“‘The elements of promissory fraud … are:

(1) a promise made regarding a material fact without any intention of performing it;
(2) the existence of the intent not to perform at the time the promise was made;
(3) intent to deceive or induce the promisee to enter into a transaction;
(4) reasonable reliance by the promisee;
(5) nonperformance by the party making the promise; and
(6) resulting damage to the promise[e].’”

Rossberg v. Bank of America, N.A., 219 Cal. App. 4th 1481, 1498 (2013) (noting that, “[a]s with any other form of fraud, each element of a promissory fraud claim must be alleged with particularity.”); see also Cal. Civ. Code § 1572(4) (2013) (“Actual fraud” includes “[a] promise made without any intention of performing it”).

CALIFORNIA STATE COURTS

Supreme Court of California:   Engalla v. Permanente Medical Group, Inc., 15 Cal. 4th 951, 973-74 (1997).

California 1st District:  Garamendi v. Golden Eagle Ins. Co., 128 Cal. App. 4th 452, 470 (2005).

California 2d District: Food Safety Net Servs. v. Eco Safe Sys. USA, Inc., 209 Cal. App. 4th 1118, 1131 (2012).

California 3d District:  None

California 4thDistrict:  Rossberg v. Bank of America, N.A., 219 Cal. App. 4th 1481, 1498 (2013).

California 5th District:  Helmer v. Bingham Toyota Isuzu, 129 Cal. App. 4th 1121, 1130 & n.3 (2005).

California 6th District:  Service by Medallion, Inc. v. Clorox Co., 44 Cal. App. 4th 1807, 1816 (1996). 

CALIFORNIA FEDERAL COURTS

United States Court of Appeal for the 9th Circuit:  Bell Gardens Bicycle Casino v. Great Am. Ins. Co., 124 Fed. Appx. 551, 553 (9th Cir. 2005).

Central District:  Petersen v. Allstate Indem. Co., 281 F.R.D. 413, 419-20 (C.D. Cal. 2012).

Eastern District:  Yost v. Nationstar Mortg., LLC, No. 1:13-cv-00745-AWI-SAB, 2013 U.S. Dist. LEXIS 128504, at *13-14 (E.D. Cal. Sept. 9, 2013); Fitzpatrick v. Fitzpatrick, No. 2:12-cv-2938 GEB AC PS, 2013 U.S. Dist. LEXIS 124781, at *10-12 (E.D. Cal. Aug. 30, 2013).

Northern District:  Asnaashari v. PNY Techs., Inc., No. C 13-1308 PJH, 2013 U.S. Dist. LEXIS 121202, at *4 (N.D. Cal. Aug. 26, 2013).

Southern District:  Bell v. Fed. Home Loan Mortg. Corp., No. 11-CV-2514-MMA(RBB), 2012 U.S. Dist. LEXIS 141872, at *8-9 (S.D. Cal. Oct. 1, 2012).

(1)  Cal. Code Civ. Proc. § 431.30(b)(2) (pleading affirmative defenses), and other standard defenses.  See Chapter 1 for all defenses..

(2)  Statute of Limitations:  Cal. Civ. Code § 338(d) (three years).

(3)  Inference of Intent in Insurance Context:  An insurer’s intent not to perform a promise in its policy can be "inferred from its subsequent conduct." Miller v. Nat’l American Life Ins. Co. of CA, 54 Cal. App. 3d 331, 338 (1976).

(4)  Inference of Intent not to Perform:  “[I]ntent has been inferred from such circumstances as defendant’s insolvency, his hasty repudiation of the promise, his failure  even to attempt performance, or his continued assurances after it was clear he would not perform.”  Tenzer v. Superscope, Inc., 39 Cal.3d 18, 30 (1985).

(5)   More Than Mere Nonperformance Required:  “[W]e stress that the intent element of promissory fraud entails more than proof of an unkept promise or mere failure of performance.”  Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Ass’n, 55 Cal. 4th 1169, 1183 (2013).