptr. 217
Page 268 of 495

(1967) 257 Cal. App. 2d 126, 136, 64 Cal. Rptr. 845
(1954) 43 Cal. 2d 481, 487-489, 275 P.2d 15
855, 68 Cal. Rptr. 3d 828

112 Cal. Rptr. 2d 657
3d 468, 473, 476, 260 Cal. Rptr. 513
Page 269 of 495

Cal. App. 3d 388, 404, 264 Cal. Rptr. 779
App. 3d 388, 404, 264 Cal. Rptr. 779
858, 864, 245 Cal. Rptr. 211
App. 3d 780, 785-786, 231 Cal. Rptr. 72

Page 270 of 495

173, 192-193, 38 Cal. Rptr. 525
(1963) 221 Cal. App. 2d 197, 206, 34 Cal. Rptr. 334
377
489, 275 P.2d 15

64 Cal. Rptr. 845
Page 271 of 495

App. 2d 275, 280, 25 Cal. Rptr. 217
(1967) 257 Cal. App. 2d 126, 136, 64 Cal. Rptr. 845
(1958) 164 Cal. App. 2d 636, 645, 331 P.2d 89
574
766, 451 P.2d 406

Page 272 of 495

873
206, 34 Cal. Rptr. 334

197, 206, 34 Cal. Rptr. 334
P.2d 231
Page 273 of 495

Cal. App. 3d 243, 249, 84 Cal. Rptr. 800
2d 680, 687, 81 Cal. Rptr. 519
[a] In General
110-111, 49 Cal. Rptr. 3d 122
3d 1493, 1502-1504, 231 Cal. Rptr. 446
(1964) 227 Cal. App. 2d 741, 747-748, 39 Cal. Rptr. 101
Page 274 of 495


133, 72 Cal. Rptr. 670
App. 2d 702, 708, 72 Cal. Rptr. 441
266 Cal. App. 2d 702, 707, 72 Cal. Rptr. 441
P.2d 212
Page 275 of 495

97 Cal. Rptr. 30
573, 50 Cal. Rptr. 727

(1988) 202 Cal. App. 3d 38, 62-65, 248 Cal. Rptr. 217
Cal. Rptr. 217
[29] Public Policy
1269-1270, 258 Cal. Rptr. 787
[a] Generally
Page 276 of 495

(1978) 84 Cal. App. 3d 982, 996, 149 Cal. Rptr. 119
605, 610, 225 Cal. Rptr. 624
Rptr. 142
807, 812, 58 Cal. Rptr. 772
Page 277 of 495

(1971) 21 Cal. App. 3d 541, 549, 98 Cal. Rptr. 588
Cal. App. 2d 102, 125, 38 Cal. Rptr. 440
2d 481, 488, 275 P.2d 15
(1972) 22 Cal. App. 3d 721, 728, 99 Cal. Rptr. 488
Page 278 of 495

232
4th 1141, 1164-1165, 23 Cal. Rptr. 3d 335
292-294, 17 Cal. Rptr. 3d 26
Page 279 of 495

(1986) 181 Cal. App. 3d 646, 650-651, 226 Cal. Rptr. 509
Rptr. 624
469, 223 Cal. Rptr. 734
1159, 220 Cal. Rptr. 507
Page 280 of 495

Cal. App. 3d 261, 265, 193 Cal. Rptr. 130
551, 121 Cal. Rptr. 214
367-368, 72 Cal. Rptr. 157
243, 251, 84 Cal. Rptr. 800
75 Cal. Rptr. 871
231, 261, 73 Cal. Rptr. 127
367-368, 72 Cal. Rptr. 157
Cal. Rptr. 458
Page 281 of 495

Rptr. 458
2d 247, 250, 35 Cal. Rptr. 681
[33] Venue
Brisson (1946) 27 Cal. 2d 760, 764, 167 P.2d 481
P.2d 779
Legal Topics:
Page 282 of 495

83 of 142 DOCUMENTS
37 UCLA L. Rev. 883 (1990)
1861 (1986)
L. Rev. 809 (1984)
325 (1974)
Page 283 of 495


(1972)
UCLA L. Rev. 78, 138 (1963)
(1960)
(1959)
Page 284 of 495

22 S. Cal. L. Rev. 77 (1948)
Legal Topics:
Page 285 of 495

84 of 142 DOCUMENTS

1-5
ßß 572-593, 779, 780, 911, 936
Torts, ßß 1710-1716 (10th ed. 2005)
Legal Topics:
Page 286 of 495

85 of 142 DOCUMENTS
[Reserved]
Page 287 of 495

86 of 142 DOCUMENTS
NOTE:

NOTE:

Page 288 of 495



Cal. App. 2d 942, 966, 72 Cal. Rptr. 722] .)
Rptr. 872] .
NOTE:
Page 289 of 495


Howard (1889) 79 Cal. 525, 529, 21 P. 984] .
409, 123 Cal. Rptr. 669] .


Code ß 1573].
Page 290 of 495


Cal. Rptr. 800] ?
App. 2d 465, 477, 45 Cal. Rptr. 458] ?

(1962) 208 Cal. App. 2d 275, 279, 25 Cal. Rptr. 217] ?
215, 255, 90 Cal. Rptr. 490] ?
Cal. Rptr. 458] ?
Page 291 of 495

Cal. App. 3d 995, 999, 84 Cal. Rptr. 98] .
3343]:
Code ß 3343(a)].

Rptr. 288] .

NOTE:
Page 292 of 495


ate.

want to consider:

Common Counts .

Page 293 of 495

Contracts .
structive Trusts .




App. 2d 684, 689, 313 P.2d 592] ;
Page 294 of 495


Cal. Rptr. 670] ;

(1968) 267 Cal. App. 2d 127, 130, 72 Cal. Rptr. 670] ;

(1972) 25 Cal. App. 3d 1, 12, 101 Cal. Rptr. 499] .
487-488, 275 P.2d 15] .
Bertran (1954) 43 Cal. 2d 481, 488 n. 5, 275 P.2d 15] .

Code ß 1710(3)]:
Page 295 of 495


27-28, 39 Cal. Rptr. 125] ;

above).
was made:


494] .


494] .

Rptr. 577] .

Page 296 of 495

833, 839, 254 P.2d 949] .
710-711, 69 Cal. Rptr. 222] .
NOTE:
Legal Topics:
Page 297 of 495

87 of 142 DOCUMENTS
NOTE:

NOTE:
ings.

NOTE:
Page 298 of 495



NOTE:
person.
falsity of.

NOTE:

Page 299 of 495

2d 275, 279, 25 Cal. Rptr. 217] .
Legal Topics:
Page 300 of 495

88 of 142 DOCUMENTS
[Reserved]
Page 301 of 495

89 of 142 DOCUMENTS
PART V. FORMS
C-001(3)]
[3] Use of Form

Page 302 of 495

this sample form.
is attached.
269.27, 269.30].
888, 892, 91 Cal. Rptr. 142 ; see ß 269.28].
Page 303 of 495

complaint.
[b] Alleging Deceit
[i] In General
see ßß 269.12, 269.13].
[2]; see also ßß 269.91, 269.92].
Page 304 of 495

FR-6.
fraud or deceit.
Page 305 of 495

Attachment.
Code ß 3295(f)].
[7] Verification
Page 306 of 495

90 of 142 DOCUMENTS
PART V. FORMS
COUNTY OF ___________________
)
__________________________________________________
[EITHER]
[AND/OR]
Page 307 of 495

[EITHER]
dant.
[OR]
[CONTINUE]
[EITHER]

false].
[OR]
Page 308 of 495


[CONTINUE]
___________________ [specify].
[EITHER]
[OR]
they would so act.
[CONTINUE]
Page 309 of 495

______________________ [firm name, if any]

By:______________________ [signature]
______________________ [typed name]
VERIFICATION
Page 310 of 495

correct.
______________________ [date]
______________________ [signature]
[2] Use of Form
[3] Allegations

Code ß 1711];

Rptr. 670] ;


Page 311 of 495

App. 2d 336, 344, 31 Cal. Rptr. 873] .

3d 768 ].
[6] Damages
[7] Verification
Page 312 of 495

[8] Jurisdiction
[9] Copies

Complaints
Page 313 of 495

Matter
and Papers

Page 314 of 495

91 of 142 DOCUMENTS
PART V. FORMS
[EITHER]
[OR]
would so act.
[2] Use of Form
Page 315 of 495

accordingly.
[3] Text References

Page 316 of 495

92 of 142 DOCUMENTS
PART V. FORMS

Page 317 of 495

property)].
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
[4] Text References
Page 318 of 495


Page 319 of 495

93 of 142 DOCUMENTS
PART V. FORMS

position)].
performing it.
Page 320 of 495

employment].
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
Page 321 of 495

Cal. Rptr. 494] :
(Paragraph 6).

[4] Text References
Page 322 of 495

94 of 142 DOCUMENTS
PART V. FORMS
senting Acreage


Page 323 of 495


sum of $____________________.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
Page 324 of 495

[3] Allegations
[4] Venue
[5] Text References
Page 325 of 495

95 of 142 DOCUMENTS
PART V. FORMS
FIRST COUNT
Page 326 of 495



Page 327 of 495

$____________________.
SECOND COUNT
THIRD COUNT
Page 328 of 495


______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
Page 329 of 495

Page 330 of 495

96 of 142 DOCUMENTS
PART V. FORMS

Page 331 of 495



Page 332 of 495

herein alleged.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
Page 333 of 495


[2] Use of Form
[3] Allegations
[4] Text References

Page 334 of 495

97 of 142 DOCUMENTS
PART V. FORMS
Page 335 of 495

the land].
property.
viewing it].

$____________________.
Page 336 of 495

______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
260-261, 73 Cal. Rptr. 127] .
[5] Text References

Page 337 of 495

Page 338 of 495

98 of 142 DOCUMENTS
PART V. FORMS
Page 339 of 495

[EITHER]
[OR]
___________________ [specify].

showing duty)].

plaintiff].

appropriate].
Page 340 of 495

______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations

Page 341 of 495

[6] Text References

Page 342 of 495

99 of 142 DOCUMENTS
PART V. FORMS

Page 343 of 495

alleged.
______________________ [signature]

[2] Use of Form
Page 344 of 495

the business.
[3] Allegations
[4] Text References

Page 345 of 495

PART V. FORMS
Purchaser
Page 346 of 495


in the sum of $____________________.
Page 347 of 495

______________________ [signature]

[2] Use of Form
[3] Allegations
graphs 11, 12).
[4] Damages
[5] Text References

Page 348 of 495

PART V. FORMS

Page 349 of 495

defendant.
therefor.
of $____________________.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
Page 350 of 495


[2] Use of Form
[3] Allegations
Code ßß 1709, 3333].
[4] Text References

Page 351 of 495

PART V. FORMS
[EITHER]
[OR]
Page 352 of 495

[2] Use of Form
338(d)].
[3] Text References

Page 353 of 495

PART V. FORMS
Person

Page 354 of 495


children].

proof).]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
[2] Use of Form
Page 355 of 495

[3] Allegations



1066, 1081, 60 Cal. Rptr. 2d 263, 929 P.2d 582] .
and 9).
Page 356 of 495

Civ. Code ß 3439.07(a)(2), (b)
[2] Definitions
Page 357 of 495


3439.04(a)(2)(B)
3439.05
[4] Insolvency
Page 358 of 495

[5] Preferences
Code ß 3432
(a)
Page 359 of 495

(1)
Legal Topics:
Page 360 of 495

Legal Topics:
Page 361 of 495

910, 913
[a] In General

Page 362 of 495

389, 152 P.2d 490
(1957) 153 Cal. App. 2d 379, 380-381, 314 P.2d 812
2d 185, 191, 295 P.2d 12

[b] Assignment
App. 2d 382, 388, 152 P.2d 490
221 Cal. App. 2d 278, 289, 34 Cal. Rptr. 326
(1957) 148 Cal. App. 2d 670, 674, 307 P.2d 734
[e] Jury Trial
Page 363 of 495

Rptr. 3d 523
915-916
2d 846
862, 489 P.2d 1126
670, 675, 307 P.2d 734
App. 2d 178, 184, 146 P.2d 482
Page 364 of 495

[3] Burden of Proof
(1986) 185 Cal. App. 3d 639, 646-647, 230 Cal. Rptr. 57
[4] Conspiracy
53 Cal. App. 2d 789, 791, 128 P.2d 114
Page 365 of 495

193, 196-197, 7 P.2d 319
(1958) 158 Cal. App. 2d 644, 649, 323 P.2d 150
Cir. 1989) 884 F.2d 464, 466
[d] Required Injury

(1971) 5 Cal. 3d 892, 895-897, 97 Cal. Rptr. 862, 489 P.2d 1126
Cramer (1952) 39 Cal. 2d 321, 323, 245 P.2d 1059
[6] Insolvency
Page 366 of 495


804
Cal. Rptr. 482
2d 547
225 P.2d 233
[a] In General
1986) 786 F.2d 910, 913
Page 367 of 495

269 Cal. App. 2d 333, 344-345, 74 Cal. Rptr. 774
180
Cal. Rptr. 323
122
[9] Lis Pendens
[10] Preferences
Cal. 2d 457, 461, 65 P.2d 1316
Page 368 of 495

P.2d 641
Cal. App. 2d 567, 572, 149 P.2d 183
[a] In General
Page 369 of 495

Cir. 1986) 786 F.2d 910, 916
App. 2d 759, 767, 48 Cal. Rptr. 215
Cal. App. 2d 759, 767, 48 Cal. Rptr. 215

Page 370 of 495

Cal. Rptr. 331
Cal. App. 3d 1026, 1040, 190 Cal. Rptr. 54
(1971) 20 Cal. App. 3d 434, 441, 97 Cal. Rptr. 706


910, 914-915
P.2d 822
Page 371 of 495

108
App. 2d 350, 354, 291 P.2d 987
Cir. 1986) 786 F.2d 910, 913
[a] In General

846
Page 372 of 495

[b] Exceptions
Rptr. 545, 375 P.2d 425
141 P. 818
774
Page 373 of 495

(9th Cir. 1988) 845 F.2d 842, 849-850
(1955) 132 Cal. App. 2d 776, 781, 283 P.2d 301
[a] In General
(1971) 20 Cal. App. 3d 434, 441-442, 97 Cal. Rptr. 706
(1966) 244 Cal. App. 2d 696, 727, 53 Cal. Rptr. 482
[b] Burden of Proof

Page 374 of 495


Rptr. 876
1115, 1118-1121, 213 Cal. Rptr. 597
1034-1039, 190 Cal. Rptr. 54
917
Page 375 of 495

700-701, 176 P.2d 77
(1960) 178 Cal. App. 2d 227, 231, 2 Cal. Rptr. 917
(1955) 131 Cal. App. 2d 542, 547, 280 P.2d 844
580, 587-588, 25 Cal. Rptr. 545, 375 P.2d 425
Page 376 of 495

P.2d 425
468, 476, 60 P.2d 1026

934
Legal Topics:
Page 377 of 495

Legal Topics:
lent Transfers
Page 378 of 495

(4th ed. 1997)
Legal Topics:
Page 379 of 495

[Reserved]
Page 380 of 495


[a] In General
3440.1, 3440.2
Page 381 of 495

3440.6
3440-3440.9. Civ. Code ß 3440.9
Legal Topics:
Page 382 of 495


Page 383 of 495

899, 107 P.2d 933
App. 2d 204, 207, 55 Cal. Rptr. 455
Page 384 of 495

235 P.2d 434
Legal Topics:
lent Transfers
Page 385 of 495

Legal Topics:
Page 386 of 495

[Reserved]
Page 387 of 495

C. Bulk Sales
[1] Attachment
ß 6106.2(c)
6103(a)
[3] Definitions
Page 388 of 495


Page 389 of 495

ßß 6107, 6108

[5] Notice
Code ßß 6104(a), 6105
Page 390 of 495

[7] Tax Liability

Page 391 of 495

Civ. Proc. ß 1205
Legal Topics:
Page 392 of 495

C. Bulk Sales
1455 (1991)
L.J. 195 (1990)
Law. 1445 (1989)
Legal Topics:
Page 393 of 495

C. Bulk Sales
Legal Topics:
Page 394 of 495

PART IV. FORMS
COUNTY OF ___________________
)
) NO. _____
) COMPLAINT TO
______________________[name], ) ____________________
Plaintiff, ) [SET ASIDE or ANNUL] FRAUD-
vs. ) ULENT ____________________
______________________ [name ) [TRANSFER or
(s)], Defendant(s). ) OBLIGATION] AND FOR DAM-
) AGES
[Amount demanded
____________________ (exceeds or
does not exceed) $10,000]
__________________________________________________
Plaintiff alleges:
Page 395 of 495


Obligation])

[EITHER]
[OR]

Page 396 of 495

[OR]

[CONTINUE]

[EITHER]
[OR]
Page 397 of 495

[CONTINUE]


___________________ [specify, e.g., land].

(Conspiracy)
Page 398 of 495


transferor.]
Action.

the sum of $____________________.

special damages.]

Page 399 of 495


transferred;]
Page 400 of 495

______________________ [firm name, if any]
By: ______________________ [signature]
______________________ [typed name]
VERIFICATION
it to be true.
and correct.
______________________ [date]
______________________ [signature]
[2] Use of Form
Page 401 of 495

[3] Allegations
instruction)].
Page 402 of 495

[4] Jurisdiction
[5] Venue
Page 403 of 495

Cal. Rptr. 2d 841 ); see ß 270.49].
Page 404 of 495

600, 610-611, 64 P.2d 776] .
[8] Other Remedies
Page 405 of 495


Civ. Proc. ß 564(b)(9)].
649-650 15 Cal. Rptr. 3d 805, 93 P.3d 395] .
Page 406 of 495

[11] State Statutes
(a)(1), 3439.08
[12] Decisions
Page 407 of 495

[f] Receivership
Page 408 of 495

Cal. App. 2d 759, 771, 48 Cal. Rptr. 215
221 Cal. App. 2d 278, 289, 34 Cal. Rptr. 326
2d 178, 184, 146 P.2d 482
[i] Venue
398, 402-403, 23 Cal. Rptr. 662

445-453, 459, 473 (4th ed.)
Page 409 of 495

Page 410 of 495

PART IV. FORMS

Code ßß 3439.02(a), (c)-(e), 3439.05]

[EITHER]
Page 411 of 495

[OR]
[2] Use of Form
Rptr. 804] .
Page 412 of 495

2d 987] .
[4] State Statutes
(a)
Page 413 of 495


3439.05
[5] Decisions

141 Cal. App. 3d 169, 172, 190 Cal. Rptr. 198
291 P.2d 987
Page 414 of 495

Cal. Rptr. 366
[6] Text References
Page 415 of 495

PART IV. FORMS

Code ßß 3439.02, 3439.05]
3439.02, 3439.05]

Page 416 of 495


[EITHER]
[OR]
___________________ [specify, e.g., lease].
[CONTINUE]
Page 417 of 495

claims.
[EITHER]
[OR]
her/its claim.
Page 418 of 495

[2] Use of Form
[3] Allegations
This form contains:
instructions)]; and

Page 419 of 495

See also ßß 270.190 and 270.191.
Page 420 of 495

PART IV. FORMS

(B)]

[2] Use of Form
instruction)].
Page 421 of 495

[3] State Statutes
[4] Decisions
Rptr. 233
Page 422 of 495

PART IV. FORMS

COUNTY OF ___________________
______________________ [name], )
Plaintiff, )
vs. ) NO. _____
______________________[name ) COMPLAINT TO HAVE FRAUD-
(s)], ) ULENT TRANSFER SET ASIDE
Defendant(s). ) [Amount demanded
) ____________________ (exceeds or
__________________________________________________
Plaintiff alleges:
Page 423 of 495

[EITHER]

[OR]


and 6.]
Page 424 of 495


[Prayer. See ß 270.190[1].]
______________________ [signature]

[2] Use of Form
[3] State Statutes
Code ß 3439.04(a)(2)(A)
[4] Decisions
Page 425 of 495

P.2d 301
Page 426 of 495

PART IV. FORMS
[2] Use of Form
Page 427 of 495

v. Duffet (1920) 48 Cal. App. 674, 678, 192 P. 298] .
[3] State Statutes
3439.08(d)
[4] Decisions
P.2d 425
Page 428 of 495

PART IV. FORMS
(a), (c)]

[2] Use of Form
Page 429 of 495

937, 60 Cal. Rptr. 2d 841] .
Page 430 of 495

PART IV. FORMS

[2] Use of Form
Page 431 of 495

[3] State Statutes

[4] Decisions
Cal. App. 639, 645, 9 P.2d 860
for.
Page 432 of 495

PART IV. FORMS
3439.08(d)]
COUNTY OF ___________________
______________________ [name], )
vs. ) NO. _____
______________________ [name], ) CROSS COMPLAINT FOR
Defendant [and Cross Complainant] ) DECLARATORY RELIEF
) [Amount demanded
) ____________________ (exceeds or
__________________________________________________

Page 433 of 495





Page 434 of 495

e.g., contract)].
Page 435 of 495

[CONTINUE]
______________________ [signature]

[2] Use of Form
Page 436 of 495

584-586, 589-591, 25 Cal. Rptr. 545, 375 P.2d 425] .
Page 437 of 495

[4] State Statutes
[5] Decisions
1926) 13 F.2d 413, 414
Baker (S.D. Cal. 1926) 13 F.2d 413, 414
545, 375 P.2d 425
425

759, 766, 48 Cal. Rptr. 215
Page 438 of 495

238 Cal. App. 2d 759, 771, 48 Cal. Rptr. 215
2d 759, 771-772, 48 Cal. Rptr. 215
(1965) 238 Cal. App. 2d 759, 773, 48 Cal. Rptr. 215
Page 439 of 495

PART IV. FORMS
3432]
LEGES:

request].

Page 440 of 495

[2] Use of Form
[3] Allegations
[4] State Statutes
[5] Decisions
Page 441 of 495

(1937) 9 Cal. 2d 631, 638-640, 72 P.2d 114
97 Cal. Rptr. 706
Page 442 of 495

PART IV. FORMS
LEGES:
transferor].
Page 443 of 495

[2] Use of Form
in ß 270.34[5]].

[3] State Statutes
Page 444 of 495

[4] Decisions

768-769, 33 Cal. Rptr. 2d 786
Page 445 of 495

802

Page 446 of 495

PART IV. FORMS
ß 3439.08(e)(1)]
3439.08(e)(1)]
LEGES:

Page 447 of 495


[2] Use of Form
[3] State Statutes
(1)
Page 448 of 495

Page 449 of 495

PART IV. FORMS
Page 450 of 495



[2] Use of Form
Page 451 of 495

Cal. 2d 477, 479, 58 P.2d 647] .
[3] State Statutes
[4] Decisions
633, 635-636, 290 P.2d 880
719, 723, 292 P.2d 906
Page 452 of 495

Preferences .
Page 453 of 495

PART IV. FORMS
[Reserved]
Page 454 of 495

PART IV. FORMS

COUNTY OF ___________________
______________________ [name], )
Plaintiff, )
vs. ) NO. _____
______________________ [name ) COMPLAINT TO SET ASIDE
(s)], ) VOID TRANSFER
[and DOES I through ) [Amount demanded
______________________,] ) ____________________ (exceeds or
Defendant(s). ) does not exceed) $10,000]
__________________________________________________
Plaintiff alleges:
Page 455 of 495





Page 456 of 495

______________________ [signature]

[2] Use of Form
Rptr. 887 ; see ß 270.190[7]].
[see ßß 270.190 -270.194].
[3] Allegations
Page 457 of 495

[4] Remedies
270.190[8].
[5] State Statutes
Code ß 3440.6
[6] Decisions
Page 458 of 495

262, 267, 30 P. 538
701, 200 P. 801
P. 53
(1970) 3 Cal. App. 3d 428, 439-440, 83 Cal. Rptr. 783
[7] Text References
Page 459 of 495

PART IV. FORMS
3440]
COUNTY OF ___________________
______________________ [name], )
Plaintiff, )
vs. )NO. _____
______________________ [name )COMPLAINT FOR DECLARA-
(s)], [and DOES I through )
TORY RELIEF
______________________,] Defen-
dant(s).
__________________________________________________
Plaintiff alleges:
Page 460 of 495




of transferor].
Page 461 of 495


claim];
Page 462 of 495

______________________ [firm name, if any]
By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
Page 463 of 495

[see ß 270.220].
See also ßß 270.190, 270.220.
of Instruments .
Page 464 of 495

PART IV. FORMS
[2] Use of Form
Page 465 of 495

See also ßß 270.220, 270.221.
Page 466 of 495

PART IV. FORMS
Page 467 of 495

Paragraph 1.]
[2] Use of Form
See also ßß 270.220 -270.222.
Page 468 of 495

PART IV. FORMS
[Reserved]
Page 469 of 495

PART IV. FORMS
C. Bulk Sales


____________________ ___________________ ___________________
____________________ ___________________ ___________________
Page 470 of 495

Dated: ______________________.

[2] Use of Form
6107 (discussed in ß 270.102)].
Page 471 of 495

Code ß 441 [Com. Code ß 6105(b)(3)].
of sale.
Page 472 of 495

[5] State Statutes
Com. Code ß 6105
Com. Code ß 6111
[6] Text References
Bender).
Page 473 of 495

PART IV. FORMS
C. Bulk Sales


____________________ ___________________ ___________________
____________________ ___________________ ___________________

Page 474 of 495


Dated: ______________________.
______________________ [signature(s) of
[2] Use of Form
ß 6102(a)(10)].
Page 475 of 495

[4] State Statutes

Page 476 of 495

PART IV. FORMS
C. Bulk Sales
Code ß 6107]
Code ß 6107]
COUNTY OF ___________________
)
______________________ [name], )NO. _____
Plaintiff, )COMPLAINT FOR RECOVERY
vs. ) CLAIM
OF
______________________ [name], )(Bulk Sale Law)
[and DOES I through )[Amount demanded
______________________,] Defen- )
____________________ (exceeds or
dant(s). does not exceed) $10,000]
__________________________________________________
Plaintiff alleges:

Page 477 of 495

payment is ____________________(date)].
____________________ [date].

a part hereof.
[CONTINUE]
Page 478 of 495




was located.]

Page 479 of 495


was located.]



[CONTINUE]

Page 480 of 495

______________________ [signature]

[2] Use of Form

Page 481 of 495

[b] "Claim" Defined
[4] Allegations

[a] above)].
Page 482 of 495

[a] One Year Period
Page 483 of 495

[6] State Statutes
ß 6107(a)
Com. Code ß 6110
[7] Text References
See also ßß 270.190, 270.240.
Page 484 of 495

PART IV. FORMS
C. Bulk Sales


___________________ [date].

Page 485 of 495

[2] Use of Form
[a] Bulk Sale
[b] Auctioneer
[c] Liquidator
Code ß 6102(a)(7)(i)(A)].
See also ßß 270.241 and 270.242.
Page 486 of 495

PART IV. FORMS
C. Bulk Sales
[2] Use of Form
Page 487 of 495

(a)-(b); see ß 270.103].
[3] State Statutes
(c)
Page 488 of 495

PART IV. FORMS
C. Bulk Sales
equipment].
price.
Page 489 of 495

$____________________.
[2] Use of Form
[Com. Code ß 6107(d); see ß 270.245[3]].
Page 490 of 495

Page 491 of 495

[4] State Statutes

See also ßß 270.240 and 270.242.
Page 492 of 495

PART IV. FORMS
C. Bulk Sales

Page 493 of 495


made a part hereof.
[2] Use of Form
Page 494 of 495

[3] State Statutes
Exclusions
Page 495 of 495

Contracts forms Complaints Allegations-47 9/27/11 2:07 AM
1 of 196 DOCUMENTS

NOTE:


Page 1 of 614
Assignees.
Heirs.
PRACTICE TIP:
68 Cal. Rptr. 3d 295, 171 P.3d 20 ; see ß 140.55[5]].

Page 2 of 614

form.
PRACTICE TIP:
the contract.
contract.
NOTE:
Page 3 of 614


contract.
plaintiffs:

369].

372(a)].
Page 4 of 614

Instruments ].
Instruments ].


Page 5 of 614


ment).



marine insurance).
Page 6 of 614
(2)]; and


PRACTICE TIP:

PRACTICE TIP:
Page 7 of 614
on:

citizens)]; or

following factors:
22, 582 P.2d 109 ;
Page 8 of 614

478] ;

the parties;
[d]].

Page 9 of 614

(Paragraph 4).
(Paragraph 4).



graph 7).

140.101[1] (Paragraph 8).
Complaints .

Page 10 of 614
Legal Topics:
Page 11 of 614
2 of 196 DOCUMENTS

NOTE:

contract Actions.
Page 12 of 614

140.140].

140.151].

Page 13 of 614
(rescission)].
Page 14 of 614

(1991) 229 Cal. App. 3d 764, 767-768, 280 Cal. Rptr. 355] .
Legal Topics:
Page 15 of 614
3 of 196 DOCUMENTS

[Reserved]
Page 16 of 614
4 of 196 DOCUMENTS

PART V. FORMS
PLD-C-001, PLD-C-001(1)]
C-001, PLD-C-001(1)]
[2] Use of Form
PLD-C-001(1)].
140.101 -140.106.
269.90.
Page 17 of 614

[a] Heading
must be filled in.
graph 6)
Page 18 of 614
(c)].
following rules:

Page 19 of 614
Code ßß 1812.10(a) and 2984.4(a).
Page 20 of 614
to interest.
App. 2d 703, 708, 196 P.2d 143 ].
[a] Heading
cross complaint.
Page 21 of 614
Cal. App. 4th 506 (2009) .
300, 303-304, 289 P. 242] .
Page 22 of 614
Page 23 of 614
[6] Verification
Page 24 of 614
Page 25 of 614
5 of 196 DOCUMENTS

PART V. FORMS
General Form
Form
COUNTY OF ___________________
______________________ [name], )
__________________________________________________
Plaintiff alleges:
Page 26 of 614



[date];

to proof).]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
VERIFICATION
Page 27 of 614
to be true.
and correct.
___________________ [date]
______________________ [signature]
______________________ [typed name]
[2] Use of Form
[3] Allegations
[a] In General
(1969) 273 Cal. App. 2d 286, 290, 78 Cal. Rptr. 6] :
PRACTICE TIP:
Page 28 of 614
122, 128, 132, 226 Cal. Rptr. 321] .
Cal. App. 2d 286, 291, 78 Cal. Rptr. 6] .
Page 29 of 614
(1919) 44 Cal. App. 69, 71, 185 P. 1008] .
[e] Consideration
Cal. 429, 433, 34 P. 1089] .
Page 30 of 614
Cal. App. 3d 875, 883, 268 Cal. Rptr. 505] .
[f] Damages
396a(a)].
[5] Verification
Page 31 of 614
[6] Jurisdiction
[7] Attorney's Fees
Commonly Used
Complaints
Page 32 of 614
Filing of Papers
Jurisdiction
and Papers
Page 33 of 614
6 of 196 DOCUMENTS

PART V. FORMS


Page 34 of 614
[Prayer. See ß 140.101[1].]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
graph 6).

Page 35 of 614
229 P.2d 434] .
Page 36 of 614
7 of 196 DOCUMENTS

PART V. FORMS


[Prayer. See ß 140.101[1].]
Page 37 of 614
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations

[see [c], below].
Page 38 of 614
Page 39 of 614
916, 919-920, 136 Cal. Rptr. 890] .
560] .
Page 40 of 614
133] .
796, 112 Cal. Rptr. 195, 518 P.2d 1147] .
Page 41 of 614
8 of 196 DOCUMENTS

PART V. FORMS
1622]--General Form
___________________ [specify].
___________________ (specify)].

Page 42 of 614
[Prayer. See ß 140.101[1].]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
583] .
Page 43 of 614
140.110[1].
Page 44 of 614
9 of 196 DOCUMENTS

PART V. FORMS
[EITHER]

[OR]
Page 45 of 614
[CONTINUE]
[Prayer. See ß 140.101[1].]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
1440].
Page 46 of 614

[3] Allegations
Page 47 of 614
10 of 196 DOCUMENTS

PART V. FORMS


Page 48 of 614
or representation].

$____________________.

[Prayer. See ß 140.101[1].]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
tion is missing.
232 Cal. App. 3d 816, 830, 283 Cal. Rptr. 551] .
[a] Burden
366, 111 Cal. Rptr. 468] .
Page 49 of 614
[b] Allegations
Rptr. 785] :
(Paragraph 7).

(Paragraph 8).
Page 50 of 614
11 of 196 DOCUMENTS

PART V. FORMS

Action Is Commenced
Action Is Commenced
[EITHER]
[OR]
[OR]
Page 51 of 614
[2] Use of Form
140.108[1].
Page 52 of 614
12 of 196 DOCUMENTS

PART V. FORMS

COUNTY OF ___________________
______________________ [name], )
Plaintiff, )
vs. )
______________________ [names], ) NO. _____
)
)
__________________________________________________________________
I ___________________ [name], declare:
Section 395(b)].
Page 53 of 614
and correct.
___________________ [date]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
[2] Use of Form
Proc. ß 396a(a)].
[3] Venue
Page 54 of 614
Page 55 of 614
13 of 196 DOCUMENTS

PART V. FORMS

[2] Use of Form
98 Cal. Rptr. 414] .
Page 56 of 614
Cal. App. 300, 304, 289 P. 242] .
Page 57 of 614
14 of 196 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 58 of 614
254 Cal. Rptr. 211, 765 P.2d 373] .
789-791, 201 Cal. Rptr. 640] .
298 P.2d 555] .
Cal. App. 3d 36, 42, 201 Cal. Rptr. 870] .
Page 59 of 614
15 of 196 DOCUMENTS

PART V. FORMS

1656]
1656]
[2] Use of Form
Page 60 of 614
4th 880, 892-893, 41 Cal. Rptr. 2d 740] .
Page 61 of 614
16 of 196 DOCUMENTS

PART V. FORMS

[Civ. Code ß 1698]

Code ß 1698]
[EITHER]
[OR]
Page 62 of 614
defendant].
[OR]
[2] Use of Form
Page 63 of 614
14 Cal. Rptr. 523] ;
314, 325, 95 P. 159] ;
and Restitution ];

Page 64 of 614
Page 65 of 614
17 of 196 DOCUMENTS

PART V. FORMS

[2] Use of Form
Page 66 of 614
Page 67 of 614
18 of 196 DOCUMENTS

PART V. FORMS

of this pleading.
[EITHER]
[OR]

[2] Use of Form
Page 68 of 614
159-160, 11 P. 592] .
Page 69 of 614
19 of 196 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 70 of 614
20 of 196 DOCUMENTS

PART V. FORMS

$____________________.
[2] Use of Form
Page 71 of 614
Page 72 of 614
21 of 196 DOCUMENTS

PART V. FORMS
[Reserved]
Page 73 of 614
22 of 196 DOCUMENTS

PART V. FORMS

COUNTY OF ___________________
)
) NO. _____
______________________ [name], ) MEMORANDUM]
Plaintiff, ) Date: ____________________
vs. ) Time: ____________________
______________________[name], ) Location: ____________________
Defendant. ) Judge: ____________________
) Trial Date: ____________________
__________________________________________________
Page 74 of 614
Dated: ___________________.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
[2] Use of Form
3.1113(a), 3.1320].
Page 75 of 614
23 of 196 DOCUMENTS

PART V. FORMS
COUNTY OF ___________________
)
) NO. _____
vs. ) Date: ____________________
______________________ [name], ) Time: ____________________
) Judge: ____________________
Trial Date: ____________________
__________________________________________________
Dated: ___________________.
______________________ [firm name, if any]
Page 76 of 614
By: ______________________ [signature]

______________________ [typed name]
[2] Use of Form
3.1320].
4th 100, 106-108, 26 Cal. Rptr. 2d 133] .
Page 77 of 614
24 of 196 DOCUMENTS

PART V. FORMS
[2] Use of Form
425.12].

Page 78 of 614
[a] Heading
Paragraph 2.
Page 79 of 614

Page 80 of 614
Page 81 of 614
25 of 196 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 82 of 614
26 of 196 DOCUMENTS

PART V. FORMS


Page 83 of 614
plaintiff].

[2] Use of Form
Page 84 of 614

Page 85 of 614
27 of 196 DOCUMENTS

PART V. FORMS

[2] Use of Form
Page 86 of 614
28 of 196 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 87 of 614
(1957) 153 Cal. App. 2d 707, 713, 315 P.2d 67] .
Page 88 of 614
29 of 196 DOCUMENTS

PART V. FORMS
[EITHER]
[OR]

[2] Use of Form
Page 89 of 614


Thornton (1902) 136 Cal. 232, 235, 68 P. 708] .
Page 90 of 614
Page 91 of 614
30 of 196 DOCUMENTS

PART V. FORMS
[2] Use of Form
other thing)].
Page 92 of 614
67 P. 681] .
Page 93 of 614
31 of 196 DOCUMENTS

PART V. FORMS


pleading.
[2] Use of Form
Page 94 of 614
Houston (1932) 215 Cal. 742, 745-746, 12 P.2d 952] .
Rptr. 421] .
Page 95 of 614
32 of 196 DOCUMENTS

PART V. FORMS


[2] Use of Form
Page 96 of 614
(Paragraph 4).
Page 97 of 614
33 of 196 DOCUMENTS

PART V. FORMS

[2] Use of Form
Page 98 of 614
238] .
Page 99 of 614
Page 100 of 614

34 of 196 DOCUMENTS

PART V. FORMS
[2] Use of Form
2d 869, 874, 309 P.2d 147] .
Page 101 of 614

Page 102 of 614

35 of 196 DOCUMENTS

PART V. FORMS
[2] Use of Form
writing.
Page 103 of 614

of Frauds .
(1903) 141 Cal. 109, 112, 74 P. 695] .
Page 104 of 614

36 of 196 DOCUMENTS

PART V. FORMS

1667(1)]
1667(1)]
[2] Use of Form
Page 105 of 614

App. 3d 832, 838, 247 Cal. Rptr. 340] .


