CAEMPL CH.

5-F
Cal. Prac. Guide Employment Litigation Ch. 5-F

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CAEMPL CH. 5-F

Cal. Prac. Guide Employment Litigation Ch. 5-F

California Practice Guide: Employment Litigation

Hon. Ming W. Chin, Hon. Rebecca A. Wiseman, Hon. Consuelo Maria Callahan and Alan B. Exelrod
Chapter 5. Employment Torts And Related Claims
F. Fraud
1. [5:486] Substantive Requirements
a. [5:486.1] Measure of damages:
b. [5:487] -Promissory fraud:
(1) Application
(2) [5:488] Nonperformance alone does not prove intent not to perform:
(3) [5:489] Circumstantial evidence of intent:
(4) [5:490] Damages recoverable:
(a) [5:491] Measured at breach:
c. [5:495] Comparefraudulent concealment:
(1) [5:496] Duty to disclose
2. [5:505] Strict Pleading Requirement:
a. [5:506] Where defendant a corporation:
3. [5:510] Preemployment Fraud (Employer Fraud During Hiring Process):
a. [5:511] Misrepresentations of fact:
b. [5:512] Promissory fraud:
(1) Application

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CAEMPL CH. 5-F

Cal. Prac. Guide Employment Litigation Ch. 5-F

(2) [5:520] Promise need not be enforceable contract

(a) [5:521] Compareas alternative to contract claim:
(3) [5:522] Vague promises insufficient:
c. [5:523] Justifiable reliance required:
(1) [5:524] Promises contrary to integrated -at-will employment contract
(2) [5:525] Promises known to be false:
(3) [5:527] Negligence in discovering fraud no defense:
d. [5:530] Damages resulting from reliance on employer's misrepresentation:
(1) [5:531] Comparedamages resulting from leaving secure employment:
e. [5:532] Comparemisrepresentations inducing change of residence (Labor Code - 970):
(1) [5:533] Applies to any employment:
(2) [5:540] Includes temporary change of residence
(3) Application
4. [5:550] Employer Fraud During Employment
a. Application
b. [5:560] Causation requirement:
c. [5:561] Comparemisrepresentations to effect termination of at-will employment not actionable:
(1) [5:562] Rationale:
5. [5:570] Employer Fraud Postemployment:

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6. [5:575] Defenses:
a. [5:576] Workers' compensation as exclusive remedy for work-related injuries:
b. [5:577] Comparefraud outside scope of workers' compensation:
[5:485] Where warranted by the facts, employees may assert fraud claims against their employer in connection with
an employment termination or even while still employed. One particular advantage of a fraud claim in such cases
is the heightened potential for punitive damages (see 17:360 ff.).
1. [5:486] Substantive Requirements: The following elements must be pleaded and proved to establish a tort
claim for deceit (intentional misrepresentation):
Defendant must have made a misrepresentation as to a past or existing fact (or concealed or failed to
disclose such facts when under a duty to disclose);
Defendant must have known the representation was false when made, or made it recklessly and without
regard for its truth (scienter);
Defendant must have made the representation (or concealed the fact) with the intent to defraud the
plaintiff; i.e., to induce plaintiff to act in reliance thereon;
Plaintiff must have reasonably relied on the representation (or concealment);
Plaintiff's reliance on the representation must have been a substantial factor in causing legally cognizable
harm to plaintiff. [See Civ.C. 1710; Lazar v. Sup.Ct. (RykoffSexton, Inc.) (1996) 12 C4th 631, 638, 49
CR2d 377, 380; Manderville v. PCG & S Group, Inc. (2007) 146 CA4th 1486, 1498, 55 CR3d 59, 68; see
also CACI 19001902, 19041908]
a. [5:486.1] Measure of damages: California courts generally apply an out-of-pocket measure of damages in
fraud cases (instead of a benefit-of-the-bargain measure). The out-of-pocket measure is deemed more
consistent with the logic and purpose of the tort form of action (i.e., compensation for loss sustained rather
than satisfaction of contractual expectations) ... [Stout v. Turney (1978) 22 C3d 718, 725, 150 CR 637, 641
(parentheses in original); see CACI 1923]
b. [5:487] Promissory fraud: Promissory fraud is a subspecies of deceit: A promise to do something
necessarily implies the intention to perform; hence, where a promise is made without such intention,
there is an implied misrepresentation of fact that may be actionable fraud. [Lazar v. Sup.Ct. (Rykoff
Sexton, Inc.), supra, 12 C4th at 638, 49 CR2d at 381; see CACI 1902]
[5:487.1487.4] Reserved.
(1) Application

