California Civil Jury Instructions (CACI)

3903F. Damage to Real Property (Economic Damage)

[Insert number, e.g., "6."] The harm to [name of plaintiff]'s property.

To recover damages for harm to property, [name of plaintiff] must prove the reduction in the property's value or the reasonable cost of repairing the harm. [If there is evidence of both, [name of plaintiff] is entitled to the lesser of the two amounts.]

To determine the reduction in value, you must determine the fair market value of the property before the harm occurred and then subtract the fair market value of the property immediately after the harm occurred. The difference is the reduction of value.

"Fair market value" is the highest price for the property that a willing buyer would have paid to a willing seller, assuming:

1. That there is no pressure on either one to buy or sell; and

2. That the buyer and seller know all the uses and purposes for which the property is reasonably capable of being used.

[If [name of plaintiff] has a genuine desire to repair the property for personal reasons, and if the costs of repair are reasonable given the damage to the property and the value after repair, then the costs of repair may be awarded even if they exceed the property's loss of value.]

Directions for Use

Before the last bracketed sentence is given, the judge should decide whether the claimed personal reasons are legally sufficient to justify the costs of repair.

Sources and Authority

"The measure applicable to ordinary cases involving tortious injury to real property is 'diminution in value' or 'cost of repair,' whichever is ess." (Housley v. City of Poway (1993) 20 Cal.App.4th 801, 810 [24 Cal.Rptr.2d 554], internal citations omitted.)

"Diminution in market value . . . is not an absolute limitation; several other theories are available to fix appropriate compensation for the plaintiff's loss. 'There is no fixed, inflexible rule for determining the measure of damages for injury to, or destruction of, property; whatever formula is most appropriate to compensate the injured party for the loss sustained in the particular case will be adopted.' " (Heninger v. Dunn (1980) 101 Cal.App.3d 858, 862 [162 Cal.Rptr. 104].)

"Courts will normally not award costs of restoration if they exceed the diminution in the value of the property; the plaintiff may be awarded the lesser of the two amounts." (Henninger, supra, 101 Cal.App.3d at p. 862.)

"Defendant . . . contends that the trial court awarded excessive damages, on the ground that when the cost of restoration is less than the depreciation in value, the former is the measure of damages. This contention cannot be sustained. Plaintiffs established their damages by showing the depreciation in value. It was then incumbent upon defendants to come forward with proof that the cost of restoration would be less." (Herzog v. Grosso (1953) 41 Cal.2d 219, 226 [259 P.2d 429], internal citations omitted.)

"Where a plaintiff establishes damages by showing depreciation in the value of real property, courts have held defendants to the burden of coming forward with proof that cost of restoration would be less. It follows that when a plaintiff proves damages by showing the cost of repairs it should be incumbent on the defendant to introduce evidence that the repair costs exceed the value of the property." (Armitage v. Decker (1990) 218 Cal.App.3d 887, 905 [267 Cal.Rptr. 399], internal citations omitted.)

"The 'fair market value' of real property is 'the best price obtainable from a purchaser on a cash sale.' It 'is measured by the highest price the property would command if offered for sale in the open market with a reasonable time allowed to the seller to find a purchaser who will buy with a knowledge of all the uses to which it may be put.' " (CMSH Co. v. Antelope Development, Inc. (1990) 223 Cal.App.3d 174, 182 [272 Cal.Rptr. 605], internal citations omitted.)

"Where, as here, the plaintiffs have a personal reason to repair and the costs of repair are not unreasonable in light of the damage to the property and the value after repair, costs of repair which exceed the iminution in value may be awarded." (Orndorff v. Christiana Community Builders (1990) 217 Cal.App.3d 683, 687 [266 Cal.Rptr. 193], internal citations omitted.)

"Contrary to the defendants' argument, the 'personal reason' exception does not require that the [plaintiffs] own a 'unique' home. Rather, all that is required is some personal use by them and a bona fide desire to repair or restore." (Orndorff, supra, 217 Cal.App.3d at p. 688.)

Secondary Sources

6 Witkin, Summary of California Law (9th ed. 1988) Torts, §§ 1461-1462

4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss, § 52.35 (Matthew Bender)

California Real Property Remedies Practice (Cont.Ed.Bar 1982) Damages for Injury to Real Property, § 11.5

15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)

6 California Points and Authorities, Ch. 65, Damages (Matthew Bender)

1 Bancroft-Whitney's California Civil Practice (1992) Torts, § 5:19

(New September 2003)