Page 106 of 614

Page 107 of 614

37 of 196 DOCUMENTS

PART V. FORMS
ß 1667(2), (3)]
ß 1667(2), (3)]

[2] Use of Form
Page 108 of 614

Cal. Rptr. 519] .
Page 109 of 614



Page 110 of 614

527, 161 P.3d 1095] .


1563-1564, 274 Cal. Rptr. 647] .
Page 111 of 614

38 of 196 DOCUMENTS

PART V. FORMS
___________________ [specify facts].
[2] Use of Form
140.25].
Page 112 of 614

[Civ. Code ß 1670.5(b)].
3d 542] .
(1990) 219 Cal. App. 3d 97, 101, 268 Cal. Rptr. 207] .
Cal. Rptr. 207] .

Page 113 of 614

(1991) 227 Cal. App. 3d 1578, 1588, 278 Cal. Rptr. 570] .
Page 114 of 614

1805, 23 Cal. Rptr. 2d 80] .

83, 117, 6 P.3d 669] .

716] .
Page 115 of 614

24-25, 262 Cal. Rptr. 716] .

1076, 130 Cal. Rptr. 2d 892, 63 P.3d 979] .
Page 116 of 614

Page 117 of 614

Cal. Rptr. 345, 702 P.2d 503 .


Page 118 of 614

123 Cal. Rptr. 2d 288] .

1099-1102, 118 Cal. Rptr. 2d 862] .


be unconscionable:


Page 119 of 614


1803-1805, 23 Cal. Rptr. 2d 80] .

Cal. App. 3d 802, 820-821, 238 Cal. Rptr. 806] .
Page 120 of 614

by other means)].


Page 121 of 614




Rptr. 498] .
227 Cal. App. 3d 1578, 1586-1588, 278 Cal. Rptr. 570] .

789] .
Page 122 of 614

647-648, 225 Cal. Rptr. 742] .
442-444, 216 Cal. Rptr. 462] .
Cal. App. 3d 385, 389, 198 Cal. Rptr. 523] .
Page 123 of 614

39 of 196 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 124 of 614

40 of 196 DOCUMENTS

PART V. FORMS
[2] Use of Form
Page 125 of 614

Cal. Rptr. 508 ; see ß 140.46].
5-6, 263 Cal. Rptr. 373] .
Page 126 of 614

41 of 196 DOCUMENTS

PART V. FORMS

[2] Use of Form
Page 127 of 614

42 of 196 DOCUMENTS

PART V. FORMS


[EITHER]

[OR]
Page 128 of 614

[OR]
[CONTINUE]
[2] Use of Form
9, 128 Cal. Rptr. 109] .
Page 129 of 614

Rptr. 518] .
Cal. Rptr. 820] .
Page 130 of 614

43 of 196 DOCUMENTS

PART V. FORMS



[2] Use of Form
432, 246 P.2d 946] .
Page 131 of 614

16] .
Cal. App. 3d 695, 704-705, 228 Cal. Rptr. 518] .
Page 132 of 614

44 of 196 DOCUMENTS

PART V. FORMS

1700]
1700]
[2] Use of Form
Page 133 of 614

87 P. 59] .
746, 16 P.2d 737] .
Page 134 of 614

45 of 196 DOCUMENTS

A. Privileges in General
[1] Civil Discovery Act
Civil discovery is generally governed by Code Civ. Proc. ßß 2016.010-2036.050. These provisions
are otherwise known as the Civil Discovery Act [Code Civ. Proc. ß 2016.010]. The protection against
disclosure of an attorney's work product is set out in the Civil Discovery Act under Code Civ. Proc. ß
2018.010 et seq.
The recovery of privileged electronically stored information that was inadvertently disclosed in the
course of discovery is governed by Code Civ. Proc. ß 2031.285. For discussion, see Ch. 195A,
Discovery: Discovery of Electronically Stored Evidence, ß 195A.21. The obligations of counsel who
receive inadvertent disclosures of privileged produced in discovery is governed by the California
Supreme Court's decision in Rico v. Mitsubishi Motors Corp. [ Rico v. Mitsubishi Motors Corp.
(2007) 42 Cal. 4th 807, 68 Cal. Rptr. 3d 758, 171 P.3d 1092 ; see discussion in ß 191.15[7]].
[2] Evidentiary Privileges and Other Protections Against Disclosure
Evidentiary privileges are governed by Evid. Code ßß 900-1070. Various other statutory or constitu-
tional provisions also provide protection against disclosure of certain matters. For example, the right
to privacy under Cal. Const., art. I, ß 1, has been construed by courts to limit discovery in some
instances [see Britt v. Superior Court (1978) 20 Cal. 3d 844, 852-856, 143 Cal. Rptr. 695, 574 P.
2d 766] .
Legal Topics:
Page 135 of 614

Civil ProcedureDiscoveryPrivileged MattersWork ProductGeneral OverviewConstitutional LawSub-
stantive Due ProcessPrivacyGeneral OverviewEvidencePrivilegesGeneral Overview
Page 136 of 614

46 of 196 DOCUMENTS

ß 191.11 General Scope of Discovery Limited by Privileges and Other Protections
The general scope of discovery is limited not only to matters that are relevant to subject matter of the
action, but also to matters that are "not privileged" [Code Civ. Proc. ß 2017.010; see also Ch. 190,
Discovery: Scope, Regulation, and Timing, ß 190.20 et seq., for discussion relating to relevancy and
to specific provisions of the Discovery Act that qualify the general scope of discovery].
Legal Topics:
Civil ProcedureDiscoveryPrivileged MattersGeneral OverviewCivil ProcedureDiscoveryRelevance
Page 137 of 614

47 of 196 DOCUMENTS

ß 191.12 Privileges Exist Only by Express Statutory Provision
[1] General Rule
Statutory privileges against disclosure are set out in primarily in Division 8 of the Evidence Code [see
Evid. Code ß 900 et seq.]. Generally, unless there is such a statutory provision to the contrary, no
person has a privilege to (1) refuse to be a witness, (2) refuse to disclose any matter or to produce any
writing, object, or other thing, or (3) prevent another from being a witness, disclosing any matter, or
producing any writing, object, or other thing [Evid. Code ß 911].
Evid. Code ß 911 codifies a legislative determination that evidentiary privileges are available only as
defined by statute. Consequently, courts may neither add to the statutory privileges, nor imply
unwritten exceptions to existing statutory privileges [ Roberts v. City of Palmdale (1993) 5 Cal. 4th
363, 373, 20 Cal. Rptr. 2d 330, 853 P.2d 496] . The statutory privileges are exclusive, and courts
may not create new privileges as a matter of judicial policy [ Schnabel v. Superior Court (1993) 5
Cal. 4th 704, 711-712, 21 Cal. Rptr. 2d 200, 854 P.2d 1117] .
Miscellaneous statutes, in addition to the evidentiary privileges set out in Evid. Code ß 900 et seq.,
also protect against discovery. These confer various types of protection against disclosure to specified
matter. One of the more significant examples is the protection of an attorney's work product under
Code Civ. Proc. ß 2018.010 et seq., which is discussed in ß 191.100 et seq. Another example is
found in the portion of the Evidence Code that provides for the exclusion of evidence based on
extrinsic policies: the provisions of Evid. Code ß 1156 et seq. protect against discovery of certain
health care committee records and proceedings. For discussion of a number of these miscellaneous
statutory protections, see ß 191.120.
Page 138 of 614

[2] Exception for Privilege Required by Constitutional Law
Under the general rule set out in [1], above, courts may not add to the statutory privileges. The one
exception to this are privileges that courts have necessarily implied from a constitutional provision. In
other words, courts have recognized nonstatutory privileges required by state or federal constitutional
law [ Roberts v. City of Palmdale (1993) 5 Cal. 4th 363, 373, 20 Cal. Rptr. 2d 330, 853 P.2d 496] .
Thus, for example, courts have interpreted the right to privacy under Cal. Const., art. I, ß 1, to limit
discovery in certain instances [see Britt v. Superior Court (1978) 20 Cal. 3d 844, 852-856, 143 Cal.
Rptr. 695, 574 P.2d 766 , discussed in ß 191.120[1]]. Similarly, the right of a free press under U.S.
Const., amend. I and Cal. Const., art. I, ß 2(a) gives rise to a qualified privilege against disclosure of
a confidential news source [see Mitchell v. Superior Court (1984) 37 Cal. 3d 268, 274, 279,
283-284, 208 Cal. Rptr. 152, 690 P.2d 625 , discussed in ß 191.122].
Legal Topics:
Civil ProcedureDiscoveryGeneral OverviewCivil ProcedureDiscoveryPrivileged MattersWork
ProductGeneral OverviewEvidencePrivilegesGeneral Overview
Page 139 of 614

48 of 196 DOCUMENTS

ß 191.13 Burden of Proof Relating to Privilege
[1] Burden on Claiming Party to Show Existence of Privilege
Under Evidence Code sections 900-1070, the party claiming a privilege has the burden of proof on the
preliminary facts [ San Diego Professional Assn. v. Superior Court (1962) 58 Cal. 2d 194, 199, 23
Cal. Rptr. 384, 373 P.2d 448 ; Chronicle Pub. Co. v. Superior Court (1960) 54 Cal. 2d 548, 565, 7
Cal. Rptr. 109, 354 P.2d 637] .
[2] Burden on Opposing Party to Show Lack of Confidentiality or Exception to Privilege
The opponent of the claim of privilege based on a confidential communication has the burden of proof
to establish that the communication was not confidential [Evid. Code ß 917]. In other words, to
overcome the presumption of confidentiality, the opposing party must persuade the presiding officer
that the communication was not made in confidence. The fact that the communication was made under
circumstances in which others could easily overhear is a strong indication that the communication was
not intended to be confidential and is, therefore, unprivileged [Assembly Judiciary Comm. Comment
to Evid. Code ß 917; see also discussion in ß 191.16].
The opposing party also has the burden of proof on any preliminary fact necessary to show that an
exception to the privilege is applicable [Assembly Judiciary Comm. Comment to Evid. Code ß 405;
but see Abbott v. Superior Court (1947) 78 Cal. App. 2d 19, 21, 177 P.2d 317 (suggesting that a
prima facie showing by the opposing party is sufficient when the issue is whether a communication
between attorney and client was made in contemplation of crime)].
Legal Topics:
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EvidencePrivilegesGeneral OverviewEvidencePrivilegesAttorney-Client PrivilegeGeneral Overview-
EvidenceProcedural ConsiderationsBurdens of ProofAllocation
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49 of 196 DOCUMENTS

ß 191.14 Standing of Non-Party to Assert Privilege
A holder of a privilege generally has standing to assert a privilege in a proceeding to prevent

disclosure of privileged material, even though not a party to the proceeding. For example, if a party to
a proceeding seeks to disclose privileged material, a non-party holder of the privilege may make a
motion in that proceeding to prevent its disclosure [ Mylan Laboratories Inc. v. Soon-Shiong (1999)
76 Cal. App. 4th 71, 80-81, 90 Cal. Rptr. 2d 111 (holding that non-party client should properly make
motion to assert privilege, but need not and may not move to intervene as party to proceeding solely to
obtain "standing" to prevent disclosure); see, e.g., Code Civ. Proc. ß 2017.020(a) (motion for
protective order to limit discovery generally may be made either by party or "other affected person")].
Legal Topics:
Civil ProcedureJusticiabilityStandingGeneral OverviewConstitutional LawThe JudiciaryCase or
ControversyStandingGeneral OverviewEvidencePrivilegesGeneral Overview
Page 142 of 614

50 of 196 DOCUMENTS

ß 191.15 Waiver of Privileges Generally
[1] Waiver for Failure to Make Timely Objection or Response to Discovery Demand
The Civil Discovery Act expressly provides in a number of instances that a failure to make a timely
and specific objection to discovery, on the ground that the matter sought to be discovered is privileged
or subject to attorney work product protection, constitutes a waiver of the privilege or protection [see,
e.g., Code Civ. Proc. ß 2025.460(a) (waiver for failure to object during oral deposition); Code Civ.
Proc. ß 2028.050(a) (waiver for failure to object to written deposition question); Code Civ. Proc. ß
2030.290(a) (waiver for failure to make timely response to interrogatory); Code Civ. Proc. 2031.300
(a) (waiver for failure to make timely response to demand for production of tangible evidence); see
Monarch Healthcare v. Superior Court (2000) 78 Cal. App. 4th 1282, 1284, 93 Cal. Rptr. 2d 619
(petitioner nonparty deponent's objection to records-only discovery request for privileged information
was timely and sufficient when made at time and place for production of records; nonparty deponent
was not required to file a motion to quash)].
[2] Waiver by Disclosure or Consent to Disclosure
[a] Applicable to Confidential Communications
Generally, the right of any person to claim the following privileges for a protected communication is
waived if any holder of the privilege has, without coercion, disclosed a significant part of the
communication or has consented to such disclosure made by anyone [Evid. Code ß 912(a)]:
Attorney-client privilege under Evid. Code ß 954.
Page 143 of 614

Privilege for confidential marital communications under Evid. Code ß 980.
Physician patient privilege under Evid. Code ß 994.
Psychotherapist-patient privilege under Evid. Code ß 1014.
Penitent's privilege under Evid. Code ß 1033.
Clergy's privilege under Evid. Code ß 1034.
Sexual assault counselor-victim privilege under Evid. Code ß 1035.8.
Domestic violence counselor-victim privilege under Evid. Code ß 1037.5.

[b] Statement or Conduct Must Indicate Consent to Effect Waiver
Consent to a disclosure is manifested by any statement or other conduct by the holder of the privilege
that indicates consent, including failure to claim the privilege when the holder has the standing and
opportunity to claim it [Evid. Code ß 912(a)]. Consent may also be inferred. For instance, consent of
an attorney's client may be inferred from a disclosure by the attorney for the client's benefit during
negotiations on behalf of the client [ Klang v. Shell Oil Co. (1971) 17 Cal. App. 3d 933, 938, 95 Cal.
Rptr. 265] .
Mere disclosure of the fact that a privileged communication has occurred does not amount to a
disclosure of the specific content of that communication, and does not necessarily constitute a waiver
of the privilege [ Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50 Cal. 3d 31, 49, 265 Cal.
Rptr. 801, 784 P.2d 1373 (attorney-client privilege); Mitchell v. Superior Court (1984) 37 Cal. 3d
591, 601-602, 208 Cal. Rptr. 886, 691 P.2d 642 (attorney-client privilege)]. Nor does testifying about
facts that might have been discussed in confidential conversations waive a privilege, because it is not
equivalent to disclosure of the actual content of those conversations [ Maas v. Municipal Court
(1985) 175 Cal. App. 3d 601, 606, 221 Cal. Rptr. 245 (attorney-client privilege)].
[3] Waiver Implied by Placing Privileged Matter in Issue
[a] General Rule
Implied waiver is established by showing that "the client put the otherwise privileged communication
directly at issue and that disclosure is essential for a fair adjudication of the action" [ Venture Law
Group v. Superior Court (2004) 118 Cal. App. 4th 96, 105, 12 Cal. Rptr. 3d 656 (attorney-client
privilege)]. A communication goes to the heart of the claim in controversy when [ Chicago Title Ins.
Co. v. Superior Court (1985) 174 Cal. App. 3d 1142, 1149, 220 Cal. Rptr. 507 (attorney-client
privilege)]:
Page 144 of 614

There is a legitimate need to reach the evidence.
The evidence is relevant and material to the issue before the court.
The information cannot be secured from any less intrusive source.

[b] Scope of Implied Waiver Narrowly Construed
The scope of the implied waiver is narrowly defined and the information required to be disclosed must
fit strictly within the confines of the waiver [ Transamerica Title Ins. Co. v. Superior Court (1987)
188 Cal. App. 3d 1047, 1052, 233 Cal. Rptr. 825 (attorney-client privilege)].
For example, in one case, an attorney who had been sued for malpractice by a former client filed a
cross complaint against the client's successor attorney for comparative equitable indemnity. The
defendant and cross complainant argued that the client's commencement of a malpractice action
impliedly waived any privilege with respect to communications between the client and defendant, but
also with respect to those between the client and the successor attorney, at least as to communications
relevant to the joint representation [ Kroll & Tract v. Paris & Paris (1999) 72 Cal. App. 4th 1537,
1544, 86 Cal. Rptr. 2d 78] . The appellate court held that communications with the successor attorney
were not impliedly waived, because the client, as holder of the privilege, expressly preserved it as to
its successor attorney by choosing not to sue that attorney for malpractice [ Kroll & Tract v. Paris &
Paris (1999) 72 Cal. App. 4th 1537, 1540-1544, 86 Cal. Rptr. 2d 78 (affirming demurrer to cross
complaint, noting that if the indemnity action were allowed, the successor attorney would be unable to
defend to the extent the defense depended on privileged client communications)].
One court stated that a waiver might be shown in an employment discrimination action alleging a
hostile work environment if the employer, hoping to prevail by showing that it had its attorney
investigate an employee's complaint, and took action appropriate to the findings of that investigation,
places the adequacy of that investigation directly at issue. When the adequacy of such an investigation
is directly at issue, the attorney-client privilege and attorney work product protection regarding that
investigation are waived [ Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal. App.
4th 110, 125-129, 68 Cal. Rptr. 2d 844 (remanding for determination as to waiver, which could not
be determined on appeal from dismissal following order sustaining demurrer to second amended
complaint)].
The attorney-client privilege and work product protection are not, however, waived in every case in
which an employer puts the adequacy of its prelitigation investigation at issue. For example, waiver
does not occur when an employer conducts its investigation using non-attorney personnel, produces
documents disclosing the substance of the investigation, and seeks to protect only specified communi-
cations between those personnel and the client's attorney, because disclosure of these privileged
communications is not essential to determine the adequacy of the investigation [ Kaiser Found.
Hospitals v. Superior Court (1998) 66 Cal. App. 4th 1217, 1227, 78 Cal. Rptr. 2d 543 (remanding
for inspection of employer's privilege log and for in camera inspection of documents for which work
Page 145 of 614

product protection was claimed to evaluate extent of protection)].
Moreover, in a case in which plaintiff alleged defective construction of a reservoir near her home,
documents dealing with defendant's post-construction investigation were irrelevant to plaintiff's claim
that defendant waived the work product privilege by placing its pre-construction investigation at issue,
and therefore were not discoverable [ Laguna Beach County Water Dist. v. Superior Court (2004)
124 Cal. App. 4th 1453, 1458, 22 Cal. Rptr. 3d 387] .
In a case construing waiver of the psychotherapist-patient privilege, arising out of plaintiff's injury
while crossing defendant trolley company's tracks, the court of appeal held that defendant trolley
driver did not waive her privilege by revealing, both in her deposition in this case and in her previous
workers' compensation claims for stress-related anxiety due to a previous work-related incident, that
she was seeing a psychiatrist. The driver's willingness to put her psychotherapeutic relationship
somewhat at risk in the workers' compensation proceedings, and any resulting limited disclosure, did
not support the inference that she meant her relationship with her psychiatrist could continue to be put
at risk following the disposition of her claims [ San Diego Trolley, Inc. v. Superior Court (2001) 87
Cal. App. 4th 1083, 1094, 105 Cal. Rptr. 2d 476] . Moreover, in her testimony in this case, the driver
disclosed only the fact that she was being treated for anxiety by a psychiatrist and the medications the
psychiatrist prescribed. Nothing in this testimony could be construed as disclosing any significant part
of her communications with her psychiatrist [ San Diego Trolley, Inc. v. Superior Court (2001) 87
Cal. App. 4th 1083, 1094, 105 Cal. Rptr. 2d 476] .
In a case construing the physician-patient privilege, a real party in interest, the father in a marital
dissolution and custody action, waived the physician-patient privilege under Evid. Code ßß 912(a) and
992 with respect to certain medical records, because the mother was present during the father's intake
exam with his neurologist and the father consented to disclosure of a significant part of his communi-
cations with the neurologist on that date [ Manela v. Superior Court (2009) 177 Cal. App. 4th 1139,
1146-1147, 99 Cal. Rptr. 3d 736 ]. Further, the father's filing of another physician's declaration,
stating that he had treated the father for the past nine years, waived the privilege with respect to those
records [ Manela v. Superior Court (2009) 177 Cal. App. 4th 1139, 1147-1148, 99 Cal. Rptr. 3d
736 ]. However, in keeping with the fact that the scope of the waiver of a privilege generally is
construed narrowly, the disclosure of the father's communications with his current physicians did not
relate back to father's communications to another doctor who had treated him for seizures as a
teenager. Access to the earlier records would undermine the father's interest in disclosing all necessary
information to his current treating physician. Therefore, the father's waiver of the physician-patient
privilege with respect to his two current physicians did not waive the privilege with respect to the
doctor who treated him as a child [ Manela v. Superior Court (2009) 177 Cal. App. 4th 1139, 1148,
99 Cal. Rptr. 3d 736 ].
[4] Disclosure by One of Two or More Joint Holders
If two or more persons are joint holders of a attorney-client privilege, physician-patient privilege,
psychotherapist-patient privilege, sexual assault counselor-victim privilege, or domestic violence
Page 146 of 614

counselor-victim privilege, the waiver of the right to claim the privilege by one joint holder does not
affect the right of another joint holder to claim the privilege [Evid. Code ß 912(b); see, e.g., American
Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal. App. 3d 579, 591, 595-596, 113 Cal. Rptr. 561
(insured unable to waive insurer's privilege of confidential communications with mutual attorney)].
Similarly, a waiver by one spouse of the privilege for confidential marital communications does not
affect the right of the other spouse to claim the privilege [Evid. Code ß 912(b)].
[5] Necessary Disclosure Does Not Constitute Waiver
A disclosure in confidence of a communication that is protected by the attorney-client, physician-

patient, psychotherapist-patient, or sexual assault counselor-victim privilege is not a waiver of that
privilege if the disclosure is reasonably necessary to accomplish the purpose of the consultation [Evid.
Code ß 912(d)].
Thus, the "[attorney-client] privilege extends to communications which are intended to be confidential,
if they are made to attorneys, to family members, business associates, or agents of the party or his
attorneys on matters of joint concern, when disclosure of the communication is reasonably necessary
to further the interest of the litigant" [ Ins. Co. of N. Am. v. Superior Court (1980) 108 Cal. App. 3d
758, 767, 166 Cal. Rptr. 880] . While the involvement of "an unnecessary third person" in attorney-
client communications destroys confidentiality, involvement of third persons to whom disclosure is
reasonably necessary to further the purpose of the legal consultation preserves the confidentiality of
the communication [ Ins. Co. of N. Am. v. Superior Court (1980) 108 Cal. App. 3d 758, 765, 166
Cal. Rptr. 880 (italics in original)]. For example, a disclosure made at the request of defense counsel
for purposes of evaluation in preparation of the defense case is reasonably necessary, and remains
protected by the attorney-client privilege [ Rodriguez v. Superior Court (1993) 14 Cal. App. 4th
1260, 1266, 18 Cal. Rptr. 2d 120] .
Similarly, sending letters containing an attorney's work product to auditors of defendant public
agency, at the agency's direction, did not waive the right to assert the work product privilege with
respect to those letters [ Laguna Beach County Water Dist. v. Superior Court (2004) 124 Cal. App.
4th 1453, 1461, 22 Cal. Rptr. 3d 387] . The letters themselves made clear that the attorney did not
intend to waive protection; he sent the letters only to comply with defendant's request, and the third
party auditors had an interest in maintaining the confidentiality of the work product [ Laguna Beach
County Water Dist. v. Superior Court (2004) 124 Cal. App. 4th 1453, 1459-1461, 22 Cal. Rptr. 3d
387] .
Similarly, a disclosure made to promote a patient's treatment is reasonably necessary [ Blue Cross v.
Superior Court (1976) 61 Cal. App. 3d 798, 801, 132 Cal. Rptr. 635 ; see also Rudnick v. Superior
Court (1974) 11 Cal. 3d 924, 930-931, 114 Cal. Rptr. 603, 523 P.2d 643] .
Disclosure of confidential legal advice and strategy among an insurer's employees can be protected by
the attorney-client privilege, even if the insurer's attorneys were not directly involved and the
documents at issue did not include excerpts of direct communications from the attorneys, provided
Page 147 of 614

that the employees involved were third persons to whom disclosure was reasonably necessary to
further the purpose of the legal consultation [ Zurich Am. Ins. Co. v. Superior Court (2007) 155 Cal.
App. 4th 1485, 1503, 66 Cal. Rptr. 3d 833 (remanding to make this determination)].
One court of appeal has held that production of documents to the government by energy suppliers
under criminal and regulatory investigation did not waive the attorney-client privilege and work
product protection when production was coerced by the threat of indictment if the corporations failed
to cooperate [ Regents of Univ. of Cal. v. Superior Court (2008) 165 Cal. App. 4th 672, 675,
683-684, 81 Cal. Rptr. 3d 186 (Evid. Code ß 919 anticipates that privilege holder will not have to
make strenuous efforts to resist disclosure; only reasonable efforts are required)].
Under some circumstances, disclosure to codefendants might be reasonably necessary [see Raytheon
Co. v. Superior Court (1989) 208 Cal. App. 3d 683, 689, 256 Cal. Rptr. 425] . For example, when
parties negotiating a business transaction entered into a joint defense agreement in anticipation of
litigation by a third party, in camera review was required to determine whether the disclosure of the
documents in the course of the transaction waived attorney-client privilege. While the joint defense
agreement was not void as matter of public policy, it could not serve as sole ground for withholding
the documents [ OXY Resources California LLC v. Superior Court (2004) 115 Cal. App. 4th 874,
879, 893, 9 Cal. Rptr. 3d 621] .
However, disclosures from an attorney to an expert that are reasonably necessary to further the
attorney's representation of the client's interests are not protected by the attorney-client privilege once
the expert is designated a trial witness. The decision to use the expert as a witness manifests the
client's consent to the disclosure of the information [ Shadow Traffic Network v. Superior Court
(1994) 24 Cal. App. 4th 1067, 1078-1079, 29 Cal. Rptr. 2d 693 ; see also discussion in ß 191.103
[2]].
[6] Disclosure That Is Privileged Does Not Waive Privilege
A disclosure that is privileged is not a waiver of any privilege [Evid. Code ß 912(c)].
[7] Inadvertent Disclosure Absent Consent Does Not Waive Privilege
[a] General Rule
Inadvertent disclosure of a privileged communication does not necessarily constitute waiver of the
privilege. In determining whether waiver has occurred, the trial court must examine the subjective
intent of the privilege holder and the relevant surrounding circumstances for any manifestation of
holder's consent to disclose. If the client or privilege holder clearly did not consent or intend to
disclose privileged matter, the accidental, inadvertent disclosure of such matter by another, such as the
holder's attorney, does not constitute a waiver under Evidence Code ß 912 [ State Comp. Ins. Fund v.
WPS, Inc. (1999) 70 Cal. App. 4th 644, 652-654, 82 Cal. Rptr. 2d 799 (attorney-client privilege)].
[b] Ethical Duty of Attorney Who Receives Inadvertent Disclosure
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The California Supreme Court has adopted an "objective standard," to be applied prospectively when
an attorney inadvertently receives obviously confidential or privileged material [ Rico v. Mitsubishi
Motors Corp. (2007) 42 Cal. 4th 807, 817, 68 Cal. Rptr. 3d 758, 171 P.3d 1092] . Under this
standard, when an attorney receives materials obviously subject to attorney-client privilege, or
otherwise clearly confidential and privileged, and it is reasonably apparent that they were made
available through inadvertence, that attorney should refrain from examining them any more than is
essential to ascertain if they are privileged, and must immediately notify the sender that he or she has
possession of materials that appear to be privileged. The attorney must also notify the party entitled to
the privilege. The parties then may proceed to resolve the situation by agreement or may resort to the
court for guidance with the benefit of protective orders and such other judicial intervention as may be
justified [ Rico v. Mitsubishi Motors Corp. (2007) 42 Cal. 4th 807, 817, 68 Cal. Rptr. 3d 758, 171
P.3d 1092 ; State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal. App. 4th 644, 656-657, 82 Cal.
Rptr. 2d 799 ; see, e.g., Bak v. MCL Financial Group, Inc. (2009) 170 Cal. App. 4th 1118,
1126-1127, 88 Cal. Rptr. 3d 800 (affirming award of sanctions against defense attorney who should
have sought guidance from arbitration panel, rather than unilaterally copying allegedly privileged
material plaintiffs had inadvertently produced and sending it to panel)].
In applying the preceding rule, courts must consider whether reasonably competent counsel, knowing
the circumstances of the litigation, would have concluded the materials were privileged, how much
review was reasonably necessary to draw that conclusion, and when counsel's examination should
have ended [ Rico v. Mitsubishi Motors Corp. (2007) 42 Cal. 4th 807, 818, 68 Cal. Rptr. 3d 758,
171 P.3d 1092 (standard was "properly and easily" applied in this case, and disqualification was
appropriate)].
When seeking to hold an attorney accountable for misuse of privileged materials received through
inadvertence, the complaining attorney has the burden to demonstrate persuasively the inadvertence.
Otherwise, an attorney might attempt to gain an advantage by sending privileged matter deliberately
and then moving to disqualify the recipient. Mere exposure to the material alone does not warrant
disqualification, although disqualification may be proper for an attorney who violates the standard
now set for handling inadvertently disclosed privileged matter [ State Comp. Ins. Fund v. WPS, Inc.
For general discussion of an attorney's ethical obligations with respect to privileged materials, see Ch.
72, Attorney Practice and Ethics (Matthew Bender). For discussion of inadvertent disclosure in the
context of electronic discovery (e-discovery), see Ch. 195A, Discovery: Discovery of Electronically
Stored Evidence (E-Discovery), ß 195A.21. For a detailed discussion of counsel's duties in the
context of production of electronically stored information (e-discovery), including inadvertent
production, see Matthew Bender(R) Practice Guide: California E-Discovery and Evidence, Ch. 3,
Ethical Issues for Attorneys in E-Discovery.
Legal Topics:
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EvidencePrivilegesAttorney-Client PrivilegeWaiverEvidencePrivilegesClergy Communication-
sWaiverEvidencePrivilegesDoctor-Patient PrivilegeWaiverEvidencePrivilegesMarital PrivilegesConfi-
dential CommunicationsWaiverLegal EthicsClient RelationsConfidentiality of Information
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51 of 196 DOCUMENTS

ß 191.16 Presumptions Involving Confidential Relationship Privileges
When a claim of privilege is made on the ground that the matter is a confidential communication made
in the course of the attorney-client, physician-patient, psychotherapist-patient, clergyman-penitent,
spousal relationship, sexual assault counselor-victim relationship, or domestic violence counselor-
victim relationship, the communication is presumed to have been made in confidence [Evid. Code ß
917(a)]. Moreover, the opponent of the claimant of the privilege has the burden of proving that the
communication was not confidential [Evid. Code ß 917(a); Palay v. Superior Court (1993) 18 Cal.
App. 4th 919, 926 n.7, 22 Cal. Rptr. 2d 839] .
A communication between persons in a relationship listed in Evid. Code ß 917(a) does not lose its
privileged character for the sole reason that it is communicated by electronic means or because persons
involved in the delivery, facilitation, or storage of electronic communication may have access to the
content of the communication [Evid. Code ß 917(b); see Evid. Code ß 917(c); Civ. Code ß 1633.2
("electronic" defined)].
Legal Topics:
EvidenceInferences & PresumptionsPresumptionsGeneral OverviewEvidencePrivilegesAttorney-
Client PrivilegeGeneral OverviewEvidencePrivilegesClergy CommunicationsGeneral OverviewEvi-
dencePrivilegesDoctor-Patient PrivilegeGeneral OverviewEvidenceProcedural ConsiderationsBur-
dens of ProofGeneral Overview
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52 of 196 DOCUMENTS

[Reserved]
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53 of 196 DOCUMENTS

B. Privilege Against Self-Incrimination
ß 191.30 Privilege Against Self-Incrimination
To the extent that the privilege exists in the United States Constitution and California Constitution,
every person has the privilege to refuse to disclose any matter that may tend to incriminate him or her
[Evid. Code ß 940; see U.S. Const., amends. V, XIV; Cal. Const., art. I, ß 15; see also People v.
Berry (1991) 230 Cal. App. 3d 1449, 1453-1454, 281 Cal Rptr. 543 (burden of claiming privilege is
on person seeking its protection, although when judge would be aware from circumstances of case of
potential for self-incrimination, he or she should act to protect witness)].
Legal Topics:
Constitutional LawBill of RightsFundamental RightsProcedural Due ProcessSelf-Incrimination
PrivilegeEvidencePrivilegesSelf-Incrimination PrivilegeGeneral OverviewEvidencePrivilegesSelf-
Incrimination PrivilegeScopeEvidenceProcedural ConsiderationsBurdens of ProofGeneral Overview
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54 of 196 DOCUMENTS

ß 191.31 Privilege Limited to Matters Subjecting Holder to Criminal, Not Civil, Liability
The privilege in Evid. Code ß 940 may be asserted in a civil as well as in a criminal proceeding, but is
limited to matters that would incriminate the person in the commission of a punishable crime [ People
v. Whelchel (1967) 255 Cal. App. 2d 455, 460, 63 Cal. Rptr. 258 ; see also Black v. State Bar
(1972) 7 Cal. 3d 676, 685, 103 Cal. Rptr. 288, 499 P.2d 968] . A witness invoking the privilege in a
civil proceeding must demonstrate that the fear of incrimination is reasonable and not fanciful or
merely imagined, because the privilege protects against real dangers, not remote or speculative
possibilities [ Warford v. Medeiros (1984) 160 Cal. App. 3d 1035, 1043-1044, 207 Cal. Rptr. 94 ;
see, e.g., In re the Marriage of Sachs (2002) 95 Cal. App. 4th 1144, 1161-1162, 116 Cal. Rptr. 2d
273 (ex-husband could not invoke privilege against self-incrimination in judgment debtor proceeding,
because silence about his income would not have incriminated him, but instead, would have prevented
him from defending against contempt charges for failure to comply with support orders)]. The
reasonableness of the fear must be demonstrated by some nexus between the information requested
and the risk of criminal prosecution and conviction [ Troy v. Superior Court (1986) 186 Cal. App.
3d 1006, 1012-1013, 231 Cal. Rptr. 108] .
The privilege against self-incrimination is not applicable to matters that will subject the witness only to
civil liability. While the privilege of a criminal defendant is absolute, in civil case a witness or party
may be required to waive the privilege or accept the civil consequences of silence if he or she
exercises the privilege [ Blackburn v. Superior Court (1993) 21 Cal. App. 4th 414, 425-426, 27 Cal.
Rptr. 2d 204] .
Legal Topics:
Page 154 of 614

EvidencePrivilegesSelf-Incrimination PrivilegeScope
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55 of 196 DOCUMENTS

ß 191.32 Privilege May Be Asserted Only in Reference to Particular Questions or Demands for
Disclosure
There is no blanket right to refuse to answer questions in a civil proceeding, and a person claiming the
privilege against self-incrimination must do so with specific reference to particular questions asked or
other evidence sought. The trial court should inquire about each specific claim of privilege to
determine whether the claimant has sustained the burden of showing justification for the claim
[ Warford v. Medeiros (1984) 160 Cal. App. 3d 1035, 1045, 207 Cal. Rptr. 94] . Thus, the privilege
may not be asserted with respect to potential questions that have not yet been asked [see Fuller v.
Superior Court (2001) 87 Cal. App. 4th 299, 308, 104 Cal. Rptr. 2d 525 (denying writ of prohibition
that would have preclude witness from testifying on matters as to which the witness might invoke the
privilege; testimony preclusion premature and court could not ascertain whether or not claim of
privilege was well founded)]. It is within the trial court's discretion to make the inquiry in camera or in
open court [ Warford v. Medeiros (1984) 160 Cal. App. 3d 1035, 1045-1048, 207 Cal. Rptr. 94] .
Legal Topics:
Criminal Law & ProcedureTrialsExamination of WitnessesGeneral OverviewEvidencePrivilegesSelf-
Incrimination PrivilegeElementsEvidencePrivilegesSelf-Incrimination PrivilegeScope
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56 of 196 DOCUMENTS

ß 191.33 Plaintiff May Not Use Privilege to Avoid Discovery Relevant to His or Her Action
A party seeking civil relief in the courts is not able to refuse to testify on matters relevant to his or her
recovery on the ground of privilege against self-incrimination [ Shepherd v. Superior Court (1976)
17 Cal. 3d 107, 117, 130 Cal. Rptr. 257, 550 P.2d 161 ; Newson v. Oakland (1974) 37 Cal. App. 3d
1050, 1055-1057, 112 Cal. Rptr. 890] . A plaintiff may not avoid discovery by relying on the
privilege against self-incrimination, but may be required to choose between waiver of the privilege and
dismissal of the action [ Fremont Indemnity Co. v. Superior Court (1982) 137 Cal. App. 3d 554,
560, 187 Cal. Rptr. 137 ; see also Dwyer v. Crocker National Bank (1987) 194 Cal. App. 3d 1418,
1431-1432, 240 Cal. Rptr. 297 (plaintiff who refused to answer questions or produce documents at
deposition on basis of self-incrimination privilege was prohibited from introducing evidence at trial or
supporting or opposing designated claims or defenses to which deposition questions or documents
related) and discussion in ß 191.35].
Legal Topics:
Page 157 of 614

