California Civil Jury Instructions (CACI) (2017)

2002. Trespass to Timber (Civ. Code, § 3346; Code Civ. Proc., § 733)

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2002.Trespass to Timber—Essential Factual Elements (Civ.
Code, § 3346)
[Name of plaintiff] claims that [name of defendant] trespassed on [his/her/
its] property and [cut down or damaged trees/took timber]. To establish
this claim, [name of plaintiff] must prove all of the following:
1. That [name of plaintiff] [owned/leased/occupied/controlled] the
2. That [name of defendant] intentionally entered [name of plaintiff]’s
property and [cut down or damaged trees/took timber] located
on the property;
2. [or]
2. That [name of defendant], although not intending to do so,
[recklessly/ [or] negligently] entered [name of plaintiff]’s property
and damaged trees located on the property;
3. That [name of plaintiff] did not give permission to [cut down or
damage the trees/take timber] [or that [name of defendant]
exceeded [name of plaintiff]’s permission];
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[In considering whether [name of plaintiff] was harmed, you may take
into account the lost aesthetics and functionality of an injured tree.]
New September 2003; Revised June 2013
Directions for Use
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 he or
she 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
Sources and Authority
• 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 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
• “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.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1732−1734
2Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.20 (Matthew
48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.10
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.161 et seq. (Matthew