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[5:487.5] Employer allegedly misrepresented its intention to pay bonus compensation to induce
plaintiff to (a) resign his existing employment and to (b) sign an at-will employment contract
with Employer. Upon being fired, plaintiff could not maintain a fraud action based on
termination of his at-will employment (because parol evidence is inadmissible to prove a
collateral promise; see 4:180). But he could sue for promissory fraud on the basis that
Employer never intended to live up to the agreement: Fraudulent inducement causing damages
unrelated to the employee's discharge is an actionable tort regardless of whether he or she is atwill. [Agosta v. Astor (2004) 120 CA4th 596, 606, 15 CR3d 565, 572]
(2) [5:488] Nonperformance alone does not prove intent not to perform: Something more than
nonperformance is required to prove the defendant's intent not to perform its promise. [Tenzer v.
Superscope, Inc. (1985) 39 C3d 18, 30, 216 CR 130, 137no inference of such intent can be drawn from
nonperformance alone; Church of Merciful Saviour v. Volunteers of America, Inc. (1960) 184 CA2d 851,
859, 8 CR 48, 52mere failure to perform a promise made in good faith does not constitute fraud]
(3) [5:489] Circumstantial evidence of intent: But fraudulent intent may be established by circumstantial
evidence, such as defendant's insolvency, its hasty repudiation of the promise, its failure even to attempt
performance, or its continued assurances after it was clear it would not perform. [See Tenzer v.
Superscope, Inc., supra, 39 C3d at 30, 216 CR at 137]
(4) [5:490] Damages recoverable: Plaintiff must rely on his or her contract claim for any loss of
income allegedly caused by the wrongful termination. But plaintiff may recover in tort for
damages separate from the termination itself; e.g., relocation expenses, loss of security and
income from former employment, etc. [Agosta v. Astor, supra, 120 CA4th at 606, 15 CR3d at
572]
In addition, future lost income may be recoverable on a promissory fraud theory if the damages are
not speculative or remote; e.g., loss of salary and benefits that would have been earned in former
employment. [Helmer v. Bingham Toyota Isuzu (2005) 129 CA4th 1121, 1130, 29 CR3d 136,
143]
(a) [5:491] Measured at breach: In cases of promissory fraud, the damages are measured
by the market value of what was promised as of the date the promise was breached,
because that is when the damage occurred. [See comments to CACI 1923]
[5:492494] Reserved.
c. [5:495] Comparefraudulent concealment: (T)he 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.
[Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 CA4th 603, 612613, 7 CR2d 859, 864