57 of 196 DOCUMENTS

ß 191.34 Personal Nature of Privilege
The privilege against self-incrimination is personal in nature. Thus, it may not be asserted by a
corporation or other artificial entity [see People v. Superior Court (Keuffel & Esser Co.) (1986) 181
Cal. App. 3d 785, 788, 227 Cal. Rptr. 13 (corporation)]. Moreover, it may not be asserted by an
individual with respect to papers or effects unless they are his or her personal property, or at least in
his or her possession in a purely personal capacity. The latter rule applies even though the evidence
might incriminate the holder personally [see People ex rel. Clancy v. Superior Court (1985) 39 Cal.
3d 740, 745, 218 Cal. Rptr. 24, 705 P.2d 347 (employee not entitled to assert privilege with respect to
property possessed in representative capacity as employee of artificial entity)].
Legal Topics:
Page 158 of 614

58 of 196 DOCUMENTS

ß 191.35 Compelling Disclosure During Civil Discovery
A witness who refuses to answer questions on the ground of the constitutional privilege against self-
incrimination may be compelled to answer if granted immunity against prosecutorial use of the
answers, or evidence derived therefrom, in subsequent criminal proceedings against the witness
[ Daly v. Superior Court (1977) 19 Cal. 3d 132, 142-143, 137 Cal. Rptr. 14, 560 P.2d 1193] . A
request from a prosecuting agency is not a prerequisite to a judicial grant of immunity [ Daly v.
Superior Court (1977) 19 Cal. 3d 132, 146, 137 Cal. Rptr. 14, 560 P.2d 1193] . However, the party
seeking to obtain a protective order granting immunity must first give adequate notice to the appropri-
ate prosecuting official, and afford it an opportunity to object to the granting of the order, in order
sufficiently to establish the absence of any unduly detrimental effect of a proposed immunity order on
future criminal proceedings [ Daly v. Superior Court (1977) 19 Cal. 3d 132, 147-148, 137 Cal.
Rptr. 14, 560 P.2d 1193 (interpreting former Code Civ. Proc. ß 2019, now superseded by various
provisions for protective orders particularized to each discovery method, e.g., Code Civ. Proc. ß
2025.420 regarding depositions)].
However, when a civil defendant faces possible criminal prosecution on the basis of the same facts
involved in the civil action, but immunity is denied due to objection by the criminal prosecutors, it is
improper to punish the defendant for invoking the privilege against self-incrimination and refusing to
disclose evidence. One way the court may properly protect both parties to the civil action is to stay
discovery until disposition of the criminal matter or expiration of the criminal statute of limitations
[ Pacers, Inc. v. Superior Court (1985) 162 Cal. App. 3d 686, 688-690, 208 Cal. Rptr. 743] . In
contrast, sanctions may be imposed, and no stay need be granted, when a plaintiff is seeking damages
in a civil action refuses to respond to discovery on the basis of the privilege against self-incrimination
[ Dwyer v. Crocker National Bank (1987) 194 Cal. App. 3d 1418, 1431-1432, 240 Cal. Rptr. 297] .
Page 159 of 614

Legal Topics:
Civil ProcedureDiscoveryDisclosuresMotions to CompelCivil ProcedureDiscoveryDisclosuresSanc-
tionsCivil ProcedureDiscoveryPrivileged MattersGeneral OverviewCivil ProcedureDiscoveryProtec-
tive OrdersEvidencePrivilegesSelf-Incrimination PrivilegeScope
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59 of 196 DOCUMENTS

[Reserved]
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60 of 196 DOCUMENTS

C. Attorney-Client Privilege
ß 191.40 Attorney-Client Privilege
[1] Purpose of Privilege: To Foster Open Communications With Counsel
The fundamental purpose behind the attorney-client or lawyer-client privilege is to promote full and
open discussion of the facts and tactics surrounding individual legal matters [ Mitchell v. Superior
Court (1984) 37 Cal. 3d 591, 599, 208 Cal. Rptr. 886, 691 P.2d 642 ; People v. Godlewski (1993)
17 Cal. App. 4th 940, 945, 21 Cal. Rptr. 2d 796] . It has been held that the nature of the privileged
communication between attorney and client is broad [see American Mut. Liab. Ins. Co. v. Superior
Court (1974) 38 Cal. App. 3d 579, 593, 113 Cal. Rptr. 561 ; see also Evid. Code ß 917 (presumption
of confidentiality)].
However, the Supreme Court has stated that the attorney-client privilege is to be strictly construed
because it tends to suppress relevant facts [ Greyhound Corp. v. Superior Court (1961) 56 Cal. 2d
355, 396-397, 15 Cal. Rptr. 90, 364 P.2d 266] .
[2] Privilege Held by Client to Prevent Disclosure of Confidential Communications
As a general rule, a client, whether or not a party, has a privilege to refuse to disclose, and to prevent
another from disclosing, a confidential communication between client and attorney, subject however to
waiver under Evid. Code ß 912, and except as otherwise provided in Evid. Code ßß 950-962 [Evid.
Code ß 954]. For discussion of waiver under Evid. Code ß 912, see ß 191.15.
A "client" is a person who, directly or through an authorized representative, consults an attorney for
the purpose of retaining the attorney or securing legal service or advice from the attorney in the latter's
professional capacity. "Client" includes both an incompetent who directly consults an attorney as well
Page 162 of 614

as a guardian or conservator who so consults an attorney on behalf of an incompetent [Evid. Code ß

951].
An attorney or "lawyer" for purposes of the privilege refers to a person authorized, or reasonably
believed by the client to be authorized, to practice law in any state or nation [Evid. Code ß 950].
The privilege attaches to a confidential communication between the attorney and the client and bars
discovery of the communication. A "confidential communication" is defined as information transmit-
ted between a client and attorney in the course of their relationship and in confidence by a means that,
so far as the client is aware, does not disclose the information to any third person other than those
present to further the interest of the client in the consultation, or those to whom disclosure is
reasonably necessary to transmit the information or accomplish the purpose for which the attorney is
consulted. It includes legal opinions formed and advice given by the attorney in the course of that
relationship [Evid. Code ß 952]. The privilege applies irrespective of whether or not the communica-
tion also includes unprivileged material [ Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.
4th 725, 734, 219 P.3d 736 ("[w]hen the communication is a confidential one between attorney and
client, the entire communication, including its recitation or summary of factual material, is privileged");
see Mitchell v. Superior Court (1984) 37 Cal. 3d 591, 600, 208 Cal. Rptr. 886, 691 P.2d 642 ("[n]
either the statutes articulating the attorney-client privilege nor the cases which have interpreted it make
any differentiation between 'factual' and 'legal' information")].
Confidential communications between an insurer's employees regarding legal advice and strategy can
be privileged, because confidential communications under Evid. Code ß 952 includes information
transmitted to persons to whom disclosure was reasonably necessary to further the interest of the
litigant. Thus, even if the insurer's attorneys were not directly involved, and the documents did not
include excerpts of direct communications from the attorneys, communications reflecting a discussion
of litigation strategy and expressing that the strategy was in response to advice of counsel would come
within the privilege [ Zurich Am. Ins. Co. v. Superior Court (2007) 155 Cal. App. 4th
1485,1502-1505, 66 Cal. Rptr. 3d 833 (remanding to determine whether employees with whom
advice of counsel was shared came within these principles)].
The attorney-client privilege is inapplicable when the defendant speaks in a way that enables third
persons to overhear his or her comment and see his or her gesture, even if defendant's attorney is
seated right next to the defendant and the defendant intended that the communication be confidential
[ People v. Urbano (2005) 128 Cal. App. 4th 396, 403, 26 Cal. Rptr. 3d 871] .
A communication between a client and his or her attorney does not lose its privileged character for the
sole reason that it is communicated by electronic means or because persons involved in the delivery,
facilitation, or storage of electronic communication may have access to the content of the communica-
tion [see Evid. Code ß 917(b); see also Evid. Code ß 917(c); Civ. Code ß 1633.2 ("electronic"
defined)].
Page 163 of 614

When the communication between an attorney and possible client proceeds "beyond initial or
peripheral contacts" to the attorney's acquisition of information that would be confidential were there
to be representation, the privilege applies [ People ex rel. Dep't of Corporations v. SpeeDee Oil
Change Sys., Inc. (1999) 20 Cal. 4th 1135, 1148, 86 Cal. Rptr. 2d 816, 980 P.2d 371 (Cal. 1999)
(attorney's involvement rose to level at which fiduciary duties of confidentiality and loyalty could be
imposed); see Barton v. United States District Court (9th Cir. 2005) 410 F.3d 1104, 1111 (Califor-
nia attorney-client privilege applied to Internet questionnaires completed by four plaintiffs, in tort
action against drug manufacturer, even though plaintiffs filled out questionnaires before law firm
represented them and with no assurance that it would; law firm's disclaimer of attorney-client
relationship was not disclaimer of confidentiality, and "prospective clients' communications with a
view to obtaining legal services are plainly covered by the attorney-client privilege under California
law, regardless of whether they have retained the lawyer, and regardless of whether they ever retain
the lawyer")]. Thus, the privilege applies to confidential communications during preliminary
negotiations with a attorney, even if employment is declined [ Rosso, Johnson, Rosso & Ebersold v.
Superior Court (1987) 191 Cal. App. 3d 1514, 1518, 237 Cal. Rptr. 242] .
The privilege encompasses not only oral or written statements, but also actions, signs, or other means
of communicating information. It covers the transmission of documents that are available to the public,
and not merely information in the sole possession of the attorney or client, because discovery of the
transmission of specific public documents might very well reveal the attorney's intended strategy. It
also covers the communication of factual information as well as legal advice [ Mitchell v. Superior
Court (1984) 37 Cal. 3d 591, 600-601, 208 Cal. Rptr. 886, 691 P.2d 642] . The identity of an
attorney's clients is not generally protected by the attorney-client privilege. However, when so much is
already known of the attorney-client relationship that to disclose a client's name would betray a
confidential communication, the identity of a client may be treated as a privileged information [ Tien
v. Superior Court (2006) 139 Cal. App. 4th 528, 537-541, 43 Cal. Rptr. 3d 121 (compelling
disclosure of identities of putative class members who contacted plaintiff's counsel did not violate
attorney-client privilege because no personal, confidential information was sought; however,
discovery would violate class members' privacy rights); Rosso, Johnson, Rosso & Ebersold v.
Superior Court (1987) 191 Cal. App. 3d 1514, 1518-1519, 237 Cal. Rptr. 242 (names of clients who
were injured by intrauterine device were protected because nature of medical problem was confidential
communication)].
Not all information that passes privately between an attorney and client is entitled to remain confiden-
tial. The identification of potential witnesses, for example, may be subject to disclosure in response to
discovery requests. The privilege only protects against disclosure of communications, not against
disclosure of the underlying facts on which communications are based [ Aerojet-General Corp. v.
Transport Indemnity Insurance (1993) 18 Cal. App. 4th 996, 1004, 22 Cal. Rptr. 2d 862] .
Forwarding nonprivileged material to counsel will not render that material privileged if no privilege
existed previously [see Sullivan v. Superior Court (1972) 29 Cal. App. 3d 64, 71, 105 Cal. Rptr.
Page 164 of 614

241 ; see, e.g., Green & Shinee v. Superior Court (2001) 88 Cal. App. 4th 532, 537, 105 Cal. Rptr.
2d 886 (supplemental incident reports prepared by police officers and transmitted to law firm for
review and legal advice were not privileged materials, because reports were public records, prepared
in performance of official duties)].
For discussion of the confidentiality in the context of electronic discovery (e-discovery), see Ch.
195A, Discovery: Discovery of Electronically Stored Evidence (E-Discovery), ß 195A.21.
Legal Topics:
EvidencePrivilegesAttorney-Client PrivilegeGeneral OverviewEvidencePrivilegesAttorney-Client
PrivilegeScope
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61 of 196 DOCUMENTS

ß 191.41 Claiming the Attorney-Client Privilege
[1] General Rule
The privilege may be claimed by the holder [Evid. Code ß 954]. It may also be claimed by either of the
following [Evid. Code ß 954]:
A person authorized by the holder to claim the privilege.
The person who was the attorney at the time of the confidential communication, unless
the holder is no longer in existence or the attorney has been otherwise instructed by a
person authorized to permit disclosure.
The "holder of the privilege" is generally the client. If the client has a guardian or conservator, the
latter is the holder. If the client is dead, his or her personal representative is the holder. If the client is a
corporation or other entity no longer in existence, its successor, assign, trustee in dissolution, or
similar representative (including a personal representative appointed pursuant to Prob. Code ß 12252
if subsequent administration of an estate is necessary after the personal representative has been
discharged) is the holder [see Evid. Code ß 953; see, e.g., Venture Law Group v. Superior Court
(2004) 118 Cal. App. 4th 96, 105-106, 12 Cal. Rptr. 3d 656 (successor corporation was holder of
attorney-client privilege of merged client corporation, and absent waiver by successor corporation,
legal advice to client merged corporation was protected)].
When there is a prima facie claim of attorney-client privilege, the trial judge must accord a full hearing,
Page 166 of 614

with oral argument, before ordering disclosure of client confidences and, in effect, compelling attorney
testimony against a client [ Titmas v. Superior Court (2001) 87 Cal. App. 4th 738, 740, 104 Cal.
Rptr. 2d 803 (shareholder derivative action)].
Generally, a court may not require disclosure of matter claimed to be privileged in order to rule on the
privilege, [Evid. Code ß 915(a)], subject to exceptions when the communication sought to be
disclosed is official information, the identity of an informer, trade secrets, or attorney work product
[Evid. Code ß 915(b)]. However, after the court has determined the privilege is waived or an
exception applies generally, the court--to protect the claimant's privacy--may conduct or order an in
camera review of the communication at issue to determine if some protection is warranted notwith-
standing the waiver or exception [ Costco Wholesale Corp. v. Superior Court (2009) 47 Cal. 4th
725, 740, 219 P.3d 736] . [Evid. Code ß 915(a)].
[2] When Attorney Must Claim Privilege
The attorney who received or made a communication subject to the privilege must claim the privilege
whenever that attorney is present when the communication is sought to be disclosed and the attorney
is authorized to claim the privilege under Evid. Code ß 954(c) [Evid. Code ß 955].
[3] Claim of Privilege by Non-Party
The client is holder of the privilege whether or not the client is a party to the proceeding in which the
disclosure of privileged material is sought [see Evid. Code ß 954]. Thus, a client, though not a party to
a proceeding, has standing to assert the privilege in that proceeding to prevent disclosure of privileged
material. For example, if a party to a proceeding seeks to disclose privileged material, a non-party
holder of the privilege may make a motion in that proceeding to prevent its disclosure [ Mylan
Laboratories Inc. v. Soon-Shiong (1999) 76 Cal. App. 4th 71, 80-81, 90 Cal. Rptr. 2d 111 (holding
that non-party client should properly make motion to assert privilege, but need not and may not move
to intervene as party to proceeding solely to obtain "standing" to prevent disclosure); see, e.g., Code
Civ. Proc. ß 2017.020(a) (motion for protective order to limit discovery generally may be made either
by party or "other affected person")].
[4] Claim of Privilege in Conjunction With Attorney Work Product Claim
The attorney-client privilege is often claimed in conjunction with the work product protection [see,
e.g., Kaiser Found. Hospitals v. Superior Court (1998) 66 Cal. App. 4th 1217, 1227, 78 Cal. Rptr.
2d 543 ; Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal. App. 4th 110, 125-129,
68 Cal. Rptr. 2d 844] . For discussion of work product protection, see ß 191.100 et seq.
Legal Topics:
Civil ProcedureDiscoveryPrivileged MattersWork ProductGeneral OverviewEvidencePrivilegesAt-
torney-Client PrivilegeGeneral OverviewEvidencePrivilegesAttorney-Client PrivilegeElementsEvi-
Page 167 of 614

dencePrivilegesAttorney-Client PrivilegeScopeLegal EthicsClient RelationsConfidentiality of

Information
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62 of 196 DOCUMENTS

ß 191.42 Privilege Held by Client Corporation or Similar Entity
[1] Shareholder of Corporate Client May Not Claim or Waive Privilege
There is no shareholder exception to the corporate attorney-client privilege [see McDermott, Will &
Emery v. Superior Court (2000) 83 Cal. App. 4th 378, 383-385, 99 Cal. Rptr. 2d 622 ; National
Football League Properties, Inc. v. Superior Court (1998) 65 Cal. App. 4th 100, 107, 75 Cal. Rptr.
2d 893 )]. Although shareholders have some rights to corporate information that are not enjoyed by
the general public, they do not have unfettered access to corporate confidences and secrets, and they
are not entitled to claim attorney-client privilege to discover otherwise protected information [ Na-
tional Football League Properties, Inc. v. Superior Court (1998) 65 Cal. App. 4th 100, 107-108, 75
Cal. Rptr. 2d 893] . Because shareholders are not the holder of the privilege, they cannot effect a
waiver of that privilege merely by initiating their own derivative action on behalf of the corporation
[ McDermott, Will & Emery v. Superior Court (2000) 83 Cal. App. 4th 378, 383, 99 Cal. Rptr. 2d
622] . One court held that, for this reason, shareholders could not proceed with their derivative suit
for malpractice brought against outside counsel retained by the corporation. If such a suit were
allowed to proceed, a third-party attorney would be effectively foreclosed from mounting any
meaningful defense, since any waiver of the privilege would have to be made not by the shareholder
litigants but by the holder of the privilege, the corporation [ McDermott, Will & Emery v. Superior
[2] Members of Client Unincorporated Association May Not Claim or Waive Privilege
Unincorporated associations, like corporations, enjoy the benefit of the attorney-client privilege when
the entity (rather than its individual members) has retained the attorney to act on its behalf [see Smith
v. Laguna Sur Villas Community Assn. (2000) 79 Cal. App. 4th 639, 644, 94 Cal. Rptr. 2d 321] . For
Page 169 of 614

example, a condominium association that brings a construction defect lawsuit on its own behalf is the
holder of the attorney-client privilege and the individual condominium owners, who are not individu-
ally named as plaintiffs in the litigation, cannot demand production of privileged documents [ Smith
v. Laguna Sur Villas Community Assn. (2000) 79 Cal. App. 4th 639, 643, 94 Cal. Rptr. 2d 321
(likening relationship between individual members of condominium association and association itself
to that of shareholders to their corporation, and refusing to create condominium-owners exception to
attorney-client privilege)].
Legal Topics:
Business & Corporate LawCorporationsGeneral OverviewBusiness & Corporate LawUnincorporated
AssociationsEvidencePrivilegesAttorney-Client PrivilegeGeneral OverviewEvidencePrivilegesAttor-
ney-Client PrivilegeScopeEvidencePrivilegesAttorney-Client PrivilegeWaiver
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63 of 196 DOCUMENTS

The privilege does not exist in the following situations:
When the client sought or obtained the attorney's services to aid anyone to commit or
plan to commit a crime or a fraud [Evid. Code ß 956].
When the attorney reasonably believes that disclosure of a confidential communication

relating to the representation of a client is necessary to prevent the client from committing
a criminal act that the attorney believes is likely to result in death or substantial bodily
harm [Evid. Code ß 956.5]. Effective July 1, 2004, the statute instead makes this
exception applicable if the lawyer reasonably believes disclosure is necessary to prevent
any criminal act that the lawyer reasonably believes is likely to result in death or substan-
tial bodily harm to an individual [Evid. Code ß 956.5; see 2003 Stats., ch. 765 ß 2].
When the confidential communication is relevant to an issue between parties who all
claim the privilege through a deceased client, whether the claims are by testate or intestate
succession , nonprobate transfer, or inter vivos transaction [Evid. Code ß 957]. This
provision refers to communications between the decedent and the decedent's attorney
[ Fletcher v. Superior Court (1996) 44 Cal. App. 4th 773, 779, 52 Cal. Rptr. 2d 65] .
When the confidential communication is relevant to an issue of breach, by either the

client or the attorney, of a duty arising from the attorney-client relationship [Evid. Code ß
958].
Page 171 of 614

When the confidential communication is relevant to an issue concerning the intention or

competence of a client executing a document to which the attorney was an attesting
witness, or concerning the execution or attestation of such a document [Evid. Code ß
959].
When the confidential communication is relevant to an issue concerning the intention of a

deceased client regarding a deed of conveyance, will, or other writing executed by the
client that purports to affect an interest in property, or concerning the validity of such a
deed, will, or other writing [Evid. Code ßß 960, 961].
When two or more clients retained or consulted an attorney on a matter of common

interest, and the confidential communication is offered in a civil proceeding between two
such clients or their successors [Evid. Code ß 962].
The attorney-client privilege has also been statutorily abrogated in other situations, such as in specified
types of meetings of state or local bodies subject to the Bagley-Keene Open Meeting Act (Gov. Code
ß 11120 et seq.) and the Brown Act (Gov. Code ß 54950 et seq.), respectively [see Gov. Code ßß
54956.9, 11126; for further discussion, see Ch. 470B, Public Agency Meetings ].
Legal Topics:
PrivilegeExceptionsEvidencePrivilegesAttorney-Client PrivilegeScope
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64 of 196 DOCUMENTS

ß 191.44 Termination of Privilege Subsequent to Death of Client
If the client is dead, his or her personal representative is the holder of the privilege [Evid. Code ß 953
(c); see Swidler & Berlin v. United States (1998) 524 U.S. 399, 405 n.2, 118 S. Ct. 2081, 141 L.
Ed. 2d 379 (under federal rules of evidence, attorney-client privilege survives client's death and may
be asserted by client's attorney in subsequent criminal proceeding)]. For this purpose, "personal
representative" includes a personal representative appointed pursuant to Prob. Code ß 12252 [Evid.
Code ß 953(c)]. The court must appoint a personal representative under Prob. Code ß 12252 if
subsequent administration of an estate is necessary after the personal representative has been
discharged [see Prob. Code ß 12252(a)].
Legal Topics:
PrivilegeScope
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65 of 196 DOCUMENTS

ß 191.45 Application of Privilege to Recipient of Paralegal Services
A paralegal is subject to the same duty as an attorney under Bus. & Prof. Code ß 6068(e), to maintain
inviolate the confidentiality, and at every peril to himself or herself to preserve the attorney-client
privilege, of a consumer for whom the paralegal has provided any of the services described in Bus. &
Prof. Code ß 6450(a) [Bus. & Prof. Code ß 6453]. Under Bus. & Prof. Code ß 6450(a), a paralegal
may perform services that include but are not limited to case planning, development, and management,
legal research, interviewing clients, fact gathering and retrieving information, drafting and analyzing
legal documents, collecting, compiling, and utilizing technical information to make an independent
decision and recommendation to a supervising attorney, and representing clients before agencies when
such representation is permitted by statute, rule, or regulation.
Legal Topics:
PrivilegeScope
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66 of 196 DOCUMENTS

ß 191.46 Application of Privilege to Client of Tax Practitioner
[1] Statutory Extension of Privilege
The attorney-client privilege under Evid. Code ß 950 et seq. extends to communications regarding tax
advice between a client-taxpayer and a federally authorized tax practitioner [Rev. & Tax Code ßß
7099.1(a)(1), 21028(a)(1); Unemp. Ins. Code ß 13019(a)(1); see I.R.C. ß 7525 (similar extension of
common law attorney-client privilege under federal income tax law)].
A "federally authorized tax practitioner" means any individual who is authorized under federal law to
practice before the IRS [Rev. & Tax Code ßß 7099.1(a)(3)(A), 21028(a)(3)(A); Unemp. Ins. Code ß
13019(a)(3)(A)]. This may include certified public accountants, enrolled agents, and enrolled actuaries
[see 31 U.S.C. ß 330; 31 C.F.R. ß 10.3].
"Tax advice" means advice given by an individual with respect to a state tax matter. Tax advice may
include federal tax advice related to a state tax matter [Rev. & Tax Code ßß 7099.1(a)(3)(B), 21028(a)
(3)(B); Unemp. Ins. Code ß 13019(a)(3)(B) ("federal tax advice" means advice given by individuals
within scope of their authority to practice before Internal Revenue Service on noncriminal matters)].
The privilege may be asserted only in noncriminal tax proceedings before the State Board of
Equalization, the Franchise Tax Board, or the Employment Development Department [Rev. & Tax
Code ßß 7099.1(a)(2), 21028(a)(2); Unemp. Ins. Code ß 13019(a)(2)]. The privilege does not apply
to written communications between tax practitioners and certain corporate representatives regarding
the promotion of corporate tax shelters [Rev. & Tax Code ßß 7099.1(b), 21028(b); Unemp. Ins. Code
ß 13019(b); see Rev. & Tax Code ßß 7099.1(a)(3)(C), 21028(a)(3)(C) ("tax shelter" defined);
Unemp. Ins. Code ß 13019(a)(3)(C) (same)]. In addition, the privilege may not be asserted to prevent
Page 175 of 614

the disclosure of information in any proceeding to revoke or otherwise discipline any license or right
to practice by any governmental agency [Rev. & Tax Code ßß 7099.1(b), 21028(b); Unemp. Ins. Code
ß 13019(b)].
The privilege is effective with regard to communications made on or after January 1, 2001 until its
repeal on January 1, 2009 [Rev. & Tax Code ßß 7099.1(c), (d), 21028(c), (d); Unemp. Ins. Code ß
13019(c), (d)]. The privilege also is effective for communications made on or after October 11, 2009
[Rev. & Tax Code ßß 7099.1(c), 21018(c); Unemp. Ins. Code ß 13019(c); see Stats. 2009, ch. 411
(urgency legislation effective October 11, 2009)]. This leaves a (presumably unintended) gap from
January 1, 2009, through October 10, 2009, under which communications made during that time
period apparently were not protected under the privilege.
Under the privilege, the same statutory protections of confidentiality which apply to a communication
between a taxpayer and an attorney under Evid. Code ß 950 et seq. apply to a communication between
a taxpayer and any federally authorized tax practitioner [Rev. & Tax Code ßß 7099.1(a)(1), 21028(a)
(1); Unemp. Ins. Code ß 13019(a)(1)]. This privilege does not modify the attorney-client privilege,
other than to extend it to tax practitioners. Accordingly, communications between a taxpayer and an
authorized tax practitioner are privileged only if the communications would have been privileged
between an attorney and the attorney's client. For example, information disclosed to an attorney for the
purpose of preparing a tax return generally is not privileged under present law [see United States v.
Arthur Young & Co. (1984) 465 U.S. 805, 817, 104 S. Ct. 1495, 79 L. Ed. 2d 826 (rejecting work-
product immunity for independent auditor's tax workpapers; creation of privilege was "misplaced" and
in conflict with "clear intent of Congress")].
[2] Extension Under Case Law
Communications to an accountant or other tax practitioner will be protected under the attorney-client
relationship if it can be shown that the accountant was employed, preferably by the attorney, to assist
the attorney in the attorney's rendition of legal services [see United States v. Judson (9th Cir. 1963)
322 F.2d 460, 462 (statement of client's net worth and related work papers prepared by accountant
were protected by attorney-client privilege when they were "prepared at the [client's] attorney's
request, in the course of an attorney-client relationship, for the purpose of advising and defending his
clients"].
Legal Topics:
EvidencePrivilegesAccountant-Client PrivilegeElementsEvidencePrivilegesAccountant-Client
PrivilegeScopeEvidencePrivilegesAttorney-Client PrivilegeElementsEvidencePrivilegesAttorney-
Client PrivilegeScope
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67 of 196 DOCUMENTS

ß 191.47 Application of Privilege to Welfare Recipient
A privilege comparable to that between attorney and client impliedly exists between an authorized
representative of a welfare recipient and the recipient, during a hearing on discontinuation of the
recipient's welfare benefits [ Welfare Rights Organization v. Crisan (1983) 33 Cal. 3d 766, 772,
190 Cal. Rptr. 919, 661 P.2d 1073 ; see Welf. & Inst. Code ß 10950 (fair hearing with representation
by counsel or other authorized representative)].
Legal Topics:
EvidencePrivilegesAttorney-Client PrivilegeScope
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68 of 196 DOCUMENTS

ß 191.48 Application of Privilege to Trustee
[1] Privilege Held by Office of Trustee Rather Than by Individual Trustee
An attorney-client relationship may exist between a trustee and an attorney consulted on behalf of the
trust [ Moeller v. Superior Court (1997) 16 Cal. 4th 1124, 1129-1130, 69 Cal. Rptr. 2d 317, 947 P.
2d 279] . The privilege vests in the office of the trustee and not in any particular individual or entity
who at one time is the trustee. When a successor trustee takes over administration of the trust, the
predecessor trustee loses, and the successor trustee acquires, the privilege to refuse to disclose
confidential attorney-client communications regarding the predecessor trustee's administration of the
trust [ Moeller v. Superior Court (1997) 16 Cal. 4th 1124, 1130-1133, 69 Cal. Rptr. 2d 317, 947 P.
2d 279] .
Thus, when a successor trustee objected to the predecessor trustee's accounting and settlement petition
and formally demanded production and inspection of certain documents and records related to the
predecessor trustee's administration of the trust, the predecessor trustee was not permitted to refuse to
produce those documents on the basis of attorney-client privilege [ Moeller v. Superior Court
[2] Trustee's Confidential Communications to Attorney Are Privileged Against Trust
Beneficiaries
A trustee may assert the attorney-client privilege to withhold privileged communications or documents
from the trust beneficiaries, regardless of their subject matter [ Wells Fargo Bank v. Superior Court
(2000) 22 Cal. 4th 201, 206, 91 Cal. Rptr. 2d 716, 990 P. 2d 591] . Thus, in an action for an
accounting, the beneficiaries were not entitled to privileged documents relating to trust administration
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or to petitioner trustee's personal liability [ Wells Fargo Bank v. Superior Court (2000) 22 Cal. 4th
201, 206, 91 Cal. Rptr. 2d 716, 990 P.2d 591] .
Legal Topics:
Estate, Gift & Trust LawTrustsTrusteesDuties & PowersGeneral OverviewEvidencePrivilegesAttor-
ney-Client PrivilegeScope
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69 of 196 DOCUMENTS

[Reserved]
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70 of 196 DOCUMENTS

D. Physician-Patient Privilege
ß 191.60 Physician-Patient Privilege
As a general rule, a patient, whether or not a party to the litigation, has a privilege to refuse to disclose,
and to prevent another from disclosing, a confidential communication between patient and physician,
subject to waiver under Evid. Code ß 912, and except as otherwise provided in Evid. Code ßß
991-1007 [Evid. Code ß 994]. For discussion of waiver under Evid. Code ß 912, see ß 191.15.
A "patient" is a person who consults a physician or submits to an examination by a physician for the
purpose of securing a diagnosis or preventive, palliative, or curative treatment of a physical, mental, or
emotional condition [Evid. Code ß 991; cf. Johnson v. Superior Court (2000) 80 Cal. App. 4th 1050,
1063, 95 Cal. Rptr. 2d 864 (physician-patient relationship was not established when sperm donor
consulted sperm bank's physicians and medical personnel for sole purpose of selling his sperm)].
A "physician" for purposes of the privilege refers to a person authorized or reasonably believed by the
patient to be authorized to practice medicine in any state or nation [Evid. Code ß 990].
A "confidential communication" subject to the protection of the physician-patient privilege is

information, including information obtained by an examination of the patient, transmitted in confi-
dence between a patient and physician in the course of the physician-patient relationship. The
communication is considered confidential if it is transmitted by a means which, as far as the patient is
aware, does not disclose the information to any third person other than one who is present to further
the patient's interest in the consultation or to whom disclosure is reasonably necessary for the
Page 181 of 614

transmission of the information or the accomplishment of the purpose for which the patient consulted
the physician. A confidential communication includes a diagnosis made and the advice given by the
physician in the course of the relationship [Evid. Code ß 992; see Manela v. Superior Court (2009)
177 Cal. App. 4th 1139, 1146-1147, 99 Cal. Rptr. 3d 736 (in marital dissolution and custody action
brought by father against mother, father waived physician-patient privilege under Evid. Code ßß 912
(a) and 992 with respect to specified medical records because mother was present during father's
intake exam with neurologist and father consented to disclosure of significant part of his communica-
tions with neurologist on that date)].
Photographs of a patient's physical condition taken by a physician for the sole purpose of obtaining
confidential and private information regarding the patient's condition to assist in rendering a proper
diagnosis and treatment are confidential communications [see Binder v. Superior Court (1987) 196
Cal. App. 3d 893, 897, 242 Cal. Rptr. 231] .
Legal Topics:
EvidencePrivilegesDoctor-Patient PrivilegeGeneral OverviewEvidencePrivilegesDoctor-Patient
PrivilegeElementsEvidencePrivilegesDoctor-Patient PrivilegeScope
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ß 191.61 Claiming the Physician-Patient Privilege
[1] General Rule
The privilege may be claimed by the holder [Evid. Code ß 994(a)]. The "holder of the privilege" is
generally the patient. If the patient has a guardian or conservator, the latter is the holder. If the patient
is dead, his or her personal representative is the holder [see Evid. Code ß 993].
The privilege may also be claimed by either of the following:
A person authorized by the holder to claim the privilege [Evid. Code ß 994(b)].
The person who was the physician at the time of the confidential communication, unless
the holder is no longer in existence or the physician has been otherwise instructed by a
person authorized to permit disclosure [Evid. Code ß 994(c)].
For purposes of determining the "person who was the physician" at the time of the communication, a
physician-patient relationship exists between a patient and a medical or podiatry corporation (as
defined in Bus. & Prof. Code ß 2000 et seq.). It also exists between a patient and a licensed physician
or surgeon who is employed by such a corporation to render services to the patient [Evid. Code ß 994
(c)]. A "person who was the physician" under Evid. Code ß 994(c) also includes partnerships, limited
liability companies, corporations, associations, and other groups and entities [Evid. Code ß 994(c)].
[2] When Physician Must Claim Privilege
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The physician who received or made a communication subject to the physician-patient privilege must
claim the privilege on behalf of the holder whenever he or she is present when disclosure is sought
and he or she is authorized to claim the privilege under Evid. Code ß 994(c) [Evid. Code ß 995].
The privilege is the patient's privilege, and the physician does not have the power to waive it
[ Roberts v. Superior Court (1973) 9 Cal. 3d 330, 341, 107 Cal. Rptr. 309, 508 P.2d 309 ; City &
County of San Francisco v. Superior Court (1951) 37 Cal. 2d 227, 233, 231 P.2d 26 (interpreting
former Code Civ. Proc. ß 1881(4))].
[3] Claim of Privilege by Parent as Guardian of Child Patient
As noted in [1], above, if the patient has a guardian or conservator, the guardian or conservator is the
holder of the privilege [Evid. Code ß 993(b)]. Although a parent's right to assert the privilege as
guardian on behalf of his or her child is generally unquestioned, that right is not absolute, and under
certain circumstances, such as when the interests of the parent and child conflict, the parent may not
possess the right [see In re Troy D. (1989) 215 Cal. App. 3d 889, 900, 263 Cal. Rptr. 869
(dictum)].
For example, in a juvenile dependency proceeding in which it was alleged that the child was born
under the influence of dangerous drugs and that his parents were unable to protect him, the court of
appeal questioned the appropriateness of the mother asserting the privilege to prevent disclosure of the
child's medical records, since the interests of the mother and child were potentially conflicting [ In re
Troy D. (1989) 215 Cal. App. 3d 889, 900-901, 263 Cal. Rptr. 869 ; see also In re Fred J. (1979)
89 Cal. App. 3d 168, 178-179, 152 Cal. Rptr. 327 (expressing doubt that mother had ability to claim
child's privilege to prevent psychiatrist from testifying about examination of child in dependency
hearing)].
[4] Claim of Privilege by Third-Party Recipient of Confidential Communication
A third-party recipient of privileged matter has standing to claim the privilege on behalf of an absent
patient who does not consent to disclosure [ Board of Medical Quality Assurance v. Gherardini
(1979) 93 Cal. App. 3d 669, 675, 156 Cal. Rptr. 55 (privilege claimed by hospital); see also
Rudnick v. Superior Court (1974) 11 Cal. 3d 924, 932, 114 Cal. Rptr. 603, 523 P.2d 643 (privilege
claimed by drug manufacturer)].
Legal Topics:
EvidencePrivilegesDoctor-Patient PrivilegeGeneral OverviewEvidencePrivilegesDoctor-Patient
PrivilegeScope
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[a] General Rule
There is no physician-patient privilege regarding a communication relevant to an issue concerning the

condition of the patient if the condition was tendered by any of the following [Evid. Code ß 996;
Palay v. Superior Court (1993) 18 Cal. App. 4th 919, 928, 22 Cal. Rptr. 2d 839 (issue tendered by
filing personal injury action)]:
The patient.
A party claiming through or under the patient.
A party claiming the privilege as a beneficiary of the patient through a contract to which
the patient was or is a party.
The plaintiff in an action brought under Code Civ. Proc. ß 376 (action for injury to
minor child) or former Code Civ. Proc. ß 377 (wrongful death) for damages for injury or
death of the patient (former Code Civ. Proc. ß 377 has been repealed and replaced by
Code Civ. Proc. ß 377.60 et seq.).
In a medical malpractice action, a nonparty physician who formerly treated the plaintiff was permitted
Page 185 of 614

to testify as an expert for the defense by reviewing factual information about the diagnosis and
treatment delivered by the defendant physician and render an expert opinion on whether medical
negligence occurred. This was not because the patient-litigant exception of Evid. Code ß 996 meant
that the privilege did not exist as to communications between the plaintiff and this physician. Rather,
the physician's testimony was conditioned on the fact it would not require a violation of the privilege
through the consideration and disclosure of confidential communications obtained in the earlier
treatment [see Torres v. Superior Court (1990) 221 Cal. App. 3d 181, 184-187, 270 Cal. Rptr. 401 ,
disapproved on other grounds in Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal. 4th 30, 41, 8332
Cal. Rptr. 2d 200, 876 P.2d 999] . The court noted that in this type of situation, to ensure that the
information protected by the privilege remained protected, a trial court may restrict ex parte communi-
cations between the expert physician and the defense during the course of discovery [ Torres v.
Superior Court (1990) 221 Cal. App. 3d 181, 188, 270 Cal. Rptr. 401 , disapproved on other
grounds in Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal. 4th 30, 41, 8332 Cal. Rptr. 2d 200, 876
P.2d 999] .
[b] Exception to Privilege Narrowly Construed
The courts have placed a narrow interpretation on Evid. Code ß 996, the patient-litigant exception to
the physician-patient privilege discussed in [a], above. Although a litigant seeking recovery for
physical injuries waives his or her physician-patient privilege regarding the medical conditions that the
litigant has put in issue and that are in question, all of the litigant's past medical history is not open to
scrutiny [ Britt v. Superior Court (1978) 20 Cal. 3d 844, 864, 143 Cal. Rptr. 695, 574 P.2d 766] .
For example, in one case, petitioner sought relief from an order of a workers' compensation judge
directing her to answer questions relating to her general past medical history, asserting that the
information was protected by her privacy rights and by the physician-patient privilege. Citing Britt, the
court of appeal declined to determine with precision which portion of the requested discovery
information was privileged and which was not, because the discovery authorized by the challenged
order was clearly too broad. The court held that on remand, the defendant would bear responsibility
for framing narrower, more precisely tailored discovery that did not improperly impinge on privileged
information, noting that defendant's own medical expert's analysis of plaintiff's workers' compensation
claim, based on injury to her wrist, narrowed the scope of discovery to something far less broad than
a general inquiry into plaintiff's hospitalization history prior to 1965 [ Allison v. Workers Comp.
Appeals Bd. (1999) 72 Cal. App. 4th 654, 661, 84 Cal. Rptr. 2d 915] . The court added, for the
guidance of the parties, that an attorney claiming a privilege on behalf of his or her client does not
have a right unilaterally to determine the validity of the claim, but must advise opposing counsel so
that opposing counsel can bring the matter before a workers' compensation appeals judge for
determination of the validity of the claim [ Allison v. Workers Comp. Appeals Bd. (1999) 72 Cal.
App. 4th 654, 661, 84 Cal. Rptr. 2d 915] .
Situations in which the privilege does not exist, other than the patient-litigant exception discussed in
Page 186 of 614

