There are plenty of prudential and political reasons to be concerned that federal criminal law is broad enough to criminalize nearly any transaction that seems wrong to a creative prosecutor. That leads to abuse and undue federal power. Nevertheless, there are definitely times that I miss the flexible, broadly drafted federal fraud laws. Case in point: trying to draft a civil complaint against someone who ripped off your client by making misrepresentations to a third party — for instance, by forging their name on a document in order to sell their property out from under them.
Under federal criminal law that would be childishly simple to address: it's a scheme to defraud, it almost certainly somehow involved a mailing or a use of the wires or tubes, so you can use the mail or wire fraud statutes. But California law lacks effective and flexible weapons against such situations where the wrongdoer rips you off not by lying to you, but by lying to a third person in order to get your money or property. The victim can't use common-law or plain-vanilla-statutory fraud — under California law, fraud requires a false statement or omission directly to the victim or intended to reach and deceive the victim. A forgery/impersonation type scheme involves false statements that aren't designed to reach or deceive the victim — they are intended to reach or deceive the person holding the victim's money or property. Forgery is not itself a civil cause of action under California law. You can use common-law conversion or various "common counts," but those don't really capture the fraudulent nature of the transaction. They lack the punch of a fraud claim. And as far as I can tell, none of the poorly drafted semi-literate statutes issued by our Legislature provide an effective means of addressing the situation.
There ought to be a law. To that end, I propose this law:
FRAUD BY STATEMENT TO THIRD PARTIES: Fraud and deceit within the meaning of California Civil Code Sections 1572-73. 1709, and 1710, as well as within the meaning of the common-law causes of action of fraud, fraudulent misstatement, fraudulent omission, fraud in the inducement, and negligent misstatement or omission, includes not only false or misleading statements to the person asserting the cause of action, but false or misleading statements to a third party for the purpose of depriving the person asserting the cause of action of any right or thing of value. The elements of a fraud cause of action under this theory are (1) the defendant made a false or misleading statement to a third party, (2) the defendant knew that the statement was false or misleading, (3) the defendant intended by that statement to defraud, (4) the third person reasonably relied upon the false or misleading statements, and (5) as a consequence the person asserting the claim was damaged by being deprived of a right or thing of value. This theory of fraud conforms in all respects to established rules that govern stating and proving a cause of action for fraud.
When you're a lawyer, you care about such things.
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