(Send Out When Claim Form Requested)
Subject: Tort Claim Form Requirements
Government Code Section 910.4(a) requires claimants wishing to submit a
claim against the __________________District complete a Claim Form. A
Claim Form for your completion is attached. The Government Code has claim-
submission timelines, so please submit your claim immediately. Please direct
questions to: _____________________ at_______________________.
Thank you for your cooperation.
[Person writing letter]
CLAIM AGAINST THE SCHOOL DISTRICT
NAME OF CLAIMANT MAILING ADDRESS ZIP TELEPHONE
Claims against the above school district must be filed with the Board of
Education within six (6) months after incident occurred,
as required by Government Code Section 911.2.
Where space is insufficient, please use additional paper, include your name,
identify each item of information by the paragraph
number and sign each sheet.
1. OCCURRENCE OR TRANSACTION CAUSING THIS CLAIM
DATE TIME PLACE
2. STATEMENT OF INCIDENT
(Specify the particular act or omission you claim caused the injury, damage
or loss, if known.)
3. DESCRIPTION OF CIRCUMSTANCES
STATEMENT OF HOW THE DISTRICT OR ITS EMPLOYEES WERE AT FAULT
(include names of persons causing injury damage or loss – if not known,
state “not known.”)
4. DESCRIPTION OF INCURRED INDEBTEDNESS, OBLIGATION, INJURY,
a. GENERAL DESCRIPTION: c. NAME OF PERSON INJURED
(So far as known as of the date of this claim)
DESCRIPTION OF PERSONAL INJURY
b. NAME OF PERSONS/s CAUSING THE ABOVE d. NAME OF PROPERTY
DESCRIPTION OF PROPERTY DAMAGED
a. AMOUNT CLAIMED AS OF DATE OF THIS c. TOTAL AMOUNT OF CLAIM: $
CLAIM: $ (Attach estimates or bills in support of claim.)
b. ESTIMATED AMOUNT OF
ANY PROSPECTIVE INJURY, d. BASIS OF COMPUTATION OF AMOUNT
DAMAGE OR LOSS. $
6. EYEWITNESSES, ATTENDING PHYSICIAN, HOSPITAL,ETC.
NAME ADDRESS TELEPHONE
I certify under penalty of perjury that I know the SIGNATURE OF CLAIMANT
DATE OF CLAIM
above to be true and correct of my own knowledge.
(IF MORE SPACE IS NEEDED, PLEASE ATTACH ADDITIONAL PAGES AS
|Who is Rick Rinear?
He's Diane Crosier's
right -hand man at
Here is his job
-Rick Rinear, Risk
M38, Risk Management,
This position reports directly
to the Senior Director, Risk
Management, and is
responsible for directing a
staff of four peopled involved
in claims management for
property and liability
insurances covering 60
districts in the JPA. This
program covers about $3
billion in property and 2,500
vehicles, and generates
revenue of about $10 million
per year. The
recommendation is to
reclassify the position and the
incumbent from Risk
Management Specialist, M38
to Property and
M44, consistent with the other
Program Managers in the
department with comparable
(Seal/Rothman) to approve
the recommendation as
July 19, 2006
9:00 a.m., Board Room
|All school districts are told by
SDCOE-JPA to REJECT ALL CLAIMS
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
ANNE MANDERVILLE et al.,
Plaintiffs and Appellants,
PCG&S GROUP, INC. et al.,
Defendants and Respondents.
(Super. Ct. No. GIE19680)
APPEAL from a judgment of the Superior Court of San Diego County, Lillian Y. Lim, Judge. Reversed and
Stutz Artiano Shinoff & Holtz, Daniel R. Shinoff and Paul V. Carelli IV for Plaintiffs and
Asaro, Keagy, Freeland & McKinley, Steven A. McKinley and Charles F. Campbell for Defendants and
Do exculpatory clauses in standardized forms used in the purchase and sale of real estate
bar a claim for intentional misrepresentation brought by buyers of real property against the
sellers' brokers alleging the brokers intentionally misrepresented the property could be
subdivided, on the ground the buyers cannot show justifiable reliance as a matter of law? We conclude such
exculpatory clauses do not preclude, as a matter of law, the buyers' showing of justifiable reliance, and thus,
for purposes of the summary judgment proceeding at issue in this appeal, they do not bar the buyers' claim for
intentional misrepresentation against the brokers.
We further conclude that any lack of due diligence by the buyers in conducting an
investigation of the zoning and other laws restricting the development and use of the
property also does not preclude, as a matter of law, the buyers' showing of justifiable
reliance as an element of their claim for intentional misrepresentation. Therefore, we
reverse the court's grant of summary judgment in favor of the brokers on the buyers' claim
for intentional misrepresentation. Because the brokers did not seek summary adjudication of the
buyers' remaining claims for negligent misrepresentation and suppression of facts, we need not decide whether
those claims are barred by the exculpatory clauses and the buyers' alleged lack of investigatory due diligence.
This action for deceit arose out of the purchase and sale of a parcel of land
located in the City of El Cajon in San Diego County. The buyers were plaintiffs Anne and
William Manderville (together the Mandervilles), and coplaintiffs Roseann and Rick Rinear
(together the Rinears) (collectively Buyers). The Mandervilles are the parents of Roseann
Rinear. The two couples intended to subdivide the property and build adjacent homes on
the subdivided property.