[1], above, include the following:
When the patient sought or obtained the physician's services to aid anyone to commit or
plan to commit a crime or a tort or to escape detection or apprehension after the commis-
sion of a crime or a tort [Evid. Code ß 997].
In a criminal proceeding [Evid. Code ß 998].
When the confidential communication is relevant to an issue concerning the condition of

the patient in a proceeding to recover damages on account of the conduct of the patient if
good cause for disclosure of the communication is shown [Evid. Code ß 999].
claim the privilege through a deceased patient, regardless of whether the claims are by
testate or intestate succession or by inter vivos transaction [Evid. Code ß 1000].

patient or the physician, of duty arising out of the physician-patient relationship [Evid.
Code ß 1001].

deceased patient regarding a deed of conveyance, will, or other writing executed by the
patient that purports to affect an interest in property, or concerning the validity of such a
In a proceeding to commit the patient, or place the patient, or the patient's protperty, or
both, under the control of another because of the patient's alleged mental or physical
condition, or in a competency proceeding brought by or on behalf of a patient [Evid.
Code ßß 1004, 1005].
With regard to information that the physician or patient is required to report to a public
employee, or information required to be recorded in a public office, if the report or record
is open to public inspection [Evid. Code ß 1006].
In a proceeding by a public entity to determine whether a right, authority, license, or

privilege should be revoked, suspended, terminated, limited, or conditioned [Evid. Code ß
1007].
Legal Topics:
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EvidencePrivilegesDoctor-Patient PrivilegeExceptionsEvidencePrivilegesDoctor-Patient Privi-
legeScope
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73 of 196 DOCUMENTS

ß 191.63 Subpoena of Confidential Communication for Coroner's Inquest
When the coroner seeks a confidential communication of a deceased person that is privileged under
the physician-patient privilege or the psychotherapist-patient privilege, by means of a subpoena or
subpoena duces tecum, for the purpose of inquiry into and determination of the circumstances,
manner, and cause of death as set forth in Gov. Code ß 27491 (death requiring coroner's inquest), or
for the sole purpose of being introduced as evidence at a coroner's inquest proceeding, the coroner
must provide notice to the decedent's personal representative appointed by the court, if any. If no
personal representative has been appointed by the court, the coroner must provide notice to the
decedent's personal representative. This notice must be served personally or at the representative's last
known address not less than 15 days before the date the records are to be delivered to the court. The
notice must inform the personal representative that he or she may present to the court written objection
to any disclosure on or before the date specified for delivery [Gov. Code ß 27491.8(a); for further
discussion of Gov. Code ß 27491 and related provisions, see Ch. 180, Dead Bodies and Cemeteries ].
The custodian must deliver the records to the presiding judge of the superior court in a confidential
manner. The judge must examine the records in camera, and, if there is good cause, must direct the
custodian to disclose to the coroner those portions of the records that are relevant to the coroner's
inquiry or inquest [Gov. Code ß 27491.8(a)]. A communication made available to the coroner under
these circumstances is confidential and may not be distributed or made available to any other person,
agency, firm, or corporation, except when introduced into evidence at a coroner's inquest proceeding
[Gov. Code ß 27491.8(b)]. Additionally, the communication is not admissible as former testimony
pursuant to Evid. Code ß 1290 et seq. [Gov. Code ß 27491.8(c)].
After the investigation or inquest has terminated, the court must order these records sealed to protect
Page 189 of 614

the confidentiality of the decedent's medical or mental health information [Gov. Code ß 27491.8(d)].
Legal Topics:
EvidencePrivilegesDoctor-Patient PrivilegeExceptionsEvidencePrivilegesDoctor-Patient Privi-
legeScope
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[Reserved]
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E. Psychotherapist-Patient Privilege
ß 191.70 Psychotherapist-Patient Privilege
As a general rule, a patient, whether or not a party, has a privilege to refuse to disclose, and to prevent
another from disclosing, a confidential communication between patient and psychotherapist, subject to
waiver under Evid. Code ß 912, and except as otherwise provided in Evid. Code ßß 1010-1027 [Evid.
Code ß 1014]. For discussion of waiver under Evid. Code ß 912, see ß 191.15.
A "patient" is a person who consults a psychotherapist or submits to an examination by a psychother-

apist for the purpose of securing a diagnosis or preventive, palliative, or curative treatment of a mental,
or emotional condition, or who submits to an examination of his or her mental or emotional condition
for the purpose of scientific research on mental or emotional problems [Evid. Code ß 1011].
A "psychotherapist" for purposes of the privilege may be any one of the following:
A person authorized, or reasonably believed by the patient to be authorized, to practice

medicine in any state or nation who devotes, or is reasonably believed by the patient to
devote, a substantial portion of his or her time to the practice of psychiatry [Evid. Code ß
1010(a)].
A licensed psychologist [Evid. Code ß 1010(b)].
A licensed clinical social worker engaged in nonmedical applied psychotherapy [Evid.

Code ß 1010(c)].
Page 192 of 614

A school psychologist who is credentialed to provide such service [Evid. Code ß 1010
(d)].
A licensed marriage and family therapist [Evid. Code ß 1010(e)].
A person registered as a psychological assistant who is under the supervision of an

appropriately licensed psychologist or board-certified psychiatrist, or a person registered
as a marriage and family therapist intern who is under the supervision of a licensed
marriage and family therapist, clinical social worker, psychologist, or physician certified
in psychiatry [Evid. Code ß 1010(f)].
A person registered as an associate clinical social worker who is under the supervision
of a licensed clinical social worker, psychologist, or a board-certified psychiatrist [Evid.
Code ß 1010(g)].
A person exempt from the Psychology Licensing Law (Bus. & Prof. Code ß 2900 et
seq.) pursuant to Bus. & Prof. Code ß 2909, who is under the supervision of a licensed
psychologist or board-certified psychiatrist [Evid. Code ß 1010(h)].
A psychological intern as defined in Bus. & Prof. Code ß 2911, who is under the
supervision of a licensed psychologist or board-certified psychiatrist [Evid. Code ß 1010
(i)].
A marriage and family counseling trainee, fulfilling his or her required supervised
practicum under the supervision of a licensed psychologist, board-certified psychiatrist,
licensed clinical social worker, or a licensed marriage and family therapist [Evid. Code ß
1010(j)].
A licensed registered nurse who has a master's degree in psychiatric-mental health

nursing and is listed as a psychiatric-mental health nurse by the Board of Registered
Nursing [Evid. Code ß 1010(k)].
An advanced practice registered nurse who is certified as a clinical nurse specialist and
who participates in expert clinical practice in the specialty of psychiatric-mental health
nursing [Evid. Code ß 1010(l)].
A person rendering mental health treatment or counseling services as authorized by Fam.

Code ß 6924 (mental health treatment or counseling of minor) [Evid. Code ß 1010(m)].
The term may also be applied, as a practical matter, to a licensed educational psychologist [see Evid.
Page 193 of 614

Code ß 1010.5 (application to educational psychologist-patient communications)].

A "confidential communication" subject to the protection of the psychotherapist-patient privilege is

information, including information obtained by an examination of the patient, transmitted in confi-
dence between a patient and psychotherapist in the course of the psychotherapist-patient relationship.
The communication is considered confidential if it is transmitted by a means which, as far as the
patient is aware, does not disclose the information to any third person other than one who is present to
further the patient's interest in the consultation or to whom disclosure is reasonably necessary for the
transmission of the information or the accomplishment of the purpose for which the patient consulted
the psychotherapist [Evid. Code ß 1012; see, Roman Catholic Archbishop of Los Angeles v.
Superior Court (People) (2005) 131 Cal. App. 4th 417, 450-454, 32 Cal. Rptr. 3d 209 (discussing
case law illustrating disclosures to third persons that are "reasonably necessary" to accomplish
purpose for which psychotherapist was consulted, and finding only one document prepared by
archbishop's staff was protected by privilege, in grand jury investigation of allegations of child sexual
abuse by two priests because this document supplied troubled priest's therapeutic team with informa-
tion about his personal history as an aid to diagnosis and treatment); see also In re The Clergy Cases
I (2010) 188 Cal. App. 4th 1224, 1241-1242, 116 Cal. Rptr. 3d 360 (voluntary disclosure by child-
abusing clergymen of their psychiatric reports to Franciscans for purposes unrelated to their diagnoses
and treatment waived psychotherapist-patient privilege, despite Franciscans' promise that records
would be kept confidential, citing Evid. Code ßß 1011, 1012)]. A confidential communication includes
a diagnosis made and the advice given by the psychotherapist in the course of the relationship [Evid.
Code ß 1012].
Some courts, primarily in the juvenile dependency context, have relied on Evid. Code ß 1012 (defining
"confidential communications to exclude "those to whom disclosure is reasonably necessary for the
transmission of the information or the accomplishment of the purpose for which the psychotherapist is
consulted") to permit limited disclosure of matters that would reasonably assist the court in evaluating
whether further orders are necessary for the minor's benefit, while preserving the confidentiality of the
details of the minor's therapy [see, e.g., In re Mark L. (2001) 94 Cal. App. 4th 573, 583-584, 114
Cal. Rptr. 2d 499 ; In re Kristine W. (2001) 94 Cal. App. 4th 521, 528-529, 114 Cal. Rptr. 2d 369 ;
see also In re Christopher M. (2005) 127 Cal. App. 4th 684, 695, 26 Cal. Rptr. 3d 61 , amended
2005 Cal. App. LEXIS 382 (probation conditions that required all records related to juvenile
defendant's treatment be made available on request to court and probation department were reasonable
and did not violate juvenile's right of privacy or his psychotherapist-patient privilege, given state's
legitimate countervailing interest in protecting public against defendant's violent, anti-social conduct
and in determining whether he was fully complying with his probation conditions); In re Pedro M.
(2000) 81 Cal. App. 4th 550, 554-555, 96 Cal. Rptr. 2d 839 (psychotherapist-patient privilege did not
preclude therapist from testifying concerning juvenile offender's participation and progress in court-
ordered treatment plan)].
The psychotherapist-patient privilege does not require that the communication be and remain
Page 194 of 614

confidential to be protected. It encompasses a communication that was never, in fact, confidential so

long as it was made in confidence. The communication need only comprise information transmitted
between a patient and a psychotherapist in the course of their relationship and in confidence by a
means which, so far as the patient is aware, discloses the information to no outside third person.
Similarly, the privilege can cover a communication that has lost its confidential status [ Menendez v.
Superior Court (1992) 3 Cal. 4th 435, 447, 11 Cal. Rptr. 2d 92, 834 P.2d 786] .
[3] Scope of Privilege
Because of the unique nature of the psychotherapist-patient relationship, the privilege provides a
greater degree of protection than that afforded the physician-patient relationship [ Smith v. Superior
Court (1981) 118 Cal. App. 3d 136, 139-140, 173 Cal. Rptr. 145] . For example, the privilege
protects against disclosure of the names, addresses, and telephone numbers of a psychotherapist's
patients [ Smith v. Superior Court (1981) 118 Cal. App. 3d 136, 141, 173 Cal. Rptr. 145] , and of
the fact that a party has obtained psychiatric treatment [ City of Alhambra v. Superior Court (1980)
110 Cal. App. 3d 513, 518, 168 Cal. Rptr. 49 ; see Pollock v. Superior Court (2001) 93 Cal. App.
4th 817, 821, 113 Cal. Rptr. 2d 453 (names of insurance company's psychiatric disability claimants
were not discoverable because disclosure of claimants' names would reveal not only their identity but
also nature of their psychiatric disability)].
However, the Smith rule, declaring the patient's identity to be a privileged communication, should not
rigidly apply in every case. In extraordinary cases of need for disclosure, a court retains discretion to
order the patients' identity revealed. When the need for disclosure is crucial to the cause of action and
to the ability to conduct meaningful discovery, disclosure may be compelled [ County of Alameda v.
Superior Court (1987) 194 Cal. App. 3d 254, 261, 263-264, 239 Cal. Rptr. 400 (this is narrow
limitation on privilege; trial court properly ordered disclosure of name of mental patient who raped
plaintiff, another mental patient in county hospital)].
Legal Topics:
EvidencePrivilegesPsychotherapist-Patient PrivilegeElementsEvidencePrivilegesPsychotherapist-
Patient PrivilegeScope
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ß 191.71 Claiming the Psychotherapist-Patient Privilege
[1] General Rule
The privilege may be claimed by the holder [Evid. Code ß 1014(a)]. The "holder of the privilege" is
generally the patient. If the patient has a guardian or conservator, the latter is the holder. If the patient
is dead, his or her personal representative is the holder [see Evid. Code ß 1013].
The privilege may also be claimed by either of the following:
A person authorized by the holder to claim the privilege [Evid. Code ß 1014(b)].
The person who was the psychotherapist at the time of the confidential communication,
unless the holder is no longer in existence or the psychotherapist has been otherwise
instructed by a person authorized to permit disclosure [Evid. Code ß 1014(c)].
For purposes of determing the "person who was the psychotherapist" at the time of the communica-
tion, a psychotherapist-patient relationship exists between a patient and a psychological corporation
(as defined in Bus. & Prof. Code ß 2995 et seq.), a marriage, family, and child counseling corporation
(as defined in Bus. & Prof. Code ß 4987.5 et seq.), a licensed clinical social workers corporation (as
defined in Bus. & Prof. Code ß 4998 et seq.). It also exists between a patient and a psychotherapist
who is employed by such a corporation to render services to the patient [Evid. Code ß 1014(c)]. A
"person" under Evid. Code ß 1014(c) also includes partnerships, limited liability companies,
corporations, associations, and other groups and entities [Evid. Code ß 1014(c)].
Page 196 of 614

[2] When Psychotherapist Must Claim Privilege
The psychotherapist who received or made a communication subject to the privilege must claim the
privilege whenever he or she is present when the communication is sought to be disclosed and is
authorized to claim the privilege under Evid. Code ß 1014(c) [Evid. Code ß 1015]. The privilege
belongs to the patient, and the psychotherapist has no power to waive it [ Roberts v. Superior Court
(1973) 9 Cal. 3d 330, 341, 107 Cal. Rptr. 309, 508 P.2d 309 ; see Evid. Code ß 1013 (defining
holder of privilege)].
[3] Existence of Privilege Subsequent to Death of Client
The psychotherapist-patient privilege was intended to survive the death of the patient, to be exercised
or waived as the interests of the estate of the deceased patient might warrant [see Boling v. Superior
Court (1980) 105 Cal. App. 3d 430, 439, 164 Cal. Rptr. 432 ; cf. discussion in ß 191.44].
[4] Burden of Proving Claim of Privilege
[a] Claimant Has Burden
The party claiming the psychotherapist-patient privilege has the burden of proving the preliminary
facts to show that the privilege exists [ People v. Cabral (1993) 12 Cal. App. 4th 820, 827, 15 Cal.
Rptr. 2d 866 ; see also discussion in ß 191.13].
[b] Dominant Purpose Test
If the purpose for a consultation is in issue, a "dominant purpose" test is applied. If the dominant
purpose of the communication is for transmittal to a psychotherapist in the course of professional
counseling, that communication is within the privilege. Whether a particular communication is
predominantly in furtherance of the psychotherapist-patient relationship is a question of fact [ People
v. Cabral (1993) 12 Cal. App. 4th 820, 828, 15 Cal. Rptr. 2d 866 (unsolicited letter from man
accused of molesting his daughter in which he admitted charges and requested admittance into
rehabilitation program for admitted sex offenders failed dominant purpose test and was not
privileged); see also Menendez v. Superior Court (1992) 3 Cal. 4th 435, 454, 11 Cal. Rptr. 2d 92,
834 P.2d 786 (motive for psychotherapy is generally immaterial in that participants do not participate
in psychotherapy for its own sake)].
One court of appeal has rejected the dominant purpose test of Cabral "to the extent the test would
automatically preclude the application of the psychotherapist-privilege to records generated as the
result of psychotherapy attended by a defendant as a condition of probation" [ Story v. Superior
Court (2003) 109 Cal. App. 4th 1007, 1016, 135 Cal. Rptr. 2d 532] . In that case, the court held that
the fact that defendant was motivated to participate in psychotherapy as a condition of probation did
not bar application of the psychotherapist-patient privilege to records of that psychotherapy [ Story v.
Superior Court (2003) 109 Cal. App. 4th 1007, 1016-1017, 135 Cal. Rptr. 2d 532 (explaining that
dominant purpose of probation-conditioned psychotherapy must always be therapeutic, regardless of
defendant's motive, because Pen. Code ß 1203.1(j) expressly provides that the general purpose of all
Page 197 of 614

probation conditions is "the reformation and rehabilitation of the probationer")]. Accordingly, records
of psychotherapy ordered as a condition of probation were protected from disclosure in a subsequent
criminal action when the prosecution sought evidence regarding defendant's commission of a previous
sexual offense [ Story v. Superior Court (2003) 109 Cal. App. 4th 1007, 1019, 135 Cal. Rptr. 2d
532] . The court noted, however, that the psychotherapy records of an adult probationer may be
disclosed under Evid. Code ß 1012 to the extent necessary for the court to monitor the defendant's
participation and progress in the psychotherapy ordered as a condition of probation [ Story v.
Superior Court (2003) 109 Cal. App. 4th 1007, 1018-1019, 135 Cal. Rptr. 2d 532 (citing In re
Pedro M. (2000) 81 Cal. App. 4th 550, 96 Cal. Rptr. 2d 839 , discussed in ß 191.70[2])].
[c] Effect When Burden Met
Once the requisite psychotherapist-patient relationship has been established, it is liberally construed in
favor of the patient. This conforms to the basic policy behind the privilege, which is to promote the
relationship by safeguarding the confidential disclosures of the patient and the advice given [ People
v. Cabral (1993) 12 Cal. App. 4th 820, 827, 15 Cal. Rptr. 2d 866] . Moreover, it is a recognition that
compelled disclosure could encroach on constitutionally protected rights of privacy [ Roberts v.
Superior Court (1973) 9 Cal. 3d 330, 337, 107 Cal. Rptr. 309, 508 P.2d 309 ; In re Lifschutz
(1970) 2 Cal. 3d 415, 423, 431-432, 437, 85 Cal. Rptr. 829, 467 P.2d 557] .
Legal Topics:
EvidencePrivilegesPsychotherapist-Patient PrivilegeElementsEvidencePrivilegesPsychotherapist-
Patient PrivilegeScopeEvidenceProcedural ConsiderationsBurdens of ProofGeneral Overview
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The privilege does not apply to a communication relevant to the patient's mental or emotional condition
when that issue was tendered by any of the following [Evid. Code ß 1016]:
The patient.
A party claiming through or under the patient.
A party claiming the privilege as a beneficiary of the patient through a contract to which
the patient was or is a party.
The plaintiff in an action brought under Code Civ. Proc. ß 376 (action for injury to
minor child) or former Code Civ. Proc. ß 377 (wrongful death) for damages for injury or
death of the patient (former Code Civ. Proc. ß 377 has been repealed and replaced by
Code Civ. Proc. ß 377.60 et seq.).
The abrogation of the privilege under this exception is limited, and authorizes disclosure only of
matters directly relevant to the nature of the specific emotional or mental condition that the patient
voluntarily disclosed and tendered in the pleadings or in answer to discovery inquiries [ In re
Lifschutz (1970) 2 Cal. 3d 415, 431, 435, 85 Cal. Rptr. 829, 467 P.2d 557 ; see San Diego Trolley,
Inc. v. Superior Court (2001) 87 Cal. App. 4th 1083, 1094, 105 Cal. Rptr. 2d 476 (neither defendant
Page 199 of 614

trolley driver's workers' compensation claims for stress-related anxiety due to previous work-related
accident nor her voluntary disclosure of any confidential communications with her psychiatrist during
those proceedings supported access to her confidential communications with her psychiatrist in this
suit for personal injuries; driver's willingness to put her psychotherapeutic relationship somewhat at
risk in workers' compensation proceedings, and resulting limited disclosure, did not support inference
that she meant her relationship with her psychiatrist could continue to be put at risk following
disposition of her claims)]. In determining whether disclosure should be required under this section,
the court must heed the patient's basic interests in privacy and construe the privilege liberally, in favor
of the patient [ In re Lifschutz (1970) 2 Cal. 3d 415, 437, 85 Cal. Rptr. 829, 467 P.2d 557] .
Situations in which the privilege does not exist, other than the patient-litigant exception discussed in
[1], above, include the following:
When the patient sought or obtained the psychotherapist's services to aid anyone to
commit or plan to commit a crime or a tort or to escape detection or apprehension after the
commission of a crime or a tort [Evid. Code ß 1018].
claim the privilege through a deceased patient, regardless of whether the claims are by
testate or intestate succession or by inter vivos transaction [Evid. Code ß 1019].

patient or the psychotherapist, of duty arising out of the psychotherapist-patient relation-
ship [Evid. Code ß 1020].

deceased patient regarding a deed of conveyance, will, or other writing executed by the
patient that purports to affect an interest in property, or concerning the validity of such a
In a proceeding initiated by a criminal defendant to determine his or her sanity [Evid.

Code ß 1023].
When the psychotherapist has reasonable cause to believe that the patient is in such
mental or emotional condition as to be dangerous to self or to the person or property of
another and that disclosure is necessary to prevent the threatened danger [Evid. Code ß
1024].
In a competency proceeding brought by or on behalf of a patient [Evid. Code ß 1025].
Page 200 of 614

With regard to information that the psychotherapist or patient is required to report to a

public employee, or information required to be recorded in a public office, if the report or
record is open to public inspection [Evid. Code ß 1026].
When the patient is child under the age of 16 years and the psychotherapist has reason-
able cause to believe that the patient has been a victim of a crime and that disclosure is in
the best interest of the child [Evid. Code ß 1027].
When the psychotherapist was appointed by court order to examine the patient (except
when appointed on request of a defendant's attorney in a criminal proceeding to provide
the attorney with information needed to advise the defendant regarding a please based on
insanity, or regarding a defense based on mental condition), or when the psychotherapist
was appoint by the Board of Prison Terms to examine a patient under Penal Code ß 2960
et seq. [Evid. Code ß 1017].
For discussion of procedures by which a coroner may subpoena confidential communications

otherwise protected by the psychotherapist-patient privilege for the limited purpose of an inquest into
the patient's cause of death, see ß 191.63.
Legal Topics:
EvidencePrivilegesPsychotherapist-Patient PrivilegeExceptionsEvidencePrivilegesPsychotherapist-
Patient PrivilegeScope
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78 of 196 DOCUMENTS

[Reserved]
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79 of 196 DOCUMENTS

F. Other Evidence Code Privileges
ß 191.80 Other Confidential Relationship Privileges
[1] Confidential Relationship Privileges Generally
Like the evidentiary privileges previously discussed in detail [see 191.40 et seq. (attorney-client
privilege), ß 191.60 et seq. (physician-patient-privilege), ß 191.70 et seq. (psychotherapist-patient
privilege)], the privileges summarized in [2]-[6], below, are based on the existence of relationships of
a confidential nature, in which communications made in confidence are protected as a matter of public
policy. The provisions governing these "confidential relationship" privileges are for the most part
similar to those discussed previously. For discussion of these privileges in greater detail, see DeMeo,
California Deposition and Discovery Practice Ch. 20 et seq. (Matthew Bender).
[2] Confidential Marital Communications
Under the privilege for confidential marital communications, set forth in Evid. Code ß 980 et seq., a
spouse, whether or not a party, has a privilege to refuse to disclose, and to prevent another from
disclosing, a confidential communication made between him or her and the other spouse when the
spouses were married, subject to waiver under Evid. Code ß 912, and except as otherwise provided in
Evid. Code ßß 980-987 [Evid. Code ß 980]. For discussion of waiver under Evid. Code ß 912, see ß
191.15.
Situations in which the privilege does not apply include communications in furtherance of a crime or a
fraud, in proceedings to establish competence or incompetence of either spouse, in proceedings
between the spouses or those claiming through them, in juvenile court proceedings, and in certain
criminal proceedings [Evid. Code ßß 981-987].
[3] Privilege Not to Testify Against Spouse
Page 203 of 614

Under the privilege of one spouse not to testify against the other, set out in Evid. Code ß 970 et seq., a
married person has a privilege not to testify against his or her spouse in any proceeding, and a
privilege not be called as a witness by the adverse party in a proceeding to which his or her spouse is
a party [Evid. Code ßß 970, 971]. The privilege contains no limitation requiring that a viable marital
relationship exist [ Jurcoane v. Superior Court (2001) 93 Cal. App. 4th 886, 889, 113 Cal. Rptr. 2d
483 ; see Evid. Code ß 972 (exceptions to privilege)]. Thus, the bright line of divorce is necessary to
terminate the privilege [ Jurcoane v. Superior Court (2001) 93 Cal. App. 4th 886, 897, 113 Cal.
Rptr. 2d 483 (upholding claim of privilege, even though petitioner had not seen her husband in 17
years and her assertion of privilege might deprive government of crucial evidence in double murder
case)].
Situations in which the privilege does not apply include proceedings in which the spouses are adverse
parties, proceedings to establish competence or incompetence of the spouse, juvenile court proceed-
ings, certain proceedings involving spousal or child support, and certain criminal proceedings [Evid.
Code ß 972].
Under the clergy-penitent privilege, set forth in Evid. Code ß 1030 et seq., a penitent, whether or not a
party, has a privilege to refuse to disclose, and to prevent another from disclosing, a penitential
communication, subject to waiver under Evid. Code ß 912 [Evid. Code ß 1033]. The clergyperson also
has a privilege not disclose a penitential communication, subject to waiver under Evid. Code ß 912
[Evid. Code ß 1034].
A "penitent" is any "person who has made a penitential communication to a member of the
clergy" [Evid. Code ß 1031]. The penitent is not required to be a member of any particular church or
to be of the same faith as the clergy member to whom he or she makes the penitential communication,
unless the discipline of that church limits the clergy member's authority to receive penitential
communications to church members only [Doe 2 v. Superior Court (Mark Calkins) (2005) 132 Cal.
App. 4th 1504, 1517, 34 Cal. Rptr. 3d 458 (reasoning that Evid. Code ß 1032 et seq. make no other
requirements regarding the penitent; remanding to determine whether clergy-penitent privilege may
apply to communications to Methodist pastor by persons who were not members of United Methodist
Church)].
A penitential communication is a confidential communication made to a clergy person who is

authorized to hear and obligated to keep secret that communications [Evid. Code ß 1032]. However,
not every statement made to a member of the clergy is privileged. "In order for a statement to be
privileged, it must satisfy all of the conceptual requirements of a penitential communication: (1) it must
be intended to be in confidence; (2) it must be made to a member of the clergy who in the course of
his or her religious discipline or practice is authorized or accustomed to hear such communications;
and (3) such member of the clergy has a duty under the discipline or tenets of the church, religious
denomination or organization to keep such communications secret" [ People v. Edwards (1988) 203
Page 204 of 614

Cal. App. 3d 1358, 1362-1363, 248 Cal. Rptr. 53] . This definition does not require, however, that
the communication in question be a "confession" [Doe 2 v. Superior Court (Mark Calkins) (2005)
132 Cal. App. 4th 1504, 1517, 34 Cal. Rptr. 3d 458 (quoting Cal. Law Revision Comm'n comment to
Evid. Code ß 1032, "Section 1032 extends the protection that traditionally has been provided only to
those persons whose religious practice involves 'confessions' ")].
Thus, for example, documents generated in the course of "troubled-priest interventions," subpoenaed
from the Roman Catholic Archbishop of Los Angeles and two priests for an investigation into
allegations that the priests sexually assaulted children, were not protected by the clergy-penitent
privilege because both parties to the original communications knew they likely would be transmitted to
a third person [ Roman Catholic Archbishop of Los Angeles v. Superior Court (People) (2005) 131
Cal. App. 4th 417, 444-445, 32 Cal. Rptr. 3d 209 , modified, 2005 Cal. App. LEXIS 1274] .
Furthermore, the subpoenaed documents themselves demonstrated that communications to and from
the individual priests were routinely shared by other Archdiocese employees. This sharing of
information vitiated any privilege under Evid. Code ß 1032, or, alternatively, constituted a waiver of
the privilege under Evid. Code ß 912(a) [ Roman Catholic Archbishop of Los Angeles v. Superior
Court (People) (2005) 131 Cal. App. 4th 417, 445, 32 Cal. Rptr. 3d 209 , modified, 2005 Cal. App.
LEXIS 1274] .
For discussion of waiver under Evid. Code ß 912, see ß 191.15.

[5] Sexual Assault Counselor-Victim Privilege
Under the sexual assault counselor-victim privilege, set out in Evid. Code ß 1035 et seq., a victim of
sexual assault, whether or not a party, has a privilege to refuse to disclose, and to prevent another
from disclosing, a confidential communication made between the victim and his or her sexual assault
counselor [Evid. Code ß 1035.8; see Evid. Code ß 1035.2 ("sexual assault counselor" defined)].
[6] Domestic Violence Counselor-Victim Privilege
Under the domestic violence counselor-victim privilege, set out in Evid. Code ß 1037 et seq., a victim
of domestic violence, whether or not a party, has a privilege to refuse to disclose, and to prevent
another from disclosing, a confidential communication made between the victim and his or her
counselor [Evid. Code ß 1037.5].
[7] Human Trafficking Caseworker-Victim Privilege
Evid. Code ß 1038 et seq. establishes a human trafficking victim-caseworker privilege. A trafficking
victim, whether or not a party to the action, has a qualified privilege to refuse to disclose, or to prevent
another from disclosing, a confidential communication between the victim and the caseworker [Evid.
Code ß 1038(a); see Evid. Code ß 1038.1 (compelled disclosure)].
Legal Topics:
Page 205 of 614

EvidencePrivilegesGeneral OverviewEvidencePrivilegesClergy CommunicationsElementsEviden-
cePrivilegesClergy CommunicationsScopeEvidencePrivilegesMarital PrivilegesConfidential
CommunicationsExceptionsEvidencePrivilegesMarital PrivilegesConfidential CommunicationsScope
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80 of 196 DOCUMENTS

ß 191.81 Official Information Privilege
[1] Definition
Official information is information acquired in confidence by a public employee in the course of the
employee's duty and not openly or officially disclosed to the public prior to the time the claim of
privilege is made [Evid. Code ß 1040(a)].
[2] When Privilege Is Absolute
A public entity has an absolute privilege to refuse to disclose official information if the privilege is
claimed by a person authorized by the public entity to do so and disclosure is forbidden by an act of
the United States Congress or by a California statute [see Evid. Code ß 1040(b)(1); Shepherd v.
Superior Court (1976) 17 Cal. 3d 107, 123, 130 Cal. Rptr. 257, 550 P.2d 161] .
[3] When Privilege Is Conditional
Evid. Code ß 1040(b)(2) provides a conditional privilege against disclosure of official information
that attaches when the court determines that disclosure of official information, other than under Evid.
Code ß 1040(a), is against the public interest because the need to preserve the confidentiality of the
information outweighs the need for disclosure in the interest of justice [see Shepherd v. Superior
Court (1976) 17 Cal. 3d 107, 123, 130 Cal. Rptr. 257, 550 P.2d 161] . In determining whether
disclosure is against the public interest, the interest of the public entity as a party in the outcome of the
proceeding may not be considered [Evid. Code ß 1040(b)(2)]. If a court denies discovery, it must find
that disclosure would be against the public interest within the meaning of Evid. Code ß 1040(b)(2)
[ Parnes v. Superior Court (1978) 81 Cal. App. 3d 831, 836, 146 Cal. Rptr. 818 ; see also
Shepherd v. Superior Court (1976) 17 Cal. 3d 107, 125, 130 Cal. Rptr. 257, 550 P.2d 161] .
Page 207 of 614

In weighing the necessity for preserving confidentiality against the need for disclosure, a court may
tailor its discovery order to the unique facts of the situation. For example, when a hospital denied
designation as a regional trauma center sought to discover documents connected with the review
process, a court found that the raw data examined by the review committee was discoverable, whereas
informal notes and memoranda of actual deliberations were not [ County of San Diego v. Superior
Court (1986) 176 Cal. App. 3d 1009, 1025-1027, 222 Cal. Rptr. 484 ; see also Rider v. Superior
Court (1988) 199 Cal. App. 3d 278, 287, 244 Cal. Rptr. 770 (order limiting use of police records
regarding alleged rape of minor in defamation action)].
Other examples involving the conditional privilege include the following:
Police files in an ongoing criminal investigation into a child's murder were held to be
conditionally privileged when weighed against the need for discovery in the suspect-
parents' civil suit, which was based on their public identification by police as suspects.
The appropriate remedy was for the trial court to stay discovery of the investigative
information in the civil action in order to allow the police the necessary time to
investigate; in the future, the trial court could determine that there has not been enough
progress in the investigation to justify continued protection [ County of Orange v.
Superior Court (2000) 79 Cal. App. 4th 759, 768-769, 94 Cal. Rptr. 2d 261 (also
suggesting that trial court look for guidance from trade secret cases in determining what
parts of file to disclose when passage of time reversed balance of competing interests)].
Memoranda from state agency to governor's office were held to be conditionally

privileged when sought by a defendant in pending civil litigation. The trial court was
required to consider the defendant's need for disclosure in the interest of justice, and
determine whether that interest was outweighed by the public interest in preserving
confidentiality [ Marylander v. Superior Court (2000) 81 Cal. App. 4th 1119, 1126, 97
Cal. Rptr. 2d 439 (rejecting trial court's conclusion that correspondence to Governor was
exempt from disclosure under Public Records Act and by common law "deliberative
process" privilege)].
[4] Waiver of Conditional Official Information Privilege
The conditional privilege under Evid. Code ß 1040(b)(2) may not be claimed if any person authorized
to claim the privilege consented to the disclosure of the information in the proceeding [Evid. Code ß
1040(b)(2); see, e.g., People ex rel. Dept. of Public Works v. McNamara Corp. Ltd. (1972) 28 Cal.
App. 3d 641, 651, 104 Cal. Rptr. 822 (state submitted data to state engineer performing adjudicatory
function)]. Furthermore, under the definition of "official information," information is neither
conditionally nor absolutely privileged if it was not acquired in confidence or if it was officially
disclosed to the public prior to the time the claim of privilege was made [see Evid. Code ß 1040(a)].
Page 208 of 614

Legal Topics:
EvidencePrivilegesGovernment PrivilegesOfficial Information PrivilegeGeneral OverviewEviden-
cePrivilegesGovernment PrivilegesOfficial Information PrivilegeDeliberative Process PrivilegeEvi-
dencePrivilegesGovernment PrivilegesOfficial Information PrivilegeReports PrivilegeEvidencePrivi-
legesGovernment PrivilegesWaiver
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81 of 196 DOCUMENTS

