California Civil Jury Instructions (CACI) (2017)

354. Owner's/Lessee's Damages for Breach of Contract to Construct Improvements on Real Property

Download PDF
354.Owner’s/Lessee’s Damages for Breach of Contract to
Construct Improvements on Real Property
To recover damages for breach of a contract to construct improvements
on real property, [name of plaintiff] must prove:
[[The reasonable cost to [name of plaintiff] of completing the work;]
[And the value of loss of use of the property;]
[And the reasonable cost of alternative housing from the date the
work was to have been completed until the date the work was
completed;]
[Less any amounts unpaid under the contract with [name of
defendant];]]
[or]
[The difference between the fair market value of the [lessee’s
interest in the] property and its fair market value had the
improvements been constructed.]
New September 2003
Directions for Use
Read this instruction in conjunction with CACI No. 350, Introduction to Contract
Damages. The bracketed options state alternative measures of damage. Choose the
option appropriate to the facts of the case. For a definition of “fair market value,”
see CACI No. 3501, “Fair Market Value” Explained.
Sources and Authority
• “The proper measure of damages for breach of a contract to construct
improvements on real property where the work is to be done on plaintiff’s
property is ordinarily the reasonable cost to the plaintiff of completing the work
and not the difference between the value of the property and its value had the
improvements been constructed. A different rule applies, however, where
improvements are to be made on property not owned by the injured party. ‘In
that event the injured party is unable to complete the work himself and, subject
to the restrictions of sections 3300 and 3359 of the Civil Code, the proper
measure of damages is the difference in value of the property with and without
the promised performance, since that is the contractual benefit of which the
injured party is deprived.’ ” (Glendale Fed. Sav. & Loan Assn. v. Marina View
Heights Dev. Co., (1977) 66 Cal.App.3d 101, 123–124 [135 Cal.Rptr. 802],
internal citations omitted.)
• “If the work were to be done on plaintiffs’ property the proper measure of
167
0093
damages would ordinarily be the reasonable cost to plaintiffs of completing the
work. A different rule applies, however, when the improvements are to be made
on property that is not owned by the injured party.” (Coughlin v. Blair (1953)
41 Cal.2d 587, 600 [262 P.2d 305], internal citations omitted.)
• “It is settled . . . that the measure of damages for the breach of a building
construction contract is ordinarily such sum as is required to make the building
conform to the contract. In such situations, the diminution of value rule cannot
be invoked and the measure of damages is not the difference between the actual
value of the property and its value had it been constructed in accordance with
the plans and specifications.” (Kitchel v. Acree (1963) 216 Cal.App.2d 119, 123
[30 Cal.Rptr. 714], internal citations omitted.)
• “The available damages for defective construction are limited to the cost of
repairing the home, including lost use or relocation expenses, or the diminution
in value.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 561 [87 Cal.Rptr.2d 886,
981 P.2d 978], internal citations omitted.)
• “Where the measure of damages turns on the value of property, whether
liability sounds in tort or breach of contract, the normal standard is market
value. The definition of market value and the principles governing its
ascertainment are the same as those applicable to the valuation of property in
eminent domain proceedings and in ad valorem taxation of property. In
Sacramento etc. R. R. Co. v. Heilbron, market value was defined as ‘the highest
price estimated in terms of money which the land would bring if exposed for
sale in the open market, with reasonable time allowed in which to find a
purchaser, buying with knowledge of all of the uses and purposes to which it
was adapted and for which it was capable.’ That classic exposition with
subsequent refinements has always been the accepted definition of market value
in California.” (Glendale Federal Savings & Loan Assn., supra, 66 Cal.App.3d
at pp. 141–142, internal citations and footnote omitted.)
Secondary Sources
1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 909–910
10 California Forms of Pleading and Practice, Ch. 104, Building Contracts,
§ 104.10 et seq. (Matthew Bender)
6 California Points and Authorities, Ch. 65, Damages: Contract, § 65.100 (Matthew
Bender)
15 California Legal Forms, Ch. 30D, Construction Contracts And Subcontracts,
§ 30D.223 (Matthew Bender)
1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 10, Seeking
or Opposing Statutory Remedies in Contract Actions, 10.05
CACI No. 354 CONTRACTS
168
0094