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(emphasis added); Hahn v. Mirda (2007) 147 CA4th 740, 748, 54 CR3d 527, 532; see also CACI 1901]
(1) [5:496] Duty to disclose: Even if no fiduciary or confidential relationship exists, a duty to
disclose information may arise under any of the following circumstances:
the defendant makes representations but does not disclose facts which materially qualify the
facts disclosed, or which render his disclosure likely to mislead;
the facts are known or accessible only to defendant, and defendant knows they are not known to
or reasonably discoverable by the plaintiff;
the defendant actively conceals discovery from the plaintiff. [Marketing West, Inc. v. Sanyo
Fisher (USA) Corp., supra, 6 CA4th at 613, 7 CR2d at 864 (emphasis added)]
[5:497504] Reserved.
2. [5:505] Strict Pleading Requirement: Fraud actions are subject to strict pleading standards in both state and
federal court. Fraud must be pleaded with particularity (see FRCP 9(b)). This necessitates pleading facts which
show how, when, where, to whom and by what means the representations were made. [See Stansfield v. Starkey
(1990) 220 CA3d 59, 73, 269 CR 337, 345]
a. [5:506] Where defendant a corporation: Where the defendant in a fraud claim is a corporate
employer, plaintiff must allege the names of the persons who made the allegedly fraudulent
representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was
said or written. [See Lazar v. Sup.Ct. (RykoffSexton, Inc.), supra, 12 C4th at 645, 49 CR2d at 385
(emphasis added)]
[5:507509] Reserved.
3. [5:510] Preemployment Fraud (Employer Fraud During Hiring Process): An employee may claim that he or
she entered into employment in reliance on employer misrepresentations during the hiring process.
a. [5:511] Misrepresentations of fact: The employer's misrepresentations regarding past or existing facts
may be actionable fraud (e.g., the company earned a net profit of $1 million last year): (A)n
employer's false statements made to induce a person to become an employee may be the basis for a
civil lawsuit against the employer. [Lenk v. TotalWestern, Inc. (2001) 89 CA4th 959, 972, 108 CR2d
34, 43]
But statements such as the company is anticipating solid growth and a stable, profitable future are
likely to be held nonactionable statements of opinion, rather than statements of past or existing fact.
[See Everts v. Matteson (1942) 21 C2d 437, 451, 132 P2d 476, 484statement about future value
was a speculative observation and a mere statement of opinion]
b. [5:512] Promissory fraud: A fraud action may be based on allegations that the employer made promises
during the hiring process with no intention of performing them. [Lazar v. Sup.Ct. (RykoffSexton, Inc.), supra,
12 C4th at 638639, 49 CR2d at 380381; see also CACI 1902]
(1) Application
[5:513] Employee claimed he was induced to leave his job in New York and move to California

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by Employer's promises that he would be employed so long as he performed his job and
would receive significant increases in salary. These promises were allegedly untrue because
Employer secretly intended to treat him as an at-will employee, and to limit salary increases to
two or three percent. These allegations stated an action for promissory fraud. [Lazar v. Sup.Ct.
(RykoffSexton, Inc.), supra, 12 C4th at 638639, 49 CR2d at 380381]
[5:514519] Reserved.
(2) [5:520] Promise need not be enforceable contract: A claim for promissory fraud does not depend
upon whether the defendant's promise is ultimately enforceable as a contract. I.e., a tort action may lie
even by an at-will employee whose termination is not a breach of contract. [ Lazar v. Sup.Ct. (Rykoff
Sexton, Inc.), supra, 12 C4th at 638, 49 CR2d at 381]
(a) [5:521] Compareas alternative to contract claim: On the other hand, if the employer's promise
is enforceable as a contract, the employee may sue on the contract as well. But recovery is limited by
the rule against double recovery of tort and contract compensatory damages. [Lazar v. Sup.Ct.
(RykoffSexton, Inc.), supra, 12 C4th at 638, 49 CR2d at 381]
(3) [5:522] Vague promises insufficient: Promises too vague to be enforced will not support a fraud
claim any more than they will one in contract. [Rochlis v. Walt Disney Co. (1993) 19 CA4th 201, 216,
23 CR2d 793, 801 (disapproved on other grounds in Turner v. AnheuserBusch, Inc. (1994) 7 C4th 1238,
32 CR2d 223); see also Williamson v. General Dynamics Corp. (9th Cir. 2000) 208 F3d 1144, 1156
(applying Calif. law)]
c. [5:523] Justifiable reliance required: The employee's reliance on the employer's misrepresentations must
have been reasonable under the circumstances involved. [See Slivinsky v. WatkinsJohnson Co. (1990) 221
CA3d 799, 807, 270 CR 585, 589; see also CACI 1907, 1908]
(1) [5:524] Promises contrary to integrated at-will employment contract: An employee who has
signed an integrated at-will employment contract cannot reasonably rely on the employer's oral
promises of job security: (H)er alleged reliance on WatkinsJohnson's oral promises of continuing
employment is simply not justifiable because the representations contradict the parties integrated
employment agreement which provided that the employment was at will. [Slivinsky v. WatkinsJohnson
Co., supra, 221 CA3d at 806807, 270 CR at 589; and see Dore v. Arnold Worldwide, Inc. (2006) 39
C4th 384, 389, 46 CR3d 668, 671signed employment agreement stating employment was at will and
terminable at any time defeated claimed promise of long-term employment]
(2) [5:525] Promises known to be false: A plaintiff cannot claim justifiable reliance on
representations he or she knows to be false. [Rochlis v. Walt Disney Co. (1993) 19 CA4th 201,
215216, 23 CR2d 793, 800801]
[5:526] Employer allegedly induced Employee to become division vice president by
misrepresenting conditions of the division's business. But no fraud action could be maintained
because Employee discovered the truth shortly after accepting the job and nevertheless decided
to remain. Thus, he did not detrimentally rely on any misrepresentations as a matter of law.

