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

Judicial Council of California Civil Jury Instructions (2017 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
identificatio 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/
it] could not use [his/her/its] own property/ [or] the benefit obtained by
[name of defendant] because of [his/her/its] wrongful occupation]. [If
there is evidence of both, [name of plaintiff] is entitled to the greater of
the two amounts.]
[Benefit obtained may include [name of defendant]’s profit 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 benefit obtained by the defendant and that these include
the defendant’s profit 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 “benefit 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 profit as
“benefit obtained.” (Id. at pp. 598–606.) The court did not limit the jury’s right to
award profit 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 benefit 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 history.
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 Profit (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 ‘benefit 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 ‘benefit 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 identifie in the legislative history—to
prevent any economic advantage for polluters resulting from the wrongful
dumping on another’s 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 flexibilit to
award damages that fi 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 ‘benefit obtained’ may include profit
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 omitted.)
• 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
6Witkin, Summary of California Law (10th ed. 2005) Torts, § 1728
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)
1 California Civil Practice: Torts, § 5:19 (Thomson Reuters)

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