CACI No. 2003. Damage to Timber - Willful and Malicious Conduct

Judicial Council of California Civil Jury Instructions (2023 edition)

Download PDF
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
“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 the person is aware of the probable
dangerous consequences of the person’s conduct and deliberately fails to
avoid those consequences.
New September 2003; Revised December 2010, May 2020
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
Damages for Injury to Timber. Civil Code section 3346(a).
Treble Damages for Injury to Timber. Code of Civil Procedure section 733.
“[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
“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
‘[T]reble damages may only be awarded when the wrongdoer intentionally
acted wilfully or maliciously. The intent required is the intent to vex, harass, or
annoy or injure the plaintiff. It is a question of fact for the trial court whether or
not such intent exists.’ [Civil Code section 3346 and Code of Civil Procedure
section 733] are permissive and not mandatory and while they ‘prescribe the
degree of penalty to be invoked they commit to the sound discretion of the trial
court the facts and circumstances under which it shall be invoked.’ (Salazar,
supra, 245 Cal.App.4th at p. 646, 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 (11th ed. 2017) Torts, § 1918
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

© Judicial Council of California.