A Fraud Lawsuit Under California Law

by: Michael Abney
Fraud Lawsuits in California The various ways a victim can be defrauded are as limitless as the bounds of human ingenuity. But under California law, wrongful actions are generally characterized as civil "fraud" only under one of the following legal theories: 1. Intentional Misrepresentation. Probably the most common type of fraud is a false statement. But not every false statement is fraudulent. The elements of a claim for intentional misrepresentation are: a. An intentionally or recklessly false statement of fact. Not every false statement is a false statement of "fact." Statements of opinion generally are not actionable. Sales talk, or "puffing" ("This is the best location in the county!"), is generally not actionable. However, if the defendant claims to be an expert or there are other reasons to expect that the victim would rely upon the defendant’s opinion as a statement of "fact," an opinion may be treated by the court as a statement of fact. Also, a statement need not be made directly to the victim. For instance, if the defendant made the false statement to a third person with the expectation that the statement would be repeated to the victim, the victim may have a valid claim for fraudulent misrepresentation. b. Intention to defraud. If a representation of fact was intentionally false and a material part of the transaction (e.g., "this house does not have flooding problems"), it is likely the false promise was made with the intention to defraud the victim. c. Reasonable reliance upon the false statement. The victim must have actually relied upon the statement to change his or her position (e.g., the victim would not have purchased the house if he or she knew the truth). The false statement need not be the only reason the victim changed his or her position, but it must be at least part of the reason. Also, the victim’s reliance on the false statement must be reasonable. If the victim knew or should have known the statement was false, the victim did not reasonably rely. The sophistication of the victim will play a role in determining whether his or her reliance on the statement was reasonable; e.g., a sophisticated real estate investor’s reliance on a representation about the qualities of a house may not be reasonable while an unsophisticated buyer’s reliance may be. Even an unsophisticated victim, however, "may not put faith in representations which are preposterous, or which are shown by facts within his observation to be so patently and obviously false that he must have closed his eyes to avoid discovery of the truth." Seeger v. Odell (1941) 18 Cal. 2d 409. d. Resulting in damages. There must be measurable damages that were caused by the fraud. It is not enough that the victim was told a lie (e.g., "A famous movie star once slept in this house"); the victim must also be able to prove some type of damage resulted from the lie. 2. Negligent Misrepresentation. A claim for negligent misrepresentation is generally the same as a claim for intentional misrepresentation, except the victim must only prove the defendant did not have "a reasonable basis" to believe its statement of fact was true (as opposed to proving the defendant knew its statement was false). If the defendant’s false statement was both honestly made and based upon reasonable grounds, however, there is no claim. Punitive damages are not available for negligent misrepresentations. 3. Concealment. A claim for fraud may also arise if the defendant concealed or failed to disclose a material fact during a transaction, causing damage to the victim. The elements of a claim for fraudulent concealment are: a. The defendant failed to disclose or concealed a material fact with an intent to defraud the victim. b. The defendant had a duty to disclose. There is not always a duty to disclose facts during a transaction. If there is a duty, it generally arises in one of four different circumstances: (i) The defendant is in a "fiduciary relationship" (such as being a partner) with the victim; or (ii) The defendant took steps to hide important information from the victim (as opposed to simply failing to tell the victim); or (iii) The defendant disclosed some information to the victim, but the disclosed information is misleading unless more information is given; or (iv) The defendant is aware of key information and knows the victim is unlikely to discover that information. In addition, California laws may create a duty to disclose in certain transactions. For example, sellers of residential property in California generally are required to make written disclosures about the condition of the house. c. The victim must have been unaware of the fact and would not have acted as he or she did if he or she knew of the fact. d. The victim sustained damages as a result of the concealment. 4. False Promise. A claim of fraud may arise if a defendant entered into a contract and made promises that it never intended to perform. The elements of a false promise claim are: a. The defendant made a promise. b. The promise was important to the transaction. c. At the time he or she made the promise, the defendant did not intend to perform it. d. The defendant intended the victim to rely upon the promise. e. The victim reasonably relied upon the promise. f. The defendant did not perform the promise. g. The victim was harmed as a result of defendant not carrying out his or her promise. h. The victim’s reliance on the defendant’s promise was a substantial factor in causing the victim’s harm. It is important to understand that a broken promise, alone, is not a sufficient basis for a fraud claim. More than a mere broken promise is required. The victim must also prove that the defendant did not intend to perform the promise at the time the promise was made. In practice, it is usually difficult to tell the difference between a broken promise and a promise made without an intention to perform. Courts generally look for circumstantial evidence to support a false promise claim (as opposed to a broken promise claim), such as the defendant broke its promise immediately after making it. Characterization of a claim as fraud has many advantages to a victim; primarily, the victim may be able to recover punitive damages in addition to actual damages. Also, the measure of damages is generally more liberal under fraud and other "tort" theories, allowing victims a more complete recovery. But even if a wrongful action does not fall under the definition of "fraud," it still may lead to a valid legal claim. For instance, a broken promise - while not necessarily fraudulently - may still constitute a valid breach of contract claim. While punitive damages and emotional distress damages are generally not available for breach of contract in California, the victim still should be able to recover his or her monetary damages. This article constitutes general information only and should not be relied upon as legal advice.
About The Author
Michael Abney is a business and real estate litigation attorney in Orange County, California and a partner in Drosman Abney & Percival, LLP. An honors graduate of Harvard Law School, Michael has been a California lawyer for 19 years. You can contact Michael at http://www.DapLawyers.com or (949) 727-0880