A. The Two MLS Listings
During their search for a suitable property they could subdivide into two lots, Buyers, through their agent
Marilyn Fowler, found a multiple listing service (MLS) advertisement (the second MLS listing) for a property
located in El Cajon, California (the property). In describing the property, the second MLS listing stated in part:
"ALL USEABLE 2.62 ACRES COUNTY STATES 1 ACRE MIN. LOT SIZE COULD BE SPLIT." (Italics added.)
This listing was placed by the sellers of the property, Robert and Georgia Uecker (together the Ueckers or
Sellers),1 through their brokers, defendants Russ Clark, David Norberg and PCG&S Group, Inc. (collectively
Clark prepared the language, "COUNTY STATES 1 ACRE MIN[IMUM] LOT SIZE COULD BE SPLIT," that was
placed in the second MLS listing. He testified during his deposition that in so doing he had relied on the County
of San Diego (County). Clark indicated that during his telephone conversation with "the County," he asked
about the zoning for the property, and "they" told him the zoning was "RR1," which meant "[r]ural residential
one acre per dwelling," and the property could be split. When asked to identify the person at the County with
whom he spoke, Clark testified he had "[n]o idea" who it was, and he did not know why he did not write down
the person's name. When asked whether that person was a male or female, Clark stated, "I don't recall."
Buyers and Fowler had seen a previous MLS listing of the same property (the first MLS listing) that did not
contain the statement in the second MLS listing that "COUNTY STATES 1 ACRE MIN[IMUM] LOT SIZE COULD
BE SPLIT." During his deposition, Clark stated that as of May 25, 2002─before he obtained the listing─an MLS
listing prepared by a prior listing agent showed that the property had been listed for 347 days. Clark also
stated that this prior MLS listing did not say the property "could be split." 420:25-421:4)!
B. Fowler's Confirming Telephone Call to Clark on Behalf of Buyers
The parties acknowledge that "[s]ubdividing [real property] in rural San Diego County is a heavily regulated
process, requiring the preparation and submission of a parcel map by a professional civil engineer, compliance
with a 'labyrinth' of federal, state, and local regulations, and discretionary approval by a public body."
On June 22, 2002, as a result of the discrepancy in the two MLS listings, Fowler telephoned Clark on behalf of
Buyers to confirm that the property could be split. During that call (the June 22 call), Fowler asked Clark
whether the lot could be split. The Rinears were present during the call and observed Fowler write notes on
the two MLS printouts (copies of the first and second MLS listings) regarding the question of whether the
property could be split. In those notes, Fowler wrote on the copy of the first MLS listing, "The [s]plit has been
approved to what extent need to go to County & see─how far." (Italics added.) On the copy of the second MLS
listing that indicated the lot could be split, Fowler wrote, "Splitable." At the end of her telephone conversation
with Clark, Fowler made copies of her notes and gave them to the Rinears.
What Clark told Fowler during their telephone conversation is in dispute. Rick Rinear testified during his
deposition that Fowler told him that Clark said to her the lot could be split, and this led him (Rick Rinear) to
believe Buyers could build one house per acre. Rick Rinear stated he understood the second MLS listing
meant "[t]he County states the lot could be split."
During her deposition, Fowler testified that although she did not have a specific recollection of Clark telling her
the lot split had been approved, she believed Clark told her during the telephone conversation that the split
has been approved because she would not have written in her notes "The [s]plit has been approved" unless
Clark had made that statement. Fowler indicated Clark had lied to her: "I feel like he . . . lied by omission, by
not telling me that . . . there was only a split potential, that─not that it could be split. That he didn't . . . retract
his statement that it could be split."
In a declaration supporting Brokers' summary judgment motion at issue in this appeal, Clark stated he did not
tell Fowler during her inquiry that a split had been approved or that the property could be split, and he told her
only that "the County" had told him that it could be split. He testified, "At no time did I agree with [Fowler], or any
other person, to represent that the property had been split, or approved for a split, or that it could be split,
except to the extent I repeated in the [second] MLS listing what the County had told me."
When asked whether the issue of "splitability" of the property arose during his telephone conversation with
Fowler, Clark testified, "No, not that I recall." He denied mentioning the words "split" or "splitability" during the
conversation, but acknowledged that Fowler asked him, "Can you build two houses on this property[?]," and he
answered, "[Y]es." Clark also testified he told Fowler that her clients could build two houses on the property
without splitting it, but then changed that testimony and stated: "There was a potential she could do it. Didn't
tell her she could do it. 'You need to go down to the County before you write an offer. And, here, I'll fax you
over all the information,' and I faxed her over all the information, whether it was 52 pages or whatever pages, I
had. I faxed them all to her. She came back some two or three days later with an offer and said, 'My clients
are satisfied based on that information.'" (Italics added.)
C. The California Association of Realtors (CAR) Form Agreement
CAR is an association of licensed realtors and realtor-associates that "develops and publishes standard forms
and publications for use and reference by the real estate industry." (2 Miller & Starr, Cal. Real Estate (3d ed.
2000) § 4:62, pp. 201-202.)
On June 24, 2002, two days after Fowler's June 22 call to Clark, Clark received from Fowler on behalf of
Buyers an offer in the amount of $235,000 to purchase the property. Buyers made the offer in a standard CAR
purchase agreement form titled "Vacant Land Purchase Agreement and Joint Escrow Instructions (and Receipt
for Deposit)" (hereafter the CAR form agreement or the agreement).