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[Rochlis v. Walt Disney Co., supra, 19 CA4th at 215, 23 CR2d at 800]

(3) [5:527] Negligence in discovering fraud no defense: Plaintiff's negligence in failing to
discover the falsity of a statement is no defense when the misrepresentation was intentional
rather than negligent. [Alliance Mortg. Co. v. Rothwell (1995) 10 C4th 1226, 12391240;
Manderville v. PCG & S Group, Inc. (2007) 146 CA4th 1486, 1502, 55 CR3d 59, 72]
[5:528529] Reserved.
d. [5:530] Damages resulting from reliance on employer's misrepresentation: Even where the employer has
made misrepresentations to induce the employment, the employee cannot recover for fraud unless he or she
has sustained actual damages as a result of relying on the misrepresentations. [ Rochlis v. Walt Disney Co.,
supra, 19 CA4th at 215, 23 CR2d at 800employee earned more during his term of employment than
previously despite employer's alleged misrepresentations; Kelly v. Vons Cos., Inc. (1998) 67 CA4th 1329,
1341, 79 CR2d 763, 770loss of employment due to economic reasons unrelated to employer's alleged
fraud]
(1) [5:531] Compare damages resulting from leaving secure employment: Recoverable
damages may exist, however, where plaintiff leaves secure employment to accept a new job in
reliance on a fraudulent promise of better pay. The lost salary and benefits that would have been
earned in the former employment (future lost income) may be recoverable in a promissory fraud
action against the new employer. [Helmer v. Bingham Toyota Isuzu (2005) 129 CA4th 1121,
1130, 29 CR3d 136, 143]
Cross-refer: Recovery of future lost income is discussed in Ch. 17 ( Remedies) at 17:255 ff.
e. [5:532] Comparemisrepresentations inducing change of residence (Labor Code 970):
Employers are statutorily prohibited from inducing employees to change their residence to, from or
within California, by making knowingly false representations concerning the nature, length or
physical conditions of employment or the compensation to be paid. [Lab.C. 970]
Violation is a misdemeanor punishable by fine or imprisonment (Lab.C. 971). In addition, double
damages are recoverable in a civil action. [Lab.C. 972; see also CACI 2710]
Note: This statute creates an additional right; it does not preempt common law fraud claims.
(1) [5:533] Applies to any employment: Although the Legislature enacted these statutes to
protect migrant farm workers, they apply to any employment in which the employee has been
induced to move to a new locale based on misrepresentations as to the nature of the
employment. [Seubert v. McKesson Corp. (1990) 223 CA3d 1514, 1522, 273 CR 296, 300301
(disapproved on other grounds in Dore v. Arnold Worldwide, Inc. (2006) 39 C4th 384, 46 CR3d
668)double damages awarded where employer made false representations to induce employee
to move to California to accept regional sales manager position]
[5:534539] Reserved.
(2) [5:540] Includes temporary change of residence: The change of residence contemplated by 970

