CACI 2000 Trespass—Essential Factual Elements

New September 2003; Revised June 2013, May 2020

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With regard to element 2, liability for trespass may be imposed for conduct that is intentional, reckless, negligent, or the result of an extra-hazardous activity. (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406 [235 Cal.Rptr. 165].) However, intent to trespass means only that the person intended to be in the particular place where the trespass is alleged to have occurred. (Miller v. National Broadcasting Corp. (1986) 187 Cal.App.3d 1463, 1480–1481 [232 Cal.Rptr. 668].) Liability may be also based on the defendant’s unintentional, but negligent or reckless, act, for example, an automobile accident. An intent to damage is not necessary. (Meyer v. Pacific Employers Insurance Co. (1965) 233 Cal.App.2d 321, 326 [43 Cal.Rptr. 542].)

It is no defense that the defendant mistakenly, but in good faith, believed that the defendant had a right to be in that location. (Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770, 1780 [18 Cal.Rptr.2d 574].) In such a case, the word “intentionally” in element 2 might be confusing to the jury. To alleviate this possible confusion, give the third option to CACI No. 2004, “Intentional Entry” Explained.

If plaintiff is seeking nominal damages as an alternative to actual damages, insert the following paragraph above element 4, add “and” at the end of element 2, and adjust punctuation accordingly:

If you find all of the above, then the law assumes that [name of plaintiff] has been harmed and [name of plaintiff] is entitled to a nominal sum such as one dollar. [Name of plaintiff] is entitled to additional damages if [name of plaintiff] proves the following:

The last sentence of the above paragraph, along with the final two elements of this instruction, should be omitted if plaintiff is seeking nominal damages only. Read “actually” in the fourth element only if nominal damages are also being sought.

Nominal damages alone are not available in cases involving intangible intrusions such as noise and vibrations; proof of actual damage to the property is required: “[T]he rule is that actionable trespass may not be predicated upon nondamaging noise, odor, or light intrusion … .” (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 936 [55 Cal.Rptr.2d 724, 920 P.2d 669], internal citation omitted.)

For an instruction on control of property, see CACI No. 1002, Extent of Control Over Premises Area, in the Premises Liability series.

•“Generally, landowners and tenants have a right to exclude persons from trespassing on private property; the right to exclude persons is a fundamental aspect of private property ownership.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 258 [225 Cal.Rptr.3d 305].)

•“ ‘Trespass is an unlawful interference with possession of property.’ The elements of trespass are: (1) the plaintiff’s ownership or control of the property; (2) the defendant’s intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant’s conduct was a substantial factor in causing the harm. (See CACI No. 2000.)” (Ralphs Grocery Co., supra, 17 Cal.App.5th at pp. 261–262, internal citation omitted.)

•“[I]n order to state a cause of action for trespass a plaintiff must allege an unauthorized and tangible entry on the land of another, which interfered with the plaintiff’s exclusive possessory rights.” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1174 [227 Cal.Rptr.3d 390].)

•“The emission of sound waves which cause actual physical damage to property constitutes a trespass. Liability for trespass may be imposed for conduct which is intentional, reckless, negligent or the result of an extra-hazardous activity.” (Staples, supra, 189 Cal.App.3d at p. 1406, internal citations omitted.)

•“California’s definition of trespass is considerably narrower than its definition of nuisance. ‘ “A trespass is an invasion of the interest in the exclusive possession of land, as by entry upon it … . A nuisance is an interference with the interest in the private use and enjoyment of the land and does not require interference with the possession.” ’ California has adhered firmly to the view that ‘[t]he cause of action for trespass is designed to protect possessory—not necessarily ownership—interests in land from unlawful interference.’ ” (Capogeannis v. Superior Court (1993) 12 Cal.App.4th 668, 674 [15 Cal.Rptr.2d 796], internal citations omitted.)

•“In the context of a trespass action, ‘possession’ is synonymous with ‘occupation’ and connotes a subjection of property to one’s will and control.” (Veiseh v. Stapp (2019) 35 Cal.App.5th 1099, 1105 [247 Cal.Rptr.3d 868].)

•“ ‘[A] trespass may be committed by the continued presence on the land of a structure, chattel, or other thing which the actor has tortiously placed there, whether or not the actor has the ability to remove it.’ Under this definition, ‘tortious conduct’ denotes that conduct, whether of act or omission, which subjects the actor to liability under the principles of the law of torts.” (Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 345 [23 Cal.Rptr.2d 377], internal citations omitted.)

•The common-law distinction between direct and constructive trespass is not followed in California. A trespass may be committed by consequential and indirect injuries as well as by direct and forcible harm. (Gallin v. Poulou (1956) 140 Cal.App.2d 638, 641 [295 P.2d 958].)