Paragraph 7 of the CAR form agreement2 stated that Buyers had the "right" to conduct inspections and
investigations, and strongly advised Buyers to investigate the condition and suitability of all aspects of the
property, as well as all matters affecting the value or desirability of the property, including ordinances affecting
the future development and zoning of the property. Paragraph 7 also indicated that Buyers and Sellers were
aware that Brokers did not guarantee and in no way assumed responsibility for the "condition" of the property.
Paragraph 15 provided that Buyers had 21 days after acceptance of their offer to "complete all inspections,
investigations and review of reports and other applicable information for which [Buyers are] responsible."
Paragraph 26 contained the following integration clause: "All understandings between the parties are
incorporated in this Agreement. Its terms are intended by the parties as a final, complete and exclusive
expression of their Agreement with respect to its subject matter and may not be contradicted by evidence of
any prior agreement or contemporaneous oral agreement." The CAR form agreement also incorporated the
following handwritten term set forth in paragraph 1(C) of Sellers' counter offer No. 1: "Buyer[s] to satisfy
themselves to use of property with warranties or representation to use."
D. Buyers' Investigation: "Property Project Profile," "Zoning Information," and "Notice of Negative Declaration"
During discovery and the summary judgment proceeding at issue here, Buyers admitted that prior to the close
of escrow they received from Clark, and reviewed, what Brokers referred to as a "disclosure package," which
contained a copy of (1) a property project profile sheet, which indicated the existing zoning of the property was
"RR-1" and the minimum lot size was one acre, but also indicated that the general plan designator number of
the property was "24"; (2) a 1999 zoning information sheet prepared by the County's Department of Planning
and Land Use listing the zone use regulations applicable to the property as "RR1" and the lot size as one acre,
but indicating the general plan designation was "24"; and (3) a 1987 notice of negative declaration on the
County's Department of Planning and Land Use letterhead specifying an "RR1 Use Regulation" for the property
followed by the terms "Rural Residential" and "1du/1 acre," but also stating "Valle de Oro Subregional/Comm.
Plan" followed by the terms "(24) Impact Sensitive" and "1 du/4, 8, 20 acres." Buyers also admitted that prior to
the close of escrow, they conducted an investigation of laws and ordinances affecting the potential for splitting
the property. In their summary judgment motion, Brokers asserted that Buyers' admissions established that
they (Buyers) had "investigate[d] the specific representations . . . concern[ing] the ability to get County
approval of a lot split."
E. Buyers' Discovery that the Property Could Not Be Split
After the close of escrow, Buyers hired William A. Snipes, a civil engineer, to submit to the County on their
behalf an application for permission to split the property. Snipes reported to Buyers that he had learned from
his research at the County that the property could not be split because of its designation as "(24) Impact
Sensitive" under the County's general plan, which specified a minimum lot size of four acres. Snipes explained
to Buyers in a letter that "[t]he research at the County revealed some unfortunate information. The zoning
allows a minimum lot size of 1.0 acres, but the general plan has a slope dependent lot size criteria and the
minimum lot size is 4.0 acres. To subdivide this property both elements have to be met. The property is too
small to meet all the elements. This is the first time I have seen such a discrepancy between the zoning and
the general plan."
In their operative first amended complaint (the complaint), Buyers alleged three counts of deceit against
Brokers: (1) intentional misrepresentation of facts, (2) negligent misrepresentation of facts, and (3)
suppression of facts. All three counts were based on Buyers' allegations that (1) although the property in fact
could not be split, Brokers stated in the second MLS listing "ALL USEABLE 2.62 ACRES COUNTY STATES 1
ACRE MIN. LOT SIZE COULD BE SPLIT," thereby falsely representing that the property could be split; (2) in
reasonable diligence to confirm that the property could be split, Buyers met with their agent Fowler, showed her
the second MLS listing, and caused her to verify that the property could be split; (3) Fowler responded to
Buyers' inquiry by contacting Clark, who represented that the property could be split and that the split had
already been approved; and (4) after her communication with Clark, Fowler represented to Buyers that the
property could be split and was already approved for splitting. Buyers further alleged in all three fraud counts
that they were ignorant of the falsity of Brokers' representations, they purchased the property in reliance on
those false representations, and they would not have purchased the property had they known the actual facts.
A. Brokers' Summary Judgment Motion and Buyers' Opposition
Brokers filed a motion for summary judgment, asserting two principal arguments: (1) there was no triable issue
of material fact as to representations they made because the declarations of Clark and Norberg established
that Brokers did not make a statement that the property could be split or that a lot split had been approved,
and Fowler's deposition testimony showed that she was told, and then conveyed to Buyers, that the extent to
which there had been an approval of a lot split was not clear and thus there was a need to go to County to
investigate the possibility of getting a lot split; and (2) there was no fraud under any theory because Buyers
contractually assumed the obligation to investigate and verify land use and future development of the property,
they admitted they received and reviewed a disclosure package, they failed to diligently perform an
investigation that would have revealed that splitting the property was inconsistent with the County's ordinance
(general plan designator 24) requiring a minimum of four acres per dwelling unit, and thus they did not
justifiably or reasonably rely on the statements Brokers allegedly made.
In their written opposition, Buyers argued that Brokers undertook the obligation to list and sell the property
after it had been "sitting" on the market for a period "in excess of  days" under the first MLS listing.
Buyers also argued there was no dispute that when Brokers undertook this obligation, Brokers had information
showing the property was placed in a "general plan designator" that required a minimum of four acres per
dwelling, and thus the Brokers knew at that time that splitability of the property was "uncertain," yet they
changed the MLS listing to make the property more marketable and desirable by including the statement that it
"could be split."
