CACI 2102 Presumed Measure of Damages for Conversion (Civ. Code, § 3336)

California Civil Jury Instructions CACI

2102 Presumed Measure of Damages for Conversion (Civ. Code, § 3336)

If you decide that [name of plaintiff] has proved [his/her/nonbinary pronoun/its] claim against [name of defendant], you also must decide how much money will reasonably compensate [name of plaintiff] for the harm. This compensation is called “damages.”

[Name of plaintiff] must prove the amount of [his/her/nonbinary pronoun/its] damages. However, [name of plaintiff] does not have to prove the exact amount of damages that will provide reasonable compensation for the harm. You must not speculate or guess in awarding damages.

The following are the specific items of damages claimed by [name of plaintiff]:

1.[The fair market value of the [insert item of personal property] at the time [name of defendant] wrongfully exercised control over it;]


[Special damages resulting from [name of defendant]’s conduct;] [and]

2.Reasonable compensation for the time and money spent by [name of plaintiff] in attempting to recover the [insert item of personal property]; [and]

3.[Emotional distress suffered by [name of plaintiff] as a result of [name of defendant]’s conduct.]

[In order to recover special damages, [name of plaintiff] must prove:

1.That [describe special circumstances that require a measure of damages other than value];

2.That it was reasonably foreseeable that special injury or harm would result from the conversion; and

3.That reasonable care on [name of plaintiff]’s part would not have prevented the loss.]

[“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 the buyer and seller know all the uses and purposes for which the [insert item] is reasonably capable of being used.]

Directions for Use

The third element of listed damages, emotional distress, is bracketed because it appears that such damages are recoverable only if the second alternative measure of damages stated in the first paragraph of Civil Code section 3336 applies. (See Gonzales v. Pers. Storage (1997) 56 Cal.App.4th 464, 477 [65 Cal.Rptr.2d 473].)

Sources and Authority

Damages for Wrongful Conversion. Civil Code section 3336.

Conversion of Negotiable Instruments. Commercial Code section 3420.

“[W]e are of the opinion that section 3337 can only be held to apply to a situation where the property was voluntarily applied by the party guilty of conversion to the benefit of the injured party, and can have no application to a situation such as here where the application was compelled by a legal duty.” (Goldberg v. List (1938) 11 Cal.2d 389, 393 [79 P.2d 1087].)

“Although the first part of section 3336 appears to provide for alternative measures of recovery, the first of the two measures, namely the value of the property converted at the time and place of conversion with interest from that time, is generally considered to be the appropriate measure of damages in a conversion action. The determination of damages under the alternative provision is resorted to only where the determination on the basis of value at the time of conversion would be manifestly unjust.” (Myers v. Stephens (1965) 233 Cal.App.2d 104, 116 [43 Cal.Rptr. 420], internal citations omitted.)

“As a general rule, the value of the converted property is the appropriate measure of damages, and resort to the alternative occurs only where a determination of damages on the basis of value would be manifestly unjust. Accordingly, a person claiming damages under the alternative provision must plead and prove special circumstances that require a measure of damages other than value, and the jury must determine whether it was reasonably foreseeable that special injury or damage would result from the conversion.” (Lueter v. State of California (2002) 94 Cal.App.4th 1285, 1302 [115 Cal.Rptr.2d 68], internal citations omitted.)

“The damage measures set forth in the first paragraph of section 3336 are in the alternative. The first alternative is to compensate for the value of the property at the time of conversion with interest from the time of the taking. The second alternative is compensation in a sum equal to the amount of loss legally caused by the conversion and which could have been avoided with a proper degree of prudence. Both of these alternatives are in addition to the damage element for the time spent pursuing the converted property set forth in the second paragraph of section 3336.” (Moreno v. Greenwood Auto Center (2001) 91 Cal.App.4th 201, 209 [110 Cal.Rptr.2d 177], internal citations omitted.)

“Civil Code section 3336 sets out the presumptive measure of damages in conversion, which is rebuttable, save and except when section 3337 applies. Under Civil Code section 3337, a defendant cannot rebut the presumption by claiming that he applied the converted property to plaintiff’s benefit when he took unlawful possession of the property from the beginning. Consequently, the effect of section 3337 is to prevent mitigation when property is stolen from the plaintiff and subsequently applied to his benefit. In this situation, the defendant will not be able to claim that his conversion benefited plaintiff; he will thereby be prevented from claiming an offset derived from his original wrong. In contrast to this situation, if the particular facts of a case indicate, as in the instant case, that the possession was lawful before the conversion occurred … Civil Code section 3337 is inapplicable, and a converter is not precluded from claiming mitigation of damages.” (Dakota Gardens Apartment Investors “B” v. Pudwill (1977) 75 Cal.App.3d 346, 351–352 [142 Cal.Rptr. 126].)

