California Civil Jury Instructions (CACI) (2017)

2003. Damage to Timber—Willful and Malicious Conduct

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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 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
• 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 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
• “ ‘ “ ‘[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 (10th ed. 2005) Torts, § 1733
4Levy 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