Buyers also asserted Brokers had a duty to investigate whether the statement that the property could be split
was true when they changed the MLS listing. In addition, Buyers asserted that Brokers induced their reliance
by affirming the representation in the second MLS listing by telling Fowler the property was splitable and the lot
split had been approved, and thus triable issues of material fact existed as to "what Brokers knew, what they
were told and by whom, what was said to the Buyers' agent [Fowler], and whether the Buyers justifiably relied
on the representations of Brokers." Buyers further asserted that based on the second MLS listing and the
conversation between Fowler and Clark, they relied on Clark's statements and believed they were buying a
property that could be split, and that the split would be approved.
B. Order Granting Summary Judgment
The court issued a tentative ruling granting Brokers' summary judgment motion on the grounds Buyers
contractually assumed a duty to investigate zoning and land use limits on the future development of the
property, and as a matter of law Buyers could not show they justifiably relied on statements Brokers made in
connection with their listing of the property.
Specifically, the court's tentative ruling stated in part:
"[A] fact-finder in the circumstances of this case could conclude [Brokers'] MLS Listing was a knowing or
negligent misrepresentation when it stated 'ALL USEABLE 2.62 ACRES COUNTY STATES 1 ACRE MIN. LOT
SIZE COULD BE SPLIT.' A fact-finder could conclude [Clark] knowingly or negligently misrepresented the split
had been approved. A fact-finder could also conclude [Buyers] reasonably relied on these misrepresentations
and were not put on notice by the realty profile provided to them or their agent prior to making the first offer to
buy. However, the final contract (Paragraph 7) among the parties and brokers provides that the buyer has
been advised to investigate the property condition including limits placed on the future development and use of
the property and that [Brokers] do not guarantee and in no way assume responsibility for the condition of the
property and have not and will not verify zoning and land use. It also includes the handwritten language
adopted in the final contract 'Buyer[s] to satisfy themselves to use of property with warranties or representation
to use.' (Counter Offer No. 1.) This same contract also states 'All understandings between the parties are
incorporated in this Agreement. Its terms are intended by the parties as a final, complete and exclusive
expression of their Agreement with respect to its subject matter and may not be contradicted by evidence of
any prior agreement or contemporaneous oral agreement.' (Paragraph 26.) [¶] [Brokers] have met their initial
burden of showing the absence of 'justifiable reliance', and therefore [Buyers] must make a prima facie showing
that a triable issue of material fact exists. The Court finds, putting the evidence in the light most favorable to
[Buyers], that as a matter of law no 'justifiable reliance' can be shown." (Italics added.)
Following oral arguments on the tentative ruling, the court granted the parties leave to submit supplemental
briefing on the issues of (1) whether a contract provision stating that all representations are contained in the
contract bars an action for fraud, and (2) whether a defrauded party's negligence in investigating the accuracy
of the defendants' representations is a defense to a claim for intentional fraud. The court thereafter confirmed
its tentative ruling and entered summary judgment in favor of Brokers. Buyers appealed.
STANDARD OF REVIEW
On an appeal from a grant of summary judgment, we independently examine the record to determine whether
triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) In
performing our de novo review, we view the evidence in a light favorable to the losing parties (here the
Buyers), liberally construing their evidentiary submission while strictly scrutinizing the prevailing parties' (here
the Brokers') own showing, and resolving any evidentiary doubts or ambiguities in favor of the losing parties.
(Id. at pp. 768-769.)
"[T]he part[ies] moving for summary judgment bear the burden of persuasion that there is no triable issue of
material fact and that [they are] entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850, fn. omitted.) "A defendant [moving for summary judgment] bears the burden of
persuasion that 'one or more elements of' the 'cause of action' in question 'cannot be established,' or that
'there is a complete defense' thereto." (Ibid.; Code Civ. Proc., § 437c, subd. (o).) In such a case, the moving
defendants "bear an initial burden of production to make a prima facie showing of the nonexistence of any
triable issue of material fact." (Aguilar, supra, 25 Cal.4th at p. 850.)
If the moving defendants meet their burden of production, the burden shifts to the plaintiffs "to make [their own]
prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co., supra,
25 Cal.4th at p. 850.) "There is a triable issue of material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the part[ies] opposing the motion in accordance
with the applicable standard of proof." (Ibid., fn. omitted.)
In support of their appeal, Buyers argue the summary judgment granted in favor of Brokers should be reversed
because (1) the integration clause in paragraph 26 of the CAR form agreement at issue in this appeal does not
bar Brokers' liability, (2) paragraph 7 of the agreement provided Buyers with the right, not the duty, to
investigate whether they could split the property; (3) the court erred by holding that the "as is" provisions3 in
the agreement prevented Buyers from justifiably relying on Brokers' misrepresentations that the property could
be split and had already received the County's approval for the split, and (4) there is a triable issue of material
fact whether Buyers acted reasonably. For reasons we shall discuss, we hold that neither the exculpatory
clauses contained in the CAR form agreement, nor Buyers' alleged lack of due diligence in exercising their right
to investigate the zoning and other laws restricting the development and use of the property, bars Buyers'
cause of action against Brokers for intentional misrepresentation as a matter of law.
A. Applicable Legal Principles (Element of Reliance)
In Buyers' complaint, the gravamen of which is the allegation that Brokers deceived and harmed them by falsely
representing both in the second MLS listing and during Fowler's June 22 call to Clark that the property could
be split, Buyers assert a claim for deceit based on intentional misrepresentation of facts.