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includes temporary as well as permanent relocation of residence: The quantitative fact that the change of
residence was to be only for two weeks rather than for a longer period would not appear to affect the
qualitative misrepresentations, nor does it render the statute inapplicable. [Collins v. Rocha (1972) 7
C3d 232, 239240, 102 CR 1, 5]
(3) Application
[5:541] Employer induced Employee to move from San Jose to Sonoma to accept a job as
racetrack manager by telling her that the job would be permanent and promising her a
substantial raise after one year. However, these representations were false because Employer
intended to terminate her, and did so when a more experienced candidate (to whom he had
offered the job originally) became available. A violation of Lab.C. 970 was shown. [Finch v.
Brenda Raceway Corp. (1994) 22 CA4th 547, 553, 27 CR2d 531, 534employee entitled to
double actual damages]
[5:542] PRACTICE POINTER: A claim based on violation of Lab.C. 970 does not exclude a
common law fraud claim based on similar misrepresentations. [See Lenk v. TotalWestern, Inc.
(2001) 89 CA4th 959, 971, 108 CR2d 34, 43]
[5:543549] Reserved.
4. [5:550] Employer Fraud During Employment: Employees may assert fraud claims based on employer
misrepresentations or concealment of material facts that are designed to induce the employee to alter detrimentally
his or her position with regard to the employment (e.g., false promises to induce employee not to resign). [See
Miller v. Fairchild Industries, Inc. (9th Cir. 1989) 885 F2d 498, 509 (applying Calif. law)]
a. Application
[5:551] Employer allegedly induced employees to settle discrimination charges by concealing the
fact that they were likely to be laid off in the near future due to ongoing economic decline. This was
actionable fraud because Employees changed their position in reliance on Employer's
misrepresentations by foregoing their rights to sue for discrimination. [Miller v. Fairchild Industries,
Inc., supra, 885 F2d at 509]
[5:552] Employer allegedly induced independent sales representatives to sign integrated agreements
allowing termination at will in place of existing contracts requiring cause for discharge. Employer
allegedly told them the new agreements were a mere formality while concealing the fact that
Employer had decided to replace them with in-house salesmen. These allegations were actionable as
fraudulent concealment. [Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 CA4th 603,
612613, 7 CR2d 859, 864]
[5:553559] Reserved.
b. [5:560] Causation requirement: To establish a fraud claim based on misrepresentations made during the
course of employment, the employee must show damages as a result of justifiable reliance thereon. [See