Don't Be Stuck with a Lemon This Summer: Automobile Lemon Law Advice for Car Buyers

by: Paul Fleming
It's summer. The temperatures increase. The clothing diminishes. The checkbook comes out, itching to be used for a down payment on a new car. Summer is one of the busiest car-buying seasons of the year, according to Consumer Advocate Craig Thor Kimmel, Managing Partner of the automobile lemon law firm of Kimmel & Silverman. Now is a terrific time to pick up some new wheels, but potential buyers should follow some important tips to avoid purchasing a faulty vehicle and having to hitchhike in the scorching heat. "Although getting a new car can be exciting, it is something that should not be rushed," warns Kimmel. "There are certain automobile lemon law precautions consumers need to take to avoid buying the wrong car or paying more than they should." First, to avoid needing to consult an automobile lemon law attorney like Kimmel, do your research. Make sure the type of car you are considering has a strong customer satisfaction rating, provides the features you need and want and is priced within your range. Consumer Reports is a terrific source of information, with detailed facts on almost every available vehicle, and Kelly Blue Book is great for pre-owned cars. Additionally, consult family, friends and neighbors, as well as Internet review sits like epinions.com. There is no better source of opinions than people who have actually owned the car. Second, know the Manufacturer's Suggested Retail Price (MSRP). Unless a car is in high demand, dealers generally sell their vehicles lower than the MSRP, meaning there is almost always wiggle-room with the sticker price and the final price. Also, don't forget to shop around; call several authorized dealers to see if they can get a better offer for you. Identical cars are widely available from dealer to dealer: it's only the price that changes! Third, it's very important to try it before you buy it. Automobile lemon laws are in place to protect buyers from cars that don't work, but make sure you put it through the works before you sign the papers and drive off. Test every feature, from the defroster to the stereo to the horn. Take the car for a quick test drive, and listen for unusual sounds and pay attention to how the car steers, accelerates, brakes and handles. If something doesn't seem right, make sure you ask about it, and don't accept promises to fix it after the sale. Tell the dealer you won't agree to anything until the vehicle is running at 100 percent. This is the one time you have total control over the dealer and salesperson. Keep that control and demand perfection before you sign, or you may be buying a metal headache down the road. Fourth, never purchase a car without a manufacturer's warranty, whether the vehicle is new or used. Otherwise, getting your car fixed properly by qualified mechanics, with the maximum of expertise and the minimum of hassle, may be next to impossible. If the manufacturer of the car will issue a warranty, it must stand behind the work performed, which keeps you protected. Finally, know your rights as a consumer. If you have purchased a new car or a car with an existing manufacturer's warranty and you have a reoccurring problem that they can't seem to fix, you do have legal rights. Automobile lemon laws exist to protect you, and best of all, legal help is completely free to consumers under State and Federal Laws, so don't be afraid to consult an attorney if needed.
About The Author
Paul Fleming For more information on the Automotive Lemon Law and free legal representation, call 1-800-LEMON-LAW (1-800-536-6652) or visit http://www.lemonlaw.com .