To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven4 essential
elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation
was false; (3) the defendant knew that the representation was false when the defendant made it, or the
defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that
the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff
was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in
causing that harm to the plaintiff. (CACI No. 1900; see Sources and Authority foll. CACI No. 1900, supra, pp.
921-922, citing Civ. Code,5 §§ 1709 & 1710, & Engalla, supra, 15 Cal.4th at p. 974.)
The element of intentional misrepresentation at issue in this appeal is reasonable or justifiable reliance.6 The
California Supreme Court has explained that "[r]eliance exists when the misrepresentation or nondisclosure
was an immediate cause of the plaintiff's conduct which altered his or her legal relations, and when without
such misrepresentation or nondisclosure he or she would not, in all reasonable probability, have entered into
the contract or other transaction. [Citations.] 'Except in the rare case where the undisputed facts leave no
room for a reasonable difference of opinion, the question of whether a plaintiff's reliance is reasonable is a
question of fact.' [Citations.] 'However, whether a party's reliance was justified may be decided as a matter of
law if reasonable minds can come to only one conclusion based on the facts.' [Citation.]" (Alliance, supra, 10
Cal.4th at p. 1239.)
The Alliance court also explained that "'[n]egligence on the part of the plaintiff in failing to discover the falsity of
a statement is no defense when the misrepresentation was intentional rather than negligent.' [Citation.] 'Nor is
a plaintiff held to the standard of precaution or of minimum knowledge of a hypothetical, reasonable man.'
[Citation.] 'If the conduct of the plaintiff in the light of his own intelligence and information was manifestly
unreasonable, however, he will be denied a recovery.' [Citations.]" (Alliance, supra, 10 Cal.4th at pp. 1239-
1240, italics added.)
1. Exculpatory Clauses
In support of its finding that Buyers could not make a prima facie showing of justifiable reliance as a matter of
law, the court relied on and cited the following exculpatory provisions in the CAR form agreement: (1) the
integration clause set forth in paragraph 26, providing that all understandings between the parties were
incorporated in the agreement; (2) paragraph 7, providing that Buyers had the "right" and were "strongly
advised" to investigate the laws limiting the development and use of the property, Buyers would be acting
against Brokers' advice if they did not exercise that right, Brokers had not and would not verify zoning and land
use "unless otherwise agreed in writing," and Buyers were aware that Brokers did not guarantee or assume
responsibility for the "condition" of the property; and (3) a handwritten term set forth in paragraph 1(C) of the
sellers' counter offer, which Buyers accepted, stating, "Buyer[s] to satisfy themselves to use of property with
warranties or representation to use."
The court's finding that these clauses established that Buyers could not show justifiable reliance on Brokers'
alleged intentional misrepresentations as a matter of law was erroneous. Section 1668, which was enacted in
1872, provides: "All contracts which have for their object, directly or indirectly, to exempt anyone from
responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether
willful or negligent, are against the policy of the law." (Italics added.)
It is well-established in California that a party to a contract is precluded under section 1668 from contracting
away his or her liability for fraud or deceit based on intentional misrepresentation. In Simmons v. Ratterree
Land Co. (1932) 217 Cal. 201 (Simmons), the trial court entered a judgment of rescission in favor of a buyer of
a subdivided lot after finding the seller had fraudulently induced the sale by falsely representing to the buyer
that the lot was zoned for business purposes. (Id. at pp. 202, 206.) The seller appealed, relying on
contractual provisions to the effect that the buyer had viewed and investigated the property and did not rely
upon any representations of the seller or its agents except those mentioned in the contract of sale, and that
the contract contained all the representations, promises and statements made by the seller or its agents that
had induced the buyer to enter into the contract. (Id. at p. 203.) Citing section 1668 among other authorities,
the California Supreme Court affirmed the judgment of rescission. (Simmons, supra, 217 Cal. at pp. 204,
209.) The high court explained, "It is settled beyond doubt, manifestly on sound grounds of justice, that a
seller cannot escape liability for his own fraud or false representations by the insertion of provisions such as
are embodied in the contract of sale herein. [Citations.]" (Id. at p. 204.)
In Smith v. Rickards (1957) 149 Cal.App.2d 648 (Smith), the trial court entered a judgment of rescission of a
real estate purchase contract in favor of the buyers after finding the seller had fraudulently induced the sale by
means of false representations the seller knew were false. (Id. at pp. 649-650.) The seller appealed, claiming
the buyers had disabled themselves from claiming fraud by agreeing to a provision in the contract that stated,
"Buyer has personally examined said property and is familiar with its location and condition and is not relying
upon any representation relating thereto." (Id. at pp. 653-654.) Citing section 1668 and Simmons, supra, 217
Cal. 201, the Smith court rejected the seller's claim and affirmed the judgment of rescission, stating, "Such
provisions have often been held insufficient to protect a fraudulent vendor from being held responsible for his
fraud." (Smith, supra, 149 Cal.App.2d at p. 654.)
More recently, the Court of Appeal in Blankenheim v. E. F. Hutton & Co. (1990) 217 Cal.App.3d 1463, 1471-
1472 (Blankenheim) explained that "[u]nder [section 1668], a party may not contract away liability for fraudulent
or intentional acts or for negligent violations of statutory law." (Italics added.)