•“ ‘It is a well-settled proposition that the proper party plaintiff in an action for trespass to real property is the person in actual possession. No averment of title in plaintiff is necessary. [Citations.]’ … ‘A defendant who is a mere stranger to the title will not be allowed to question the title of a plaintiff in possession of the land. It is only where the trespasser claims title himself, or claims under the real owner, that he is allowed to attack the title of the plaintiff whose peaceable possession he has disturbed.’ ” (Veiseh, supra, 35 Cal.App.5th at p. 1104, internal citation omitted.)

•“An action for trespass may technically be maintained only by one whose right to possession has been violated; however, an out-of-possession property owner may recover for an injury to the land by a trespasser which damages the ownership interest.” (Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769, 774 [184 Cal.Rptr. 308], internal citation omitted.)

•“Under the forcible entry statutes the fact that a defendant may have title or the right to possession of the land is no defense. The plaintiff’s interest in peaceable even if wrongful possession is secured against forcible intrusion by conferring on him the right to restitution of the premises, the primary remedy, and incidentally awarding damages proximately caused by the forcible entry.” (Allen v. McMillion (1978) 82 Cal.App.3d 211, 218–219 [147 Cal.Rptr. 77], internal citations omitted.)

•“Where there is a consensual entry, there is no tort, because lack of consent is an element of the wrong.” (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16–17 [135 Cal.Rptr. 915].)

•“ ‘A conditional or restricted consent to enter land creates a privilege to do so only insofar as the condition or restriction is complied with.’ ” (Civic Western Corp., supra, 66 Cal.App.3d at p. 17, quoting Rest.2d Torts, § 168.)

•“Where one has permission to use land for a particular purpose and proceeds to abuse the privilege, or commits any act hostile to the interests of the lessor, he becomes a trespasser. [¶] ‘A good faith belief that entry has been authorized or permitted provides no excuse for infringement of property rights if consent was not in fact given by the property owner whose rights are at issue. Accordingly, by showing they gave no authorization, [plaintiffs] established the lack of consent necessary to support their action for injury to their ownership interests.’ ” (Cassinos, supra, 14 Cal.App.4th at p. 1780, internal citations omitted.)

•“ ‘[T]he intent required as a basis for liability as a trespasser is simply an intent to be at the place on the land where the trespass allegedly occurred … . The defendant is liable for an intentional entry although he has acted in good faith, under the mistaken belief, however reasonable, that he is committing no wrong.’ ” (Miller, supra, 187 Cal.App.3d at pp. 1480–1481, internal citation omitted.)

•“The general rule is simply that damages may be recovered for annoyance and distress, including mental anguish, proximately caused by a trespass.” (Armitage v. Decker (1990) 218 Cal.App.3d 887, 905 [267 Cal.Rptr. 399], internal citations omitted.)

•“Causes of action for conversion and trespass support an award for exemplary damages.” (Krieger v. Pacific Gas & Electric Co. (1981) 119 Cal.App.3d 137, 148 [173 Cal.Rptr. 751], internal citation omitted.)

•“It is true that an action for trespass will support an award of nominal damages where actual damages are not shown. However, nominal damages need not be awarded where no actual loss has occurred. ‘Failure to return a verdict for nominal damages is not in general ground for reversing a judgment or granting a new trial.’ ” (Staples, supra, 189 Cal.App.3d at p. 1406, internal citations omitted.)

•“Trespass may be ‘ “by personal intrusion of the wrongdoer or by his failure to leave; by throwing or placing something on the land; or by causing the entry of some other person.” ’ A trespass may be on the surface of the land, above it, or below it. The migration of pollutants from one property to another may constitute a trespass, a nuisance, or both.” (Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113, 1132 [47 Cal.Rptr.2d 670], internal citations omitted.)

•“Respondent’s plant was located in a zone which permitted its operation. It comes within the protection of section 731a of the Code of Civil Procedure which, subject to certain exceptions, generally provides that where a manufacturing or commercial operation is permitted by local zoning, no private individual can enjoin such an operation. It has been determined, however, that this section does not operate to bar recovery for damages for trespassory invasions of another’s property occasioned by the conduct of such manufacturing or commercial use.” (Roberts v. Permanente Corp. (1961) 188 Cal.App.2d 526, 529 [10 Cal.Rptr. 519], internal citations omitted.)

•“[A]s a matter of law, [plaintiff] cannot state a cause of action against the [defendants] for trespassing on the Secondary Access Easement because they own that land and her easement does not give her a possessory right, not to mention an exclusive possessory right in that property.” (McBride, supra, 18 Cal.App.5th at p. 1174.)

•“[A] failure to comply with one or more provisions of the California Uniform Transfers to Minors Act does not render the grantor’s continued possession and control of the real property unlawful for purposes of the tort of trespass to realty.” (Veiseh, supra, 35 Cal.App.5th at p. 1107.)