CACI No. 3903J. Damage to Personal Property (Economic Damage)

Judicial Council of California Civil Jury Instructions (2020 edition)

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3903J.Damage to Personal Property (Economic Damage)
[Insert number, e.g., “10.”] The harm to [name of plaintiff]’s [item of
personal property, e.g., automobile].
To recover damages for harm to personal property, [name of plaintiff]
must prove the reduction in the [e.g., automobile]’s value or the
reasonable cost of repairing it, whichever is less. [If there is evidence of
both, [name of plaintiff] is entitled to the lesser of the two amounts.]
[However, if you find that the [e.g., automobile] can be repaired, but after
repairs it will be worth less than it was before the harm, the damages
are (1) the difference between its value immediately before the harm and
its lesser value immediately after the repairs have been made; plus (2)
the reasonable cost of making the repairs. The total amount awarded
may not exceed the [e.g., automobile]’s value immediately before the
harm occurred.]
To determine the reduction in value if repairs cannot be made, you must
determine the fair market value of the [e.g., automobile] immediately
before the harm occurred and then subtract the fair market value
immediately after the harm occurred.
“Fair market value” is the highest price 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 both buyer and seller have reasonable knowledge of all
relevant facts about the condition and quality of the [e.g.,
automobile].
New September 2003; Revised December 2011, June 2013, December 2015,
November 2018, November 2019
Directions for Use
Do not give this instruction if the property had no monetary value either before or
after injury. (See Kimes v. Grosser (2011) 195 Cal.App.4th 1556, 1560 [126
Cal.Rptr.3d 581] [CACI No. 3903J has no application to prevent proof of out-of-
pocket expenses to save the life of a pet cat].) See CACI No. 3903O, Injury to Pet
(Economic Damage).
An insurer may draft around this rule in the policy by limiting recovery to either
cost of repair or diminution in value, but not both. (Baldwin v. AAA Northern
California, Nevada & Utah Ins. Exchange (2016) 1 Cal.App.5th 545, 550 [204
Cal.Rptr.3d 433].)
Give the optional second paragraph if the property can be repaired, but the value
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after repair may be less than before the harm occurred. (See Merchant Shippers
Association v. Kellogg Express and Draying Co. (1946) 28 Cal.2d 594, 600 [170
P.2d 923].)
There are exceptions to the general rule that recovery is limited to the lesser of cost
of repair or diminution in value. (See AIU Ins. Co. v. Superior Court (1990) 51
Cal.3d 807, 834 [274 Cal.Rptr. 820, 799 P.2d 1253].) If an exception is at issue,
modifications will be required to the first two paragraphs.
The definition of “fair market value” has been adapted from Treasury regulations.
(See 26 C.F.R. § 20.2031-1(b); United States v. Cartwright (1973) 411 U.S. 546,
550 [93 S.Ct. 1713, 36 L.Ed.2d 528]; see also CACI No. 3501, “Fair Market
Value” Explained; Code Civ. Proc., § 1263.320 [definition for eminent domain].)
Sources and Authority
• “The general rule is that the measure of damages for tortious injury to personal
property is the difference between the market value of the property immediately
before and immediately after the injury, or the reasonable cost of repair if that
cost be less than the diminution in value. This rule stems from the basic code
section fixing the measure of tort damage as ‘the amount which will compensate
for all the detriment proximately caused thereby.’ [citations]” (Pacific Gas &
Electric Co. v. Mounteer (1977) 66 Cal.App.3d 809, 812 [136 Cal.Rptr. 280].)
• “It has also been held that the price at which a thing can be sold at public sale,
or in the open market, is some evidence of its market value. In San Diego Water
Co. v. San Diego, the rule is announced that the judicial test of market value
depends upon the fact that the property in question is marketable at a given
price, which in turn depends upon the fact that sales of similar property have
been and are being made at ascertainable prices. In Quint v. Dimond, it was held
competent to prove market value in the nearest market.” (Tatone v. Chin Bing
(1936) 12 Cal.App.2d 543, 545-546 [55 P.2d 933], internal citations omitted.)
• “ ‘Where personal property is injured but not wholly destroyed, one rule is that
the plaintiff may recover the depreciation in value (the measure being the
difference between the value immediately before and after the injury), and
compensation for the loss of use.’ In the alternative, the plaintiff may recover the
reasonable cost of repairs as well as compensation for the loss of use while the
repairs are being accomplished. If the cost of repairs exceeds the depreciation in
value, the plaintiff may only recover the lesser sum. Similarly, if depreciation is
greater than the cost of repairs, the plaintiff may only recover the reasonable cost
of repairs. If the property is wholly destroyed, the usual measure of damages is
the market value of the property.” (Hand Electronics, Inc. v. Snowline Joint
Unified School Dist. (1994) 21 Cal.App.4th 862, 870 [26 Cal.Rptr.2d 446],
internal citations omitted.)