Citing section 1668 and numerous other authorities, Witkin explains that "[a] party to a contract who has been
guilty of fraud in its inducement cannot absolve himself or herself from the effects of his or her fraud by any
stipulation in the contract, either that no representations have been made, or that any right that might be
grounded upon them is waived. Such a stipulation or waiver will be ignored, and parol evidence of
misrepresentations will be admitted, for the reason that fraud renders the whole agreement voidable, including
the waiver provision. [Citations.]" (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 304, pp. 330-
331, italics added.)
Quoting section 1668, another commentator explains that "'[a]ll contracts which have for their objective, directly
or indirectly, to except anyone from responsibility for his own fraud . . . are against the policy of the law.' A
provision of a contract that unreasonably exempts a party from the legal consequences of a fraudulent . . .
misrepresentation is unenforceable on grounds of public policy. Therefore, . . . a party who has induced the
other party to enter into the contract based on . . . an intentional . . . misrepresentation cannot be relieved of
liability by any . . . exculpatory clause, or other clause waiving liability, contained in the contract. Because the
fraud renders the entire contract voidable, the clause intended to absolve the seller from liability is also
voidable." (1 Miller & Starr, Cal. Real Estate, supra, § 1:153, p. 632, fns. omitted, italics added.)
Here, the CAR form agreement expressly provides at page 9, following paragraph 35, that "Real Estate Brokers
are not parties to the Agreement between Buyer and Seller." (Boldface omitted.) All of the exculpatory clauses
at issue in this appeal are contained in the agreement between Buyers and the sellers, and are not part of any
agreement between Buyers and Brokers.
However, the fact that Brokers were not parties to the agreement between Buyers and the sellers does not
preclude application of section 1668 in this case in which Buyers allege Brokers induced them to enter into the
agreement by means of intentional misrepresentations. The plain language of section 1668 (discussed, ante)
shows that its provisions apply to "[a]ll contracts" the object of which is to directly or indirectly exempt "anyone"
from responsibility for his or her "own fraud."
Brokers implicitly claim the exculpatory clauses in the CAR form agreement exempted them from responsibility
for their alleged acts of intentional misrepresentation as a matter of law. We reject this claim. Assuming
without deciding that Brokers have standing to invoke or rely upon the provisions of those exculpatory clauses
as a defense to Buyers' cause of action for intentional misrepresentation, those provisions must be deemed to
be against the policy of the law within the meaning of section 1668, and are thus unenforceable. (See § 1668;
Simmons, supra, 217 Cal. at p. 204; Smith, supra, 149 Cal.App.2d at pp. 649-650, 654; and Blankenheim,
supra, 217 Cal.App.3d at pp. 1471-1472.)
In Ron Greenspan Volkswagen, Inc. v. Ford Motor Land Development Corp. (1995) 32 Cal.App.4th 985, the
Court of Appeal, without citing section 1668, held that a contract clause stating the parties relied only on
representations contained in the contract does not bar, as a matter of law, a claim for intentional
misrepresentation. (Ron Greenspan Volkswagen, Inc., supra, 32 Cal.App.4th at pp. 987, 989, 992-993, citing
Simmons, supra, 217 Cal. 201 & other case authorities.)
Applying the foregoing authorities, we conclude the exculpatory clauses in the CAR form agreement cannot
and do not support the trial court's erroneous decision that, as a matter of law, Buyers cannot make a prima
facie showing that they justifiably relied on Brokers' alleged intentional misrepresentations.
2. Buyers' Alleged Failure To Diligently Investigate Brokers' Representations
In a related claim, Brokers also assert on appeal, as they did in their memorandum of points and authorities in
support of their summary judgment motion, that the element of justifiable reliance is negated as a matter of law
because Buyers contractually undertook to, and did, investigate Brokers' representations concerning Buyers'
ability to obtain County approval of a lot split, but failed to diligently perform that investigation, and thus Buyers
must be "charged with all the knowledge [they] might have obtained had [they] pursued the inquiry to the end
with diligence and completeness." Brokers assert the central core of the court's ruling granting summary
judgment in their favor is that Buyers had no legal "right to rely" on Brokers' alleged misrepresentation because
the CAR form agreement assigned to Buyers the duty to investigate the condition of the property. In essence,
Brokers assert that Buyers could not justifiably rely on Brokers' alleged misrepresentations as a matter of law
because Buyers would have discovered through a more diligent investigation that splitting the property was
inconsistent with General Plan Designator 24, a County ordinance requiring a minimum of four acres per
Brokers' claim is unavailing. It is well established in California that in an action for fraud or deceit, negligence
on the part of the plaintiff in failing to discover the falsity of the defendant's statement is no defense when the
misrepresentation was intentional. (Alliance, supra, 10 Cal.4th at pp. 1239-1240; Seeger v. Odell (1941) 18
Cal.2d 409, 414; see also 5 Witkin, Summary of Cal. Law, supra, Torts, § 812, p. 1173.) In Seeger, a
unanimous decision of the California Supreme Court, Justice Traynor quoted an out-of-state case for the
proposition that "'[n]o rogue should enjoy his ill-gotten plunder for the simple reason that his victim is by
chance a fool.' [Citation.]" (Seeger, supra, 18 Cal.2d at p. 415.) The Seeger court also stated, "The fact that
an investigation would have revealed the falsity of the misrepresentation will not alone bar [the plaintiff's]
recovery [citations], and it is well established that he is not held to constructive notice of a public record which
would reveal the true facts. [Citations]." (Id. at pp. 414-415.)
