California Civil Jury Instructions (CACI) (2017)

2031. Damages for Annoyance and Discomfort—Trespass or Nuisance

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2031.Damages for Annoyance and Discomfort—Trespass or
Nuisance
If you decide that [name of plaintiff] has proved that [name of defendant]
committed a [trespass/nuisance], [name of plaintiff] may recover damages
that would reasonably compensate [him/her] for the annoyance and
discomfort caused by the injury to [his/her] peaceful enjoyment of the
property that [he/she] occupied.
New December 2010
Directions for Use
Give this instruction if the plaintiff claims damages for annoyance and discomfort
resulting from a trespass or nuisance. These damages are distinct from general
damages for mental or emotional distress. (Kelly v. CB&I Constructors, Inc. (2009)
179 Cal.App.4th 442, 456 [102 Cal.Rptr.3d 32].)
Sources and Authority
• “Once a cause of action for trespass or nuisance is established, an occupant of
land may recover damages for annoyance and discomfort that would naturally
ensue therefrom.” (Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265,
272 [288 P.2d 507].)
• “We do not question that a nonresident property owner may suffer mental or
emotional distress from damage to his or her property. But annoyance and
discomfort damages are distinct from general damages for mental and emotional
distress. Annoyance and discomfort damages are intended to compensate a
plaintiff for the loss of his or her peaceful occupation and enjoyment of the
property. . . . ‘We recognize that annoyance and discomfort by their very nature
include a mental or emotional component, and that some dictionary definitions
of these terms include the concept of distress. Nevertheless, the “annoyance and
discomfort” for which damages may be recovered on nuisance and trespass
claims generally refers to distress arising out of physical discomfort, irritation,
or inconvenience caused by odors, pests, noise, and the like. Our cases have
permitted recovery for annoyance and discomfort damages on nuisance and
trespass claims while at the same time precluding recovery for “pure” emotional
distress.’ ” (Kelly,supra, 179 Cal.App.4th at p. 456, internal citations omitted.)
• “California cases upholding an award of annoyance and discomfort damages
have involved a plaintiff who was in immediate possession of the property as a
resident or commercial tenant. We are aware of no California case upholding an
award of annoyance and discomfort damages to a plaintiff who was not
personally in immediate possession of the property.” (Kelly,supra, 179
Cal.App.4th at p. 458, internal citations omitted.)
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Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, § 1730
2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.23 (Matthew
Bender)
48 California Forms of Pleading and Practice, Ch. 550, Trespass, § 550.21
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.145 (Matthew
Bender)
2032–2099. Reserved for Future Use
TRESPASS CACI No. 2031
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