The elements of an action for fraud and deceit based on concealment are::
(1) the defendant must have concealed or suppressed a material fact,
(2) the defendant must have been under a duty to disclose the fact to the plaintiff,
(3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff,
(4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and
(5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.
A deceit, within the meaning of the [Cal. Civ. Code § 1709], is either:
1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
2. The assertion, as a fact, of that which 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 of other facts which are likely to mislead for want of communication of that fact; or,
4. A promise, made without any intention of performing it.
Cal. Civ. Code § 1710 (2013). Section 1709 provides that “[o]ne who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.” Cal. Civ. Code § 1709 (2013).
In transactions which do not involve fiduciary or confidential relations, a cause of action for non-disclosure of material facts may arise in at least three instances:
(1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead;
(2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; or
(3) the defendant actively conceals discovery from the plaintiff.
CALIFORNIA STATE COURTS
Supreme Court of California: Los Angeles Unified School Dist. v. Great American Ins. Co., 49 Cal. 4th 739, (2010) (listing types of transactions which may give rise to a cause of action of non-disclosure of material facts).
California 1st District: Heliotis v. Schuman, 181 Cal. App. 3d 646, 651 (1986) (circumstances giving rise to duty to disclose).
California 2d District: Jones v. ConocoPhillips Co., 198 Cal. App. 4th 1187, 1198 & 1199 (2011).
California 3d District: Lovejoy v. AT&T Corp., 119 Cal. App. 4th 151, 153, 157-58 (2004).
California 4thDistrict: SCC Acquisitions, Inc. v. Central Pacific Bank, 207 Cal. App. 4th 859, 864 (2012); Kaldenbach v. Mutual of Omaha Life Ins. Co., 178 Cal. App. 4th 830, 850 (2009).
California 5th District: None
California 6th District: Linear Technology Corp. v. Applied Materials, Inc., 152 Cal. App. 4th 115, 131 (2007).
CALIFORNIA FEDERAL COURTS
United States Court of Appeal for the 9th Circuit: Davis v. HSBC Bank, 691 F.3d 1152, 1163 (9th Cir. 2012) (elements of claim); Deteresa v. ABC, 121 F.3d 460, 467 (1997) (duty to disclose).
Central District: Toneman v. United States Bank, No. CV 12-09369 MMM (MRWx), 2013 U.S. Dist. LEXIS 98996, at *62 (C.D. Cal. June 14, 2013) (general elements of tort of deceit); Monaco v. Bear Stearns Cos., No. CV 09-05438 SJO (JCx), 2011 U.S. Dist. LEXIS 105471, at *48-49 (C.D. Cal. Sept. 12, 2011) (duty to disclose).
Eastern District: ADP Commer. Leasing, Inc. v. M.G. Santos, Inc., No. CV F 13-0587 LJO SKO, 2013 U.S. Dist. LEXIS 139667, at *28-29 (E.D. Cal. Sept. 27, 2013).
Northern District: Tyler v. PNC Bank, N.A., No. C 10-3415 PJH, 2011 U.S. Dist. LEXIS 43850, at *1-2 (N.D. Cal. Apr. 22, 2011) (general elements of deceit); EMC Corp. v. Sha, No. 13-CV-0118 EJD, 2013 U.S. Dist. LEXIS 114384, at *8-9 (N.D. Cal. Aug. 13, 2013) (duty to disclose).
Southern District: Philo v. Liminova, Inc., No. 13cv113-AJB (WVG), 2013 U.S. Dist. LEXIS 53680, at *6-8 (S.D. Cal. Aug. 15, 2013).