Also, Brokers' claim is based on the false premise that Buyers contractually undertook to investigate Brokers'
representations concerning Buyers' ability to obtain County approval of a lot split. It is a well-settled principle of
contract interpretation that the language of a contract governs its interpretation if the language is clear and not
absurd. (§ 1638 ["[t]he language of a contract is to govern its interpretation, if the language is clear and
explicit, and does not involve an absurdity"]; 1 Witkin, Summary of Cal. Law, supra, Contracts, § 741, p. 827
["[w]here the language of a contract is clear and not absurd, it will be followed"] & case authorities cited therein.)
Here, the plain, unambiguous language of paragraph 7 of the CAR form agreement shows as a matter of law
that the agreement did not impose on Buyers a contractual duty to investigate whether the property could be
split. Paragraph 7 clearly states in part that (1) Buyers had the "right" to conduct investigations; and (2)
Buyers were "strongly advised" to investigate the "condition and suitability" of "all aspects" of the property and
"all matters affecting the value or desirability of the property," including ordinances affecting the future
development and zoning of the property, and they would be "acting against the advice" of Brokers if they "[did]
not exercise these rights." (Italics added.) Thus, paragraph 7 conferred upon Buyers the contractual right, not
the contractual obligation, to conduct such an investigation.
Brokers rely on Bank of America Nat. Trust & Sav. Ass'n v. Vannini (1956) 140 Cal.App.2d 120 (Vannini) for
the proposition that "when the duty to investigate is contractually assigned to the purchaser of real property,
the purchaser is precluded from later suing the seller for fraud because the purchaser has, as a matter of law,
no legal 'right to rely' on any alleged material misrepresentations by the seller that predate the contract."
Brokers' reliance on Vannini is misplaced. That case involved the purchase and sale of an abandoned gold
mine in which the purchasers entered into an option agreement to buy the mine, but expressly and specifically
agreed to investigate the property before exercising the option by clearing water and debris out of the mine
and, at their election, digging an exploratory tunnel within a specified period of time from the date of the
agreement. (Vannini, supra, 140 Cal.App.2d at pp. 122-123, 128, 130-131.) The purchasers did not clear the
mine and complete the investigation within the period specified in the agreement. (Id. at p. 132.) Years later,
after exercising the option to buy the mine, the purchasers discovered the falsity of the sellers' representation
that ore in commercial quantities existed in the mine. (Ibid.)
The sellers in Vannini brought an action against the purchasers to recover money they allegedly owed the
sellers under the option agreement, and the purchasers filed an amended answer and cross-complaint, both of
which were predicated on the theory that the sellers had fraudulently induced them to enter into the
agreement. (Vannini, supra, 140 Cal.App.2d. at pp. 124, 132.) The trial court sustained the sellers' demurrers
to the purchasers' amended answer and cross-complaint without leave to amend and entered judgment in
favor of the sellers. (Id. at p. 124.)
The Vannini court addressed the issue of whether the trial court properly sustained without leave to amend the
sellers' demurrer to the purchasers' amended answer, which (like the purchasers' cross-complaint) was based
on an allegation that the sellers had induced them to enter into the option agreement by means of an
intentional misrepresentation. (Vannini, supra, 140 Cal.App.2d at pp. 125-126, 130.) Noting that under the
pleaded facts the purchasers had obligated themselves under the option agreement to clear the mine and
investigate the property within 17 months of the date of the option agreement (id. at pp. 130, 132), the Court of
Appeal stated that "the real question [was] not whether [the purchasers] relied on the false representations, but
whether they had the legal right to rely upon them." (Id. at p. 131, italics added.) The court concluded that the
purchasers' express agreement to conduct their own investigation "amounted to an agreement [they] were not
to rely on the representations made by [the sellers], but were to rely on their own investigation." (Ibid.) The
Vannini court held, "as a matter of law, that [the purchasers] had no legal right to rely on the false
representations at the time that they exercised the option," and thus the trial court had properly sustained the
demurrer to the purchasers' amended answer. (Id. at p. 132, italics added.) The court reasoned that if the
purchasers had performed their contractual duty to clear the mine and investigate the property, "they would
have gained full knowledge of the falsity of the representations made to induce the contract." (Ibid.)
Vannini is factually and legally distinguishable. There, as already discussed, the purchasers expressly agreed
to clear the gold mine and investigate the property within a specified period of time before they exercised the
option agreement. Here, however, Buyers entered into a purchase agreement, not an option agreement,
under which they acquired the contractual right, not the contractual obligation, to investigate the condition of
the property, including whether they could obtain County approval to split the property into two parcels.
Vannini is therefore inapposite.