“[W]e conclude that notwithstanding further developments in the law of negligence, damages for emotional distress growing out of a defendant’s conversion of personal property are recoverable.” (Gonzales, supra, 56 Cal.App.4th at p. 477, internal citations omitted.)

“In the absence of special circumstances the appropriate measure of damages for conversion of personal property is the fair market value of that property plus interest from the date of conversion, the standard first listed in section 3336, Civil Code. However, where proof establishes an injury beyond that which would be adequately compensated by the value of the property and interest, the court may award such amounts as will indemnify for all proximate reasonable loss caused by the wrongful act. Where damages for loss of use exceeds the legal rate of interest, it is appropriate to award the former, but not both.” (Lint v. Chisholm (1981) 121 Cal.App.3d 615, 624–625 [177 Cal.Rptr. 314], internal citations omitted.)

“ ‘To entitle a party to such compensation the [evidence] should tend to show that money was properly paid out and time properly lost in pursuit of the property, and how much.’ Such evidence should be definite and certain. Expenses ‘incurred in preparation for litigation and not in pursuit of property’ cannot be allowed as damages under Civil Code section 3336. Additionally, any such compensation must be fair, i.e., reasonable.” (Haines v. Parra (1987) 193 Cal.App.3d 1553, 1559 [239 Cal.Rptr. 178], internal citations omitted.)

“[A]lthough good faith and mistake are not defenses to an action for conversion, the plaintiff’s damages will be reduced if the defendant returns the property or the plaintiff otherwise recovers the property.” (Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d 664, 673 [192 Cal.Rptr. 793], 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.)

“Ordinarily ‘value of the property’ at the time of the conversion is determined by its market value at the time. However, ‘[w]here certain property has a peculiar value to a person recovering damages for deprivation thereof, or injury thereto, that may be deemed to be its value … against a willful wrongdoer.’ ” (In re Brian S. (1982) 130 Cal.App.3d 523, 530 [181 Cal.Rptr. 778], internal citations omitted.)

“In an action for damages for conversion, it is the rule that the plaintiff, although owning but a limited or qualified interest in the property, may, as against a stranger who has no ownership therein, recover the full value of the property converted.” (Camp v. Ortega (1962) 209 Cal.App.2d 275, 286 [25 Cal.Rptr. 873], internal citations omitted.)

“A plaintiff seeking recovery under the alternative provision of the statute must therefore plead and prove the existence of ‘special circumstances which require a different measure of damages to be applied.’ Having done so, the trier of fact must then determine ‘whether it was reasonably forseeable to a prudent person, having regard for the accompanying circumstances, that injury or damage would likely result from his wrongful act.’ ” (Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 215 [193 Cal.Rptr. 322], internal citations omitted.)

“Defendants contend that the anticipated loss of profits is not ‘the natural, reasonable and proximate result of the wrongful act complained of,’ within the meaning of section 3336. Although no California case which has applied the alternative measure of damages in a conversion case has specifically defined this language, we are satisfied that its meaning is synonymous with the term ‘proximate cause’ or ‘legal cause.’ These terms mean, in essence, ‘that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered.’ In determining whether this connection exists, the question is whether it was reasonably foreseeable to a prudent person, having regard for the accompanying circumstances, that injury or damage would likely result from his wrongful act. This question being one of fact to be determined generally by the trier of fact.” (Myers, supra, 233 Cal.App.2d at pp. 119–120, internal citations omitted.)

“In exceptional circumstances, to avoid injustice, loss of profits may be the measure.” (Newhart v. Pierce (1967) 254 Cal.App.2d 783, 794 [62 Cal.Rptr. 553], internal citation omitted.)

Code of Civil Procedure section 1263.320(a) provides: “The fair market value of the property taken is the highest price on the date of valuation that would be agreed to by a seller, being willing to sell but under no particular or urgent necessity for so doing, nor obliged to sell, and a buyer, being ready, willing, and able to buy but under no particular necessity for so doing, each dealing with the other with full knowledge of all the uses and purposes for which the property is reasonably adaptable and available.”

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1906
4 Levy et al., California Torts, Ch. 50, Damages, §§ 50.01–50.03 (Matthew Bender)
13 California Forms of Pleading and Practice, Ch. 150, Conversion, §§ 150.10, 150.40–150.41 (Matthew Bender)
5 California Points and Authorities, Ch. 51, Conversion (Matthew Bender)