CACI 3903F Damage to Real Property (Economic Damage)

New September 2003; Revised April 2008, April 2009

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Give this instruction for damages to real property caused by trespass, permanent nuisance, or other tortious conduct. See also CACI No. 3903G, Loss of Use of Real Property (Economic Damage).

If there is evidence of both diminution in value and cost of repair, include all optional paragraphs. However, include the last bracketed sentence in the first paragraph only if the judge has determined that the claimed personal reasons are legally sufficient to justify the costs of repair.

If only the cost of repair is at issue, give just the first paragraph. However, if the reasonableness of the cost of repair is at issue, then the value of the property must be considered, and all paragraphs must be included. If only diminution of value is at issue, omit the last two optional paragraphs.

•Damages for Wrongful Occupation of Real Property. Civil Code section 3334(a).

•“The measure of damages for tortious injury to property, including trees, ‘is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.’ ‘Such damages are generally determined as the difference between the value of the property before and after the injury.’ But ‘[d]iminution in market value … is not an absolute limitation; several other theories are available to fix appropriate compensation for the plaintiff’s loss.’ ‘ “There is no fixed, inflexible rule for determining the measure of damages for injury to, or destruction of, property; whatever formula is most appropriate to compensate the injured party for the loss sustained in the particular case, will be adopted.” ’ One such alternative measure of damages is the cost of restoring the property to its condition prior to the injury, and a plaintiff may recover these costs even if they exceed diminution in value if there is a ‘personal reason’ for restoration.” (Salazar v. Matejcek (2016) 245 Cal.App.4th 634, 643−644 [199 Cal.Rptr.3d 705], internal citations omitted.)

•“For tortious injury to real property, the general rule is that the plaintiff may recover the lesser of (1) the diminution in the property’s fair market value, as measured immediately before and immediately after the damage; or (2) the cost to repair the damage and restore the property to its pretrespass condition, plus the value of any lost use. The practical effect of this rule is to limit damages to property to the fair market value of the property prior to the damage.” (Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 450 [102 Cal.Rptr.3d 32].)

•“Defendant … contends that the trial court awarded excessive damages, on the ground that when the cost of restoration is less than the depreciation in value, the former is the measure of damages. This contention cannot be sustained. Plaintiffs established their damages by showing the depreciation in value. It was then incumbent upon defendants to come forward with proof that the cost of restoration would be less.” (Herzog v. Grosso (1953) 41 Cal.2d 219, 226 [259 P.2d 429], internal citations omitted.)

•“Where a plaintiff establishes damages by showing depreciation in the value of real property, courts have held defendants to the burden of coming forward with proof that cost of restoration would be less. It follows that when a plaintiff proves damages by showing the cost of repairs it should be incumbent on the defendant to introduce evidence that the repair costs exceed the value of the property.” (Armitage v. Decker (1990) 218 Cal.App.3d 887, 905 [267 Cal.Rptr. 399], internal citations omitted.)

•“The ‘fair market value’ of real property is ‘the best price obtainable from a purchaser on a cash sale.’ It ‘is measured by the highest price the property would command if offered for sale in the open market with a reasonable time allowed to the seller to find a purchaser who will buy with a knowledge of all the uses to which it may be put.’ ” (CMSH Co. v. Antelope Development, Inc. (1990) 223 Cal.App.3d 174, 182 [272 Cal.Rptr. 605], internal citations omitted.)

•“Civil Code section 3334 requires that restoration costs be reasonable. In addition, general principles of damages in trespass cases require that the damages bear a reasonable relationship to the harm caused by the trespass. Mangini explains that whether abatement costs are reasonable requires an evaluation of a number of fundamental considerations, including the expense and time required to perform the abatement, along with other legitimate competing interests. (Mangini, supra, 12 Cal.4th at p. 1100; see also Beck, supra, 44 Cal.App.4th at pp. 1221–1222 [reasonableness includes consideration of monetary expense, burden on public, and costs of remediation versus value of land].)” (Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, 601 [63 Cal.Rptr.3d 165], original italics.)

•“The trial court must instruct the jury on how to determine whether the statutory requirement that any restoration costs be reasonable was met. It must also advise the jury what to do if the jury concludes the evidence shows the proposed restoration project to be unreasonable.” (Starrh & Starrh Cotton Growers, supra, 153 Cal.App.4th at pp. 600–601.)

•“Whether the restoration costs are reasonable is a question for the trier of fact in the first instance, but an award of such costs may be unreasonable as a matter of law if it is grossly disproportionate to the value of the property or the harm caused by the defendant.” (Kelly, supra, 179 Cal.App.4th at p. 451.)

•“Trial courts in trespass actions have historically been given great flexibility to award damages that fit the particular facts of the case.” (Starrh & Starrh Cotton Growers, supra, 153 Cal.App.4th at p. 604.)

•“[I]f a plaintiff has a personal reason to restore the property to its former condition, he or she may recover the restoration costs even if such costs exceed the diminution in value. This rule is sometimes referred to as the ‘ “personal reason” exception.’ Even when this exception applies, however, restoration costs ‘are allowed only if they are reasonable in light of the value of the real property before the injury and the actual damage sustained.’ ” (Kelly, supra, 179 Cal.App.4th at pp. 450–451, internal citations omitted.)

•“Whether the restoration costs are reasonable is a question for the trier of fact in the first instance, but an award of such costs may be unreasonable as a matter of law if it is grossly disproportionate to the value of the property or the harm caused by the defendant.” (Salazar, supra, 245 Cal.App.4th at p. 644.)

•“Contrary to the defendants’ argument, the ‘personal reason’ exception does not require that the [plaintiffs] own a ‘unique’ home. Rather, all that is required is some personal use by them and a bona fide desire to repair or restore.” (Orndorff v. Christiana Community Builders (1990) 217 Cal.App.3d 683, 688 [266 Cal.Rptr. 193].)

•“Under California law, damages for diminution in value may only be recovered for permanent, not continuing, nuisances.” (Gehr v. Baker Hughes Oil Field Operations, Inc. (2008) 165 Cal.App.4th 660, 663 [81 Cal.Rptr.3d 219].)