Is materiality an element of a fraud cause of action?

But even if we assume that Evidence Code section can be applied against a party who seeks to uphold an instrument in an action for fraud, it does not appear that "materiality" as an element of a fraud cause of action is a "fact" to which Evidence Code section 622 applies. Although materiality has factual components (did a party consider a fact important) materiality is also " 'a question of law, and is part of the concept of right to rely or justifiable reliance.' [Citation.] Accordingly, the term is essentially a label affixed to a normative conclusion." (Reed v. King (1983) 145 Cal.App.3d 261, 265-266.) It is one thing to say that parties who sign a contract should be bound by the factual representations they make in that contract; it is another to say that a party should be deemed to have conclusively admitted a

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legal element of a tort where that representation is contrary to the actual underlying facts.