CACI No. 3903F. Damage to Real Property (Economic Damage)

Judicial Council of California Civil Jury Instructions (2024 edition)

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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. [However, 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.]]
[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.]
[To determine whether the cost of repairing the harm is reasonable, you
must decide if there is a reasonable relationship between the cost of
repair and the harm caused by [name of defendant]’s conduct. You must
consider the expense and time involved to restore the property to its
original condition compared to the value of the property [and [insert
other applicable factors.]].
If you find that the cost of repairing the harm is not reasonable, then
you may award any reduction in the property’s value.]
New September 2003; Revised April 2008, April 2009
Directions for Use
Give this instruction for damages to real property caused by trespass, permanent
nuisance, or other tortious conduct. See also CACI No. 3903G, Loss of Use of Real
Property (Economic Damage).
If there is evidence of both diminution in value and cost of repair, include all
optional paragraphs. However, include the last bracketed sentence in the first
paragraph only if the judge has determined that the claimed personal reasons are
legally sufficient to justify the costs of repair.
If only the cost of repair is at issue, give just the first paragraph. However, if the
reasonableness of the cost of repair is at issue, then the value of the property must
be considered, and all paragraphs must be included. If only diminution of value is at
issue, omit the last two optional paragraphs.
Sources and Authority
Damages for Wrongful Occupation of Real Property. Civil Code section 3334(a).
“The measure of damages for tortious injury to property, including trees, ‘is the
amount which will compensate for all the detriment proximately caused thereby,
whether it could have been anticipated or not.’ ‘Such damages are generally
determined as the difference between the value of the property before and after
the injury.’ But ‘[d]iminution 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.” One such alternative measure of damages is
the cost of restoring the property to its condition prior to the injury, and a
plaintiff may recover these costs even if they exceed diminution in value if there
is a ‘personal reason’ for restoration.” (Salazar v. Matejcek (2016) 245
Cal.App.4th 634, 643−644 [199 Cal.Rptr.3d 705], internal citations omitted.)
“For tortious injury to real property, the general rule is that the plaintiff may
recover the lesser of (1) the diminution in the property’s fair market value, as
measured immediately before and immediately after the damage; or (2) the cost
to repair the damage and restore the property to its pretrespass condition, plus
the value of any lost use. The practical effect of this rule is to limit damages to
property to the fair market value of the property prior to the damage.” (Kelly v.
CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 450 [102 Cal.Rptr.3d 32].)
“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.)
“Civil Code section 3334 requires that restoration costs be reasonable. In
addition, general principles of damages in trespass cases require that the
damages bear a reasonable relationship to the harm caused by the trespass.
Mangini explains that whether abatement costs are reasonable requires an
evaluation of a number of fundamental considerations, including the expense and
time required to perform the abatement, along with other legitimate competing
interests. (Mangini, supra, 12 Cal.4th at p. 1100; see also Beck, supra, 44
Cal.App.4th at pp. 1221-1222 [reasonableness includes consideration of
monetary expense, burden on public, and costs of remediation versus value of
land].)” (Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153
Cal.App.4th 583, 601 [63 Cal.Rptr.3d 165], original italics.)
“The trial court must instruct the jury on how to determine whether the statutory
requirement that any restoration costs be reasonable was met. It must also advise
the jury what to do if the jury concludes the evidence shows the proposed
restoration project to be unreasonable.” (Starrh & Starrh Cotton Growers, supra,
153 Cal.App.4th at pp. 600-601.)
“Whether the restoration costs are reasonable is a question for the trier of fact in
the first instance, but an award of such costs may be unreasonable as a matter of
law if it is grossly disproportionate to the value of the property or the harm
caused by the defendant.” (Kelly, supra, 179 Cal.App.4th at p. 451.)
“Trial courts in trespass actions have historically been given great flexibility to
award damages that fit the particular facts of the case.” (Starrh & Starrh Cotton
Growers, supra, 153 Cal.App.4th at p. 604.)
“[I]f a plaintiff has a personal reason to restore the property to its former
condition, he or she may recover the restoration costs even if such costs exceed
the diminution in value. This rule is sometimes referred to as the “personal
reason” exception.’ Even when this exception applies, however, restoration costs
‘are allowed only if they are reasonable in light of the value of the real property
before the injury and the actual damage sustained.’ (Kelly, supra, 179
Cal.App.4th at pp. 450-451, internal citations omitted.)
“Whether the restoration costs are reasonable is a question for the trier of fact in
the first instance, but an award of such costs may be unreasonable as a matter of
law if it is grossly disproportionate to the value of the property or the harm
caused by the defendant.” (Salazar, supra, 245 Cal.App.4th at p. 644.)
“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
v. Christiana Community Builders (1990) 217 Cal.App.3d 683, 688 [266
Cal.Rptr. 193].)
“Under California law, damages for diminution in value may only be recovered
for permanent, not continuing, nuisances.” (Gehr v. Baker Hughes Oil Field
Operations, Inc. (2008) 165 Cal.App.4th 660, 663 [81 Cal.Rptr.3d 219].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1912, 1913
California Real Property Remedies Practice (Cont.Ed.Bar) Damages for Injury to
Real Property, § 11.5
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§ 52.35 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.44
(Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.147 (Matthew
California Civil Practice: Torts § 5:19 (Thomson Reuters)

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