California Civil Code Section 1710 - Interpretation
Civil Code section 1709 embodies the common law of fraud. It provides:
"One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damages which he thereby suffers." Civil Code section 1710 sets forth the elements of actionable fraud. It provides: "A deceit, within the meaning of the last section, is either:
The suggestion, as a fact, or that which is not true, by one who does not believe it to be true;
The assertion, as a fact, or that which is not true, by one who has no reasonable ground for believing it to be true;
The suppression of a fact, by one who is bound to disclose it, or who gives information or other facts which are likely to mislead for want of communication of that fact;
A promise, made without any intention of performing it." Civil Code section 1572 pertains to "actual fraud" in the context of a contractual relationship and parallels the provisions of Civil Code section 1710.
In Schonfeld v. City of Vallejo (1975) 50 Cal.App.3d 401, the court rejected the notion the definition of "actual fraud" found in Civil Code section 1572, or the definition of "deceit" in Civil Code section 1710, applies to the term "actual fraud" as used in Government Code section 822.2.
Rather, the court agreed that for purposes of the immunity the term "actual fraud" "must be construed to mean 'fraud and malice' based on personal malevolence or wrongful purpose citation and that 'actual malice' is akin to that required for defamation, malicious prosecution or exemplary damages." (Schonfeld v. City of Vallejo supra, at p. 409.)