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Semore v. Pool (1990) 217 CA3d 1087, 1102, 266 CR 280, 289employee discharged for refusal to take
drug test could not base fraud claim on misstatements in employer handbook which did not relate in any way
to taking a drug test]
c. [5:561] Comparemisrepresentations to effect termination of at-will employment not actionable:
No cause of action for fraud lies for facts misrepresented by an employer to effect termination of atwill employment; i.e., to cause the employee to resign. [Hunter v. UpRight, Inc. (1993) 6 C4th 1174,
1185, 26 CR2d 8, 1314supervisor falsely told employee his position was being eliminated as part
of a corporate reorganization and that if he did not resign he would be fired]
This applies even to misrepresentations relating to grounds for termination under the contract; e.g.,
misrepresenting that good cause exists for termination when in fact no such cause exists. [Hunter v.
UpRight, Inc., supra, 6 C4th at 1186, 26 CR2d at 14, fn. 1]
(1) [5:562] Rationale: The employer's misrepresentations are merely the means to the end desired
by the employer, i.e., termination of employment: If the termination itself is wrongful, either
because it breaches the employment contract or because it violates some well-established public
policy...then the employee is entitled to recover damages sounding in contract or tort,
respectively. But no independent fraud claim arises from a misrepresentation aimed at
termination of employment. [Hunter v. UpRight, Inc., supra, 6 C4th at 1185, 26 CR2d at 14
(emphasis added)]
Basically, since the employer had both the power and intention of discharging the employee in any
event, the employee is no worse off (for tort purposes) for being induced to resign. [See Lazar v.
Sup.Ct. (RykoffSexton, Inc.) (1996) 12 C4th 631, 642643, 49 CR2d 377, 384]
[5:563569] Reserved.
5. [5:570] Employer Fraud Postemployment: Fraud claims may be asserted even after termination of
employment; e.g., retirees may sue former employers for misrepresentations or concealment of material facts
regarding retirement benefits (although most such claims would be preempted by ERISA; see 15:320 ff.).
[See Olson v. General Dynamics Corp. (9th Cir. 1991) 960 F2d 1418, 1421 (ERISA preemption case)]
Employer misrepresentations may extend to other matters not preempted by ERISA (e.g., regarding other
forms of deferred compensation entitlements, or internal valuations relevant to exercise of stock options,
etc.).
[5:571574] Reserved.
6. [5:575] Defenses: Various defenses may be asserted to employment fraud claims.
Cross-refer:
Ch. 15 (Preemption Defenses); and
Ch. 16 (Other Defenses).

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a. [5:576] Workers' compensation as exclusive remedy for work-related injuries: Several cases hold that
(e)ven where the employer's fraud is alleged, a civil action does not lie for a work-related injury or its
exacerbation. [Appl v. Lee Swett Livestock Co. (1987) 192 CA3d 466, 473, 237 CR 433, 437 (emphasis in
original)employer allegedly told injured employee it did not carry workers' compensation insurance with
intent to defraud the employee; Spratley v. Winchell Donut House, Inc. (1987) 188 CA3d 1408, 1417, 234
CR 121, 126employee injured in robbery claimed employer fraudulently assured her of safe working
conditions; Wright v. FMC Corp. (1978) 81 CA3d 777, 779, 146 CR 740, 740employer allegedly concealed
or misrepresented dangers inherent in material that employees were required to handle]
b. [5:577] Comparefraud outside scope of workers' compensation: But a common law fraud action
may be upheld where the employer, in committing the fraud, stepped out of its proper role, thus
exposing itself to liability outside of the workers' compensation laws. [See Johns-Manville Products
Corp. v. Sup.Ct. (Rudkin) (1980) 27 C3d 465, 476, 165 CR 858, 864; see Unruh v. Truck Insurance
Exchange (1972) 7 C3d 616, 630, 102 CR 815, 825upholding assault and battery and intentional
infliction of emotional distress based on compensation insurer's deceitful conduct in investigating
injury claim]
[5:578] Employer made misrepresentations regarding Employee's right to medical care and conspired
with a third party to conceal that Employee's injuries, which occurred while he was working, were
caused by a third party against whom he had recourse. A civil fraud action could be maintained
against Employer. [Ramey v. General Petroleum Corp. (1959) 173 CA2d 386, 402, 343 P2d 787,
797; see also Lab.C. 3602(b)(2)workers' comp not exclusive remedy for fraudulent
concealment of an employment injury, resulting in aggravation of the injury]
[5:579] Employee claimed she became ill because of exposure to toxic mold at work and that her
illness was aggravated by Employer's fraudulent concealment of injuries (in violation of Lab.C.
3602(b)(2), above). But there was no evidence that Employer actually knew of her illness before she
did or concealed the connection between her illness and her employment. Therefore, the fraudulent
concealment exception did not apply, and workers' compensation was her exclusive remedy. [Jensen
v. Amgen, Inc. (2003) 105 CA4th 1322, 1324, 129 CR2d 899, 903]
[5:580589] Reserved.
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