HERNDON, J. I dissent. I shall undertake to indicate the reasons for my opinion that the trial court erred in sustaining respondents’ demurrer to appellant’s second amended complaint. For the purpose of testing the sufficiency of appellant’s pleading, the following facts alleged in the first cause of action must be deemed to be true:
On November 6, 1962, plaintiff was employed by the Southwest Steel Rolling Mills Corporation and was a member of defendant United Steelworkers of America, hereinafter referred to as the Union. On that date plaintiff, in the course and scope of his employment, sustained a severe injury to his back as the result of the negligence of an employee of the California Oxygen Company.
Defendant James Reed was a representative of the Union and the workers of the Southwest Steel Rolling Mills were within the jurisdiction of his working area. The acts of Reed of which plaintiff complains were within the scope of his authority as agent of the Union and were done with its permission and consent. On September 18, 1963, in accordance with the information . given . him by his fellow employees, including a former committeeman of defendant Union,- plaintiff went to Reed’s offices to. consult .him .concerning .his .accident since Reed .was thus .held out by the-Union .as .the person who would “take care .of- yoúr interest” .if “you are injured in the plant. ”
[453]Thé'Union “allowed . . . Reed to advise [its members] on the filing of the Industrial Accident Commission claims and process said claims for the members ...” Reed “was not a person duly licensed to practice law in the State of California” although the Union “knew or should have known that . . . Reed was giving advice of a legal nature to [its] members ...” Reed “advised the plaintiff not to file a lawsuit against the California Oxygen Company.” Reed “gave the plaintiff an application for filing with the State Industrial Accident Commission, and at that time informed the plaintiff that if he filed a suit against the California Oxygen Company it would hurt his claim before the State Industrial Accident Commission.” Reed “did see that plaintiff’s Industrial Accident Commission application was filed . . . after November 5, 1963” although he “knew or should have known that plaintiff had to file an action for negligence against California Oxygen Company ... on or before November 5, 1963, or his cause of action would have been barred by the one-year statute of limitations. ’ ’
Reed’s advice was “knowingly, wrongfully and negligently” given and as the proximate result thereof plaintiff was damaged in the amount of $50,000. “The sum of $50,000.00 is the amount plaintiff would have been entitled to from his cause of action against the California Oxygen Company, its agents and employees, for their negligence in injuring . . . plaintiff, after the lien of State Compensation Insurance Fund had been repaid.” Plaintiff had received $8,683.10 in compensation indemnity and $2,809.81 in medical treatment from the Fund.
The second cause of action of plaintiff’s complaint alleges, and respondents’ demurrer admits, the following facts:
Reed “falsely and fraudulently represented to plaintiff that plaintiff should not file an action for damages against the California Oxygen Company . . . that rather . . . Reed would see that an Industrial Accident Commission application was filed in plaintiff’s behalf and the plaintiff would be much better off financially if the plaintiff’s injury was handled in this manner.” When Reed “made said representations, he knew them to be false; such statements were made by him with the intent to defraud and deceive plaintiff and to induce him to act in the manner herein alleged. Plaintiff, at the time said representations were made, was ignorant of their falsity but believed them to be true. In reliance thereon, plaintiff was induced [not to file] and did not file an action against Cali[454]fornia Oxygen Company . . . for the injuries he received on November 6, 1962 and when the plaintiff became aware that he had a cause of action against California Oxygen Company ... it was in the year 1964, and the statute of limitations had run on his cause of action against [that company]. ...”
The record before us fails to disclose either the grounds or the theory upon which the trial court determined that plaintiff’s complaint failed to state a cause of action. The arguments advanced by respondents in support of the trial court’s ruling as set forth in their brief filed herein are unconvincing.
It is unnecessary to decide whether the first cause of action of plaintiff’s complaint is designed to state a cause of action on the theory of negligent interference with an economic expectancy (cf. 16 Stan. L. Rev., p. 664 et seq.), or whether its purpose is to allege only that Reed’s misrepresentations were negligently made as distinguished from the allegations contained in the second cause of action to the effect that they were made with actual knowledge of their falsity and with the express intent to deceive. (Cf. 23 Cal.Jur.2d, Fraud and Deceit, §28, pp. 68-70, and cases cited.) It is clear, however, that when tested only by a general demurrer, plaintiff’s complaint sufficiently states a cause of action either under the theory of combined negligence and wrongdoing enunciated and applied in Biakanja v. Irving, 49 Cal.2d 647 [320 P.2d 16, 65 A.L.R.2d 1358], or under the general principles of,the law of deceit set forth in Civil Code sections 1708, 1709 and-1710.