ß 191.82 Trade Secret Privilege
[1] General Rule
If a trade secret's owner, or an agent or employee of the owner, claims the privilege, the owner has a
privilege to refuse to disclose the trade secret and to prevent another from disclosing it if the allowance
of the privilege will not tend to conceal fraud or otherwise work injustice [Evid. Code ß 1060].
The party claiming the trade secret privilege has the burden of establishing its existence. Then, the
party seeking discovery must make a prima facie, particularized showing that the information sought
is relevant and necessary to the proof of, or defense against, a material element of one or more causes
of action presented in the case and that it is reasonable to conclude that the information is essential to a
fair resolution of the lawsuit. The trial court should then balance the interests of both sides and should
consider the feasibility of discovery under the terms of a protective order as well as any less intrusive
alternatives to disclosure proposed by the parties [ Bridgestone/Firestone, Inc. v. Superior Court
(1992) 7 Cal. App. 4th 1384, 1393, 9 Cal. Rptr. 2d 709 ; see, e.g., Citizens of Humanity, LLC v.
Costco Wholesale Corp. (2009) 171 Cal. App. 4th 1, 13, 15-16, 89 Cal. Rptr. 3d 455 (identity of
defendant's suppliers was protectable trade secret and less burdensome alternatives were available to
plaintiff to establish that jeans sold by defendant were stolen)].
The holder of the privilege must then demonstrate any claimed disadvantages of a protective order.
Either party may propose or oppose less intrusive alternatives to disclosure of the trade secret. The
claimant of the privilege has the burden of demonstrating that an alternative to disclosure will not be
unduly burdensome to the opposing side and that it will maintain the same fair balance in the litigation
that would have been achieved by disclosure [ Bridgestone/Firestone, Inc. v. Superior Court (1992)
7 Cal. App. 4th 1384, 1393, 9 Cal. Rptr. 2d 709] .
Page 210 of 614

In one case, plaintiffs forfeited the right to proceed with their claim by insisting on an absolute
withholding of all privileged information when they could have agreed to a more typical, less extreme
protective order, which would have allowed defendant to obtain the needed information while strictly
confining its use [ Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal. App. 4th 285, 292,
93 Cal. Rptr. 2d 920] . Although plaintiffs had the right to stand on the privilege, they did not have
the right to proceed on their claim while at the same time insisting on withholding key evidence from
their adversary [ Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal. App. 4th 285, 288, 93
Cal. Rptr. 2d 920 (trial court properly barred plaintiffs' damage evidence at trial when plaintiffs'
proper invocation of trade secret privilege, and blanket protective order they obtained, prevented
defendant from examining key evidence needed to test reasonableness of settlement which formed the
basis for plaintiffs' damage claim)].
Evid. Code ßß 1061-1063 set forth procedures for the owner of a trade secret to assert his or her trade
secret privilege under Evid. Code ß 1060 in a criminal proceeding. For general discussion of these
procedures, see Ch. 565, Unfair Competition, ß 565.100 et seq.
[2] Effect of Privilege in Action for Misappropriation of Trade Secret
In any action alleging the misappropriation of a trade secret under the Uniform Trade Secrets Act (Civ.
Code ß 3426 et seq.), before beginning discovery relating to the trade secret, the party alleging the
misappropriation must identify the trade secret with reasonable particularity subject to any orders that
may be appropriate under Civ. Code ß 3426.5 [Code Civ. Proc. ß 2019.210]. A trade secret has been
described with "reasonable particularity" sufficient to permit discovery to begin when the plaintiff
makes a showing that is "reasonable"--that is, "fair, proper, just, rational" [ Advanced Modular
Sputtering, Inc. v. Superior Court (Sputtered Films, Inc.) (2005) 132 Cal. App. 4th 826, 830,
834-836, 33 Cal. Rptr. 3d 901 (observing that sufficient showing of "reasonable particularity" is "a
flexible inquiry"); cf. Perlan Therapeutics, Inc. v. Superior Court (2009) 178 Cal. App. 4th 1333,
1350-1352, 101 Cal. Rptr. 3d 211 (while trade secret identification does not require "every minute
detail" or the "greatest degree of particularity possible[,]" trade secret claimant's Code Civ. Proc. ß
2019.210 trade secret statement was insufficient, in light of its broad language, surplusage, and
voluminous attachments)]. If the trade secret designation is adequate to permit a defendant to
investigate whether plaintiff's alleged trade secrets were within the public domain and to prepare a
defense, and to permit the trial court to determine the scope of relevant discovery, plaintiff is not
required to particularize how the alleged trade secrets differ from matters within the general knowl-
edge of skilled persons in the field [ Brescia v. Angelin (2009) 172 Cal. App. 4th 133, 143, 90 Cal.
Rptr. 3d 842 ].
In a trade secret civil discovery case of first impression, one appellate court held that Code Civ. Proc.
ß 2019.210 is not limited in its application to a cause of action under the Uniform Trade Secrets Act,
for misappropriation of the trade secret, but extends to any cause of action that relates to the trade
secret [ Advanced Modular Sputtering, Inc. v. Superior Court (Sputtered Films, Inc.) (2005) 132
Cal. App. 4th 826, 830, 33 Cal. Rptr. 3d 901] . The court reasoned that, by its express terms, Code
Page 211 of 614

Civ. Proc. ß 2019.210 is not "cause of action" specific, but instead refers to "any 'action,' i.e. the entire
lawsuit. " The court noted that it made no sense to bar discovery on the cause of action for misappro-
priation but permit it on others, when every cause of action was dependent on the misappropriation
allegation [ Advanced Modular Sputtering, Inc. v. Superior Court (Sputtered Films, Inc.) (2005) 132
Cal. App. 4th 826, 834, 33 Cal. Rptr. 3d 901] .
Under Civ. Code ß 3426.5, a court is required to preserve the secrecy of an alleged trade secret by
reasonable means, which may include granting protective orders in connection with discovery
proceedings, holding in camera hearings, sealing the records of the action, and ordering any person
involved in the litigation not to disclose an alleged trade secret without prior court approval.
For general discussion and forms relating to actions under Civ. Code ß 3426 et seq., see Ch. 565,
Unfair Competition, ß 565.100 et seq.
[3] Limiting Disclosure After Waiver of Privilege
If the trade secret privilege is waived by a failure to assert the privilege in response to a demand for
the production of documents [see Code Civ. Proc. ß 2031.240(b)], the party waiving the privilege
may still seek a protective order under Code Civ. Proc. ß 2031.060(b)(5), in order to set terms and
conditions on the disclosure of its trade secrets that were subject to discovery [ Stadish v. Superior
Court (1999) 71 Cal. App. 4th 1130, 1144, 84 Cal. Rptr. 2d 350 (decided under former Code Civ.
Proc. ß 2031(f)(5)]. In determining whether there was good cause for an protective order in such a
case, a trial court should refer to the procedures for a protective order set out in Evid. Code ß 1061.
These detailed procedures, although applicable to the disclosure of trade secrets in a criminal
proceeding, "have a utility in a civil action and should be followed" [ Stadish v. Superior Court
(1999) 71 Cal. App. 4th 1130, 1145, 84 Cal. Rptr. 2d 350 ; for further discussion regarding demands
for the production of documents, see Ch. 195, Discovery: Inspection of Tangible Evidence ]. For
discussion of procedures under Evid. Code ß 1061, see Ch. 565, Unfair Competition, ß 565.100 et
seq.
Legal Topics:
EvidencePrivilegesTrade SecretsElementsEvidencePrivilegesTrade SecretsExceptionsEvidencePrivi-
legesTrade SecretsScopeEvidencePrivilegesTrade SecretsWaiverEvidenceProcedural Considerations-
Burdens of ProofGeneral Overview
Page 212 of 614

82 of 196 DOCUMENTS

[Reserved]
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83 of 196 DOCUMENTS

G. Attorney Work Product Protection
ß 191.100 Attorney Work Product Protection
The provisions in the Civil Discovery Act relating to attorney work product protection, set out in
Code Civ. Proc. ß 2018.010 et seq., are a restatement or codification of case law doctrine. They are
not intended to expand or reduce the extent to which work product is discoverable under existing law
in any action, with one exception. Code Civ. Proc. ß 2018.050 eliminates work product protection
when an attorney is suspected of knowingly participating in a crime or fraud in any official investiga-
tion, proceeding, or action brought by a public prosecutor on behalf of the People of the State of
California, if the attorney's services were sought or obtained to enable or aid anyone to commit or plan
to commit a crime or fraud [Code Civ. Proc. ß 2018.050].
These provisions generally provide for conditional protection of an attorney's work product. That is, it
is protected from discovery absent a showing of special circumstances supporting discovery [see
Code Civ. Proc. ß 2018.030(b); see also City of Long Beach v. Superior Court (1976) 64 Cal. App.
3d 65, 71, 134 Cal. Rptr. 468] .
An exception is provided for an attorney's written impressions or legal research. These are absolutely
protected from discovery [see Code Civ. Proc. ß 2018.030(a); see also Williamson v. Superior
Court (1978) 21 Cal. 3d 829, 834, 148 Cal. Rptr. 39, 582 P.2d 126] .
For further discussion of conditional and absolute protections, see ß 191.103. For discussion of the
claim of work product protection in the context of e-discovery, see Ch. 195A, Discovery: Discovery
of Electronically Stored Evidence (E-Discovery), ß 195A.21.
Legal Topics:
Page 214 of 614

Civil ProcedureDiscoveryPrivileged MattersWork ProductGeneral OverviewCivil ProcedureDiscov-
eryPrivileged MattersWork ProductOpinion Work ProductCivil ProcedureDiscoveryPrivileged
MattersWork ProductScope
Page 215 of 614

84 of 196 DOCUMENTS

ß 191.101 Policy Considerations Underlying Work Product Protection
Work product protection under Code Civ. Proc. ß 2018.010 et seq. is designed (1) to preserve the
rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to
prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of
those cases; and (2) to prevent attorneys from taking undue advantage of their adversary's industry
and efforts [Code Civ. Proc. ß 2018.020].
Legal Topics:
Civil ProcedureDiscoveryPrivileged MattersWork ProductGeneral Overview
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85 of 196 DOCUMENTS

ß 191.102 Definition of Work Product
Code Civ. Proc. ß 2018.010 et seq. provides no general definition of work product [see Reporter's
Notes to Former Code Civ. Proc. ß 2018(b) (work product not expressly defined because of
conclusion that its meaning is still evolving under case law); see also discussion in Ch. 190,
Discovery: Scope, Regulation, and Timing, ß 190.13[2]].
Case law generally defines work product as including certain materials prepared by an attorney acting
for his or her client in anticipation of litigation [ PSC Geothermal Services Co. v. Superior Court
(1994) 25 Cal. App. 4th 1697, 1709-1710, 31 Cal. Rptr. 2d 213] . For example, work product may
include a list of nonexpert trial witnesses [ In re Jeanette H. (1990) 225 Cal. App. 3d 25, 34-37] , or
material of a derivative character such as diagrams prepared for trial, audit reports, appraisals, and
other expert opinions developed as a result of the initiative of counsel in preparing for trial
[ Williamson v. Superior Court (1978) 21 Cal. 3d 829, 834, 148 Cal. Rptr. 39, 582 P.2d 126 ,
citing Mack v. Superior Court (1968) 259 Cal. App. 2d 7, 10, 66 Cal. Rptr. 280] .
On the other hand, information regarding events provable at trial or the identity and location of
physical evidence is not deemed to be work product simply because it has been transmitted to the
attorney [ Long Beach v. Superior Court (1976) 64 Cal. App. 3d 65, 72, 134 Cal. Rptr. 468 ,
quoting from Mack v. Superior Court (1968) 259 Cal. App. 2d 7, 10, 66 Cal. Rptr. 280] .
Legal Topics:
Page 217 of 614

eryPrivileged MattersWork ProductScope
Page 218 of 614

86 of 196 DOCUMENTS

ß 191.103 Discovery of Work Product
[1] General Rule of Conditional Protection
Subject to Code Civ. Proc. ß 2018.030(a) (discussed in [3], below), the work product of an attorney
is not discoverable unless the court determines that denial of discovery will unfairly prejudice the
party seeking discovery in preparing that party's claim or defense or will result in an injustice [Code
Civ. Proc. ß 2018.030(b)].
There is no crime-fraud exception that allows discovery of work product. However, when an attorney
is suspected of knowingly participating in a crime or fraud, there is no work product protection under
Code Civ. Proc. ß 2018.010 et seq. in any official investigation by a law enforcement agency,
proceeding, or action brought by a public prosecutor in the name of the People of the State of
California, if the attorney's services were sought or obtained to enable or aid anyone to commit or plan
to commit a crime or fraud [Code Civ. Proc. ß 2018.050]. There is no limitation, however, on an
attorney's ability to request an in camera hearing as provided for in People v. Superior Court (Laff)
(2001) 25 Cal. 4th 703, 107 Cal. Rptr. 2d 323, 23 P. 3d 563 [Code Civ. Proc. ß 2018.060; see
People v. Superior Court (Laff) (2001) 25 Cal. 4th 703, 709, 107 Cal. Rptr. 2d 323, 23 P. 3d 563
(superior court has an obligation to determine claims of privilege regarding materials seized from
attorneys, whether or not attorneys are suspected of criminal conduct, and court properly may conduct
a hearing to resolve these claims)].
In addition, absolute work product protection continues to protect the contents of a writing delivered
to the client in confidence, and is not restricted to only those writings in the attorney's possession
[ BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal. App. 3d 1240, 1249-1251,
1253-1260, 245 Cal. Rptr. 682] .
Page 219 of 614

[2] Expert Consultants
Expert services rendered in an advisory capacity, that is, developed as a result of the initiative of
counsel in preparing for trial, clearly constitute attorney work product that is subject to the conditional
or qualified protection under Code Civ. Proc. ß 2018.030(b) (discussed in [1], above) [ Williamson
v. Superior Court (1978) 21 Cal. 3d 829, 834, 148 Cal. Rptr. 39, 582 P.2d 126 ; Scotsman Mfg. Co.
v. Superior Court (1966) 242 Cal. App. 2d 527, 531, 51 Cal. Rptr. 511] .
Expert services that qualify the expert as a witness are, however, subject to discovery under Code Civ.
Proc. ß 2034.010 et seq. when they are severable from those services that are protected under Code
Civ. Proc. ß 2018.010 et seq. [see National Steel Products Co. v. Superior Court (1985) 164 Cal.
App. 3d 476, 488-492, 210 Cal. Rptr. 535] .
Thus, under the work product doctrine, reports prepared by the expert as a consultant are protected if
the expert is not designated as a witness [ Shadow Traffic Network v. Superior Court (1994) 24 Cal.
App. 4th 1067, 1079, 29 Cal. Rptr. 2d 693] . However, once it becomes reasonably certain that an
expert will give a professional opinion as a witness on a material matter in dispute, the opinion
becomes a factor in the cause, subject to evaluation by appropriate pretrial discovery [ Williamson v.
Superior Court (1978) 21 Cal. 3d 829, 835, 148 Cal. Rptr. 39, 582 P.2d 126 , citing Swartzman v.
Superior Court (1964) 231 Cal. App. 2d 195, 203, 41 Cal. Rptr. 721 ; see Sanders v. Superior
Court (1973) 34 Cal. App. 3d 270, 279, 109 Cal. Rptr. 770 (discussing attorney-client privilege and
work product protection)].
A party may withdraw a consultant-expert who has been named as a potential witness at any time
prior to the expert's deposition [ County of Los Angeles v. Superior Court (1990) 222 Cal. App. 3d
647, 656, 271 Cal. Rptr. 698 (withdrawal does not require noticed motion)]. In that event, the work
product protection is revived with respect to that expert's knowledge or opinion previously made
discoverable because it was relevant to his or her expected testimony [ County of Los Angeles v.
Superior Court (1990) 222 Cal. App. 3d 647, 655-658, 271 Cal. Rptr. 698 ; see Williamson v.
Superior Court (1978) 21 Cal. 3d 829, 835, 148 Cal. Rptr. 39, 582 P. 2d 126 (decided under prior
law; dicta)]. Materials generated as a result of the expert's advisory services, protection of which was
not withdrawn due to the expert's designation as a potential witness, remain protected work product
[see County of Los Angeles v. Superior Court (1990) 222 Cal. App. 3d 647, 655, 271 Cal. Rptr.
698] .
Advisory services are those that are designed to assist the attorney in such matters as preparation of
pleadings, the manner of presentation of proof, and cross examination of opposing expert witnesses;
that is, matters that are often reflective of the mental processes of the attorney under whose direction
the expert works. Services that qualify a person as an expert witness are those that contain findings
and opinions of the expert that go to the establishment or denial of a principal fact in issue [see
National Steel Products Co. v. Superior Court (1985) 164 Cal. App. 3d 476, 488-492, 210 Cal. Rptr.
535] .
Page 220 of 614

Similarly, the designation of a party as an expert trial witness is not in itself an implied waiver of the
party's attorney-client privilege. If the designation is withdrawn before the party discloses a significant
part of a privileged communication, or before it is known with reasonable certainty that the party will
actually testify as an expert, the privilege is secure. However, if the party produces privileged
documents or testifies as an expert (such as by stating an opinion in a declaration or at a deposition),
the privilege is waived [ Shooker v. Superior Court (2003) 111 Cal. App. 4th 923, 930, 4 Cal. Rptr.
3d 334 (party did not waive his attorney-client privilege by designating himself as expert witness,
when, at deposition, he asserted attorney-client privilege and did nothing more than identify his charts
and previously disclosed documents, and no confidential information was disclosed); see Lohman v.
Superior Court (1978) 81 Cal. App.3d 90, 95, 146 Cal. Rptr. 171 ("the intent to disclose does not
operate as a waiver, waiver comes into play after a disclosure has been made"); see also Tennenbaum
v. Deloitte & Touche, 77 F.3d 337, 341 (9th Cir. (1996) (in determining whether privilege has been
waived, "triggering event is disclosure, not a promise to disclose")].
Code Civ. Proc. ß 2034.010 et seq. governs the discovery of expert witnesses, providing for the
exchange of names and expected testimony, as well as certain expert witnesses' discoverable reports
and writings concerning proposed testimony and preparations to testify. For further discussion of
Code Civ. Proc. ß 2034.010 et seq., see generally Ch. 198, Discovery: Exchange of Expert Witness
Information .
[3] Attorney's Written Opinions and Legal Theories
Any writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories
is not discoverable under any circumstances [Code Civ. Proc. ß 2018.030(a); see Rico v. Mitsubishi
Motors Corp. (2007) 42 Cal. 4th 807, 815, 68 Cal. Rptr. 3d 758, 171 P.3d 1092 ]. Thus, the work
product rule creates an absolute privilege for the attorney against disclosure of such writings, whereas
there is only a qualified privilege against discovery of general work product [see BP Alaska
Exploration, Inc. v. Superior Court (1988) 199 Cal. App. 3d 1240, 1250, 245 Cal. Rptr. 682] .
Apparently, Evidence Code exceptions to the attorney-client rule are not applicable to documents
protected by the absolute work product rule [see, e.g., BP Alaska Exploration, Inc. v. Superior Court
(1988) 199 Cal. App. 3d 1240, 1249-1251, 245 Cal. Rptr. 682 (Evid. Code ß 956 crime-fraud
exception to attorney-client privilege is not applicable to absolute work product); but see Code Civ.
Proc. ß 2018.050 (eliminating work product protection when attorney is suspected of knowingly
participating in crime or fraud in any official criminal investigation, proceeding, or action brought by a
public prosecutor, if attorney's services were sought or obtained to enable or aid anyone to commit or
plan to commit a crime or fraud)].
Absolute work product protection continues concerning the contents of a writing after it is delivered to
a client in confidence; the protection is not restricted to only those writings in the attorney's possession
[ BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal. App. 3d 1240, 1253-1260, 245
Cal. Rptr. 682] .
Page 221 of 614

An attorney who inadvertently receives work product has the ethical duty not to examine the material
any more closely than is necessary to ascertain that it is privileged. Once it appears that the document
is privileged, the attorney should immediately notify opposing counsel and try to resolve the situation,
by agreement or with the court's guidance [see Rico v. Mitsubishi Motors Corp. (2007) 42 Cal. 4th
807, 817, 68 Cal. Rptr. 3d 758, 171 P.3d 1092 (finding disqualification proper when plaintiffs'
attorney, who inadvertently obtained privileged work product, used it during deposition to impeach
defense expert); see also ß 191.15[7][b]].
Legal Topics:
eryPrivileged MattersWork ProductOpinion Work ProductCivil ProcedureDiscoveryPrivileged
MattersWork ProductScope
Page 222 of 614

87 of 196 DOCUMENTS

ß 191.104 State Bar Disciplinary Investigations
The State Bar may discover the work product of an attorney against whom disciplinary charges are
pending when it is relevant to issues of breach of duty by the attorney. This discoverability is subject
to applicable client approval and to a protective order, when requested and for good cause, to ensure
the confidentiality of work product except for its use by the State Bar in disciplinary investigations
and its consideration under seal in State Bar Court proceedings. For these purposes, whenever a client
has initiated a complaint against an attorney, the requisite client approval is deemed to have been
granted [Code Civ. Proc. ß 2018.070(a)].
Legal Topics:
eryPrivileged MattersWork ProductScopeCivil ProcedureDiscoveryProtective OrdersLegal Ethics-
SanctionsDisciplinary ProceedingsInvestigations
Page 223 of 614

88 of 196 DOCUMENTS

ß 191.105 Action Involving Client
In an action between an attorney and a client or former client, no work product protection under Code
Civ. Proc. ß 2018.010 et seq. exists if the work product is relevant to an issue of breach by the
attorney of a duty to his or her client arising out of the attorney-client relationship [Code Civ. Proc. ß
2018.080].
For purposes of Code Civ. Proc. ß 2018.010 et seq., "client" means a person who, directly or through
an authorized representative, consults an attorney for the purpose of retaining the attorney or securing
legal service or advice from that attorney in his or her professional capacity. Client includes an
incompetent (1) who himself or herself so consults the attorney or (2) whose guardian or conservator
so consults the attorney on behalf of the incompetent [Code Civ. Proc. ß 2018.010; Evid. Code ß
951].
Legal Topics:
Page 224 of 614

89 of 196 DOCUMENTS

ß 191.106 Standing to Claim Work Product Protection
Work product protection, unlike the attorney-client privilege, protects the attorney in preparing a case
for trial by protecting the fruits of the attorney's labor from discovery [ Lohman v. Superior Court
(1978) 81 Cal. App. 3d 90, 100-101, 146 Cal. Rptr. 171 (interpreting former Code Civ. Proc. ß 2016;
now see Code Civ. Proc. ß 2018.020, discussed in ß 191.101)]. Therefore, statutory work product
protection has been interpreted to provide a type of "privilege" that is held by the attorney and,
accordingly, may be claimed or waived by the attorney [ Lohman v. Superior Court (1978) 81 Cal.
App. 3d 90, 100, 101, 146 Cal. Rptr. 171 (interpreting former Code Civ. Proc. ß 2016; now see Code
Civ. Proc. ß 2018.010 et seq.); see also American Mut. Liab. Ins. Co. v. Superior Court (1974) 38
Cal. App. 3d 579, 594, 113 Cal. Rptr. 561] .
A litigant acting in propria persona may assert the statutory work product protection [ Dowden v.
Superior Court (1999) 73 Cal. App. 4th 126, 136, 86 Cal. Rptr. 2d 180] . The court of appeal that
reached this conclusion reasoned that the use of the word "attorney" in former Code Civ. Proc. ß 2018
(now see Code Civ. Proc. ß 2018.010 et seq.) is ambiguous: The statute does not define the term, and
it has been applied to other statutes without distinguishing between attorneys and unrepresented
litigants [ Dowden v. Superior Court (1999) 73 Cal. App. 4th 126, 129-130, 86 Cal. Rptr. 2d 180] .
Further, the stated purpose of and the underlying reasons for Code Civ. Proc. ß 2018.010 et seq.
emphasize the need to limit discovery to promote diligence in preparing one's own case, rather than
depending on an adversary's efforts. This policy is important not only for attorneys representing
clients, but also for litigants acting in propria persona [ Dowden v. Superior Court (1999) 73 Cal.
App. 4th 126, 133, 86 Cal. Rptr. 2d 180] . Finally, allowing litigants appearing in propria persona to
assert the privilege furthers the statute's intended purpose of promoting the adversary system
[ Dowden v. Superior Court (1999) 73 Cal. App. 4th 126, 134, 86 Cal. Rptr. 2d 180] .
Page 225 of 614

There is also case authority holding that the protection was created for the client as well as for the
attorney [see Mack v. Superior Court (1968) 259 Cal. App. 2d 7, 10, 66 Cal. Rptr. 280] . The
apparently contradictory holdings were reconciled by the view that although work product protection
belongs to the attorney, it may be claimed by the client on behalf of the attorney. Consequently, in the
attorney's absence, the client has standing to assert work product protection on behalf of the attorney,
who is the only holder of the privilege. If the attorney waives the privilege, however, a former client
may not object [ Fellows v. Superior Court (1980) 108 Cal. App. 3d 55, 64-65, 166 Cal. Rptr.
274] .
Legal Topics:
Page 226 of 614

90 of 196 DOCUMENTS

[Reserved]
Page 227 of 614

91 of 196 DOCUMENTS

H. Other Protections Against Disclosure
ß 191.120 Right to Privacy
[1] Nonstatutory Privilege Based on Constitutional Guarantee of Privacy
The right to privacy guaranteed by Cal. Const., art. I, ß 1, may be invoked by a litigant to justify
refusing to answer questions that unreasonably intrude on that right [ Vinson v. Superior Court
(1987) 43 Cal. 3d 833, 239 Cal. Rptr. 292, 740 P.2d 404 ; Boler v. Superior Court (1987) 201 Cal.
App. 3d 467, 473, 247 Cal. Rptr. 185 ; Rider v. Superior Court (1988) 199 Cal. App. 3d 278,
282-287, 244 Cal. Rptr. 770 ; Kahn v. Superior Court (1987) 188 Cal. App. 3d 752, 769-770, 233
Cal. Rptr. 662] .
As a general rule, the privilege based on privacy is conditional. Answers to questions that fall in an
established zone of privacy, such as associational privacy, personal financial affairs, medical history,
personnel files, or sexual relations, may not be required absent a compelling state interest [ Schnabel
v. Superior Court (1993) 5 Cal. 4th 704, 712, 21 Cal. Rptr. 2d 200, 854 P.2d 1117] . For discussion
of the balancing of state interests against the right to privacy, see [3], below.
The privilege based on the right to privacy is the chief example of the exception to general rule against
nonstatutory privileges, that is, of a privilege necessarily implied from a constitutional provision [see
Britt v. Superior Court (1978) 20 Cal. 3d 844, 852-856, 143 Cal. Rptr. 695, 574 P.2d 766 ; see
discussion in ß 191.12[2]; see also discussion of qualified privilege based on constitutional guarantee
of freedom of the press in ß 199.122].
[2] Examples of Matters Protected From Disclosure
Courts have upheld nondisclosure based on the right to privacy in instances including the following:
Page 228 of 614

Information the disclosure of which would compromise an individual's right to associa-

tional privacy [see Britt v. Superior Court (1978) 20 Cal. 3d 844, 859-862, 864-865,
574 P.2d 766 (associational privacy)].
Personal financial affairs [see Valley Bank of Nevada v. Superior Court (1975) 15 Cal.
3d 652, 656-658, 125 Cal. Rptr. 553, 542 P.2d 977 ; Fortunato v. Superior Court
(2003) 114 Cal. App 4th 475, 480-482, 8 Cal. Rptr. 3d 82 (bank customer has reason-
able expectation of privacy in confidential information submitted with loan application,
and when waiver of confidentiality of tax returns is argued, court should conduct in
camera inspection to balance need for discovery against interests in privacy)].
Medical records [ Heda v. Superior Court (1990) 225 Cal. App. 3d 525, 529-530, 275
Cal. Rptr. 136] .
HIV-positive status under appropriate circumstances when patient has reasonable

expectation of privacy [see Urbaniak v. Newton (1991) 226 Cal. App. 3d 1128,
1135-1136, 1140-1141, 277 Cal. Rptr. 354 )].
Disciplinary records of nonparty employees, when interrogatories listing disciplinary

acts by type and race would accomplish plaintiff's objective [ Perez v. County of Santa
Clara (2003) 111 Cal. App. 4th 671, 678, 3 Cal. Rptr. 3d 867] .
For discussion of the right to privacy in the e-discovery context, see Ch. 195A, Discovery of
Electronically Stored Information (E-Discovery), ß 195A.21A.
[3] Balancing of Privacy Interest With State Interest in Disclosure
As noted in [1], above, matters that fall within an established zone of privacy are protected from
disclosure absent a compelling state interest. The state's compelling interest must be carefully balanced
against the fundamental right of privacy [ Schnabel v. Superior Court (1993) 5 Cal. 4th 704, 712,
21 Cal. Rptr. 2d 200, 854 P.2d 1117 ; Lantz v. Superior Court (1994) 28 Cal. App. 4th 1839, 1857,
34 Cal. Rptr. 2d 358 (case remanded because trial court determined merely that medical records were
relevant, and failed to balance privacy interests against state's needs for records)].
The state's interest in facilitating ascertainment of the truth in connection with legal proceedings is a
compelling state interest [ Save Open Space Santa Monica Mountains v. Superior Court (2001) 84
Cal. App. 4th 235, 255, 100 Cal. Rptr. 2d 725 ; Fults v. Superior Court (1979) 88 Cal. App. 3d 899,
904, 152 Cal. Rptr. 210] . However, even though a compelling state interest is present, an adequate
foundation must be laid from which it can be inferred that the inquiry will likely be productive, not
merely relevant, and any compelled disclosure must be precise and narrowly drawn to ensure
Page 229 of 614

maximum protection of the constitutional right [ Save Open Space Santa Monica Mountains v.
Superior Court (2001) 84 Cal. App. 4th 235, 252-253, 100 Cal. Rptr. 2d 725 ; Fults v. Superior
Examples involving this balancing of privacy interests with the state's interest in disclosure of relevant
evidence include the following:
In a consolidated appeal that followed settlement of lawsuits in which 25 plaintiffs sued

the Franciscan Friars of California, alleging they had been sexually abused by Franciscan
brothers, the appellate court, in addressing whether it was appropriate to publicly release
confidential files of the perpetrators, held that compelling social interests in protecting
children from molestation outweighed the child-abusing clergymen's privacy rights.
Accordingly, the court affirmed the trial court's order for the public release of psychiatric
and other confidential records in the possession of the Franciscans [ In re The Clergy
Cases I (2010) 188 Cal. App. 4th 1224, 1235, 116 Cal. Rptr. 3d 360] .
In a marital dissolution action brought by father against mother to determine whether the
father should be granted joint custody over the couple's 4-year-old son, the court rejected
the father's claim that his medical records were protected by his constitutional right to
privacy. That right is not absolute and, in this case, the father's privacy interests were
outweighed by the state's compelling interest in protecting the child's best interests
[ Manela v. Superior Court (2009) 177 Cal. App. 4th 1139, 1150, 99 Cal. Rptr. 3d
736 ].
In a case addressing whether an opt-out notice was sufficient to protect the privacy rights
of potential class members (customers who had complained to seller that its DVD players
were defective), the Supreme Court held that as a matter of policy, requiring an affirma-
tive waiver from persons whose personal identifying information is sought by others
could hamper litigation designed to remedy social problems, including consumer rights
litigation, and reduce the effectiveness of class actions in securing consumer relief. It
seemed unlikely that these customers, who already had voluntarily disclosed their
identifying information to the seller in hopes of gaining some relief, would have a
reasonable expectation that their information would be kept private and withheld from a
class action plaintiff, unless they expressly consented to such disclosure. Moreover, the
proposed disclosure was not particularly sensitive, because it did not involve disclosing
personal medical history or current medical condition or details about personal finances
or other financial information. Thus, the trial court could reasonably conclude that, on
balance, the named plaintiff's interest in obtaining the customers' contact information
outweighed the possibility that some customers might fail to receive their notice and thus
lose the opportunity to object to disclosure [ Pioneer Electronics (USA), Inc. v.
Superior Court (2007) 40 Cal. 4th 360, 372-374, 53 Cal. Rptr. 3d 513, 150 P.3d 198 ;
Page 230 of 614

see Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal. App. 4th 554,
561-562, 57 Cal. Rptr. 3d 197 (applying Pioneer analysis to conclude that opt-out notice
requiring potential class members to object in writing in order to prevent their names and
contact information from being disclosed to real party in interest employees in putative
class action lawsuit alleging wage and hour violations was sufficient to protect potential
class members' privacy rights); Puerto v. Superior Court (2008) 158 Cal. App. 4th
1242, 1259, 70 Cal. Rptr. 3d 701 (applying Pioneer and Belaire to conclude that opt-in
notice, requiring class action petitioners to obtain non-party potential witnesses' affirma-
tive consent to disclosure of their addresses and phone numbers, exceeded protections
necessary to safeguard witnesses' right to privacy in their contact information)].
In a writ proceeding addressing the permissibility of discovery aimed at uncovering

petitioner husband's HIV status, a divided Supreme Court allowed discovery, with
specified limitations, of evidence that the husband knew or should have known that he
had HIV, because this issue was fundamental to the causes of action for intentional and
negligent infliction of emotional distress, fraud, and negligence. After balancing the
wife's right to discover relevant evidence against the husband's right to privacy, the Court
concluded that the wife was entitled to discovery concerning husband's sexual history
and HIV status. The wife had "amply" established good cause for disclosure of the
husband's medical records concerning HIV and AIDS. Discovery might reasonably lead
to evidence of husband's awareness of his HIV status. Discovery would also serve "the
historically important state interest of facilitating the ascertainment of truth in connection
with legal proceedings," as well as the state's compelling interest in preventing the spread
of AIDS. While the wife's interrogatories and requests for admission sought information
that fell within the zone of the husband's right to sexual privacy, he had a diminished
privacy interest in his HIV status, since he had admitted his status in court filings and
informally. Moreover, the husband also alleged in the complaint that the wife infected
him. By thus putting his own medical condition at issue, the husband had a "substantially
lowered" expectation of privacy. The Court agreed that the court of appeal had appropri-
ately limited, as overly broad and speculative, the wife's discovery of the identities of the
husband's previous sexual partners and admissions concerning his "lifestyle." However,
the Court further narrowed discovery in light of husband's negative HIV test on August
17, 2000, which restricted the window period of possible infection to the six months
preceding the negative test. Accordingly, the Court reversed the court of appeal's order
compelling responses to plaintiff's discovery requests to the extent they sought informa-
tion about the husband's sexual history outside the six-month time frame. On remand,
however, the wife could overcome this temporal limitation by offering some basis to
question the accuracy or reliability of the husband's negative HIV test [ John B. v.
In employment law cases, fundamental policy considerations tip the balance of opposing
interests toward permitting access to relevant information necessary to pursue the
Page 231 of 614

litigation. For example, in a case alleging wage and hour violations, an order restricting
the disclosure of potential witnesses' contact information through the use of an opt-in
letter exceeded the protections necessary to safeguard the legitimate privacy interests in
the addresses and telephone numbers of the witnesses, and as such was an abuse of
discretion [ Puerto v. Superior Court (2008) 158 Cal. App. 4th 1242, 1258, 70 Cal.
Rptr. 3d 701] . In a class action lawsuit alleging improper reclassification of class
members from employees to independent contractors, a trial court committed reversible
error by denying a motion to compel disclosure of independent contractor names and
addresses using an opt-out procedure in [ Lee v. Dynamex, Inc. (2008) 166 Cal. App.
4th 1325, 1338, 83 Cal. Rptr. 3d 241 (discovery of potential class members' contact
information should not be restricted unless trial court can identify privacy concerns or
potential discovery abuses which outweigh plaintiff's right to discovery)]. And in a
pending class action litigation to enforce employees' statutory wage and overtime rights,
the violation of the employees' right to privacy did not outweigh plaintiffs' right to
discover the class members' names, addresses, and telephone numbers, using an opt-out
notice [ Crab Addison, Inc. v. Superior Court (2008) 169 Cal. App. 4th 958, 974-975,
87 Cal. Rptr. 3d 400] . Moreover, the fact that employees had signed forms indicating
they did not want their contact information disclosed did not compel a different result.
Public policy concerns weighed against enforcing a release form that had the effect of
waiving an employee's right to notice of a pending class action lawsuit concerning the
employer's alleged violations of overtime and wage statutes. In this case, the employees
who had indicated that they did not want their contact information disclosed were
unaware of the litigation [ Crab Addison, Inc. v. Superior Court (2008) 169 Cal. App.
4th 958, 974, 87 Cal. Rptr. 3d 400] .
In deciding a motion for attorneys' fees and expenses under Code Civ. Proc. ß 1021.5,
the court of appeal balanced real parties' interest in discovering the donors to petitioner
nonprofit organization's litigation fund, which implicated the right of privacy and a
derivative right of confidentiality, with the interests compelling disclosure. Real parties in
this case had a legitimate interest in ensuring that attorney fees were not awarded when
the statutory requirements set forth in Code Civ. Proc. ß 1021.5 had not been met. A trial
court ruling on a motion for attorney fees could not realistically assess the interests of a
fee applicant if the applicant (and thus the nature and extent of the applicant's interest)
could be hidden behind a public interest organization. Moreover, because attorney fee
awards paid by the County were necessarily paid from taxpayer funds, county taxpayers
had an interest in limiting unwarranted attorney fee awards. The state (and thus all
taxpayers) had an interest in ensuring that charitable contributions are not shams--and that
the donated funds truly became the property of the charity that received them. Equally as
important as these interests was the state's compelling interest, as reflected in its broad
discovery statutes, in facilitating the ascertainment of truth in connection with legal
proceedings. The court concluded that real parties demonstrated a need for the discovery
that would justify an invasion of the privacy interests involved, since the evidence sought
Page 232 of 614

