California Civil Jury Instructions (CACI)

2003. Damage to Timber—Willful and Malicious Conduct

[Name of plaintiff] also claims that [name of defendant]’s conduct in cutting down, damaging, or harvesting [name of plaintiff]’s trees was willful and malicious.

“Willful” simply means that [name of defendant]’s conduct was intentional.

“Malicious” means that [name of defendant] acted with intent to vex, annoy, harass, or injure, or that [name of defendant]’s conduct was done with a knowing disregard of the rights or safety of another. A person acts with knowing disregard when he or she is aware of the probable dangerous consequences of his or her conduct and deliberately fails to avoid those consequences.

New September 2003; Revised December 2010

Directions for Use

Read this instruction if the plaintiff is seeking double or treble damages because the defendant’s conduct was willful and malicious. (See Civ. Code, § 3346; Code Civ. Proc., § 733; Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1742 [33 Cal.Rptr.2d 391].). The judge should ensure that this finding is noted on the special verdict form. The jury should find the actual damages suffered. If the jury finds willful and malicious conduct, the court must award double damages and may award treble damages. (See Ostling, supra, 27 Cal.App.4th at p. 1742.)

Sources and Authority

  • Civil Code section 3346(a) provides: “For wrongful injuries to timber, trees, or underwood upon the land of another, or removal thereof, the measure of damages is three times such sum as would compensate for the actual detriment, except that where the trespass was casual or involuntary, or that the defendant in any action brought under this section had probable cause to believe that the land on which the trespass was committed was his own or the land of the person in whose service or by whose direction the act was done, the measure of damages shall be twice the sum as would compensate for the actual detriment, and excepting further that where the wood was taken by the authority of highway officers for the purpose of repairing a public highway or bridge upon the land or adjoining it, in which case judgment shall only be given in a sum equal to the actual detriment.”
  • Code of Civil Procedure section 733 provides, in part: “Any person who cuts down or carries off any wood or underwood, tree, or timber . . . or otherwise injures any tree or timber on the land of another person . . . is liable to the owner of such land . . . for treble the amount of damages which may be assessed therefor, in a civil action, in any Court having jurisdiction.”
  • 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.)
  • “Although an award of double the actual damages is mandatory under section 3346, the court retains discretion whether to triple them under that statute or Code of Civil Procedure section 733. [¶] ‘So, the effect of section 3346 as amended, read together with 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.’ ” (Ostling, supra, 27 Cal.App.4th at p. 1742, internal citation omitted.)
  • “Treble damages could only be awarded under [section 3346] where the wrongdoer intentionally acted wilfully or maliciously. The required intent is one to vex, harass or annoy, and the existence of such intent is a question of fact for the trial court.” (Sills v. Siller (1963) 218 Cal.App.2d 735, 743 [32 Cal.Rptr. 621], internal citation omitted.)
  • “Although neither section [3346 or 733] expressly so provides, it is now settled that to warrant such an award of treble damages it must be established that the wrongful act was willful and malicious.” (Caldwell v. Walker (1963) 211 Cal.App.2d 758, 762 [27 Cal.Rptr. 675], internal citations omitted.)
  • “A proper and helpful analogue here is the award of exemplary damages under section 3294 of the Civil Code when a defendant has been guilty, inter alia, of ‘malice, express or implied.’ . . . ‘In order to warrant the allowance of such damages the act complained of must not only be wilful, in the sense of intentional, but it must be accompanied by some aggravating circumstance, amounting to malice. Malice implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others. There must be an intent to vex, annoy or injure. Mere spite or ill will is not sufficient.’ . . . Malice may consist of a state of mind determined to perform an act with reckless or wanton disregard of or indifference to the rights of others. Since a defendant rarely admits to such a state of mind, it must frequently be established from the circumstances surrounding his allegedly malicious acts.” (Caldwell, supra, 211 Cal.App.2d at pp. 763—764, internal citations omitted.)
  • “Under [Health and Safety Code] section 13007, a tortfeasor generally is liable to the owner of property for damage caused by a negligently set fire. ‘[T]he statute places no restrictions on the type of property damage that is compensable.’ Such damages might include, for example, damage to structures, to movable personal property, to soil, or to undergrowth; damages may even include such elements as the lost profits of a business damaged by fire. If the fire also damages trees—that is, causes ‘injuries to . . . trees . . . upon the land of another’—then the actual damages recoverable under section 13007 may be doubled (for negligently caused fires) or trebled (for fires intended to spread to the plaintiff’s property) pursuant to section 3346.” (Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 461 [102 Cal.Rptr.3d 32], internal citations omitted; but see Gould v. Madonna (1970) 5 Cal.App.3d 404, 407—408 [85 Cal.Rptr. 457] [Civ. Code, § 3346 does not apply to fires negligently set; Health & Saf. Code, § 13007 provides sole remedy].)

Secondary Sources

6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1733

4 Levy et al., California Torts, Ch. 52, Recovery for Medical Expenses and Economic Loss, § 52.34 (Matthew Bender)

31 California Forms of Pleading and Practice, Ch. 350, Logs and Timber, § 350.12 (Matthew Bender)

22 California Points and Authorities, Ch. 225, Trespass, § 225.161 et seq. (Matthew Bender)