3. Buyers' Prima Facie Showing of Justifiable Reliance
Brokers do not challenge the court's express findings that (1) "[a] fact-finder could conclude [Brokers]
knowingly . . . misrepresented the split had been approved," and (2) "[a] fact-finder could also conclude
[Buyers] reasonably relied on these misrepresentations and were not put on notice by the realty profile
provided to them or their agent prior to making the first offer to buy." (Italics added.) Rather, their principal
contentions are (1) the court "did not commit error by ruling on the issue of 'justifiable reliance' as a matter of
law" because the CAR form agreement "assigned the duty to investigate the condition of the property to
Buyers"; and (2) Buyers "admitted that they conducted an investigation of the laws and ordinances affecting
the potential for splitting the . . . property prior to close of escrow," and thus they must be "charged with all the
knowledge that [they] might have obtained had [they] pursued the inquiry to the end with diligence and
Viewing the evidence in a light favorable to the losing parties (here, Buyers), liberally construing their
evidentiary submission while strictly scrutinizing the prevailing parties' (here, Brokers') own showing, and
resolving any evidentiary doubts or ambiguities in favor of the losing parties, as we must (Saelzler v. Advanced
Group 400, supra, 25 Cal.4th at pp. 768-769), we conclude the record demonstrates that Buyers met their
burden of making a prima facie showing that there are triable issues of material fact (1) whether Brokers
intentionally misrepresented that, according to County, the property could be split and the split had been
approved; and (2) whether Buyers justifiably relied on Brokers' alleged intentional misrepresentations. As
discussed more fully in the factual background, ante, the parties dispute what Clark told
Fowler during their June 22 telephone conversation, as shown by the deposition testimony
of Rick Rinear, Fowler and Clark, and Clark's declaration in support of Brokers' summary
judgment motion. The issues of whether Brokers intentionally misrepresented that the County had stated
the property could be split and the split had been approved, and whether Buyers' reliance on Brokers'
statements was reasonable under all of the circumstances, are questions of material fact that must be decided
by the trier of fact.
The judgment is reversed and the matter is remanded for further proceedings.
Buyers shall recover their costs on appeal.
CERTIFIED FOR PUBLICATION
BENKE, Acting P. J.
|"As discussed more fully in the
factual background, ante, the parties
dispute what Clark told Fowler
during their June 22 telephone
conversation, as shown by the
deposition testimony of
Rick Rinear, Fowler and Clark,
and Clark's declaration in support of
Brokers' summary judgment
An "Action for Deceit"
Is Rick Rinear a pot calling the kettle
Rick Rinear has made a living by damaging and defrauding
students, employees and the public when they make legitimate
claims. Rick Rinear and his boss, Diane Crosier, accomplish this
through the use of specially-chosen lawyers who tell school districts
and their employees to hide the truth, destroy or hide evidence and
And who is representing Mr. Rinear in this case? One of those
specially-chosen lawyers, Daniel Shinoff.
|What exactly does it mean when
someone like Rick Rinear swears to tell
the truth under penalty of perjury, after
he's spent his work life relying on clients
perjuring themselves in order to make a
living? What is left of a person's
integrity when their job is to make sure
victims don't get justice?
Did Daniel Shinoff give Rick
Rinear a break on legal fees
in return for keeping
Shinoff on the list of JPA
Would Rick Rinear or Daniel
Shinoff know a conflict of
interest if they tripped over
it and broke their noses?
OF THE DIRECTIVE
"If a claim is submitted
in letter format and is
compliance), per the
Government Code, the
claim should be handled
as if submitted on the
district’s Claim Form; i.
e., returned as
insufficient, late or
The enclosed sample letter should only be used to forward a claim form to
those claimants who request a form from the district.
A sample Tort Claim Form complying with Government Code 910.4 (a) is
also enclosed. Please continue to forward claims when received to San
Diego County Schools Risk Management JPA, 6401 Linda Vista Road, Room
505, San Diego, CA. 92111, Attention: Rodger Hartnett, Property
& Liability JPA Claims Coordinator. Rodger or Lisa Adriance-Jensen will
recommend what action to take. Rodger’s telephone number is 858-569-
5428; Lisa’s telephone number is 858-569-5453. Please call me @ 858-
292-3871 with questions.
|School districts are
told to reject a
claim if it is
> > >
are ALSO told to
reject the claim if
> > >
|San Diego County
Office of Education -
Joint Powers Authority
REVISED CLAIMS PROCEDURE
January 22, 2004
To: JPA Representatives
From: Rick Rinear, JPA Risk Management
Subject: Tort Claim Reporting Form – Revised
We would like to clarify the Tort Claim Reporting
procedure, as there has been some confusion about
requiring all potential claimants to use a district-written
Effective April 1, 2003, Government Code Section 910.4 (a) requires
public entities to provide a standardized Tort Claim Form that claimants
use to file their claims for submission to districts.
The standard Claim Form (sample attached), must include information
specified in Government Code Section 910 and 910.2. Districts can still
consider claims “submitted” without the required form.
Districts may consider a written claim without requiring the referenced
claim form. The referenced claim form must be available when requested.
We are providing a sample Cover Letter for potential claimants who
request the required form.
Careful review of a claim is necessary for compliance or late
filing. If considered insufficient (not in compliance), the claim
must be returned to claimant within 20 days from receipt.
If a claim is submitted in letter format and is
sufficient (in compliance), per the Government
Code, the claim should be handled as if submitted
on the district’s Claim Form; i.e., returned as
insufficient, late or rejected. [Emphasis added.]
San Diego County Office of Education (SDCOE)
Stutz, Artiano Shinoff & Holtz
22.214.171.124 - - [16/Jun/2008:21:40:09 -0700] "GET /rickrineardenytortclaim.html HTTP/1.1"
200 71135 "http://www.google.com/search?hl=en&safe=off&q=Anne+Manderville+exculpatory"
"Mozilla/4.0 (compatible; MSIE 6.0; Windows NT 5.1; SV1; .NET CLR 1.1.4322)"
"Several publicly owned
have since reported
from San Diego
--San Diego Union
Tribune, June 25, 2008
"If a claim is submitted in letter format and is
sufficient..the claim should be... returned as
insufficient, late or rejected."
-- Rick Rinear, SDCOE-JPA
(with SDCOE-JPA atty.
Dan Shinoff acting as