by real parties was crucial to the court's thorough analysis of petitioner's attorney fee
request [ Save Open Space Santa Monica Mountains v. Superior Court (2001) 84 Cal.
App. 4th 235, 252-254, 100 Cal. Rptr. 2d 725] .
In a writ proceeding, an abortion clinic challenged a superior court discovery ruling that
required it to disclose, pursuant to a protective order, to active participants in the anti-
abortion movement, the names, residential addresses, and telephone numbers of staff and
volunteers with knowledge relevant to the litigation. The court of appeal held that
disclosure violated the non-parties' rights to freedom of association and their rights to
residential privacy, and concluded that their privacy interests were strong because
disclosure would threaten their peace and safety. In contrast, the state's interest in
promoting truth in litigation was weak. Real parties failed to demonstrate any real need
for the discovery that justified this intrusive order. Precluding discovery of the informa-
tion furthered the state's interest in preserving residential privacy and advanced the state's
strong interest in protecting individuals who provide lawful services in connection
withpregnancy [ Planned Parenthood Golden Gate v. Superior Court (2001) 83 Cal.
App. 4th 347, 367, 99 Cal. Rptr. 2d 627] .
In an action in which plaintiff alleged that he was molested while a member of a boy
scout troop, plaintiff sought discovery of certain confidential records maintained by the
Boy Scouts, which identified individuals unrelated to the action who had been determined
to be "unfit" to serve as scouting volunteers and documenting this determination of
ineligibility. The trial court appointed a referee, who conducted an in camera review of
the requested records and determined that they were subject to protection from disclosure
by the right of privacy. The court of appeal affirmed the trial court's protective order
issued on the basis of this determination, holding that plaintiff had not shown that the
files were relevant to any disputed issue in the litigation, nor that there was a compelling
need for disclosure of this information that would outweigh the right of privacy of the
many individuals who were not parties to the lawsuit [ Juarez v. Boy Scouts of America,
Inc. (2000) 81 Cal. App. 4th 377, 384-385, 391-392, 97 Cal. Rptr. 2d 12] .
In an action against a sperm bank on behalf of child born with a congenital birth defect,
the court of appeal considered the privacy interest of the anonymous sperm donor in his
medical history, and that of the state in evidence directly relevant to the action, and
ordered the donor's deposition to proceed, subject to a protective order to be fashioned by
the trial court that would protect the confidentiality of the identity of the donor and that of
his family [ Johnson v. Superior Court (2000) 80 Cal. App. 4th 1050, 1067-1072, 95
Cal. Rptr. 2d 864 ; see also Allison v. Workers' Comp. Appeals Bd. (1999) 72 Cal.
App. 4th 654, 661, 84 Cal. Rptr. 2d 915 (defendant seeking disclosure of plaintiff's
general past medical history required on remand to frame narrower, more precisely
tailored discovery)].
[4] Disclosure Required by Compelling State Interest May Be Limited by Protective Order
Page 233 of 614

or Similar Measures
One method of ensuring that compelled disclosure is narrowly drawn is to permit those individuals
whose privacy rights may be threatened to seek a protective order prior to disclosure. For example, in
an action for injunctive relief under the Unruh Civil Rights Act [Civ. Code ß 51] against a club based
on its allegedly racially discriminatory membership practices, the prosecuting city asked the club for a
list of the names and business addresses of those applicants who had been recently rejected for
membership. The club resisted, citing the applicants' right of associational privacy. The court weighed
those rights against the important, compelling interest the state has in upholding fundamental societal
principles, such as nondiscrimination. It held that disclosure was appropriate, but that prior to that
disclosure, the applicants should be informed that their identities were sought, and advised that they
should petition the court for protective orders if they sought anonymity. The names of those applicants
who obtained protective orders would be removed from the list ultimately furnished by the club to the
city [ Olympic Club v. Superior Court (1991) 229 Cal. App. 3d 358, 364, 282 Cal. Rptr. 1 ; see
Harris v. Superior Court (1992) 3 Cal. App. 4th 661, 668, 4 Cal. Rptr. 2d 564 (person living with
child-support-paying parent is presumptively entitled to protective order limiting disclosure of
financial information in rare circumstances in which this information is at all discoverable)]. For
discussion of Civ. Code ß 51, see Ch. 116, Civil Rights: Discrimination in Business Establishments .
[5] Waiver of Privacy Right
Privacy rights are subject to waiver in much the same way as are privileges, except that waivers of
constitutional rights are not lightly found. The court may consider the standards of Evid. Code ß 912
(waiver of privileges) in deciding whether an individual has waived the right to privacy by disclosure
[see Heda v. Superior Court (1990) 225 Cal. App. 3d 525, 530, 275 Cal. Rptr. 136 ; see also
Urbaniak v. Newton (1991) 226 Cal. App. 3d 1128, 1135-1136, 1140-1141, 277 Cal. Rptr. 354
(patient's HIV-positive status protected if status only disclosed to ensure that proper precautions were
taken to sterilize medical equipment)].
The scope of any waiver of a privacy right must be narrowly rather than expansively construed so that
plaintiffs are not unduly deterred from instituting lawsuits because of fear of exposure of their private
associational affiliations and activities. Any implied waiver of a party's constitutional rights encom-
passes only discovery directly relevant to the plaintiff's claim and essential to the fair resolution of the
lawsuit. For example, the mere initiation of a sexual harassment suit, even with an extreme mental and
emotional damage claim, does not waive all the plaintiff's privacy interests, but it may implicitly bring
about a partial waiver of his or her constitutional right of associational privacy [ Vinson v. Superior
Court (1987) 43 Cal. 3d 833, 841-842, 239 Cal. Rptr. 292, 740 P.2d 404] . Because sexual
misconduct civil cases are governed by Code Civ. Proc. ß 2017.220, which requires a showing of
good cause prior to discovery of the plaintiff's sexual conduct with individuals other than the alleged
perpetrator, a separate weighing of privacy interests against discovery in determining the scope of a
waiver is not generally necessary. It should normally suffice for the court, in ruling on whether good
cause exists for probing into the intimate life of a victim of sexual misconduct, to evaluate the showing
of good cause in light of the legislative purpose in enacting Code Civ. Proc. ß 2017.220 and the
Page 234 of 614

plaintiff's constitutional right to privacy [see Vinson v. Superior Court (1987) 43 Cal. 3d 833, 844,
239 Cal. Rptr. 292, 740 P.2d 404 (decided under prior law)].
Similarly, the filing of a personal injury lawsuit, even with a claim for pain and suffering, does not
waive the plaintiff's privacy interests in all of her medical records. For example, the privacy interests
in records of a personal injury plaintiff's psychotherapy were not waived when the plaintiff limited the
damages claimed for pain and suffering to those resulting from injuries sustained in the automobile
accident generating the lawsuit [ Davis v. Superior Court (1992) 7 Cal. App. 4th 1008, 1013, 9 Cal.
Rptr. 2d 331 (records of psychotherapy pertained to substance abuse); see also Allison v. Workers
Comp. Appeals Bd. (1999) 72 Cal. App. 4th 654, 661, 84 Cal. Rptr. 2d 915 (in action by plaintiff for
injury to wrist, defendant, seeking disclosure of plaintiff's general past medical history, required on
remand to frame discovery requests more narrowly)]. The mere speculation by a defendant that the
records requested might contain relevant material is not sufficient to overcome the privacy protection
[ Davis v. Superior Court (1992) 7 Cal. App. 4th 1008, 1017-1018, 9 Cal. Rptr. 2d 331] .
However, when a party to litigation affirmatively places his or her medical condition in controversy,
that party does have a "substantially lowered" expectation of privacy in medical records relating to that
condition [ John B. v. SuperiorCourt (2006) 38 Cal. 4th 1177, 1199, 45 Cal. Rptr. 3d 316, 137 P.
3d 153 . Thus, for example, a husband waived his privacy interests in information concerning his
HIV status and in information contained in his medical records within the six-month timeframe in
which he could have been infected, in a suit brought by his wife for infecting her with HIV, by
relying on what he claimed were negative test results in support of a summary judgment motion and
by alleging in the complaint that his former wife infected him [ John B. v. Superior Court (2006) 38
Cal. 4th 1177, 1197-1198, 45 Cal. Rptr. 3d 316, 137 P.3d 153] . The husband could not affirmatively
rely on his HIV test results, while at the same time prevent discovery that could refute the truthfulness
of his contentions [ John B. v. Superior Court (2006) 38 Cal. 4th 1177, 1200-1201, 45 Cal. Rptr.
3d 316, 137 P.3d 153] .
A patient did not waive his right to privacy, in a suit to enforce an administrative subpoena by the
California Medical Board against the patient's physician, by showing park rangers the letter as proof
that he was a qualified patient entitled to protection from prosecution for marijuana use [ Bearman v.
Superior Court (2004) 117 Cal. App. 4th 463, 473-474, 11 Cal. Rptr. 3d 644, 652-653] . Moreover,
the Medical Board failed to produce evidence sufficient to support a finding of good cause to invade
the patient's right to privacy in his medical records. Rather, the accusations that the physician
indiscriminately recommended the medicinal use of marijuana to this patient were unsupported
speculations and conclusory statements drawn solely from the physician's letter and the simple fact
that he recommended using marijuana [ Bearman v. Superior Court (2004) 117 Cal. App. 4th 463,
472, 11 Cal. Rptr. 3d 644, 650] .
When an actress's suit for various employment related claims based on pregnancy discrimination
included a claim for damages for mental and emotional anxiety and distress, the court of appeal
likewise held that she had waived only some of her privacy rights. She was found to have waived her
Page 235 of 614

right of privacy concerning her psychological condition, but only as it related to termination of the
employment contract. Before the defendants could obtain information regarding any emotional distress
from her marital relationship, they had to identify the specific emotional injuries allegedly the result of
the contract termination and demonstrate a nexus between damages from termination and those that
might arise out of the marital relationship. Similarly, questions regarding the actress's pregnancy fell
directly within her right to privacy, and the defendants had to demonstrate a compelling public interest
for the information for it to be discoverable [ Tylo v. Superior Court (1997) 55 Cal. App. 4th 1379,
1386-1390, 64 Cal. Rptr. 2d 731] .
[6] Assertion of Third Person's Privacy Rights
[a] Availability and Balancing Conflicting Interests
Litigants who are the recipients of discovery demands affecting the privacy rights of third persons not
present may assert the privacy rights of those persons [ Denari v. Superior Court (1989) 215 Cal.
App. 3d 1488, 1498-1499, 264 Cal. Rptr. 261 (county properly asserted privacy rights of arrestees
when civil rights plaintiff sought to discover their names, addresses, and telephone numbers); see
Valley Bank of Nevada v. Superior Court (1975) 15 Cal. 3d 652, 125 Cal. Rptr. 553, 542 P.2d 977
(when customer sued bank and sought financial records of other customers, bank properly asserted
privacy rights of its other customers)].
A court has a duty to reconcile the conflicting interests of litigants in obtaining necessary discovery
and of third parties in maintaining privacy. In evaluating claims for the protection of third parties, the
court is vested with the same discretion that it generally exercises in passing on other confidentiality
claims. The court must consider the following factors [ Schnabel v. Superior Court (1993) 5 Cal.
4th 704, 712, 21 Cal. Rptr. 2d 200, 854 P.2d 1117 ; see Tien v. Superior Court (2006) 139 Cal.
App. 4th 528, 540-541, 43 Cal. Rptr. 3d 121 (privacy rights of putative class members who contacted
employees' counsel outweighed employer's need to discover their identities, citing Hooser); Hooser v.
Superior Court (2001) 84 Cal. App. 4th997, 1004, 101 Cal. Rptr. 2d 341 (citing Schnabel);
Sehlmeyer v. Department of General Services (1993) 17 Cal. App. 4th 1072, 1081, 21 Cal. Rptr. 2d
840 (same factors applied in administrative proceedings)]:
The purpose of the information sought.
The effect that disclosure will have on the parties and on the trial.
The nature of the objections urged by the party resisting disclosure.
The court's ability to make an alternative order that may grant partial disclosure, disclo-
sure in another form, or disclosure only in the event that the party seeking the information
undertakes certain specified burdens that appear just under the circumstances.
Page 236 of 614

For example, in a defamation action by a hospital against a physician and an organization whose
members were anonymous, the hospital served a deposition subpoena on a local newspaper which
had published paid advertisements that were critical of the hospital, seeking disclosure of the authors.
The newspaper, asserting the associational privacy rights of the anonymous authors of the "advertori-
als," sought to quash the subpoena. Applying the balancing test, the court of appeal noted that the
"advertorials" involved core political speech. One admitted purpose of the hospital in seeking the
names was to add potential new defamation claims against additional defendants. The court found this
to be a classic first amendment example of why the speakers may have chosen anonymity in the first
place: to avoid being swept into litigation purely out of spite for speaking out on hotly contested
issues. The court deemed the impact of the proposed discovery on protected constitutional rights to be
severe.
The hospital argued that the authors of the advertisements were the same as those who authored the
defamatory statements alleged in hospital's complaint, due to thematic and stylistic similarities between
the two sets of materials. The court concluded that this conjecture was not enough to overcome the
qualified privilege of associational privacy, and the relationship between the advertisements and the
defamatory statements were too attenuated to justify shutting off political discourse on an important
public issue [ Rancho Publications v. Superior Court (1999) 68 Cal. App. 4th 1538, 1546-1551, 81
In another case, a consolidated class action suit by television writers asserting an industry-wide
pattern and practice of age discrimination, the writers served subpoenas on third parties, seeking
disclosure of their personal information--beyond contact information--from which the writers could
prepare a statistical analysis to support their claims of age discrimination. Approximately 7,700
individuals filed objections to the disclosure on privacy grounds. The writers moved to overrule the
objections, but the trial court sustained the objections in their entirety. The court of appeal issued a
writ of mandate directing the trial court to vacate its orders and to enter a new and different order
granting the writers access to the requested information. The court concluded that the trial court
abused its discretion when it sustained all objections to the disclosure of the requested information on
privacy grounds. The trial court used a "broad brush to deny the writers access to all data about the
objectors out of hand," without considering whether "a more nuanced approach" to the different
categories of data would satisfy the balance between privacy interests and the litigants' need for
discovery [ Alch v. Superior Court (2008) 165 Cal. App. 4th 1412, 1421-1422, 82 Cal. Rptr. 3d
470 ]. The writers could not prove their disparate impact claims without access to the directly relevant
evidence from which they could perform a statistical analysis. The trial court erred in its purported
balancing of the objectors' privacy rights and the countervailing interests of the litigants and the state,
erred in failing to analyze the types of information requested, failing to consider the state's interest in
preventing discrimination, and erroneously concluding the writers could proceed with a statistical
analysis without information from the objectors [ Alch v. Superior Court (2008) 165 Cal. App. 4th
1412, 1428-1438, 82 Cal. Rptr. 3d 470 ].
Page 237 of 614

The court should impose partial limitations rather than an outright denial of discovery when it is
possible to do so. For example, the court may conduct an in camera hearing to further accommodate
the conflicting interests [ Schnabel v. Superior Court (1993) 5 Cal. 4th 704, 712, 21 Cal. Rptr. 2d
200, 854 P.2d 1117 ; see, e.g., Alch v. Superior Court (2008) 165 Cal. App. 4th 1412, 1422, 82 Cal.
Rptr. 3d 470 (trial court erred, in consolidated class action by petitioner television writers asserting
industry-wide pattern and practice of age discrimination, in denying access to all requested informa-
tion from third party objectors on privacy grounds, without considering whether "a more nuanced
approach" to different categories of data would satisfy balance between privacy interests and litigants'
need for discovery); Save Open Space Santa Monica Mountains v. Superior Court (2001) 84 Cal.
App. 4th 235, 252-254, 100 Cal. Rptr. 2d 725 (in motion for attorneys' fees under private attorney
general doctrine, public interest organization would be required to provide, in increments and in
camera, information about amounts donated to its litigation fund and, if needed, names of donors)].
A judge also may consider making an alternative order granting partial discovery, disclosure in
another form, or disclosure only in the event the party seeking the information undertakes certain
specified burdens that appear just under the circumstances [ Sehlmeyer v. Department of General
Services (1993) 17 Cal. App. 4th 1072, 1081, 21 Cal. Rptr. 2d 840 ; see, e.g., Perez v. County of
Santa Clara (2003) 111 Cal. App. 4th 671, 678, 3 Cal. Rptr. 3d 867 (in employment discrimination
case, disciplinary records of nonparty employees were protected by their privacy rights, when
interrogatories listing disciplinary acts by type and race would accomplish plaintiff's objective);
Planned Parenthood Golden Gate v. Superior Court (2001) 83 Cal. App. 4th 347, 350, 358-359,
367, 99 Cal. Rptr. 2d 627 (disclosure of nonparty identity denied in favor of alternative procedure that
would party access to potential nonparty witnesses without invading their privacy rights); Hooser v.
Superior Court (2001) 84 Cal. App. 4th 997, 1007-1009, 101 Cal. Rptr. 2d 341 (identity of nonparty
clients not disclosed in favor of alternative means of obtaining information needed from judgment
debtor attorney)].
To the extent the third party's records come within a statutory privilege, additional considerations must
be balanced, for example, the existence of the privilege and questions of waiver [ Sehlmeyer v.
Department of General Services (1993) 17 Cal. App. 4th 1072, 1081, 21 Cal. Rptr. 2d 840] .
[b] Dissolution of Marriage Proceedings
In a marriage dissolution proceeding, when one spouse seeks discovery from a third party, the court
must balance the spouse's need for discovery against the privacy interests of the third party. In
weighing the spouse's need, the court should consider how the requested information would help
resolve the issues that remain between the spouses, any relationship between either spouse and the
third party, the information that the other spouse or the third party has already provided or agreed to
provide, and any specific reasons to distrust the adequacy or reliability of the information already
obtained or offered. In weighing the privacy interests of the third party, the court should consider the
nature of the information sought, its inherent intrusiveness, and any specific showing of a need for
privacy, including any specific harm that disclosure of the information might cause [ Schnabel v.
Page 238 of 614

On request, the court should review the information in camera before production to assess its value to
the requesting spouse and the harm disclosure might cause to the third party. The court should
carefully tailor any discovery order to protect the interests of the requesting spouse in obtaining a fair
resolution of the issues, while not unnecessarily invading the third party's privacy. The court should
also consider appropriate protective orders on request [ Schnabel v. Superior Court (1993) 5 Cal.
4th 704, 714, 21 Cal. Rptr. 2d 200, 854 P.2d 1117] .
Legal Topics:
Constitutional LawSubstantive Due ProcessPrivacyGeneral OverviewConstitutional LawSubstantive
Due ProcessScope of ProtectionHealthcare LawTreatmentEnd-of-Life DecisionsAbortionRight to
Privacy
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92 of 196 DOCUMENTS

ß 191.121 Statutory Protections Relating to Subpoenaed Records Containing Personal

Information
[1] Consumer Records
The privacy interests that individuals or certain entities have in records containing private information
about them, which are maintained by third-party professionals or businesses with whom they have
had business transactions or from whom they have received services, are protected to some extent by
statutory safeguards that apply when such records are the subject of a subpoena duces tecum.
Thus, Code Civ. Proc. ß 1985.3 contains certain protections for consumers (as defined in Code Civ.
Proc. ß 1985.3(a)(2)) when their personal records are the subject of a subpoena duces tecum,
including a deposition subpoena under Code Civ. Proc. ß 2020.020.
Personal records are books, documents, other writings, or electronic data maintained by any witness
that is a physician, dentist, ophthalmologist, optometrist, chiropractor, physical therapist,
acupuncturist, podiatrist, veterinarian, veterinary hospital, veterinary clinic, pharmacist, pharmacy,
hospital, medical center, clinic, radiology or MRI center, clinical or diagnostic laboratory, state or
national bank, state or federal association as defined under Fin. Code ß 5102, state or federal credit
union, trust company, anyone authorized by the state to make or arrange loans that are secured by real
property, security brokerage firm, insurance company, underwritten title company, title insurance
company, escrow agent (either licensed under Fin. Code ß 17000 et seq. or exempt from licensing),
attorney, accountant, institution of the Farm Credit System as specified in 12 U.S.C. ß 2002, telephone
corporation that is a public utility as defined in Pub. Util. Code ß 216, psychotherapist, as defined in
Evid. Code ß 1010, or a private or public preschool, elementary school, secondary school, or post
secondary school as described in Educ. Code ß 76244 [see Code Civ. Proc. ß 1985.3(a)(1)].
Page 240 of 614

The protections set out in Code Civ. Proc. ß 1985.3 also apply to records containing personal
information pertaining to public employees and other natural persons that are maintained by specified
public agencies and are exempt from required disclosure under the Public Records Act (Gov. Code ß
6250 et seq.), to the extent that they constitute private information [Code Civ. Proc. ß 1985.4; see
Gov. Code ß 6254(c) (disclosure exemption for private information)].
Code Civ. Proc. ß 1987.1 provides for an order to protect a consumer or witness from oppressive
demands in a subpoena duces tecum, including unreasonable violations of the right of privacy [see
Code Civ. Proc. ß 1987.1(a)]. However, nothing in Code Civ. Proc. ß 1987.1 requires a person to
move to quash, modify, or condition any subpoena duces tecum of personal records of any consumer
served under Code Civ. Proc. ß 1985.3(b)(1) [Code Civ. Proc. ß 1987.1(c)].
For further discussion of deposition subpoenas generally, see Ch. 193, Discovery: Depositions . For
further discussion and forms relating to the notice requirements and objection procedures when
personal consumer records are subpoenaed, see Ch. 535, Subpoena .
[2] Employee Records
The privacy interests that employees have in records concerning them, which are maintained by their
employers, are protected in much the same fashion as the interests of consumers discussed in [1],
above. Thus, Code Civ. Proc. ß 1985.6 contains certain protections for employees when employment
records are the subject of a subpoena duces tecum [Code Civ. Proc. ß 1985.6; see generally Code Civ.
Proc. ß 1985.3]. An "employee" is any individual who is or has been employed by a witness subject
to a subpoena duces tecum [Code Civ. Proc. ß 1985.6(a)(2)]. "Employee" also means any individual
who is or has been represented by a labor organization that is a witness subject to a subpoena duces
tecum [Code Civ. Proc. ß 1985.6(a)(2); see Code Civ. Proc. ß 1985.6(a)(4) ("labor organization"
defined)].
The term "employment records" is defined as the original or any copy of books, documents, other
writings or electronic data pertaining to the employment of any employee maintained by the current or
former employer of the employee, or by a labor organization that has represented or currently
represents the employee [Code Civ. Proc. ß 1985.6(a)(3); see Code Civ. Proc. ß 1985.6(a)(4) ("labor
organization" defined)]. Any employee whose employment records are sought by a subpoena duces
tecum under Code Civ. Proc. ß 1985.6 may bring a motion to quash or modify the subpoena under
Code Civ. Proc. ß 1987.1 [Code Civ. Proc. ß 1985.6(f)(1); see Code Civ. Proc. ß 1987.1(a)].
However, nothing in Code Civ. Proc. ß 1987.1 requires a person to move to quash, modify, or
condition any subpoena duces tecum of employment records of any employee served under Code Civ.
Proc. ß 1985.6(b)(1) [Code Civ. Proc. ß 1987.1(c)].
The protections under Code Civ. Proc. ß 1985.6 for employment records extend to deposition
subpoenas [see Code Civ. Proc. ßß 2020.410(d), 2020.510(c), (d)].
Page 241 of 614

For further discussion and forms relating to employment records, see Ch. 535, Subpoena .
[3] In Connection With Actions Involving Free Speech Rights
A person whose personally identifying information is sought in connection with an action involving
that person's free speech rights may bring a motion under Code Civ. Proc. ß 1987.1(a) to quash or
modify the subpoena [Code Civ. Proc. ß 1987.1(a)]. For this purpose, "personally identifying
information" includes the following [Civ. Code ß 1798.79.8]:
First and last name or last name only.
Home or other physical address, including, but not limited to, a street name or ZIP Code,
other than an address obtained pursuant to the California Safe At Home program or a
business mailing address for the victim service provider.
Electronic mail address or other online contact information such as an instant messaging
user identifier or a screen name that reveals an individual's electronic mail address.
Telephone number, other than a business telephone number for a victim service provider.
Social security number.
Date of birth, with the exception of the year of birth.
Internet protocol address or host name that identifies an individual.
Any other information, including, but not limited to, the first and last names of children
and relatives, racial or ethnic background, or religious affiliation, that, in combination
with any other nonpersonally identifying information, would serve to identify any
individual.
For further discussion and forms relating to protection of this information when it is sought in
connection with an action involving a person's free speech rights, see Ch. 535, Subpoena .
Legal Topics:
Civil ProcedurePretrial MattersSubpoenasComputer & Internet LawPrivacy & SecurityState
RegulationLabor & Employment LawEmployee PrivacyDisclosure of Employee InformationGeneral
OverviewLabor & Employment LawEmployee PrivacyPrivacy ActGeneral Overview
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93 of 196 DOCUMENTS

ß 191.122 News Reporter's Qualified First Amendment Privilege
In addition to the newsperson's shield of immunity from contempt, discussed in ß 191.123, the
Supreme Court has recognized that a reporter, editor, or publisher has a qualified privilege to withhold
disclosure of the identity of confidential sources and of unpublished information supplied by those
sources. This privilege arises under the constitutional protections for freedom of the press (U.S.
Const., amend. I; Cal. Const., art. I, ß 2(a)) [ Mitchell v. Superior Court (1984) 37 Cal. 3d 268,
274, 279, 283-284, 208 Cal. Rptr. 152, 690 P.2d 625 ; see also Anti-Defamation League of B'Nai
B'rith v. Superior Court (1998) 67 Cal. App. 4th 1072, 1083, 79 Cal. Rptr. 2d 597 ; Shoen v. Shoen
(9th Cir. 1993) 5 F.3d 1289, 1292-1296 ; KSDO v. Superior Court (1982) 136 Cal. App. 3d 375,
384-386, 186 Cal. Rptr.211] . The privilege is available to online journalists [ O'Grady v. Superior
Court (2006) 139 Cal. App. 4th 1423, 1468, 44 Cal. Rptr. 3d 72] . Each case should be determined
by balancing the following considerations:
The nature of the litigation and whether the newsperson is a party [ Mitchell v.
Superior Court (1984) 37 Cal. 3d 268, 279-280, 208 Cal. Rptr. 152, 690 P.2d 625
(disclosure generally appropriate when newsperson is defendant in defamation action)].
If the newsperson is not a party, consideration of the qualified privilege may be unneces-
sary in view of the separate contempt immunity afforded under Cal. Const., art. I, ß 2(b),
and Evid. Code ß 1070 [see Playboy Enterprises, Inc. v. Superior Court (1984) 154
Cal. App. 3d 14, 23-29, 201 Cal. Rptr. 207] .
The degree of relevance of the information sought to the plaintiff's cause of action.
Disclosure should be denied unless the information goes to the heart of the plaintiff's
Page 243 of 614

claim [ Mitchell v. Superior Court (1984) 37 Cal. 3d 268, 280-282, 208 Cal. Rptr. 152,
690 P.2d 625 (discovery of information relating to alleged libel may be essential to prove
actual malice)].
Whether the party seeking discovery has exhausted all alternative sources of obtaining
the needed information, because compulsory disclosure of sources is a last resort,
permissible only if there is no other practical means of obtaining the information
[ Mitchell v. Superior Court (1984) 37 Cal. 3d 268, 282, 208 Cal. Rptr. 152, 690 P.2d
625 ; see, e.g., O'Grady v. Superior Court (2006) 139 Cal. App. 4th 1423, 1468-1480,
44 Cal. Rptr. 3d 72 (applying Mitchell's balancing process to conclude that discovery of
petitioner online news magazines' sources was barred by news reporter's qualified first
amendment privilege against compulsory disclosure of confidential sources, because real
party in interest failed to show that it had exhausted alternative avenues of investigation)].
The importance of protecting confidentiality in the case at bench [ Mitchell v. Superior

Court (1984) 37 Cal. 3d 268, 282-283, 208 Cal. Rptr. 152, 690 P.2d 625 (nondisclosure
proper if information of great public importance and risk of harm to source substantial)].
In a defamation action in which a newsperson is a defendant, the court may, before

permitting discovery, require plaintiff first to make a prima facie showing that the alleged
defamatory statements are false [ Mitchell v. Superior Court (1984) 37 Cal. 3d 268,
283, 208 Cal. Rptr. 152, 690 P.2d 625] .
The newsperson's qualified privilege protects freedom of the press by protecting confidential sources.
Consequently, the privilege is properly used as a "shield," not as a "sword." In other words, a
newsperson is not entitled to assert the privilege as plaintiff or cross complainant when placing in
issue the veracity or existence of the confidential news source [see Dalitz v. Penthouse International,
Ltd. (1985) 168 Cal. App. 3d 468, 477, 214 Cal. Rptr. 254 (dismissal of publisher's action appropri-
ate after reporters refused to reveal sources essential to defense)].
Legal Topics:
Constitutional LawBill of RightsFundamental FreedomsFreedom of SpeechFree PressGeneral
OverviewEvidencePrivilegesJournalist's PrivilegeElementsEvidencePrivilegesJournalist's Privilege-
ExceptionsEvidencePrivilegesJournalist's PrivilegeScope
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94 of 196 DOCUMENTS

ß 191.123 Newsperson's Immunity From Contempt
[1] "Shield Law" Protection Against Disclosure of Sources or Unpublished Information
To protect the free flow of information, the California Legislature enacted the "shield law" [Evid. Code
ß 1070] to provide news reporters with immunity against being held in contempt for refusing to
answer questions concerning information sources or unpublished information [Evid. Code ß 1070; see
Rosato v. Superior Court (1975) 51 Cal. App. 3d 190, 217, 124 Cal. Rptr. 427] . The California
Constitution was amended in 1980 to add essentially the same provision that is contained in Evid.
Code ß 1070 [see Cal. Const., art. I, ß 2(b); see also Code Civ. Proc. ß 1986.1, discussed in [5],
below].
Evid. Code ß 1070(a) protects publishers, editors, or other persons connected with or employed
either on a newspaper, magazine, or other periodical publication or by a press association or wire
service, or persons who have been so connected or employed, by providing that such persons cannot
be adjudged in contempt by a judicial, legislative, or administrative body, or by any other body having
the power to issue subpoenas, for refusing to disclose in a proceeding [see Evid. Code ß 901] the
source of any information procured while so connected or employed for publication in a newspaper,
magazine, or other periodical publication or for refusing to disclose unpublished information obtained
or prepared in the gathering, receiving, or processing of information for communication to the public
[Evid. Code ß 1070(a); see Cal. Const., art. I, ß 2(b); see New York Times Co. v. Superior Court
(1990) 51 Cal. 3d 453, 458, 273 Cal. Rptr. 98, 796 P.2d 811 ; Delaney v. Superior Court (1990)
50 Cal. 3d 785, 796-797, 268 Cal. Rptr. 753, 789 P.2d 934] . One court of appeal has held that the
phrase "newspaper, magazine, or other periodical publication" includes online news
"magazines" [ O'Grady v. Superior Court (2006) 139 Cal. App. 4th 1423, 1460-1466, 44 Cal. Rptr.
3d 72 (online news publishers were protected by shield law)].
Page 245 of 614

Evid. Code ß 1070(b) affords the same protection to radio or television news reporters, or other
persons connected with or employed by radio or television stations, or persons who have been so
connected or employed, by providing that such persons cannot be adjudged in contempt for refusing
to disclose the source of any information procured while so connected or employed for news or news
commentary purposes on radio or television or for refusing to disclose any unpublished information
obtained or prepared in the gathering, receiving, or processing of information for communication to
the public [Evid. Code ß 1070(b); see Cal. Const., art. I, ß 2(b)].
[2] Scope of Immunity
[a] Limited to Protection From Contempt Proceedings
Although the California newsperson's "shield law" is codified under Evid. Code ß 1070 in the same
division of the Evidence Code that sets outstatutory privileges, it is not actually an evidentiary
privilege. The "shield law" of Cal. Const., art. I, ß 2(b) and Evid. Code ß 1070 provides only
immunity from contempt [ New York Times Co. v. Superior Court (1990) 51 Cal. 3d 453, 458, 273
Cal. Rptr. 98, 796 P.2d 811 ; Delaney v. Superior Court (1990) 50 Cal. 3d 785, 797 n.6, 268 Cal.
Rptr. 753, 789 P.2d 934 (disapproving, to the extent they suggest the contrary, Hammarley v.
Superior Court (1979) 89 Cal. App. 3d 388, 153 Cal. Rptr. 608 , and CBS, Inc. v. Superior Court
(1978) 85 Cal. App. 3d 241, 149 Cal. Rptr. 421 )].
This immunity from contempt grants to nonparty witnesses virtually absolute protection against
compelled disclosure, because contempt is generally the only effective remedy against nonparty
witnesses [ Mitchell v. Superior Court (1984) 37 Cal. 3d 268, 274, 208 Cal. Rptr. 152, 690 P.2d
625 ; see also Playboy Enterprises, Inc. v. Superior Court (1984) 154 Cal. App. 3d 14, 23-28, 201
Cal. Rptr. 207 ; Rosato v. Superior Court (1975) 51 Cal. App. 3d 190, 217-219, 124 Cal. Rptr.
427] . However, the immunity does not provide protection against sanctions other than contempt that
may be invoked against a party to civil litigation [ Mitchell v. Superior Court (1984) 37 Cal. 3d 268,
274, 208 Cal. Rptr. 152, 690 P.2d 625 ; KSDO v. Superior Court (1982) 136 Cal. App. 3d 375,
383, 186 Cal. Rptr. 211] .
For discussion of a separate, qualified news reporter's privilege, which may be applicable in civil
litigation, see ß 191.122.
[b] Unpublished Information
The scope of the newsperson's immunity from prosecution for contempt contained in Evid. Code ß
1070(a), (b) extends to unpublished information which includes information not disseminated to the
public by the reporter from whom disclosure is sought, whether or not related information has been
disseminated. The immunity also includes, but is not limited to, all notes, out takes, photographs,
tapes, or other data of whatever sort not itself disseminated to the public through a medium of
communication, whether or not published information based on or related to such material has been
disseminated [Evid. Code ß 1070(c); see Cal. Const., art. I, ß 2(b); see Delaney v. Superior Court
Page 246 of 614

(1990) 50 Cal. 3d 785, 799, 268 Cal. Rptr. 753, 789 P.2d 934] .
Thus, "unpublished information" includes a news reporter's unpublished, nonconfidential eyewitness

observations of an occurrence in a public place, and is not restricted to information obtained in
confidence by a newsperson [ Delaney v. Superior Court (1990) 50 Cal. 3d 785, 797-800, 268 Cal.
Rptr. 753, 789 P.2d 934 (disapproving CBS, Inc. v. Superior Court (1978) 85 Cal. App. 3d 241,
149 Cal. Rptr. 421 , to the extent it holds or suggests that the shield law protects only confidential
information); see also New York Times Co. v. Superior Court (1990) 51 Cal. 3d 453, 461, 273 Cal.
Rptr. 98, 796 P.2d 811] .
"Unpublished information," however, does not include information relating to paid advertisements or
"advertorials," expressing the views of thosewho paid for the advertisements, when the newspaper or
other entity in which the paid advertisements were published has not shown that it obtained the
advertisements for the journalistic purpose of communicating information to the public. A newspaper
or other entity asserting the shield law must make a threshold showing of intent to publish such
advertisements as part of its editorial process or as a communication of news or commentary on
matters of public interest [ Rancho Publications v. Superior Court (1999) 68 Cal. App. 4th 1538,
1546, 81 Cal. Rptr. 2d 274 (basing its holding on fact that publisher relinquished any newsgathering
function, sold its editorial prerogatives, and "acted as nothing more than a paid mouthpiece," but
emphasizing that it did not reach the issue of what legitimate journalistic activities are encompassed by
the shield law's phrase "information for communication to the public")].
Direct testimony regarding published information does not constitute a waiver of the right to refuse to
discuss related unpublished information, because the shield law explicitly provides that unpublished
information remains protected whether or not related information has been disseminated [ Fost v.
Superior Court (2000) 80 Cal. App. 4th 724, 735, 95 Cal. Rptr. 2d 620] .
If a trial court holds a journalist in contempt of court in a criminal proceeding notwithstanding the
constitutional immunity of Cal. Const., art. I, ß 2(b), the court must set out findings, either in writing
or on the record, stating, at a minimum, why the information will be of material assistance to the party
seeking evidence, and why alternate sources of the information are not sufficient to satisfy the
defendant's right to a fair trial under the Sixth Amendment [Code Civ. Proc. ß 1986.1(c); see also
discussion in [5], below].
[c] Identity of Source
The shield law's contempt immunity extends not only to the identity of the source but, in the absence
of any constitutional or other limitation on the exercise of the immunity, to the disclosure of any
information, in whatever form, which may tend to reveal the source of the information. As in the case
of the privilege against self-incrimination, the burden is on the reporter claiming the privilege to show
that the testimony may tend to lead to that source. However, this burden is not a heavy one [ Rosato
v. Superior Court (1975) 51 Cal. App. 3d 190, 217-218, 124 Cal. Rptr. 427] .
Page 247 of 614

