CACI No. 2031. Damages for Annoyance and Discomfort - Trespass or Nuisance

Judicial Council of California Civil Jury Instructions (2020 edition)

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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/nonbinary pronoun] for the
annoyance and discomfort, including emotional distress or mental
anguish, caused by the injury to [his/her/nonbinary pronoun] peaceful
enjoyment of the property that [he/she/nonbinary pronoun] occupied.
New December 2010; Revised November 2017
Directions for Use
Give this instruction if the plaintiff claims damages for annoyance and discomfort
resulting from a trespass or nuisance, including emotional distress or mental anguish
proximately caused by the trespass or nuisance. (Hensley v. San Diego Gas &
Electric Co. (2017) 7 Cal.App.5th 1337, 1348-1349 [213 Cal.Rptr.3d 803]; but see
Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 456 [102 Cal.Rptr.3d
32] [damages for annoyance and discomfort are distinct from general damages for
mental or emotional distress]; see also Vieira Enterprises, Inc. v. McCoy (2017) 8
Cal.App.5th 1057, 1094 [214 Cal.Rptr.3d 193 [workability of distinction between
damages for annoyance and discomfort and general damages “may be questioned”].)
There may also be a split of authority as to whether the plaintiff must have been in
immediate possession of the property in order to recover for annoyance and
discomfort. (Compare Hensley, supra, 7 Cal.App.5th at pp. 1352-1355 [no
limitation] with Kelly, supra, 179 Cal.App.4th at p. 458 [plaintiff must be in
immediate possession of the property]; see also Vieira Enterprises, Inc., supra, 8
Cal.App.5th at p. 1094 [not necessary that the plaintiff be present at the moment of
a tortious invasion of the property].)
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].)
• “[T]he restrictions on emotional distress damages involved in breach of contract
or negligence cases do not apply when a plaintiff’s emotional distress is the
result of the defendant’s commission of a tort arising from an invasion of a
property interest.” (Hensley, supra, 7 Cal.App.5th at pp. 1356-1357.)
• “[O]nce a cause of action for trespass or nuisance is established, a landowner
may recover for annoyance and discomfort, including emotional distress or
mental anguish, proximately caused by the trespass or nuisance. . . . [¶] This is
so even where the trespass or nuisance involves solely property damage.”
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(Hensley, supra, 7 Cal.App.5th at pp. 1348-1349, original italics.)
• “[Plaintiff]’s fear, stress and anxiety suffered as a direct and proximate result of
the fire and its attendant damage, loss of use and enjoyment are compensable as
damages for annoyance and discomfort.” (Hensley, supra, 7 Cal.App.5th at p.
1351.)
• “We reject [defendant]’s contention that in order for emotional distress damages
to ‘naturally ensue’ from a trespass or nuisance, the owner or occupant must be
personally or physically present on the invaded property during the trespass or
nuisance.” (Hensley, supra, 7 Cal.App.5th at p. 1352.)
• “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.)
•“Kelly stands only for the proposition that legal occupancy is required to recover
damages for annoyance and discomfort in a trespass case, and that standard
requires immediate and personal possession, as a resident or commercial tenant
would have. Here, there is no dispute the [plaintiffs] both owned and resided on
their property, and they meet the legal standard of occupancy necessary to claim
damages for annoyance, discomfort, inconvenience or mental anguish
proximately caused by the trespass, as the jury was instructed without
controversy in Kelly. Kelly does not hold that an occupant must be personally or
physically present at the time of the harmful invasion to deem emotional distress
damages “naturally ensuing” therefrom.” (Hensley, supra, 7 Cal.App.5th at pp.
1354-1355, original italics, internal citation omitted.)
• “[I]t is not necessary that the plaintiff be present at the moment of a tortious
invasion of the property. But it is necessary that the annoyance and discomfort
arise from and relate to some personal effect of the interference with use and
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enjoyment which lies at the heart of the tort of trespass.” (Vieira Enterprises,
Inc., supra, 8 Cal.App.5th at p. 1094, original italics.)
• “[A] plaintiff may recover damages for annoyance and discomfort proximately
caused by tortious injuries to trees on her property if she was in immediate and
personal possession of the property at the time of the trespass.” (Fulle v. Kanani
(2017) 7 Cal.App.5th 1305, 1313 [212 Cal.Rptr.3d 920], internal citations
omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1915
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
CACI No. 2031 TRESPASS
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