It is exceedingly difficult, of course, to determine in the abstract what kinds of advice given with reference to a subject matter within the “flexible 1 twilight zone’ ” surrounding the unquestioned practice of the law will amount to an unauthorized invasion therein. The boundary line between the permissible and the prohibited is often very difficult to draw. (Cf. 6 Cal.Jur.2d, Rev., Attorneys at Law, § 258, p. 360, § 268, p. 368.) In Biakanja v. Irving, supra, 49 Cal.2d at page 651, our Supreme Court stated:
“Defendant [a notary public] undertook to provide for the formal disposition of Maroevich’s estate by drafting and supervising the execution of a will. This was an important transaction requiring specialized skill, and defendant clearly was not qualified to undertake it. His conduct was not only negligent but was also highly improper. He engaged in the unauthorized practice of the law [citations], which is a misdemeanor in violation of section 6126 of the Business and [455]Professions Code. Such conduct should he discouraged and not protected by immunity from civil liability, as would be the case if plaintiff, the only person who suffered a loss, were denied a right of action.” (Italics added.)
In the instant ease, Reed necessarily entered into a confidential relationship with plaintiff when he undertook to protect plaintiff’s interests by advising him concerning his injury and to assist him in connection with his industrial accident claim. Accepting as we must the allegations of plaintiff's complaint, Reed, as an integral and inseparable part of his undertaking to advise plaintiff as to the most advantageous method of prosecuting his claim, falsely and either intentionally or negligently represented to him that the filing of a third party suit ‘‘would hurt his claim” and that he ‘‘would be much better off financially if [his] injury were handled in this manner. ’ ’
For present purposes it is unnecessary to decide whether or not Reed was engaged in the practice of the law as that expression is used in Business and Professions Code, section 6125. The Legislature has seen fit to authorize persons not admitted to practice law to represent others before the Industrial Accident Commission (Lab. Code, § 5600; Eagle Indem. Co. v. Industrial Acc. Com., 217 Cal. 244, 247-249 [18 P.2d 341]), and such authorization necessarily must include the giving of advice in connection therewith. Therefore, although the giving of legal advice in this field may not be characterized as ‘‘improper,” as were the actions of the notary public considered in Biakanja, nevertheless one who undertakes such responsibility owes a duty of care to those whom he undertakes to serve and who reasonably rely upon his advice.
Insofar as plaintiff’s complaint alleges that his cause of action against the California Oxygen Company was lost by reason of respondents’ fraudulent misrepresentations, numerous cases have held that damages may be recovered from the party guilty of such misrepresentations. (58 A.L.R.2d 500, and cases cited and discussed therein.) This rule is not neees'sarily altered merely because the misrepresentation may be characterized as one of law. As stated in Regus v. Schartkoff, 156 Cal.App.2d 382, 388-389 [319 P.2d 721]:
‘‘Civil Code, section 1708, reads: ‘Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his rights. ’
‘‘Section 1709 reads: ‘One who willfully deceives another [456]with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers. ’
“Section 1710 reads: ‘A deceit, within the meaning of the last section, is either:
“ 11. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
“ ‘2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;
“ ‘3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or,
“ ‘4. A promise, made without any intention of performing it.’
‘ ‘ The elements of actionable deceit are: a false representation of a material fact made with knowledge of its falsity, or recklessly, or without reasonable grounds for believing its truth, and with intent to induce reliance thereon, on which plaintiff justifiably relies to his injury. [Citation.] Count II contains facts which embrace all these factors. Fraud is the gravamen of the cause of action.
“It is argued that the representation alleged is one of law ; that a misrepresentation as to a matter of law, or a concealment as to a matter of law, will not constitute actionable fraud even though such misrepresentation is believed and acted on.