[3] Determining When Shield Law Applies
In determining whether a news reporter may invoke the immunity in response to a question, the court
must consider not only the questioner's offered evidence but the matters disclosed in argument, the
implication of the question, the setting in which it is asked, and all other relevant factors [ Rosato v.
Superior Court (1975) 51 Cal. App. 3d 190, 218, 124 Cal. Rptr. 427] .
[4] Limitations on Contempt Immunity
[a] Criminal Activity
Evid. Code ß 1070(a) and (b) may not be used to shield news reporters from testifying about criminal
activity in which they have participated or which they have observed. In this respect, the protection
afforded news reporters by Evid. Code ß 1070(a), (b), as well as the rights guaranteed by the U.S.
Const., amend. I, do not reach so far as to override the interest of the public in insuring that neither
reporter nor source is invading the rights of other citizens through reprehensible conduct forbidden to
all other persons [ Rosato v. Superior Court (1975) 51 Cal. App. 3d 190, 218-219, 124 Cal. Rptr.
427 (quoting in part from Branzburg v. Hayes (1972) 408 U.S. 665, 691-692, 92 S. Ct. 2646, 33 L.
Ed. 2d 626 ); see also Hammarley v. Superior Court (1979) 89 Cal. App. 3d 388, 400-401, 153
Cal. Rptr. 608 (privilege does not exclude evidence required to enforce defendant's constitutional right
meaningfully to confront and cross-examine primary accuser with benefit of all evidence reasonably
available); disapproved to the extent the court characterizes the protection afforded news reporters by
Evid. Code ß 1070(a), (b) as a "privilege" in Delaney v. Superior Court (1990) 50 Cal. 3d 785, 797
n.7, 268 Cal. Rptr. 753, 789 P.2d 934] .
Since the newsperson's contempt immunity is a constitutional as well as a statutory protection, the
court must balance the immunity against a criminal defendant's right to a fair trial, to consider whether
the latter right may be compromised if the newsperson fails to disclose his or her source [ In re
Willon (1996) 47 Cal. App. 4th 1080, 1090, 55 Cal. Rptr. 2d 245] . The court's balancing test should
encompass two principal considerations [In Willon (1996) 47 Cal. App. 4th 1080, 1099, 55 Cal.
Rptr. 2d 245] :
Whether there is a "substantial probability of future violations or 'leaks' " that will impair
defendant's right to a fair trial; and
Whether there are reasonable alternatives to disclosure.
Shield-law immunity is not overcome by the prosecutor's need for evidence in a criminal prosecution.
The prosecution's right to due process is not equivalent to a criminal defendant's right to due process
and, therefore, does not carry the same weight as the federal rights enjoyed by a criminal defendant
[ Miller v. Superior Court (1999) 21 Cal. 4th 883, 896-897, 89 Cal. Rptr. 2d 834, 986 P.2d 170
Page 248 of 614

(prosecution in criminal proceeding does not have constitutional interest sufficient to require
disclosure of information otherwise protected by shield law)]. Consequently, prosecutors are not
entitled to unpublished information because they can show that it is relevant to their case [ Miller v.
Superior Court (1999) 21 Cal. 4th 883, 897, 89 Cal. Rptr. 2d 834, 986 P.2d 170 (unbroadcast
portion of interview with criminal defendant by newsperson is "unpublished information" within
meaning of Cal. Const., art. I, ß 2(b) and is thus protected by that constitutional provision)]. Rather, a
newsperson's protection under the shield lawis absolute and yields only to a "conflicting federal or,
perhaps, state constitutional right" [ Miller v. Superior Court (1999) 21 Cal. 4th 883, 901, 89 Cal.
Rptr. 2d 834, 986 P.2d 170 ; see, e.g., Fost v. Superior Court (2000) 80 Cal. App. 4th 724,
733-734, 95 Cal. Rptr. 2d 620 (when defense witness in criminal proceeding resists cross-examina-
tion on the basis of shield law, court may properly strike that witness's direct testimony, unless
defendant can show that to do so would deprive defendant of the constitutional right to fair trial and
that defendant's right, under the circumstances of the case, transcends that of the witness under the
shield law; on such showing the court may admit the witness' direct testimony and the witness may be
held in contempt for refusing to respond to proper cross-examination seeking information otherwise
be protected under shield law)].
[b] Violation of Court Order
Evid. Code ß 1070(a) and (b) may not be used as a shield against being required to answer any
question which may tend to identify who, if anyone, among those subject to a court's order, may have
violated that order. This second limitation springs from the inherent power of the judiciary as a
separate and coequal branch of the tripartite governmental structure to control its own proceedings and
officers. Thus, a court has the necessary power to explore the violation of its orders by those subject
thereto as a means of enforcing its own orders, such as orders fulfilling its constitutional obligation to
prevent prejudicial publicity from emanating from its officers [ Rosato v. Superior Court (1975) 51
Cal. App. 3d 190, 221, 222, 224, 124 Cal. Rptr. 427 ; Farr v. Superior Court (1971) 22 Cal. App.
3d 60, 68-71, 99 Cal. Rptr. 342] .
[c] Newsperson Not Engaged in News Gathering
The immunity provides no protection for information obtained by a newsperson not directly engaged
in gathering, receiving, or processing news. When a newsperson is not on the job, he or she is no
different from any other citizen [ Delaney v. Superior Court (1990) 50 Cal. 3d 785, 797-798 n.8,
268 Cal. Rptr. 753, 789 P.2d 934 ; see O'Grady v. Superior Court (2006) 139 Cal. App. 4th 1423,
1459, 44 Cal. Rptr. 3d 72 ("open and deliberate" publication on news-oriented Web site of news
gathered for that purpose by site's operators was indistinguishable from publishing a newspaper with
respect to application of shield law)].
[5] Related Subpoena Procedures
One of the subpoena statutes, Code Civ. Proc. ß 1986.1, provides additional protections and
procedures with respect to the news reporter's contempt immunity set out in Cal. Const., art. I, ß 2(b),
as follows:
Page 249 of 614

No testimony or other evidence given by a journalist under subpoena may be construed

as a waiver of the immunity rights provided by Cal. Const., art. I, ß 2(b) [Code Civ.
Proc. ß 1986.1(a); see Code Civ. Proc. ß 1986.1(d) (defining "journalist" as person
specified in Cal. Const., art. I, ß 2(b))].
Except in exigent circumstances, a journalist who is subpoenaed must be given at least

five days' notice that his or her appearance will be required [Code Civ. Proc. ß 1986.1
(b)].
If a trial court holds a journalist in contempt of court in a criminal proceeding despite the
constitutional provision [see discussion in [4][a], above], the court must set out findings,
either in writing or on the record, stating, at a minimum, why the information will be of
material assistance to the party seeking evidence, and why alternate sources of the
information are not sufficient to satisfy the defendant's right to a fair trial under the Sixth
Amendment [Code Civ. Proc. ß 1986.1(c)].
For detailed discussion and forms relating to general subpoena procedures, see Ch. 535, Subpoena .
[6] Appellate Review
Because the shield law (Cal. Const., art. I, ß 2(b); Evid. Code ß 1070) provides only an immunity
from contempt, and not a privilege, a newsperson may not seek extraordinary writ relief from an
adverse trial court ruling under the shield law before the newsperson is adjudged in contempt. Thus, a
newsperson's petition for extraordinary relief is premature until a judgment of contempt has been
entered [ New York Times Co. v. Superior Court (1990) 51 Cal. 3d 453, 458-460, 273 Cal. Rptr.
98, 796 P.2d 811 (disapproving the contrary holding in CBS, Inc. v. Superior Court (1978) 85 Cal.
App. 3d 241, 247, 149 Cal. Rptr. 421 .
To avoid confinement under a contempt judgment that may subsequently be set aside, a trial court
should stay its judgment to allow the contemner newsperson sufficient time to seek writ relief if the
trial court believes there is any colorable argument the contemner can make against the judgment. If
the trial court nevertheless declines to issue a stay, the reviewing court should do so pending its
decision [ New York Times Co. v. Superior Court (1990) 51 Cal. 3d 453, 460, 273 Cal. Rptr. 98,
796 P.2d 811] .
Legal Topics:
Civil ProcedureSanctionsContemptCivil ContemptConstitutional LawBill of RightsFundamental
FreedomsFreedom of SpeechFree PressGeneral OverviewEvidencePrivilegesJournalist's Privi-
Page 250 of 614

legeElementsEvidencePrivilegesJournalist's PrivilegeExceptionsEvidencePrivilegesJournalist's
PrivilegeScope
Page 251 of 614

95 of 196 DOCUMENTS

ß 191.124 Tax Returns
[1] Protected Documents and Information
Various statutes have been interpreted as providing a privilege not to disclose tax returns or the
information that they contain [ Wilson v. Superior Court (1976) 63 Cal. App. 3d 825, 828, 134 Cal.
Rptr. 130] . This privilege applies to the following:
Federal and state income taxes [see Webb v. Standard Oil Co. (1957) 49 Cal. 2d 509,
513-514, 319 P.2d 621 ; King v. Mobile Home Rent Review Bd. (1990) 216 Cal. App.
3d 1532, 1538, 265 Cal. Rptr. 624 (cases construing former Rev. & Tax. Code ß 19282;
now see Rev. & Tax. Code ß 19542 et seq.)].
Individual income tax returns submitted to a bank for the purpose of obtaining a loan
[see Fortunato v. Superior Court (2003) 114 Cal. App 4th 475, 480-482, 8 Cal. Rptr.
3d 82 (reasoning that compliance with bank's requirement of submitting tax returns with
loan application is not "entirely voluntary relinquishment," and noting that bank customer
also has reasonable expectation of privacy in confidential information submitted with loan
application and that when waiver of confidentiality of tax returns is argued, court should
conduct in camera inspection to balance need for discovery against interests in privacy)].
Estate tax returns [see Deary v. Superior Court (2001) 87 Cal. App. 4th 1072,
1077-1078, 105 Cal. Rptr. 2d 132 (statutory tax return privilege protected estate tax
returns from disclosure, given that defendants had not waived privilege and plaintiffs did
not demonstrate any supervening public policy)].
Page 252 of 614

W-2 forms [ Brown v. Superior Court (1977) 71 Cal. App. 3d 141, 142-144, 139 Cal.
Rptr. 327] .
Corporate income taxes [see Schnabel v. Superior Court (1993) 5 Cal. 4th 704,
718-722, 21 Cal. Rptr. 2d 200, 854 P. 2d 1117] ;[see Aday v. Superior Court (1961)
55 Cal. 2d 789, 796-797, 13 Cal. Rptr. 415, 362 P.2d 47 (cases construing former Rev.
& Tax. Code ß 26451 et seq.; now see Rev. & Tax. Code ß 19542 et seq.)].
Employment taxes [see Unemp. Ins. Code ßß 1094, 2111; Schnabel v. Superior Court
(1993) 5 Cal. 4th 704, 718-722, 21 Cal. Rptr. 2d 200, 854 P. 2d 1117 (payroll taxes);
Crest Catering Co. v. Superior Court (1965) 62 Cal. 2d 274, 276-277, 42 Cal. Rptr.
110, 398 P.2d 150] .
Sales taxes [see Rev. & Tax. Code ß 7056; Sav-On Drugs, Inc. v. Superior Court
(1975) 15 Cal. 3d 1, 6-7, 123 Cal. Rptr. 283, 539 P.2d 739] .
[2] Waiver or Inapplicability of Protection
The discovery privilege for tax information is not absolute [ Schnabel v. Superior Court (1993) 5
Cal. 4th 704, 721, 21 Cal. Rptr. 2d 200, 854 P.2d 1117] . The privilege against disclosing state or
federal income tax returns may be waived or does not apply under any of the following circumstances:
When there is an intentional relinquishment [ Crest Catering Co. v. Superior Court

(1965) 62 Cal. 2d 274, 278, 42 Cal. Rptr. 110, 398 P.2d 150 ; National Football
League Properties, Inc. v. Superior Court (1998) 65 Cal. App. 4th 100, 106-107, 75
The gravamen of the lawsuit is so inconsistent with the continued assertion of the
taxpayer's privilege as to compel the conclusion that the privilege has in fact been waived
[ Wilson v. Superior Court (1976) 63 Cal. App. 3d 825, 830, 134 Cal. Rptr. 130] .
A public policy greater than that of confidentiality of tax returns is involved [ Miller v.
Superior Court (1977) 71 Cal. App. 3d 145, 149, 139 Cal. Rptr. 521 (proceedings to
enforce child support obligations); see In re Marriage of Sammut (1980) 103 Cal. App.
3d 557, 560, 163 Cal. Rptr. 193 (summarizing of decisions)]. The public-policy excep-
tion is construed narrowly, and only applies if warranted by a legislatively declared
public policy [ Schnabel v. Superior Court (1993) 5 Cal. 4th 704, 721, 21 Cal. Rptr.
2d 200, 854 P.2d 1117] . For example, the tax privilege was inapplicable when the
record showed that defendant in a civil suit engaged in conduct precluding plaintiffs from
obtaining relevant nonprivileged financial information necessary to support plaintiffs'
punitive damages claim, and there was no less intrusive alternative for plaintiffs to obtain
Page 253 of 614

the information [ Weingarten v. Superior Court (2002) 102 Cal. App. 4th 268, 271, 125
Cal. Rptr. 2d 371 (requiring that defendant's husband receive notice and opportunity to
be heard before court could compel disclosure of joint tax returns)]. Further, the privilege
does not extend to foreign tax returns [ Firestone v. Hoffman (2006) 140 Cal. App. 4th
1408, 1420, 45 Cal. Rptr. 3d 534 (neither Civ. Code ß 1799.1a nor Bus. & Prof. Code ß
17530.5 creates privilege shielding litigant from discovery of litigant's own tax returns or
making those returns inadmissible at trial, and neither statute applies to foreign tax
returns; although California case law does create privilege for tax returns, that privilege
does not apply to foreign taxes)].
In addition, statutory provisions may preclude application of the privilege against disclosure of state
and federal tax returns. For example, state and federal tax returns of a party to any proceeding
involving child or spousal support are specifically discoverable [Fam. Code ß 3552; see Thomas B.
v. Superior Court (1985) 175 Cal. App. 3d 255, 261-263, 220 Cal. Rptr. 577 (former Civ. Code ß
4700.7, now see Fam. Code ß 3552, applies only when parentage has been conclusively established);
see also Rev. & Tax. Code ß 19548 (FTB disclosure to California Parent Locator Service)].
In a marital dissolution proceeding, a spouse is entitled to discovery of tax records involving the other
spouse, since the Legislature has established a strong policy of full disclosure in dissolution
proceedings. Thus, for example, a spouse is entitled to discovery of the corporate tax returns of a
close corporation in which the other spouse has an interest, since such returns are related to the parties'
interest in determining the value of the corporation and in ascertaining their financial status. The
spouse is also entitled to discovery of the corporation's quarterly payroll tax returns regarding the
other spouse, but is not entitled to discovery of the corporation's quarterly payroll tax returns
identifying third persons absent a specific showing of relevance or need for those returns [ Schnabel
v. Superior Court (1993) 5 Cal. 4th 704, 722-723, 21 Cal. Rptr. 2d 200, 854 P.2d 1117 ; see also
discussion in ß 191.120[6][b]].
Legal Topics:
Tax LawFederal Tax Administration & ProcedureAudits & InvestigationsDisclosure of Information
(IRC secs. 6103-6104, 6108-6110, 6713, 7213, 7216, 7431, 7435)Confidentiality of Returns &
Return InformationTax LawFederal Tax Administration & ProcedureAudits & InvestigationsDisclo-
sure of Information (IRC secs. 6103-6104, 6108-6110, 6713, 7213, 7216, 7431, 7435)Disclosure of
Returns & Return InformationTax LawState & Local TaxesAdministration & ProceedingsGeneral
Overview
Page 254 of 614

96 of 196 DOCUMENTS

ß 191.125 Settlement Efforts
Settlement offers or negotiations that are inadmissible under Evid. Code ß 1152 are not privileged
[ Covell v. Superior Court (1984) 159 Cal. App. 3d 39, 42, 205 Cal. Rptr. 371] . However, they are
not subject to discovery unless they are relevant to the subject matter of the pending action or
reasonably calculated to lead to the discovery of admissible evidence [ Covell v. Superior Court
(1984) 159 Cal. App. 3d 39, 42-44, 205 Cal. Rptr. 371 ; see, e.g., Shade Foods, Inc. v. Innovative
Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 915, 93 Cal. Rptr. 2d 364 (in
insurance litigation, evidence of settlement negotiations was properly admitted to prove failure to
process claim fairly and in good faith, not to prove insurer's liability for original loss); see also Code
Civ. Proc. ß 2017.210 and discussion in Ch. 190, Discovery: Scope, Regulation, and Timing, ß
190.20].
Legal Topics:
Civil ProcedureAlternative Dispute ResolutionMediationsEvidenceRelevanceCompromise &
Settlement Negotiations
Page 255 of 614

97 of 196 DOCUMENTS

ß 191.125A Mediation Efforts
Evid. Code ß 1115 et seq. governs all mediation proceedings except Family Conciliation Court
proceedings under Fam. Code ß 1800 et seq., Mediation of custody and visitation issue proceedings
under Fam. Code ß 3160 et seq., and mandatory settlement conferences under Cal. Rules of Ct., Rule
3.1380 [Evid. Code ß 1117].
Evidence of anything said, or of any admission made, in the course of the mediation is inadmissible,
not subject to discovery, and disclosure of the evidence may not be compelled [Evid. Code ß 1119(a)].
In addition, any writing, as defined in Evid. Code ß 250, prepared for the purpose of, in the course of,
or pursuant to the mediation is inadmissible, not subject to discovery, and its disclosure may not be
compelled [Evid. Code ß 1119(b)].
Communications between an attorney and the attorney's client cannot be considered "for the purpose
of, in the course of, or pursuant to" a mediation under Evid. Code ß 1119(a) [ Porter v. Wyner
(2010) 183 Cal. App. 4th 949, 961, 107 Cal. Rptr. 3d 653 , modified, 5/10/2010 ("A mediation is not
conducted to resolve a dispute between a lawyer and the client the attorney represents.")]. Thus, for
example, in a case in which plaintiff clients alleged that their attorneys had promised, during a
mediation of a lawsuit in which the attorneys had represented them, to pay the clients certain proceeds
from their attorney's fees, evidence of those communications was not protected by the mediation
privilege. The disputants in mediation are not the attorney and the attorney's client; they are the parties
who file the lawsuit. Thus, the communications at issue were not communications between disputants
and a mediator within the meaning of Evid. Code ß 1115(a), and were not inadmissible under Evid.
Code, ß 1119(a) [ Porter v. Wyner (2010) 183 Cal. App. 4th 949, 961-962, 107 Cal. Rptr. 3d 653 ,
Page 256 of 614

modified, 5/10/2010].
Under Evid. Code ß 1119(b), photographs, videotapes, witness statements, and raw test data from
physical samples, prepared "for the purpose of, in the course of, or pursuant to, a mediation," are
protected by the mediation privilege, and therefore are not admissible at trial and not subject to
discovery [ Rojas v. Superior Court (2004) 33 Cal. 4th 407, 423, 15 Cal. Rptr. 3d 643, 93 P.3d
260 (court of appeal's contrary conclusion that so-called "non-derivative" materials (raw test data,
photographs, and witness statements taken for purposes of mediation) are not protected under Evid.
Code ß 1119 is directly at odds with plain language of mediation confidentiality provisions and
inconsistent with legislative history and intent)]. Moreover, there is no "good cause" exception to
Evid. Code ß 1119(b)'s protection [ Rojas v. Superior Court (2004) 33 Cal. 4th 407, 423-424, 15
Cal. Rptr. 3d 643, 93 P. 3d 260 (rejecting court of appeal's conclusion that "derivative" materials,
such as charts, diagrams, information compilations, and expert opinions and reports, are still
discoverable under Evid. Code ß 1119(b) "upon a showing of good cause")]. Similarly, estoppel
cannot be applied to prevent a defendant from tardily claiming mediation confidentiality [ Simmons
v. Ghaderi (2008) 44 Cal. 4th 570, 584, 80 Cal. Rptr. 3d 83, 187 P.3d 934 (legislative intent was to
promote mediation by ensuring confidentiality, not to adopt scheme to ensure good behavior in
mediation and litigation process)]. Thus, disclosure of communications made during mediation is
"unqualifiedly bar[red]," absent express statutory exception [ Foxgate Homeowners Assn. v.
Bramalea Cal. (2001) 26 Cal. 4th 1, 15, 108 Cal. Rptr. 2d 642, 25 P.3d 1117 ; see, e.g., Cassel v.
Superior Court (2011) 51 Cal. 4th 113, 118, 119 Cal. Rptr. 3d 437, 244 P.3d 1080 (declining to
"craft[] an unwarranted judicial exception to the clear and absolute provisions of the mediation
confidentiality statutes"); Wimsatt v. Superior Court (2007) 152 Cal. App. 4th 137, 142, 158-163,
61 Cal. Rptr. 3d 200 (rejecting nonstatutory "good cause" exception even if strict limitations of
mediation confidentiality shielded perjury and inconsistent statements)].
Additionally, all communications, negotiations, or settlement discussions by and between participants

or mediators in the mediation are confidential [Evid. Code ß 1119(c)]. Thus, for example, evidence of
private attorney-client discussions concerning mediation settlement strategies and efforts to persuade
the client to settle was inadmissible under Evid. Code ß 1119(a) in a legal malpractice action alleging
that the attorneys obtained the client's consent to the settlement through bad advice, deception, and
coercion, even though excluding the evidence might compromise petitioner's ability to prove his claim
[ Cassel v. Superior Court (2011) 51 Cal. 4th 113, 119, 119 Cal. Rptr. 3d 437, 244 P.3d 1080 ("[a]
s the statutes make clear, confidentiality, unless so waived, extends beyond utterances or writings 'in
the course of' a mediation, and thus is not confined to communications that occur between mediation
disputants during the mediation proceeding itself.")]. Furthermore, no evidence of communications
made during the mediation may be admitted or considered in support of an assertion that a party to the
mediation engaged in conduct that warrants sanctions under Code Civ. Proc. ß 128.5(a) [ Foxgate
Homeowners Ass'n. v. Bramalea California (2001) 26 Cal. 4th 1, 15, 108 Cal. Rptr. 2d 642
(assuming, without deciding, that court that ordered mediation may impose sanctions under Code Civ.
Proc. ß 128.5(a) based on conduct during mediation, but declining to create judicial exception for
reporting bad faith conduct or for imposition of sanctions under that section when doing so would
Page 257 of 614

require disclosure of communications or mediator's assessment of party's conduct)]. Moreover a party

cannot impliedly waive mediation confidentiality through litigation conduct, because Evid. Code ß
1122 requires waiver to be express, not implied [ Simmons v. Ghaderi (2008) 44 Cal. 4th 570,
587-588, 80 Cal. Rptr. 3d 83, 187 P.3d 934 (mediation confidentiality statutes precluded plaintiffs
from proving existence of oral settlement agreement between plaintiffs and defendant during
mediation, even though defendant had relied on mediation confidentiality to shield from the court facts
she had stipulated to be true and had extensively litigated without raising that defense); Eisendrath v.
Superior Court (2003) 109 Cal. App. 4th 351, 360-361, 134 Cal. Rptr. 2d 716 (mediation participants
cannot impliedly waive confidentiality by raising claim about agreement reached through mediation,
relying on Foxgate].
[2] Communications Subject to Discovery
Evid. Code ß 1122 provides that a communication or writing [see Evid. Code ß 250], made or
prepared for during the course of a mediation, is admissible, and subject to discovery, if either of the
following conditions is satisfied:
All persons who conduct or otherwise participate in the mediation expressly agree in
writing, or orally in accordance with Evid. Code ß 1118, to disclosure of the communica-
tion, document, or writing [Evid. Code ß 1122(a)(1)].
The communication, document, or writing was prepared by or on behalf of fewer than all
the mediation participants, those participants expressly agree in writing, or orally in
accordance with Evid. Code ß 1118, to its disclosure, and the communication, document,
or writing does not disclose anything said or done or any admission made in the course
of the mediation [Evid. Code ß 1122(a)(2)].
Evid. Code ß 1122(a)(2) prevents the disclosure of admissions even by the party who made them
[Doe 1 v. Superior Court (Roman Catholic Archbishop of Los Angeles) (2005) 132 Cal. App. 4th
1160, 1168, 34 Cal. Rptr. 3d 248] . Thus, for example, the Los Angeles Archbishop, the principal
defendant in some 500 lawsuits, could not disclose written summaries made of the personnel records
of numerous priests accused of sexually molesting minors. Because those summaries were prepared
for purposes of an ongoing mediation process, contained admissions of liability by the Archdiocese,
and revealed something about the mediation discussion, their disclosure would violate Evid. Code ß
1122(a)(2) [Doe 1 v. Superior Court (Roman Catholic Archbishop of Los Angeles) (2005) 132 Cal.
App. 4th 1160, 1163, 1168, 34 Cal. Rptr. 3d 248] . Although Evid. Code ß 1122(a)(1) permitted
disclosure of mediation communications if all participants agreed to the disclosure, that provision did
not apply because petitioners were mediation participants [Doe 1 v. Superior Court (Roman Catholic
Archbishop of Los Angeles) (2005) 132 Cal. App. 4th 1160, 1169, 34 Cal. Rptr. 3d 248] .
In addition, all or any part of a written settlement agreement made during the course of mediation is
Page 258 of 614

admissible, and subject to discovery, to show fraud, duress, or illegality if relevant to an issue in
dispute [Evid. Code ß 1123(d)], provided the agreement is signed by the settling parties and provides
that it is admissible, or enforceable, or "words to that effect," and all parties to the agreement expressly
agree in writing, or orally in accordance with Evid. Code ß 1118, to its disclosure [Evid. Code ß 1123
(a)-(c)]. There is no requirement that the agreement regarding disclosure be made at or after the time
of the settlement [ Estate of Thottam (2008) 165 Cal. App. 4th 1331, 1339, 81 Cal. Rptr. 3d 856
(mediation and confidentiality agreement satisfied exception to mediation confidentiality, even though
it was executed before parties allegedly entered into settlement agreement); see Evid. Code ß 1123(c)].
However, the fact that the first page of a mediation agreement contained a waiver of mediation
confidentiality under Evid. Code ß 1123 did not permit admission of the mediator's testimony to show
that the first page was part of the two-page agreement. Rather, the mediation confidentiality statutes
prohibited the mediator from testifying to anything about the agreement, including the number of
pages it contains [ Radford v. Shehorn (2010) 187 Cal. App. 4th 852, 856-857, 114 Cal. Rptr. 3d
499 (trial court erred in admitting mediator's declaration into evidence, but error was harmless)].
A settlement agreement is admissible under Evid. Code ß 1123 and is not rendered unenforceable
simply because it has not been signed personally by each of the litigants, provided that the written
waiver was signed by each of the settling parties or their respective counsel [ Stewart v. Preston
Pipeline Inc. (2005) 134 Cal. App. 4th 1565, 1569, 36 Cal. Rptr. 3d 901 (rejecting plaintiff's
contention that settlement agreement signed after mediation was inadmissible in subsequent action to
enforce settlement, because parties' counsel (as opposed to the parties themselves) signed mediation-
confidentiality waiver)].
However, a settlement agreement prepared in mediation that includes an arbitration provision is not
deprived of confidentiality under Evid. Code ß 1123(b)--which provides that such an agreement is not
protected from disclosure if it is signed by the settling parties and the "agreement provides that it is
enforceable or binding or words to that effect"--simply by including the arbitration provision [ Fair
v. Bakhtiari (2006) 40 Cal. 4th 189, 51 Cal. Rptr. 3d 871, 147 P.3d 653] . To satisfy Evid. Code ß
1123(b), a settlement agreement must include "a statement that it is 'enforceable' or 'binding,' or a
declaration in other terms" that makes clear that it reflects an agreement and is not simply a memoran-
dum of terms to be included in a future agreement [ Fair v. Bakhtiari (2006) 40 Cal. 4th 189,
199-200, 51 Cal. Rptr. 3d 871, 147 P.3d 653 (observing that the "statute leaves room for various
formulations")]. Although the writing need not be in "finished form" to be admissible under Evid.
Code ß 1123(b), it must be signed by the parties and include a "direct statement to the effect that it is
enforceable or binding" [ Fair v. Bakhtiari (2006) 40 Cal. 4th 189, 192, 51 Cal. Rptr. 3d 871, 147
P.3d 653 ; see, e.g., Estate of Thottam (2008) 165 Cal. App. 4th 1331, 1340, 81 Cal. Rptr. 3d 856
(chart designating specific allocations of listed assets in decedent's estate was "written settlement
agreement" within meaning of Evid. Code ß 1123; items on chart, while "lacking in formality," were
sufficiently clear to determine obligations to which parties agreed).]. However, "arbitration clauses,
forum selection clauses, choice of law provisions, terms contemplating remedies for breach, and
similar commonly employed enforcement provisions typically negotiated in settlement discussions" do
Page 259 of 614

not qualify an agreement for admission under Evid. Code ß 1123(b) [ Fair v. Bakhtiari (2006) 40
Cal. 4th 189, 200, 51 Cal. Rptr. 3d 871, 147 P.3d 653 (arbitration clause included in handwritten
single-page memorandum captioned "settlement terms," signed after mediation session, did not satisfy
Evid. Code ß 1123(b)'s requirement that written settlement agreement "provides that it is enforceable
or binding or words to that effect," and thus settlement memorandum was inadmissible)].
Finally, evidence otherwise admissible or subject to discovery outside of mediation cannot be made
inadmissible or protected from disclosure solely by reason of its introduction or use in a mediation
[Evid. Code ß 1120(a); see, e.g., Cassel v. Superior Court (2009) 179 Cal. App. 4th 152, 164, 101
Cal. Rptr. 3d 501 (communications between client and his law firm, two weeks before trial, were for
trial strategy preparation, not just for mediation of underlying lawsuit, and therefore were not
protected by either Evid. Code ß 1119(a), (b), or Evid. Code ß 1119(c); firm failed to demonstrate
sufficiently close link between communications and mediation to require application of mediation
confidentiality protection)].
For general discussion of mediation, including confidentiality, see Ch. 31, Mediation .
[3] Noncommunicative Conduct Is Subject to Discovery
Evid. Code ß 1119 bars evidence of communications during mediation, but it does not bar testimony
about conduct. Thus, Evid. Code ß 1119 does not prohibit a party from revealing or reporting
noncommunicative conduct [ Foxgate Homeowners' Assn. v. Bramalea California, Inc. (2001) 26
Cal. 4th 1, 18 n.14, 108 Cal. Rptr. 2d 642, 25 P. 3d 1117] . For example, Evid. Code ßß 1119 barred
admission of a mediator's declaration that the mediation agreement contained two pages. However, it
did not bar an attorney's declaration stating that he wrote "Page 1 of 2" on the first page and "Page 2
of 2" on the second page, that the parties signed page 2 of the agreement, and that no changes were
subsequently made, because the attorney's declaration described noncommunicative conduct showing
that page one was part of the agreement [ Radford v. Shehorn (2010) 187 Cal. App. 4th 852, 857,
114 Cal. Rptr. 3d 499] .
Legal Topics:
Civil ProcedureAlternative Dispute ResolutionMediationsEvidencePrivileges
Page 260 of 614

98 of 196 DOCUMENTS

ß 191.126 Medical or Other Health Care Committees
Records and proceedings of the following committees organized to evaluate and improve the quality
of health care are not subject to discovery under certain circumstances:
Committees of medical, dental, pediatric, dietetic, psychological, or veterinary staffs in

hospitals that evaluate or improve the quality of care rendered in the hospital [Evid. Code
ß 1157(a); see Fox v. Kramer (2000) 22 Cal. 4th 531, 540-548, 93 Cal. Rptr. 2d 497,
994 P.2d 374 (hospital's peer-review committee records are immune from discovery
under Evid. Code ß 1157(a), and defendants could not obtain the equivalent of discovery
of contents of hospital peer-review committee records by subpoenaing state investigator
to give expert testimony or refer at trial to his draft preliminary report when his conclu-
sions were based on hospital peer-review committee records reviewed in course of his
official duties for public agency); County of Los Angeles v. Superior Court (2006) 139
Cal. App. 4th 8, 14-15, 42 Cal. Rptr. 3d 390 (documents pertaining to review of medical
and mental health care complaints by quality assurance committee for county's jail mental
health services agency were exempt from disclosure because they met criteria of Evid.
Code ß 1157 for documents generated by peer review bodies, and of Evid. Code ß
1157.6 for correctional treatment quality assurance committees)].
Review committees of state or local medical, dental, dental hygenist, pediatric, dietetic,
psychological, marriage and family therapist, licensed clinical social worker, chiropractic,
acupuncturist, or veterinary societies or associations that evaluate or improve the quality
of care [Evid. Code ß 1157(a)].
Page 261 of 614

Committees of nonprofit medical care foundations or professional standards review

organizations that review professional competence in relation to medical necessity, quality
of care, charges for, or level of care [Evid. Code ß 1157.5].
Local government agency committees established to monitor the necessity, quality, and
level of specialty health services [Evid. Code ß 1157.7].
Committees established by statute to evaluate and improve county mental health care
[Evid. Code ß 1157.6; see County of Los Angeles v. Superior Court (2006) 139 Cal.
App. 4th 8, 14-15, 42 Cal. Rptr. 3d 390 (documents pertaining to review of medical and
mental health care complaints by quality assurance committee for county's jail mental
health services agency were exempt from disclosure because they met criteria of Evid.
Code ß 1157.6 for correctional treatment quality assurance committees, as well as of
Evid. Code ß 1157); see also Evid. Code ßß 1156, 1156.1 (records and proceedings of
certain committees subject to discovery but inadmissible under certain circumstances)].
Committees of health care plans, and nonprofit hospital service plans issuing compre-
hensive health care contracts that review the quality of care, performance of medical
personnel, utilization of services and facilities, and costs [Health & Safety Code ß 1370].
Peer review bodies (defined in Bus. & Prof. Code ß 805) that evaluate and improve the
quality of care rendered by their members [Evid. Code ß 1157(a)].
For further discussion of protection against discovery under Evid. Code ß 1156 et seq., see Ch. 295,
Hospitals .
A similar statutory protection exists in favor of records pertaining to treatment of a pharmacist under
the Pharmacists Recovery Program (Bus. & Prof. Code ß 4360 et seq.) [see Bus. & Prof. Code ß
4372; see also Bus. & Prof. Code ß 156.1(b) (records pertaining to treatment of persons who are
impaired by alcohol or dangerous drugs and who are subject to licensing governed by Department of
Consumer Affairs are not subject to discovery)].
Evid. Code ß 1157 exempts from discovery the proceedings, written evaluations and related records
of a "Resident Evaluation Committee" that evaluated physician-residents enrolled in a post-graduate
surgical training program [ University of Southern California v. Superior Court (1996) 45 Cal. App.
4th 1283, 1289, 53 Cal. Rptr. 2d 260] .
Legal Topics:
Page 262 of 614

Healthcare LawBusiness Administration & OrganizationGeneral OverviewHealthcare LawBusiness

Administration & OrganizationPeer ReviewGeneral OverviewHealthcare LawManaged Healthcare-
General Overview
Page 263 of 614

99 of 196 DOCUMENTS

ß 191.127 Information Pertaining to AIDS Blood Test
Except as provided in Health & Safety Code ß 1603.1 (required tests and reports for AIDS and viral
hepatitis), 1603.3 (notice to donors of AIDS test and disclosure to local public health officer), or
Health & Safety Code ß 121022 (required reporting of cases of HIV infection to local health officers
and to state Department of Health Services using patient names), no person will be compelled in any
state, county, city, or other local, civil, criminal, administrative, legislative, or other proceeding to
identity or provide identifying characteristics that would identify any individual who is the subject of a
blood test to detect antibodies to HIV [Health & Safety Code ß 120975; see also Health & Safety
Code ßß 120980 (civil and criminal liability for wrongful disclosure of HIV test results), 121010
(permissible disclosure without written authorization), discussed in Ch. 429, Privacy, ß 429.60 et
seq.].
In keeping with its purpose of protecting the privacy of individuals who are the subject of blood
testing for antibodies to HIV, Health & Safety Code ß 120975 is construed in strict accordance with
protecting an individual's identity [see, e.g., Irwin Memorial Blood Bank v. Superior Court (1991)
229 Cal. App. 3d 151, 279 Cal. Rptr. 911 (construing former Health & Safety Code ß 199.20)]. For
example, in a negligence action against a blood bank brought by individuals who had become infected
with AIDS through transfusions of blood collected by the blood bank, the court of appeal denied the
plaintiffs access to any information that might reveal the identity of any possible donor of the
contaminated blood. The trial court had issued orders permitting discovery under very limited
conditions that were carefully crafted to preserve the anonymity of each donor. The court of appeal
found the procedures inadequate in light of former Health & Safety Code ß 199.20 [now see Health &
Safety Code ß 120975]. The donor would be seen or heard during discovery, by at least the referee
and the reporter, and a person's appearance and voice are obviously identifying characteristics.
Page 264 of 614

Moreover, the very production of a donor for deposition is an identification, in that until the donor
arrivesto be deposed, he or she is a number unconnected to a person. Once the association between
the number and person is made, the person has become identified [ Irwin Memorial Blood Bank v.
Superior Court (1991) 229 Cal. App. 3d 151, 156-157, 279 Cal. Rptr. 911] .
Although the court in Irwin found former Health & Safety Code ß 199.20 to be determinative, and
specifically did not address the issue of the donors' constitutional right to privacy, in some AIDS
blood test cases privacy may be an issue [ Irwin Memorial Blood Bank v. Superior Court (1991)
229 Cal. App. 3d 151, 153, 279 Cal. Rptr. 911 ; see discussion in ß 191.120[2]].
Legal Topics:
EvidenceScientific EvidenceAIDS & HIVEvidenceScientific EvidenceBlood & Bodily FluidsPublic
Health & Welfare LawHealthcareServices for Disabled & Elderly PersonsAIDS & HIV
Page 265 of 614


