California Jury Instruction CACI 2002 Trespass to Timber—Essential Factual Elements (Civ. Code, § 3346)

New September 2003; Revised June 2013, May 2020

Nakase Wade | California Business Lawyers & Corporate Lawyers

Give this instruction for loss of timber or damages to trees. Note that actual damages are to be doubled regardless of the defendant’s intent. (See Civ. Code, § 3346(a).) If treble damages for willful and malicious conduct are sought, also give CACI No. 2003, Damage to Timber—Willful and Malicious Conduct.

With regard to element 2, liability for trespass may be imposed for conduct that is intentional, reckless, negligent, or the result of an extra-hazardous activity. (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406 [235 Cal.Rptr. 165].) However, intent to trespass means only that the person intended to be in the particular place where the trespass is alleged to have occurred. (Miller v. National Broadcasting Corp. (1986) 187 Cal.App.3d 1463, 1480–1481 [232 Cal.Rptr. 668].) Liability may be also based on the defendant’s unintentional, but negligent or reckless, act; for example an automobile accident that damages a tree. An intent to damage is not necessary. (Meyer v. Pacific Employers Insurance Co. (1965) 233 Cal.App.2d 321 [43 Cal.Rptr. 542].)

It is no defense that the defendant mistakenly, but in good faith, believed that the defendant had a right to be in that location. (Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770, 1780 [18 Cal.Rptr.2d 574].) In such a case, the word “intentionally” in element 2 might be confusing to the jury. To alleviate this possible confusion, give the third option to CACI No. 2004, “Intentional Entry” Explained. See also the Sources and Authority to CACI No. 2000, Trespass—Essential Factual Elements.

Include the last paragraph if the plaintiff claims harm based on lost aesthetics and functionality.

•Damages for Injury to Timber. Civil Code section 3346(a).

•“[T]he effect of [Civil Code] section 3346 as amended, read together with [Code of Civil Procedure] section 733, is that the Legislature intended, insofar as wilful and malicious trespass is concerned under either section, to leave the imposition of treble damages discretionary with the court, but to place a floor upon that discretion at double damages which must be applied whether the trespass be wilful and malicious or casual and involuntary, etc. There are now three measures of damages applicable to the pertinent types of trespass: (1) for wilful and malicious trespass the court may impose treble damages but must impose double damages; (2) for casual and involuntary trespass, etc., the court must impose double damages; and (3) for trespass under authority actual damages.” (Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 645, fn.3 [199 Cal.Rptr.3d 705].)

•“The measure of damages to be doubled or trebled under Code of Civil Procedure section 733 and Civil Code section 3346 is not limited to the value of the timber or the damage to the trees. The statutes have been interpreted to permit doubling or trebling the full measure of compensable damages for tortious injury to property.” (Fulle v. Kanani (2017) 7 Cal.App.5th 1305, 1312 [212 Cal.Rptr.3d 920] [annoyance and discomfort damages resulting from tortious injuries to timber or trees are subject to the damage multiplier under Code of Civil Procedure section 733 and Civil Code section 3346].)

•The damages provisions in sections 3346 and 733 must be “treated as penal and punitive.” (Baker v. Ramirez (1987) 190 Cal.App.3d 1123, 1138 [235 Cal.Rptr. 857], internal citation omitted.)

•“ ‘However, due to the penal nature of these provisions, the damages should be neither doubled nor tripled under section 3346 if punitive damages are awarded under section 3294. That would amount to punishing the defendant twice and is not necessary to further the policy behind section 3294 of educating blunderers (persons who mistake location of boundary lines) and discouraging rogues (persons who ignore boundary lines).’ ” (Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal.App.4th 153, 169 [100 Cal.Rptr.2d 662], internal citations omitted.)

•“Diminution in market value … is not an absolute limitation; several other theories are available to fix appropriate compensation for the plaintiff’s loss. … [¶] One alternative measure of damages is the cost of restoring the property to its condition prior to the injury. Courts will normally not award costs of restoration if they exceed the diminution in the value of the property; the plaintiff may be awarded the lesser of the two amounts.” (Heninger v. Dunn (1980) 101 Cal.App.3d 858, 862 [162 Cal.Rptr. 104], internal citations omitted.)

•“The rule precluding recovery of restoration costs in excess of diminution in value is, however, not of invariable application. Restoration costs may be awarded even though they exceed the decrease in market value if ‘there is a reason personal to the owner for restoring the original condition,’ or ‘where there is reason to believe that the plaintiff will, if fact, make the repairs.’ ” (Heninger, supra, 101 Cal.App.3d at p. 863, internal citations omitted.)

•“Courts have stressed that only reasonable costs of replacing destroyed trees with identical or substantially similar trees may be recovered.” (Heninger, supra, 101 Cal.App.3d at p. 865.)

•“As a tree growing on a property line, the Aleppo pine tree was a ‘line tree.’ Civil Code section 834 provides: ‘Trees whose trunks stand partly on the land of two or more coterminous owners, belong to them in common.’ As such, neither owner ‘is at liberty to cut the tree without the consent of the other, nor to cut away the part which extends into his land, if he thereby injures the common property in the tree.’ ” (Kallis v. Sones (2012) 208 Cal.App.4th 1274, 1278 [146 Cal.Rptr.3d 419].)

•“[W]hen considering the diminished value of an injured tree, the finder of fact may account for lost aesthetics and functionality.” (Rony v. Costa (2012) 210 Cal.App.4th 746, 755 [148 Cal.Rptr.3d 642].)

•“Although [plaintiff] never quantified the loss of aesthetics at $15,000, she need not have done so. As with other hard-to-quantify injuries, such as emotional and reputational ones, the trier of fact court was free to place any dollar amount on aesthetic harm, unless the amount was ‘ “so grossly excessive as to shock the moral sense, and raise a reasonable presumption that the [trier of fact] was under the influence of passion or prejudice.” ’ ” (Rony, supra, 210 Cal.App.4th at p. 756.)

•“[P]laintiffs here showed (i) the tree’s unusual size and form made it very unusual for a ‘line tree’—it functioned more like two trees growing on the separate properties; (ii) the tree’s attributes, such as its broad canopy, provided significant benefits to the [plaintiffs’] property; and (iii) the [plaintiffs] placed great personal value on the tree. The trial court correctly recognized that it could account for these factors when determining damages, including whether or not damages should be reduced.” (Kallis, supra, 208 Cal.App.4th at p. 1279.)