“The general rule is that a misrepresentation of law is not actionable fraud. That is, a representation of law by a layman not occupying a confidential relationship toward the one to whom it is addressed and based on facts equally known or accessible to both does not ordinarily justify reliance on the representation. [Citation.] The general rule has exceptions. One exception is where the party expressing the opinion purports to have expert knowledge concerning the matter. [Citation.] Another exception is where the party expressing the opinion, having had superior means of information, possesses a knowledge of the law and thereby gains an unconscionable advantage over one who is ignorant and has not been in a situation to become informed. [Citation.] In either of these cases the injured party is entitled to relief. The right to relief is predicated on the same ground as if the misrepresentation of law were of a matter of fact. ’ ’
I submit that appellant’s pleading sufficiently alleges every essential element of actionable fraud. The representations allegedly made by respondent Reed are precisely set forth and [457]it is alleged that when he “made said representations, hé knew them to be false; "such statements were made by him with the intent to defraud and deceive plaintiff and'to induce him to act in the manner herein alleged.” Reliance and damage are alleged in conventional form. As stated in Maxwell v. City of Santa Rosa, 53 Cal.2d 274, 279-281 [1 Cal.Rptr. 334, 347 P.2d 678]:
“The principal attack which defendants make regarding the specific allegations of the complaint is that the allegations of fraud are general in nature, consist of legal conclusions, and fail to point out any acts amounting to fraud. They rely upon the rule that fraud, such as is relied on herein, may not be alleged in general terms, but ‘must be pleaded in specific language descriptive of the acts which are relied upon to constitute fraud.’ (Hannon v. Madden, supra, 214 Cal. 251, 267 [5 P.2d 4].) . . .
“In attacking these allegations, defendants rely upon authorities most of which arose upon review of the evidence, not the pleadings. Such authorities hold that the alleged fraud of city officials in the exercise of their legislative functions is not to be lightly presumed, and that strong proof is necessary to substantiate any such charge. But we are not here dealing with the proof of plaintiffs’ allegations. It is not for us to speculate how plaintiff expects to prove the frame of mind of the council members at the time they adopted certain resolutions. It is sufficient that they have alleged specific acts which, if proved, would justify a finding of fraud sufficient to negate the proceedings. The authorities on the subject require no more than that the allegations ‘be pleaded in specific language descriptive of the acts which are relied upon to constitute fraud.’ [Citation.] This requirement has been met.” (Italics added.)
Respondents’ contention that it was unreasonable as a matter of law for plaintiff to rely upon Reed’s negligent or fraudulent misrepresentations is untenable and unavailing as a ground supportive of the ruling on the demurrer. It cannot be stated as an abstract principle of law that the relationship between a union member and an official representative of his union is such that the member may never rely upon the official’s statements in a field in which the official purports to have superior knowledge.
“ [T]he fact that a shrewd business man would not have relied upon such statements, did not justify [defendant real estate brokers] in making them to a trusting client, nor [458]relieve them from Jjqb-jlity for so doing. As has been said, ‘That plaintiff is too credulous is not generally a defense. “The test of the representation is its -actual effect on the particular mind, whether it is a strong and circumspect mind, or one weak and too relying.” ’ [Citation.]” (Feckenscher v. Gamble, 12 Cal.2d 482, 496-497 [85 P.2d 885].)
Finally, respondents’ reliance upon cases such as Vaca v. Sipes, 386 U.S. 171 [17 L.Ed.2d 842, 87 S.Ct. 903], and Humphrey v. Moore, 375 U.S. 335 [11 L.Ed.2d 370, 84 S.Ct. 363], is completely misplaced. These decisions merely deal with the question of the duty owing by a union to its membership in its collective bargaining activities. They have no relevancy to the duty arising in a situation such as the present where the union has undertaken to assist its membership, and to retain their loyalty and continued support, by providing services wholly unconnected with the collective bargaining process.
By its demurrer respondent Union admits that it knew its agent Reed “was giving advice of a legal nature to [its] members” and that “in doing the things” alleged in plaintiff’s complaint Reed was “acting in the scope of [his] authority as such agent . . . and with the permission and consent” of respondent Union. The complaint avers in effect that the Union held out its -agent Reed as a person competent to give the advice allegedly given.
In Walnut Creek Aggregates Co. v. Testing Engineers Inc., 248 Cal.App.2d 690 [56 Cal.Rptr. 700], the court of appeal reversed a judgment of dismissal entered upon the granting of defendant’s motion for a nonsuit. The following applicable principles of law are stated at pages 695-696 :
“It seems clear that a duty of ordinary care may arise out of a voluntarily assumed relationship. (Merrill v. Buck, 58 Cal.2d 552, 561-562 [25 Cal.Rptr. 456, 375 P.2d 304]; Silva v. Providence Hospital of Oakland, 14 Cal.2d 762, 775 [97 P.2d 798]; Johnston v. Orlando, 131 Cal.App.2d 705, 708-709 [281 P.2d 357]; Valdez v. Taylor Automobilc Co., 129 Cal.App.2d 810, 817 [278 P.2d 91]; Prosser, Torts, § 54, pp. 339-343 (3d ed. 1964); 2 Harper and James, Torts, § 18.6, pp. 1044-1053; 2 Witkin, Summary of Cal. Law (1960) Torts, § 241, pp. 1436-1437; Cal. Jury Instns., Civ. (4th rev. ed. 1956) No. 101-G; Rest.2d Torts, § 323.) But such a duty is not absolute. It will exist only where required by public policy.
