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(Intrieri v Ocadian)


Fraud Causes of Action-Tort-Elements
(Intrieri v Ocadian)


III.  Triable Questions of Fact Preclude Summary Adjudication of the Fraud and  

       Negligent Misrepresentation Causes of Action

            The elements of a cause of action for fraud and a cause of action for negligent misrepresentation are very similar.  Pursuant to Civil Code section 1710,[4] both torts are defined as deceit.  However, the state of mind requirements are different.  “Fraud is an intentional tort, the elements of which are (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.  [Citation.]”  (Cicone v. URS Corp. (1986) 183 Cal.App.3d 194, 200.)  Negligent misrepresentation lacks the element of intent to deceive.  Therefore, “ ‘[w]here the defendant makes false statements, honestly believing that they are true, but without reasonable ground for such belief, he may be liable for negligent misrepresentation, a form of deceit.’  [Citation.]”  (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 407-408, quoting 5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 720, p. 819.)

            In the case at bar, we note at the outset that Guardian has not asserted the argument it made below that the causes of action for fraud and negligent misrepresentation lack merit because as a matter of law Guardian owed no duty to Peter Intrieri since he was not a patient.  This omission was prudent in light of the well-established principle that “[a]lthough a duty to disclose a material fact normally arises only where there exists a confidential relation between the parties or other special circumstances require disclosure, where one does speak he must speak the whole truth to the end that he does not conceal any facts which materially qualify those stated.  [Citation.]  One who is asked for or volunteers information must be truthful, and the telling of a half-truth calculated to deceive is fraud.  [Citations.]”  (Cicone v. URS Corp., supra, 183 Cal.App.3d at p. 201.) 

            On writ review, Guardian emphasizes its alternate position that the causes of action for fraud and negligent misrepresentation lack merit as a matter of law because it cannot be disputed that the statements made by Guardian’s admissions director to Peter Intrieri in connection with his decision to place his mother in Guardian’s facility were true.  According to Guardian, petitioners were truthfully told that a key code was necessary to enter the Alzheimer’s unit; that the Alzheimer’s patients were protected from wandering off; and that only people who needed to go into the Alzheimer’s unit, such as family members, doctors and nurses, and other patients, would be permitted to enter.  Petitioners argue to the contrary that a triable question of fact exists as to the falsity of the statements representing the Alzheimer’s unit as secure.

            We agree with petitioners that a triable question of fact exists as to the causes of action for fraud and negligent misrepresentation.  According to the allegations of the fourth amended complaint, the admissions director made the following statements to Peter Intrieri:  “a. That the Alzheimer’s Ward of the facility was a secure facility for the residents, which would include Mrs. Intieri; [¶] b. That the door to the facility had a key-punch pad access on both sides, also for the security of the residents, which would include Mrs. Intieri; [¶] c. That a code would have to be entered into the key-punch pad access in order to enter and exit the Alzheimer’s Ward; [¶] d. That only persons authorized by Guardian would be provided with the key-punch pad access code.”

            Guardian essentially admits that these statements were made to Peter Intrieri by the admissions director.  Whether these statements were false is a triable question of material fact, because the admissions director’s statements that the Alzheimer’s unit was “secure” and accessible only by “authorized persons” are arguably false and misleading in light of the evidence showing that anyone who could read the keypad access code posted over the keypad could enter the unit, including potentially hostile and violent non-Alzheimer’s patients.  Similarly, a triable question of fact exists as to whether the admissions director knew the statements were false or lacked reasonable ground for believing the statements were true, because it is questionable whether a reasonable person would believe the statement that Guardian only allowed “authorized” persons to enter the Alzheimer’s unit was true when, in practice, Guardian allowed anyone who could read the posted keypad code to enter the Alzheimer’s unit.

            For these reasons, we conclude that triable questions of fact exist as to the causes of action for fraud and negligent misrepresentation and the trial court erred in granting summary adjudication.

[4]  Civil Code section 1710 provides, in pertinent part, “A deceit, . . . , 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 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; . . .”

Intrieri v. Ocadian (March 25 2004)-H025074-CA6 Detailed case information

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