CACI No. 3903G. Loss of Use of Real Property (Economic Damage)

Judicial Council of California Civil Jury Instructions (2023 edition)

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3903G.Loss of Use of Real Property (Economic Damage)
[Insert number, e.g., “7.”] The loss of use of [name of plaintiff]’s [insert
identification of real property].
To recover damages for the loss of use, [name of plaintiff] must prove [the
reasonable cost to rent similar property for the time when
[he/she/nonbinary pronoun/it] could not use [his/her/nonbinary pronoun/its]
own property/ [or] the benefits obtained by [name of defendant] because
of [his/her/nonbinary pronoun/its] wrongful occupation]. [If there is
evidence of both, [name of plaintiff] is entitled to the greater of the two
[Benefits obtained may include [name of defendant]’s profits if they are
directly linked to the wrongful occupation.]
New September 2003; Revised April 2008
Directions for Use
Use this instruction along with CACI No. 3903F, Damage to Real Property
(Economic Damage). Include the optional last paragraph if plaintiff claims that the
measure of damages is the benefits obtained by the defendant and that these include
the defendant’s profits obtained because of the tortious conduct.
This instruction may be used if the general measure of damages under CACI No.
3903F will be the cost of repair rather than diminution in value. (See Erlich v.
Menezes (1999) 21 Cal.4th 543, 555 [87 Cal.Rptr.2d 886, 981 P.2d 978].)
If the jury determines that the cost of repair is not reasonable, it is not clear whether
loss-of-use damages are recoverable. The rule has been that when real property has
been damaged so that it cannot be restored, damages for loss of use may not be
recovered. (Ferraro v. Southern California Gas Co. (1980) 102 Cal.App.3d 33,
50-51 [162 Cal.Rptr. 238].) But in 1992, the Legislature amended Civil Code
section 3334 to allow for “benefits obtained” as an alternative to rental value as a
measure of damages for loss of use. The legislative intent was to deter polluters
from dumping toxic material on land of little value. (See Starrh & Starrh Cotton
Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 603 [63 Cal.Rptr.3d
165].) In Starrh & Starrh Cotton Growers, the court indicated that it was extremely
unlikely in that case that the cost of repair could be considered to be reasonable, but
also allowed the jury to consider awarding the defendant’s profits as “benefits
obtained.” (Id. at pp. 598-606.) The court did not limit the jury’s right to award
profits as damages only if it found the cost of repair to be reasonable. And it seems
that if the court believed there was such a limitation, it would have expressly said
so. The legislative objective would not be achieved if one could pollute land to the
point that it could not reasonably be restored and also not be required to pay for the
benefits obtained. Therefore, it seems most likely that this limitation on loss-of-use
damages no longer applies in light of the 1992 amendment and its legislative
This instruction is not intended for cases in which the plaintiff is a landlord seeking
to recover compensation for lost rents. A more appropriate instruction for that
situation is CACI No. 3903N, Lost Profits (Economic Damage).
Sources and Authority
Damages for Wrongful Occupation of Real Property. Civil Code section 3334.
“[T]he general measure of damages where injury to property is capable of being
repaired is the reasonable cost of repair together with the value of lost use
during the period of injury.” (Erlich, supra, 21 Cal.4th at p.555, internal citation
“There is no question that when cost of restoration is the correct measure of
damages for injury to real property, compensation for loss of use . . . would be
appropriate.” (Ferraro, supra, 102 Cal.App.3d at p 51.)
“There is nothing in Civil Code section 3334 or its legislative history to suggest
that the phrase ‘benefits obtained’ should be read narrowly. To the contrary, the
intent of the Legislature was to eliminate any economic incentive to trespass as a
means of waste disposal. (Sen. Com. on Judiciary, com. on Assem. Bill No.
2663 (1991-1992 Reg. Sess.) for June 23, 1992, hearing, p. 2.) If the Legislature
had wanted to limit the phrase ‘benefits obtained’ to costs avoided, it could
easily have done so. [¶] Further, this interpretation is consistent with the
fundamental rule that the prime consideration in interpreting a statute is to
achieve the objective of the statute. As we have indicated, the evil to be
prevented by the 1992 amendments is identified in the legislative history - to
prevent any economic advantage for polluters resulting from the wrongful
dumping on anothers land.” (Starrh & Starrh Cotton Growers, supra, 153
Cal.App.4th at p. 604, original italics, internal citation omitted,)
“Trial courts in trespass actions have historically been given great flexibility to
award damages that fit the particular facts of the case. [Defendant] has admitted
that it chose the challenged method for disposing of produced water because it
was the least expensive alternative and maximized its profits. In light of these
factors, we conclude that the term ‘benefits obtained’ may include profits
enjoyed by [defendant] that are directly linked to the wrongful trespass.” (Starrh
& Starrh Cotton Growers, supra, 153 Cal.App.4th at p. 604, internal citations
Restatement Second of Torts section 931 provides:
If one is entitled to a judgment for the detention of, or for preventing the use of,
land or chattels, the damages include compensation for
(a) the value of the use during the period of detention or prevention
or the value of the use of or the amount paid for a substitute, and
(b) harm to the subject matter or other harm of which the detention
is the legal cause.
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 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,
§ 52.36 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, § 177.44
(Matthew Bender)
California Civil Practice: Torts § 5:19 (Thomson Reuters)

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