The Law Of Attraction Is Working In Your Life Right Now

by: Emma Martin
Whether you realize it or not, the Law of Attraction is already working actively in your life right at this moment. The events, opportunities and experiences you are experiencing today were set into motion by the thoughts and actions you‘ve taken previously. The secret to the Law of Attraction is really about realizing that this law is already active in your life and deciding that you want to deliberately attract things into your life consciously rather than leaving it to the vagaries of your subconscious. This is going to take some effort on your part and if you are trapped in a negative spiral, it is probably going to take a great deal of work to change the patterns of your thinking. You’ll need to monitor your emotions in particular, because it is your emotional state that gives you the clues to the kinds of things your thoughts are attracting to you. With practice, this monitoring will become more routine and you’ll be able to let the negative thoughts go lightly while you move your focus onto the positive. One of the main differences between the writers of the early 20th century and those who write about the Law of Attraction today is the emphasis on just how much work you need to put into consciously working with it. Many of the new breed of writers suggest that it is easy and that merely thinking about what you want for 20 minutes a day and putting together a vision board or two will get you on the road to prosperity and abundance. The early New Thought writers such as Wallace Wattles, on the other hand, suggest that you need to do a lot of work and must deliberately take charge of what you are attracting into your life throughout your every waking moment. In the words of Wallace Wattles, echoing a common phrase in Christian mysticism, you need to "pray without ceasing". In my opinion, this the correct course to take. Put a lot of work into the Law of Attraction and reap the large rewards. Or put a little work into it and watch the rewards trickle into your life. It's your decision. Reap what you sow.
About The Author
Emma Martin is a grateful recipient of the wonders that the Law of Attraction has brought into her life. For solid guidance and resources on how to use the Law of Attraction deliberately in your life, please visit her site: http://hubpages.com/_hublinks/hub/Secret_of_Law_of_Attraction

Listening and The Law of Attraction

by: Kat McCarty
There are so many different potential applications to the Law of Attraction that one could easily get confused and even lost in all of that potential. Experimentation is the most fruitful method of learning to apply anything and especially the Law of Attraction. One area of interest to me is in how our listening affects that which we attract to ourselves. I define listening as something heard, felt, read or observed. We can listen to our surroundings by observing, listen to someone speaking by hearing them, listen to a writer by reading what they’ve written or listen to ourselves by being aware of how we feel. There are many more examples, can you name a few? Most people believe that listening is a very passive action however; my experiments have shown me that it is something quite different. Listening is a dynamic action and when we do it deliberately we affect how we experience our lives in a profound way. Most of us are quite rational in our thinking so a little proof might be in order. Try this: The next two people you come across in your day listen to them deliberately. When you encounter the first person, make a conscious decision to listen to them as though they are the world’s greatest leader. Take just a second or two and imagine how you would feel if you were talking to a world leader. Then listen to that person and pay attention to how you hear what they say. Is it different then how you usually hear them? When person number 2 shows up, make the conscious choice to listen to them as though they are the funniest person you have ever met, taking a few seconds to imagine laughing a belly laugh. Now pay attention to how you hear what that person says. The expectation that person number 2 will be funny should provide for a few good laughs. Assuming your little experiment was successful (and if it wasn’t just keep repeating it, it may take a little practice) imagine for a minute what might change around your house if you started listening to your teenager or spouse differently. It’s also useful to remember this when you are out and about in the world. Often times people wait in line at the customer serve desk anticipating that the clerk on the other side of the desk will be distant and not very helpful. Well guess what happens when they get to the clerk? How we listen to people is just as much an intention as anything else. And often we decide how to listen to people (or our environment, ourselves or a writer) out of habit. If a child is normally mouthy, as soon as he begins to speak most of us would just fall into our habit of listening to him as a disrespectful kid. What would happen if we listened to that same child as if he were brilliant, or gentle or full of creativity? We can attract the behavior we want from others; we just have to make the choice to listen to them differently. It is the most allowing place we can be when we hear people in a way that they don’t normally show up. Want to change the world? Try listening to it differently!
About The Author
Kat McCarthy is a Co-Creator of ‘The Magic Happens: Wayne, Kat and Friends, Thriving Out Loud’ (http://www.themagichappens.com) an innovative internet magazine about living in freedom and passion. She assists people to create inner and outer freedom in her coaching practice; is aCo-Founder of the web community ‘Powerful Intentions,’ a writer, photographer, internet marketer and lifestyle consultant. Kat has used the principles of Law of Attraction to create unique business and lifestyle philosophies that have worked for her and for those she teaches them too, allowing her to live from freedom and passion, doing whatever excites her in the moment. To contact Kat or to read the magazine, please visit her Powerful Intentions profile at: http://kat.powerfulintentions.com