ß 191.128 Litigation Documents of Public Agency
The Public Records Act (Gov. Code ß 6250 et seq.), modeled initially on the federal Freedom of
Information Act (5 U.S.C. ß 552) provides procedures for obtaining information maintained in state
public records. As such it is useful investigative tool that may be used outside the provisions of the
Civil DiscoveryAct of 1986 [see discussion in Ch. 190, Discovery: Scope, Regulation, and Timing, ß
190.14[1]].
Gov. Code ß 6254(b) provides one of more common exemptions from disclosure under the Public
Records Act. Under this provision a public agency need not disclose records pertaining to pending
litigation to which the agency is a party. This exemption applies to litigation-related documents the
parties to the litigation do not intend to be revealed outside the litigation, when sought by non-party
persons or entities [ Board of Trustees of California State Univ. v. Superior Court (The Copley
Press, Inc.) (2005) 132 Cal. App. 4th 889, 894, 34 Cal. Rptr. 3d 82 (parties intended that correspon-
dence between them not be disclosed to third parties)]. However, deposition transcripts are not subject
to the pending litigation exemption because they are available to the public under Code Civ. Proc. ß
2025.570 [ Board of Trustees of California State Univ. v. Superior Court (The Copley Press, Inc.)
This exemption essentially provides to public agencies a protection similar to the attorney-client
privilege and attorney work product protection, which applies for a limited period while there is
ongoing litigation.
Once the litigation is concluded, however, the exemption does not apply, and an individual may utilize
the Public Records Act (Gov. Code ß 6250 et seq.) to obtain documents generated in the litigation [see
Page 266 of 614

City of Los Angeles v. Superior Court (1996) 41 Cal. App. 4th 1083, 1085, 49 Cal. Rptr. 2d 35] .
The pending litigation exemption of Gov. Code ß 6254(b) applies only to records created specifically
for the purpose of pending litigation, and not to records created beforehand in the ordinary course of
business [see 71 Ops. Cal. Att'y Gen. 235, 238-239 (1988); Hansen, Using the Public Records Act to
Supplement Discovery, 22 Civil Litigation Reporter 201 (Cal. CEB2000)]. The latter documents, not
subject to the exemption, may thus be obtained by an individual under the Public Records Act,
notwithstanding the fact that the individual is a party to pending litigation involving the public agency
[see, e.g., County of Los Angeles v. Superior Court (2000) 82 Cal. App. 4th 819, 826-830, 98 Cal.
Rptr. 2d 564] .
For further discussion and forms relating to the Public Records Act generally, see Ch. 470C, Public
Records Act .
Legal Topics:
Administrative LawGovernmental InformationFreedom of InformationDefenses & ExemptionsStatu-
tory ExemptionsAdministrative LawGovernmental InformationFreedom of InformationDisclosure
RequirementsPublic Inspection
Page 267 of 614


ß 191.129 Defendant's Financial Information in Action Seeking Punitive Damages
Civ. Code ß 3295 provides procedural safeguards against the disclosure of a defendant's financial
information in an action seeking punitive damages. In particular, Civ. Code ß 3295(c) limits pretrial
discovery on these matters absent a court order. For further discussion and forms relating to Civ.
Code ß 3295, see Ch. 177, Damages, ß 177.40 et seq.
Legal Topics:
Civil ProcedureDiscoveryPrivileged MattersGeneral OverviewCivil ProcedureRemediesDamage-
sPunitive Damages
Page 268 of 614


[Reserved]
Page 269 of 614


ßß 269.03-269.09 [Reserved]
[1] Fraud
[2] Deceit
ß 269.13 Elements
Page 270 of 614


[1] General Rule

[1] Subjective Test
[a] In General
[b] Class Actions

Page 271 of 614


[1] General Rule
[2] Exceptions
[1] General Rule

[1] Definition
[4] Defenses
ß 269.23 Evidence
[1] Burden of Proof


Page 272 of 614


[1] General Rule
[3] Sale of Goods



ß 269.31 Defenses
[1] In General
Page 273 of 614

[6] Implied Waiver

ßß 269.35-269.49 [Reserved]
ß 269.53 Decisions
[2] Actual Reliance
[a] Breach of Duty
[b] General Rule
[c] Loss of Profits
[d] Sale of Goods
[4] Attorney's Fees
Page 274 of 614

[b] Breach of Duty
[c] Defenses
[8] Defendants
[9] Defenses
[a] Generally
[b] Late Discovery
[10] Definitions
[12] Elements
[13] Evidence
[17] Intent
Page 275 of 614

[b] Class Actions
[20] Materiality
[a] In General
[29] Public Policy
Page 276 of 614

[a] Generally
[33] Venue
ßß 269.56-269.69 [Reserved]


ßß 269.72-269.89 [Reserved]
[1] FORM
[3] Use of Form
Page 277 of 614

[b] Alleging Deceit
[i] In General
[7] Verification

[1] FORM
[2] Use of Form
[3] Allegations
[6] Damages
[7] Verification
Page 278 of 614

[8] Jurisdiction
[9] Copies

[1] FORM
[2] Use of Form
[3] Text References

[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References

[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References
Page 279 of 614


Acreage
[1] FORM
[2] Use of Form
[3] Allegations
[4] Venue
[5] Text References

[1] FORM
[2] Use of Form
[3] Allegations

[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References
Page 280 of 614

[1] FORM
[2] Use of Form
[3] Allegations
[5] Text References

[1] FORM
[2] Use of Form
[3] Allegations
[6] Text References

[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References
Page 281 of 614


[1] FORM
[2] Use of Form
[3] Allegations
[4] Damages
[5] Text References

[1] FORM
[2] Use of Form
[3] Allegations
[4] Text References

[1] FORM
[2] Use of Form
[3] Text References

Page 282 of 614

[1] FORM
[2] Use of Form
[3] Allegations
Page 283 of 614

PART I. SCOPE
Page 284 of 614

Legal Topics:
Page 285 of 614

PART I. SCOPE
for.
Advertising .
Page 286 of 614

Auctioneers .
Brokers .
Counts .
Conversion .
Page 287 of 614

Insurance .
Insurance .
Insurance .
Negligence .
Quieting Title .
Page 288 of 614

Transactions .
and Purchaser .
and Purchaser .
Page 289 of 614

Legal Topics:
Page 290 of 614

PART I. SCOPE
[Reserved]
Page 291 of 614

Legal Topics:
Page 292 of 614

[1] Fraud
562, 568, 220 P.2d 950] .
[2] Deceit
Legal Topics:
Page 293 of 614

Page 294 of 614

(1968) 266 Cal. App. 2d 570, 588, 72 Cal. Rptr. 273] .
(1972) 25 Cal. App. 3d 750, 765, 102 Cal. Rptr. 286] .
Legal Topics:
Page 295 of 614

Page 296 of 614

ß 269.13 Elements
227 Cal. App. 2d 173, 192-193, 38 Cal. Rptr. 525] .
Legal Topics:
Page 297 of 614

Rptr. 288] .
Page 298 of 614

of property)].
Page 299 of 614

Rptr. 547] .
Page 300 of 614

1066, 1081, 60 Cal. Rptr. 2d 263, 929 P.2d 582] .
P.2d 582] .
and Slander .
(1966) 241 Cal. App. 2d 571, 573, 50 Cal. Rptr. 727] .
Page 301 of 614

921] .
Page 302 of 614

Legal Topics:
Page 303 of 614

[1] General Rule
Page 304 of 614

1640, 1660-1661, 26 Cal. Rptr. 3d 638] .
Page 305 of 614

Rptr. 2d 490, 65 P.3d 1255] .
Legal Topics:
Page 306 of 614

[1] Subjective Test
Page 307 of 614

808, 66 Cal. Rptr. 3d 543] .
322, 328, 112 Cal. Rptr. 366] .
had not obtained)].
Page 308 of 614

275 Cal. App. 2d 90, 105, 79 Cal. Rptr. 816] .

1502-1503, 55 Cal. Rptr. 3d 59] .
Page 309 of 614

Sale
App. 4th 312, 313, 316-318, 28 Cal. Rptr. 2d 242] .
[a] In General
(1971) 4 Cal. 3d 800, 814, 94 Cal. Rptr. 796, 484 P.2d 964] .
[b] Class Actions
Page 310 of 614

1082, 1095, 23 Cal. Rptr. 2d 101, 858 P.2d 568] .
Legal Topics:
Page 311 of 614

Cal. Rptr. 681, 534 P.2d 377] .
Page 312 of 614


Cal. Rptr. 670] .
Legal Topics:
Page 313 of 614

[1] General Rule
App. 2d 382, 388, 319 P.2d 721] .
[2] Exceptions
Page 314 of 614

(1957) 156 Cal. App. 2d 382, 388, 319 P.2d 721] .
Legal Topics:
Overview
Page 315 of 614

[1] General Rule
(1975) 48 Cal. App. 3d 73, 82-86, 121 Cal. Rptr. 144] .
111 Cal. Rptr. 2d 711] .
Page 316 of 614

Rptr. 871] .
858 P.2d 568 ; see also ß 269.15[2]].
Legal Topics:
Page 317 of 614

P.2d 567] .
Page 318 of 614

Legal Topics:
Page 319 of 614

(1972) 22 Cal. App. 3d 721, 728, 99 Cal. Rptr. 488] .
Legal Topics:
FraudRemedies
Page 320 of 614

[1] Definition
Page 321 of 614

(1966) 247 Cal. App. 2d 272, 290-291, 55 Cal. Rptr. 610] .

334] .
[4] Defenses
P. 317] .
Page 322 of 614

Legal Topics:
Page 323 of 614

ß 269.23 Evidence
[1] Burden of Proof
Legal Topics:
Page 324 of 614


Page 325 of 614

Page 326 of 614

879] .
Page 327 of 614

582] .
Legal Topics:
Page 328 of 614

partners)].
Legal Topics:
Page 329 of 614

Page 330 of 614

449-450, 21 Cal. Rptr. 2d 313] .
Page 331 of 614

Legal Topics:
Page 332 of 614

[1] General Rule
220, 119 Cal. Rptr. 288] .
Page 333 of 614


the reliance on it.
1228] .
Page 334 of 614

53-56, 19 Cal. Rptr. 2d 771] .
70 Cal. Rptr. 472] .
160 Cal. App. 3d 548, 559, 206 Cal. Rptr. 641] .
[3] Sale of Goods
Page 335 of 614

624 ; see Com. Code ß 2715(2)(a)].
Page 336 of 614

1802, 1808, 27 Cal. Rptr. 2d 47] .
Legal Topics:
dies
Page 337 of 614

303, 98 Cal. Rptr. 547] .
Legal Topics:
Page 338 of 614

(1979) 26 Cal. 3d 86, 103, 160 Cal. Rptr. 733, 603 P.2d 1329] .
Legal Topics:
Page 339 of 614

tual FraudRemedies
Page 340 of 614

Cal. App. 2d 807, 812, 58 Cal. Rptr. 772] .
Page 341 of 614


Legal Topics:
Page 342 of 614

ß 269.31 Defenses
[1] In General
Rptr. 440] .
Page 343 of 614

see ß 269.16.
(1918) 178 Cal. 653, 656, 174 P. 311] .
Page 344 of 614

875-876, 191 Cal. Rptr. 619, 663 P.2d 177] .
[6] Implied Waiver
1175, 1190-1191, 51 Cal. Rptr. 3d 144] .
Page 345 of 614

Legal Topics:
Page 346 of 614

651] .
1] .
Legal Topics:
Page 347 of 614

General Overview
Page 348 of 614

Desire
Legal Topics:
Page 349 of 614

Legal Topics:
fenses
Page 350 of 614

[Reserved]
Page 351 of 614

Bender)
Legal Topics:
Page 352 of 614

(Matthew Bender)
Legal Topics:
Page 353 of 614

17511-17511.10
Page 354 of 614

1134.5(h)
1695.16, 1695.17
1709
Page 355 of 614

2945.10, 2945.11
ß 3333
3344.6; Penal Code ß 115.2
Proc. ß 395(a)

1974
Page 356 of 614

ß 18496.1
Legal Topics:
dies
Page 357 of 614

ß 269.53 Decisions
Rptr. 402
(1983) 145 Cal. App. 3d 369, 385, 193 Cal. Rptr. 422
[2] Actual Reliance
Page 358 of 614

Rptr. 2d 101, 858 P.2d 568
3d 399

[a] Breach of Duty
Cal. 2d 736, 741-742, 336 P.2d 534
App. 3d 1204, 1214, 238 Cal. Rptr. 130
Page 359 of 614

315, 298 P.2d 667
[b] General Rule

App. 3d 780, 790-791, 231 Cal. Rptr. 72
232, 237, 198 Cal. Rptr. 494
(1975) 45 Cal. App. 3d 214, 219-220, 119 Cal. Rptr. 288
Rptr. 288
214, 220, 119 Cal. Rptr. 288
[c] Loss of Profits
Page 360 of 614

[d] Sale of Goods
(1989) 216 Cal. App. 3d 388, 432-433, 264 Cal. Rptr. 779
(1978) 22 Cal. 3d 718, 729-730, 150 Cal. Rptr. 637, 586 P.2d 1228
Cal. 2d 736, 741, 336 P.2d 534
(1933) 218 Cal. 780, 782-783, 25 P.2d 2
Page 361 of 614


665, 96 Cal. Rptr. 197
App. 2d 942, 968, 72 Cal. Rptr. 722
Rptr. 722
Page 362 of 614

App. 2d 667, 677-678, 70 Cal. Rptr. 472
Rptr. 125
Cal. Rptr. 851
159 Cal. App. 2d 196, 205, 323 P.2d 843
[4] Attorney's Fees
Cal. App. 3d 38, 61-62, 248 Cal. Rptr. 217
Cal. Rptr. 547
Page 363 of 614

(1990) 219 Cal. App. 3d 926, 938, 268 Cal. Rptr. 609
1533, 264 Cal. Rptr. 740
Page 364 of 614

879, 889, 124 Cal. Rptr. 577
708, 69 Cal. Rptr. 222
290-291, 55 Cal. Rptr. 610
950
[b] Breach of Duty
Cal. Rptr. 401, 519 P.2d 161
Page 365 of 614

Rptr. 513
Rptr. 483
App. 3d 172, 182, 111 Cal. Rptr. 334
22 Cal. App. 3d 626, 634-635, 99 Cal. Rptr. 393
Cal. Rptr. 872
Page 366 of 614

14 P.2d 146
[c] Defenses
489, 89 P. 317
Cal. Rptr. 155
App. 3d 837, 844, 199 Cal. Rptr. 830
513, 517-519, 42 Cal. Rptr. 883
Rptr. 852
1185, 88 Cal. Rptr. 2d 718
Page 367 of 614

202-203, 5 Cal. Rptr. 2d 615
(1972) 22 Cal. App. 3d 721, 728, 99 Cal. Rptr. 488
84 Cal. Rptr. 98
[8] Defendants
Rptr. 136
(1980) 112 Cal. App. 3d 158, 174, 169 Cal. Rptr. 136
2d 942, 960, 72 Cal. Rptr. 722
Page 368 of 614

Rptr. 472
App. 2d 173, 192, 38 Cal. Rptr. 525
Rptr. 463
875, 247 Cal. Rptr. 504
320-321, 198 Cal. Rptr. 483
409, 123 Cal. Rptr. 669
Page 369 of 614

[9] Defenses
[a] Generally
1502, 1506-1507, 278 Cal. Rptr. 386

Rptr. 816
Rptr. 441
266 Cal. App. 2d 942, 964-965, 72 Cal. Rptr. 722
Page 370 of 614

App. 2d 942, 964-965, 72 Cal. Rptr. 722
Rptr. 681
[b] Late Discovery
1990) 912 F.2d 357, 362
1423, 1432, 117 Cal. Rptr. 3d 597
Cal. Rptr. 3d 892
Cal. Rptr. 3d 9
Page 371 of 614

4th 1369, 1374, 105 Cal. Rptr. 2d 699
3d 915, 920-922, 259 Cal. Rptr. 117
Rptr. 857
86 Cal. Rptr. 872
Page 372 of 614

F.2d 454, 460
F.2d 1434, 1436
128-129, 271 Cal. Rptr. 434
Rptr. 14
Page 373 of 614

(1951) 103 Cal. App. 2d 651, 659, 230 P.2d 25
[10] Definitions
126, 136, 64 Cal. Rptr. 845
Cal. App. 3d 412, 419, 174 Cal. Rptr. 608
[12] Elements
4th 1082, 1088, 1095, 1100, 1108, 23 Cal. Rptr. 2d 101, 858 P.2d 568

Page 374 of 614

n.3, 10 Cal. Rptr. 2d 465
1046-1047, 281 Cal. Rptr. 640
App. 3d 1102, 1111, 234 Cal. Rptr. 853

Cal. Rptr. 308
Page 375 of 614

Cal. App. 4th 573,
Cal. App. 3d 155, 158, 263 Cal. Rptr. 473
Rptr. 72
Page 376 of 614

(1985) 165 Cal. App. 3d 120, 131-134, 211 Cal. Rptr. 271
(1975) 48 Cal. App. 3d 73, 82-86, 121 Cal. Rptr. 144
101 Cal. Rptr. 499
2d 102, 109, 38 Cal. Rptr. 440
[13] Evidence
Page 377 of 614

(1964) 227 Cal. App. 2d 102, 111, 38 Cal. Rptr. 440
Cal. App. 2d 173, 192, 38 Cal. Rptr. 525
748, 39 Cal. Rptr. 101
1363-1365
4th 1692, 1719-1720, 19 Cal. Rptr. 2d 555
(1975) 48 Cal. App. 3d 73, 82-86, 121 Cal. Rptr. 144
102 Cal. Rptr. 286
Cal. App. 3d 888, 892, 91 Cal. Rptr. 142
Page 378 of 614

[17] Intent
App. 3d 388, 411-412, 264 Cal. Rptr. 779
Rptr. 779

813, 97 Cal. Rptr. 164
Cal. App. 3d 803, 813, 97 Cal. Rptr. 164

Page 379 of 614

783
837, 843-844, 2 Cal. Rptr. 2d 437
264 Cal. Rptr. 779
App. 3d 38, 56-57, 248 Cal. Rptr. 217
55, 248 Cal. Rptr. 217
Page 380 of 614

275 Cal. App. 2d 90, 105, 79 Cal. Rptr. 816
[b] Class Actions
(1972) 7 Cal. 3d 232, 237, 102 Cal. Rptr. 1, 497 P.2d 225
219, 119 Cal. Rptr. 288
72 Cal. Rptr. 722

Page 381 of 614

38, 55 n.10, 248 Cal. Rptr. 217
(1971) 19 Cal. App. 3d 803, 811, 97 Cal. Rptr. 164
134 P.2d 764
Page 382 of 614

Odell (1941) 18 Cal. 2d 409, 415, 115 P.2d 977
1486, 1500-1502, 55 Cal. Rptr. 3d 59
3d 684, 693-696, 237 Cal. Rptr. 667
355
(1971) 16 Cal. App. 3d 391, 403, 94 Cal. Rptr. 33
722
Page 383 of 614

2d 275, 279, 25 Cal. Rptr. 217
74
Rptr. 22, 743 P.2d 1279 )
784, 793-797, 71 Cal. Rptr. 3d 885
Page 384 of 614


Cal. App. 2d 942, 964-965, 72 Cal. Rptr. 722
(1968) 266 Cal. App. 2d 942, 964-965, 72 Cal. Rptr. 722
845
Page 385 of 614

(1974) 37 Cal. App. 3d 322, 325, 327-328, 112 Cal. Rptr. 366
Rptr. 490
Rptr. 722
103, 109, 19 Cal. Rptr. 78
[20] Materiality
(1970) 12 Cal. App. 3d 888, 892-893, 91 Cal. Rptr. 142
App. 3d 593, 597-598, 86 Cal. Rptr. 52
Page 386 of 614

746, 3 Cal. Rptr. 910

79, 326 P.2d 229
824-825, 323 P.2d 567
App. 2d 684, 689, 313 P.2d 592

Cal. Rptr. 217
Page 387 of 614

(1967) 257 Cal. App. 2d 126, 136, 64 Cal. Rptr. 845
(1954) 43 Cal. 2d 481, 487-489, 275 P.2d 15
855, 68 Cal. Rptr. 3d 828

112 Cal. Rptr. 2d 657
3d 468, 473, 476, 260 Cal. Rptr. 513
Page 388 of 614

Cal. App. 3d 388, 404, 264 Cal. Rptr. 779
App. 3d 388, 404, 264 Cal. Rptr. 779
858, 864, 245 Cal. Rptr. 211
App. 3d 780, 785-786, 231 Cal. Rptr. 72

Page 389 of 614

173, 192-193, 38 Cal. Rptr. 525
(1963) 221 Cal. App. 2d 197, 206, 34 Cal. Rptr. 334
377
489, 275 P.2d 15

64 Cal. Rptr. 845
Page 390 of 614

App. 2d 275, 280, 25 Cal. Rptr. 217
(1967) 257 Cal. App. 2d 126, 136, 64 Cal. Rptr. 845
(1958) 164 Cal. App. 2d 636, 645, 331 P.2d 89
574
766, 451 P.2d 406

Page 391 of 614

873
206, 34 Cal. Rptr. 334

197, 206, 34 Cal. Rptr. 334
P.2d 231
Page 392 of 614

Cal. App. 3d 243, 249, 84 Cal. Rptr. 800
2d 680, 687, 81 Cal. Rptr. 519
[a] In General
110-111, 49 Cal. Rptr. 3d 122
3d 1493, 1502-1504, 231 Cal. Rptr. 446
(1964) 227 Cal. App. 2d 741, 747-748, 39 Cal. Rptr. 101
Page 393 of 614


133, 72 Cal. Rptr. 670
App. 2d 702, 708, 72 Cal. Rptr. 441
266 Cal. App. 2d 702, 707, 72 Cal. Rptr. 441
P.2d 212
Page 394 of 614

97 Cal. Rptr. 30
573, 50 Cal. Rptr. 727

(1988) 202 Cal. App. 3d 38, 62-65, 248 Cal. Rptr. 217
Cal. Rptr. 217
[29] Public Policy
1269-1270, 258 Cal. Rptr. 787
[a] Generally
Page 395 of 614

(1978) 84 Cal. App. 3d 982, 996, 149 Cal. Rptr. 119
605, 610, 225 Cal. Rptr. 624
Rptr. 142
807, 812, 58 Cal. Rptr. 772
Page 396 of 614

(1971) 21 Cal. App. 3d 541, 549, 98 Cal. Rptr. 588
Cal. App. 2d 102, 125, 38 Cal. Rptr. 440
2d 481, 488, 275 P.2d 15
(1972) 22 Cal. App. 3d 721, 728, 99 Cal. Rptr. 488
Page 397 of 614

232
4th 1141, 1164-1165, 23 Cal. Rptr. 3d 335
292-294, 17 Cal. Rptr. 3d 26
Page 398 of 614

(1986) 181 Cal. App. 3d 646, 650-651, 226 Cal. Rptr. 509
Rptr. 624
469, 223 Cal. Rptr. 734
1159, 220 Cal. Rptr. 507
Page 399 of 614

Cal. App. 3d 261, 265, 193 Cal. Rptr. 130
551, 121 Cal. Rptr. 214
367-368, 72 Cal. Rptr. 157
243, 251, 84 Cal. Rptr. 800
75 Cal. Rptr. 871
231, 261, 73 Cal. Rptr. 127
367-368, 72 Cal. Rptr. 157
Cal. Rptr. 458
Page 400 of 614

Rptr. 458
2d 247, 250, 35 Cal. Rptr. 681
[33] Venue
Brisson (1946) 27 Cal. 2d 760, 764, 167 P.2d 481
P.2d 779
Legal Topics:
Page 401 of 614

37 UCLA L. Rev. 883 (1990)
1861 (1986)
L. Rev. 809 (1984)
325 (1974)
Page 402 of 614


(1972)
UCLA L. Rev. 78, 138 (1963)
(1960)
(1959)
Page 403 of 614

22 S. Cal. L. Rev. 77 (1948)
Legal Topics:
Page 404 of 614


1-5
ßß 572-593, 779, 780, 911, 936
Torts, ßß 1710-1716 (10th ed. 2005)
Legal Topics:
Page 405 of 614

[Reserved]
Page 406 of 614

NOTE:

NOTE:

Page 407 of 614



Cal. App. 2d 942, 966, 72 Cal. Rptr. 722] .)
Rptr. 872] .
NOTE:
Page 408 of 614


Howard (1889) 79 Cal. 525, 529, 21 P. 984] .
409, 123 Cal. Rptr. 669] .


Code ß 1573].
Page 409 of 614


Cal. Rptr. 800] ?
App. 2d 465, 477, 45 Cal. Rptr. 458] ?

(1962) 208 Cal. App. 2d 275, 279, 25 Cal. Rptr. 217] ?
215, 255, 90 Cal. Rptr. 490] ?
Cal. Rptr. 458] ?
Page 410 of 614

Cal. App. 3d 995, 999, 84 Cal. Rptr. 98] .
3343]:
Code ß 3343(a)].

Rptr. 288] .

NOTE:
Page 411 of 614


ate.

want to consider:

Common Counts .

Page 412 of 614

Contracts .
structive Trusts .




App. 2d 684, 689, 313 P.2d 592] ;
Page 413 of 614


Cal. Rptr. 670] ;

(1968) 267 Cal. App. 2d 127, 130, 72 Cal. Rptr. 670] ;

(1972) 25 Cal. App. 3d 1, 12, 101 Cal. Rptr. 499] .
487-488, 275 P.2d 15] .
Bertran (1954) 43 Cal. 2d 481, 488 n. 5, 275 P.2d 15] .

Code ß 1710(3)]:
Page 414 of 614


27-28, 39 Cal. Rptr. 125] ;

above).
was made:


494] .


494] .

Rptr. 577] .

Page 415 of 614

833, 839, 254 P.2d 949] .
710-711, 69 Cal. Rptr. 222] .
NOTE:
Legal Topics:
Page 416 of 614

NOTE:

NOTE:
ings.

NOTE:
Page 417 of 614



NOTE:
person.
falsity of.

NOTE:

Page 418 of 614

2d 275, 279, 25 Cal. Rptr. 217] .
Legal Topics:
Page 419 of 614

[Reserved]
Page 420 of 614

PART V. FORMS
C-001(3)]
[3] Use of Form

Page 421 of 614

this sample form.
is attached.
269.27, 269.30].
888, 892, 91 Cal. Rptr. 142 ; see ß 269.28].
Page 422 of 614

complaint.
[b] Alleging Deceit
[i] In General
see ßß 269.12, 269.13].
[2]; see also ßß 269.91, 269.92].
Page 423 of 614

FR-6.
fraud or deceit.
Page 424 of 614

Attachment.
Code ß 3295(f)].
[7] Verification
Page 425 of 614

PART V. FORMS
COUNTY OF ___________________
)
______________________ [name], ) NO. _____
Plaintiff, ) COMPLAINT FOR DAMAGES
vs. ) (Deceit)
______________________ [name ) [Amount demanded
(s)], Defendant(s). ) ____________________ (exceeds or
) does not exceed) $10,000]
__________________________________________________
[EITHER]
[AND/OR]
Page 426 of 614

[EITHER]
dant.
[OR]
[CONTINUE]
[EITHER]

false].
Page 427 of 614

[OR]

[CONTINUE]
___________________ [specify].
[EITHER]
[OR]
they would so act.
[CONTINUE]
Page 428 of 614

______________________ [firm name, if any]

By:______________________ [signature]
______________________ [typed name]
VERIFICATION
Page 429 of 614

correct.
______________________ [date]
______________________ [signature]
[2] Use of Form
[3] Allegations

Code ß 1711];

Rptr. 670] ;


Page 430 of 614

App. 2d 336, 344, 31 Cal. Rptr. 873] .

3d 768 ].
[6] Damages
[7] Verification
Page 431 of 614

[8] Jurisdiction
[9] Copies

Complaints
Page 432 of 614

Matter
and Papers

Page 433 of 614

PART V. FORMS
[EITHER]
[OR]
would so act.
[2] Use of Form
Page 434 of 614

accordingly.
[3] Text References

Page 435 of 614

PART V. FORMS

Page 436 of 614

property)].
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
[4] Text References
Page 437 of 614


Page 438 of 614

PART V. FORMS

position)].
performing it.
Page 439 of 614

employment].
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
Page 440 of 614

Cal. Rptr. 494] :
(Paragraph 6).

[4] Text References
Page 441 of 614

PART V. FORMS
senting Acreage


Page 442 of 614


sum of $____________________.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
Page 443 of 614

[3] Allegations
[4] Venue
[5] Text References
Page 444 of 614

PART V. FORMS
FIRST COUNT
Page 445 of 614



Page 446 of 614

$____________________.
SECOND COUNT
THIRD COUNT
Page 447 of 614


______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
Page 448 of 614

Page 449 of 614

PART V. FORMS

Page 450 of 614



Page 451 of 614

herein alleged.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
Page 452 of 614


[2] Use of Form
[3] Allegations
[4] Text References

Page 453 of 614

PART V. FORMS
Page 454 of 614

the land].
property.
viewing it].

$____________________.
Page 455 of 614

______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations
260-261, 73 Cal. Rptr. 127] .
[5] Text References

Page 456 of 614

Page 457 of 614

PART V. FORMS
Page 458 of 614

[EITHER]
[OR]
___________________ [specify].

showing duty)].

plaintiff].

appropriate].
Page 459 of 614

______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]

[2] Use of Form
[3] Allegations

Page 460 of 614

[6] Text References

Page 461 of 614

PART V. FORMS

Page 462 of 614

alleged.
______________________ [signature]

[2] Use of Form
Page 463 of 614

the business.
[3] Allegations
[4] Text References

Page 464 of 614

PART V. FORMS
Purchaser
Page 465 of 614


in the sum of $____________________.
Page 466 of 614

______________________ [signature]

[2] Use of Form
[3] Allegations
graphs 11, 12).
[4] Damages
[5] Text References

Page 467 of 614

PART V. FORMS

Page 468 of 614

defendant.
therefor.
of $____________________.
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
Page 469 of 614


[2] Use of Form
[3] Allegations
Code ßß 1709, 3333].
[4] Text References

Page 470 of 614

PART V. FORMS
[EITHER]
[OR]
Page 471 of 614

[2] Use of Form
338(d)].
[3] Text References

Page 472 of 614

PART V. FORMS
Person

Page 473 of 614


children].

proof).]
______________________ [firm name, if any]

By: ______________________ [signature]
______________________ [typed name]
[2] Use of Form
Page 474 of 614

[3] Allegations



1066, 1081, 60 Cal. Rptr. 2d 263, 929 P.2d 582] .
and 9).
Page 475 of 614

Civ. Code ß 3439.07(a)(2), (b)
[2] Definitions
Page 476 of 614


3439.04(a)(2)(B)
3439.05
[4] Insolvency
Page 477 of 614

[5] Preferences
Code ß 3432
(a)
Page 478 of 614

(1)
Legal Topics:
Page 479 of 614

Legal Topics:
Page 480 of 614

910, 913
[a] In General

Page 481 of 614

389, 152 P.2d 490
(1957) 153 Cal. App. 2d 379, 380-381, 314 P.2d 812
2d 185, 191, 295 P.2d 12

[b] Assignment
App. 2d 382, 388, 152 P.2d 490
221 Cal. App. 2d 278, 289, 34 Cal. Rptr. 326
(1957) 148 Cal. App. 2d 670, 674, 307 P.2d 734
[e] Jury Trial
Page 482 of 614

Rptr. 3d 523
915-916
2d 846
862, 489 P.2d 1126
670, 675, 307 P.2d 734
App. 2d 178, 184, 146 P.2d 482
Page 483 of 614

[3] Burden of Proof
(1986) 185 Cal. App. 3d 639, 646-647, 230 Cal. Rptr. 57
[4] Conspiracy
53 Cal. App. 2d 789, 791, 128 P.2d 114
Page 484 of 614

193, 196-197, 7 P.2d 319
(1958) 158 Cal. App. 2d 644, 649, 323 P.2d 150
Cir. 1989) 884 F.2d 464, 466
[d] Required Injury

(1971) 5 Cal. 3d 892, 895-897, 97 Cal. Rptr. 862, 489 P.2d 1126
Cramer (1952) 39 Cal. 2d 321, 323, 245 P.2d 1059
[6] Insolvency
Page 485 of 614


804
Cal. Rptr. 482
2d 547
225 P.2d 233
[a] In General
1986) 786 F.2d 910, 913
Page 486 of 614

269 Cal. App. 2d 333, 344-345, 74 Cal. Rptr. 774
180
Cal. Rptr. 323
122
[9] Lis Pendens
[10] Preferences
Cal. 2d 457, 461, 65 P.2d 1316
Page 487 of 614

P.2d 641
Cal. App. 2d 567, 572, 149 P.2d 183
[a] In General
Page 488 of 614

Cir. 1986) 786 F.2d 910, 916
App. 2d 759, 767, 48 Cal. Rptr. 215
Cal. App. 2d 759, 767, 48 Cal. Rptr. 215

Page 489 of 614

Cal. Rptr. 331
Cal. App. 3d 1026, 1040, 190 Cal. Rptr. 54
(1971) 20 Cal. App. 3d 434, 441, 97 Cal. Rptr. 706


910, 914-915
P.2d 822
Page 490 of 614

108
App. 2d 350, 354, 291 P.2d 987
Cir. 1986) 786 F.2d 910, 913
[a] In General

846
Page 491 of 614

[b] Exceptions
Rptr. 545, 375 P.2d 425
141 P. 818
774
Page 492 of 614

(9th Cir. 1988) 845 F.2d 842, 849-850
(1955) 132 Cal. App. 2d 776, 781, 283 P.2d 301
[a] In General
(1971) 20 Cal. App. 3d 434, 441-442, 97 Cal. Rptr. 706
(1966) 244 Cal. App. 2d 696, 727, 53 Cal. Rptr. 482
[b] Burden of Proof

Page 493 of 614


Rptr. 876
1115, 1118-1121, 213 Cal. Rptr. 597
1034-1039, 190 Cal. Rptr. 54
917
Page 494 of 614

700-701, 176 P.2d 77
(1960) 178 Cal. App. 2d 227, 231, 2 Cal. Rptr. 917
(1955) 131 Cal. App. 2d 542, 547, 280 P.2d 844

Lexis Nexis Data Over 500 Pages of Outline and Actions Structured.

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Procedural Checklists-44 9/27/11 2:05 AM

California Forms of Pleading and Practice--Annotated

Volume 13: Conspiracy thru Conversion-Chs. 126-159

13-140 California Forms of Pleading and Practice--Annotated ß 140.90

ß 140.90 Plaintiff's Checklist for Action for Damages

[1] Ascertain Relevant Facts

Facts relating to the plaintiff:

Name, address, and telephone number of the plaintiff.

Capacity of the plaintiff (e.g., minor, adult, trustee, conservator, guardian,

Additional facts as desired, relating to the plaintiff's stability and financial

Facts relating to the defendants:

Facts relating to the cause of action:

Objective of the contract.

Names, capacities, and addresses of all parties to the contract.

Plaintiff's relationship to the contract or parties (e.g., third-party

Whether the contract was oral, written, or implied by conduct.

Where the parties entered into the contract.

When the breach occurred.

Description of the defendant's obligations under the contract.

Description of the plaintiff's obligations under the contract, or, if the

What precisely the defendant failed or refused to do.

How the defendant's failure or refusal injured the plaintiff.

A written contract can be wholly or partially in electronic form, or one

Actual or purported written modifications or alterations of the contract.

Memoranda or written communication between the parties relating to performance or

Written notice of rescission.

Any document tending to show items or amounts of damages.

Executor, administrator, or trustee, who may sue without joining persons

Married person [see Code Civ. Proc. ß 370].

Minor, incompetent person, or person for whom a conservator has been

Causes of action and counts, which may be or include:

Reformation [see Civ. Code ßß 3399, 3402; Landis v. Superior Court

Unilateral rescission and restitution [see Civ. Code ßß 1689(a), 1691] if

The consideration for the obligation of the rescinding party becomes

The public interest will be prejudiced by permitting the contract to stand.

Civ. Code ß 39 (contracts by incompetent persons before incompetence

Civ. Code ß 1533 (grounds for rescission by creditor).

Civ. Code ß 2314 (rescission of ratification of agency).

Ins. Code ß 331 (rescission of insurance policy by insured for conceal-

Ins. Code ß 338 (rescission by insurer for intentional and fraudulent

Ins. Code ß 447 (rescission for violation of material warranty or other

Ins. Code ß 1904 (rescission for intentional misrepresentations involving

The defendant received adequate consideration [Civ. Code ß 3391(1)]; and

The defendant's assent was not obtained by misrepresentation [Civ. Code ß

The remedy at law (damages) would be inadequate [ Morrison v. Land

Injunction as Alternative or Additional Relief. An injunction may be sought as an

Unlawful interference with contractual relationship.

The contract's choice of law provision [see Gamer v. DuPont GloreFor-

The respective interests of the states or other jurisdictions involved (gov-

Where the negotiations for the contract took place;

Where the contract was performed or was to be performed [see Hender-

Where the subject matter of the contract was located;

Domiciles, residences, places of business, and places of incorporation of

Nationality of the parties;

If any payments were made, where they were initiated;

Where any acts relating to the breach occurred.

[4] Prepare the Complaint

Draft essential allegations:

Capacity or residence of the plaintiff (generally optional, unless plaintiff is

Fictitious name allegations, if appropriate. See the form in ß 140.101[1]

If the defendant's performance is conditioned on an event, the happening of

Plaintiff's performance of all conditions, covenants, and promises under the

Defendant's breach of the contract. See the form in ß 140.101[1] (Para-

4. On or about _ [date], at _ [city],

2. For interest on the sum of $__ from and after _

[3. For reasonable attorney's fees _ (of $__ or according

4. By exchange of letters from _ [date], to _ [date],