• The cost of replacement is not a proper measure of damages for injury to
personal property. (Hand Electronics Inc., supra, 21 Cal.App.4th at p. 871.)
• “When conduct complained of consists of intermeddling with personal property
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‘the owner has a cause of action for trespass or case, and may recover only the
actual damages suffered by reason of the impairment of the property or the loss
of its use.’ ” (Itano v. Colonial Yacht Anchorage (1968) 267 Cal.App.2d 84, 90
[72 Cal.Rptr. 823], internal citations omitted.)
• “The measure of damage for wrongful injury to personal property is the
difference between the market value of the property immediately before and
immediately after the injury, or the reasonable cost of repair if such cost be less
than the depreciation in value.” (Smith v. Hill (1965) 237 Cal.App.2d 374, 388
[47 Cal.Rptr. 49], internal citations omitted.)
• “[I]t is said . . . that ‘if the damaged property cannot be completely repaired,
the measure of damages is the difference between its value before the injury and
its value after the repairs have been made, plus the reasonable cost of making
the repairs. The foregoing rule gives the plaintiff the difference between the
value of the machine before the injury and its value after such injury, the amount
thereof being made up of the cost of repairs and the depreciation
notwithstanding such repairs.’ The rule urged by defendant, which limits the
recovery to the cost of repairs, is applicable only in those cases in which the
injured property ‘can be entirely repaired.’ This latter rule presupposes that the
damaged property can be restored to its former state with no depreciation in its
former value.” (Merchant Shippers Association, supra, 28 Cal.2d at p. 600,
internal citations omitted.)
• “In personal property cases, the plaintiffs are entitled to present evidence of the
cost of repairs even in cases where recovery is limited to the lost market value
of property. The cost of repairs constitutes a prima facie measure of damages,
and it is the defendant’s burden to respond with proof of a lesser diminution in
value.” (Kimes, supra, 195 Cal.App.4th at p. 1560, internal citation omitted.)
• “[R]ecovery of tort damages is not invariably limited by the value of damaged
property. The courts have recognized that recovery in excess of such value may
be necessary to restore the plaintiff to the position it occupied prior to a
defendant’s wrongdoing.” (AIU Ins. Co., supra, 51 Cal.3d at p. 834.)
• “In this case, the policy language was clear and explicit. Regarding coverage for
car damage, it provided that [insurer] ‘may pay the loss in money or repair . . .
damaged . . . property.’ The policy’s use of the term ‘may’ suggests [insurer]
had the discretion to choose between the two options.” (Baldwin, supra, 1
Cal.App.5th at p. 550, original italics.)
• “The trial court based its restitution order on the fair market value method, but it
abused its discretion by also awarding the cost to [plaintiff] to repair the
truck . . . . Having fully recovered the decrease in fair market value, [plaintiff]
was not entitled to also recover the cost of repair because repairing the truck
made it more valuable. Put another way, before the crime, [plaintiff] owned a
truck that was worth more than $20,000. After the crime, Smith was left with a
truck that was worth not much more than $3,000. [Plaintiff] was compensated
for this decrease in fair market value. However, if the truck is repaired, the value
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of the truck goes up, even though it does not go all the way up to the former
fair market value. Therefore, adding the cost of repair improperly alters the
results of the fair market value formula.” (People v. Sharpe (2017) 10
Cal.App.5th 741, 747 [216 Cal.Rptr.3d 744].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1865-1871
Haning et al., California Practice Guide: Personal Injury, Ch. 3-C, Specific Items Of
Compensatory Damages, ¶ 3:220 et seq. (The Rutter Group)
California Tort Damages (Cont.Ed.Bar) Vehicles and Other Personal Property,
§§ 13.8-13.11
4 Levy et al., California Torts, Ch. 52, Medical Expenses and Economic Loss,
§ 52.31 (Matthew Bender)
15 California Forms of Pleading and Practice, Ch. 177, Damages, §§ 177.41, 177.44
(Matthew Bender)
6 California Points and Authorities, Ch. 64, Damages: Tort, § 64.26 et seq.
(Matthew Bender)
1 California Civil Practice: Torts § 5:16 (Thomson Reuters)
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