“In Merrill v. Buck, supra, 58 Cal.2d 552, 561, the court stated: ‘Privity of contract is not necessary to establish the existence of a duty to exercise ordinary care not to injure [459]another, hut such duty may arise out of a voluntarily assumed relationship if public policy dictates the existence of such a duty. ’ For the guidelines in determining the public policy as to a given case the court referred to Biakanja v. Irving. 49 Cal.2d 647 [320 P.2d 16, 65 A.L.R.2d 1358], In that case (p. 650) the court stated: ‘The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm. ’
“Additional criteria for determination of public policy in cases such as that before us, are discussed in Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 309-315 [29 Cal.Rptr. 33, 379 P.2d 513], and Raymond v. Paradise Unified School Dist., 218 Cal.App.2d 1, 8 [31 Cal.Rptr. 847], (See also Stewart v. Cox, 55 Cal.2d 857, 863 [13 Cal.Rptr. 521, 362 P.2d 345]; Stromer v. City of Yuba City, 225 Cal.App.2d 286, 289-292 [37 Cal.Rptr. 240]; M. Miller Co. v. Dames & Moore, 198 Cal.App.2d 305, 309 [18 Cal.Rptr. 13]; Burke v. Zanes, 193 Cal.App.2d 773, 777 [14 Cal.Rptr. 619].)
“The determination of whether a duty of care exists is (at least in the first instance) a question of law for the court. (Amaya v. Home Ice, Fuel & Supply Co., supra, 59 Cal.2d 295, 307-308; Richards v. Stanley, 43 Cal.2d 60, 67 [271 P.2d 23]; Calandri v. Ione Unified School Dist., 219 Cal.App.2d 542 [33 Cal.Rptr. 333]; Raymond v. Paradise Unified School Dist., supra, 218 Cal.App.2d 1, 7; Prosser, Torts (3d ed. 1964) §89, p. 607; 2 Harper and James, Torts, § 18.8, p. 1058; Rest.2d Torts, § 328 B.)
“Defendant contends also that there can be no duty of care, in the absence of privity, as to the ‘ intangible [pecuniary] interests’ of plaintiff. We do not find this to be the law. The nature, and closeness or remoteness, of the injury are elements of the criteria to be considered in determining the existence of a duty. Biakanja, supra, lists among the factors to be considered, ‘the degree of certainty that the plaintiff suffered injury, [and] the closeness of the connection between the defendant’s conduct and the injury suffered. . . .’ (49 Cal.2d 650.) And Biakanja itself allowed recovery (in the absence [460].of privity) for harm to the ‘intangible interests’ of the plaintiff in that case. Defendant cites, and we find, no authority stating that an intangible property interest is wholly excluded from protection from negligent injury. ’ ’
In the ease at bench the question whether or not defendants owed plaintiff a duty to exercise due care in advising him with respect to matters of law directly relating to and affecting the safeguarding and enforcement of legal rights accruing to him as the result of an industrial accident is a question of fact if indeed it is not a question of law necessarily demanding an affirmative answer.
The unquestioned truth that defendant Reed “was giving advice of a legal nature” is most significant. Nothing is detracted from the significance of this fact when recognition is given to the legality of that practice at least to the extent that it was limited to advising and assisting union members in connection with the drafting and processing of their claims for compensation.
To the extent that there may be a question as to the reasonableness of plaintiff’s reliance upon Reed’s advice that he should not file a law suit against a third party, the circumstances should be realistically viewed from the standpoint of a lay member of the union utilizing the services of an agent held out.as being competent to advise and assist him in the enforcement of his rights resulting from an industrial accident. Certainly it cannot be said as a matter of law that the plaintiff could not reasonably rely upon the advice of this “workmen’s compensation lawyer” .to the effect that the filing of a law suit would be inadvisable because it would adversely affect his claim for workmen’s compensation. .
I would reverse the judgment of dismissal and remand the cause to the-trial court with instructions to overrule the general demurrer.
A petition for a rehearing was denied May 22, 1968. Herndon, J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied June 19, 1968. Peters, J., was of the opinion that the petition should be granted.