The War of the Injury Lawyers’ Worlds

by: Atty. Gabriel Cosh
In case you’ve have seen the movie, with its compelling cinematography and uncanny display of highly proficient technological advances in the field of movie making you will say that nothing compares to it, nothing would even come close. Do not speak too soon, wait until you see the battle being fought by personal injury lawyers you will notice that it is more bloody and compelling as opposed to ten folds of this movie. Yes, you have heard it correctly; personal injury lawyers are fighting a grave fight that actually spells a situation of life and death for its clients and those that actually rely on them. Every battle fought for by personal injury lawyers involves all the skill and knowledge incumbent upon such personal injury lawyer to have acquired. It is not merely a good story or picture to tell, but it is actually a true to life story, with real life actors, real life pains, and real life scenarios. Every personal injury claim is distinct on its own; hence, personal injury lawyers have the undaunted task to apply all his skills and arguments necessary to promote the welfare of his or her client. The utilization of all available arsenals to fight a good battle, and the utilization of all technique that would bring about such positive result is a must for every personal injury lawyer to have. It is not about playing a role, but its about playing a role the best way possible and with the understanding that it has real effects whether you like it or not. The battle fought by personal injury lawyers has no cuts, no takes. It is a one-shot process, one mistake and all is lost. Thus, if you should have one choice, and the only choice left, then bet on the people who knows how to deal with your injury, bet on the people who are as highly accountable as you are. Your personal injury defenders have not only their name and reputation at stake in every war they partake in, they actually carry your flag, your life, your family’s life, rest assured it would be protected with all that they have. Notwithstanding time, complexities, impossibilities, your personal injury defenders have all the necessary resources to see the war to its ultimate end. Wishing that at the end of the day, when the smoke from the grueling battle has faded, you rights have actually been uplifted.
About The Author
Atty Gabriel Cosh is a legal advocate and a practitioner of law for over 10 years now. He is also an expert in the field of social legislation and personal injury cases. For more information about personal injury lawyers please log on to http://www.personalinjurydefenders.com

Avoiding Lawsuits - Commonsense Tips for Business Owners

by: Michael Abney
Despite headline-grabbing jury verdicts awarding millions of dollars to grievously injured victims, the vast majority of lawsuits never go to trial. The typical lawsuit settles, but only after the lawyers have been paid their fees. For most businesses, litigation is a necessary headache that rarely adds to the bottom line. It is something to be avoided. Discussed below are three common but easily avoidable mistakes that lead to unnecessary litigation. Get It in Writing! The most common mistake we have seen through the years is business people who did not put their agreements in writing. Many disputes would never happen - and many others would settle much more quickly - if the parties had put their agreement in writing. Putting your agreement in writing serves several purposes: * Avoiding miscommunication. Even honest business people acting in complete good faith can disagree over the terms of an oral agreement. Putting your agreement in writing helps ensure that both sides understand what they are agreeing to do - so there are no surprises down the road caused by honest, but costly, misunderstandings. * Protecting against selective memories. Again, even honest business people can have one-sided memories of what the terms of an agreement were; especially when they are not happy with how the agreement turned out when put into practice. Putting the agreement in writing reduces the possibility that failed memories will lead to a dispute. * Avoiding fraud. If the other party to a business agreement refuses to put its promise in writing, that promise is probably not worth the paper it is (not) written on. Beware of doing business with someone who is not willing to put his or her promises in writing. Get It in Writing - Again! After you have entered an agreement and the parties are carrying out their obligations, sometimes the deal changes. Your written agreements should reflect the changes. If the parties to an agreement agree to change the terms, confirm the changed terms in writing. Many contracts specifically state they cannot be amended unless the change is in writing and signed by both parties. Follow Your Agreement. Once your agreement is in writing, make sure you follow it! Many contracts are broken because a party cannot perform in a way that makes economic sense. But occasionally disputes will arise because a party who could have properly performed its obligations failed to do so simply because an employee "dropped the ball." If your employees are responsible for carrying out the agreement, make sure they are aware of their obligations, such as performance deadlines. A thoughtful and well-written agreement can help you avoid disputes only if you and your employees understand and remember to follow its terms. This article constitutes general information only and should not be relied upon as legal advice.
About The Author
Michael Abney is a partner at Drosman Abney & Percival, LLP and focuses his practice on business and real estate litigation. An honors graduate of Harvard Law School, Mike has been a practicing attorney for 19 years. Michael can be contacted at http://www.DapLawyers.com. Drosman Abney & Percival, LLP, practices in the areas of business and real estate litigation and employment law throughout Southern California