Thomas Vogele & Associates – Trespass Lawyers
The biggest damages awards for property owners’ trespass claims
Including trespassing pipelines and utilities, billboards, driveways, easements, and other encroachments
Call for a free consultation:
Southern California (Costa Mesa):
Northern California (Carmel):
The applicable method of calculating damages for trespass in California is set forth in Civil Code section 3334 (“Section 3334”). Section 3334 states, in its entirety:
“(a) The detriment caused by the wrongful occupation of real property, in cases not embraced in Section 3335 of this code, the Eminent Domain Law (Title 7 (commencing with Section 1230.010) of Part 3 of the Code of Civil Procedure), or Section 1174 of the Code of Civil Procedure, is deemed to include the value of the use of the property for the time of that wrongful occupation, not exceeding five years next preceding the commencement of the action or proceeding to enforce the right to damages, the reasonable cost of repair or restoration of the property to its original condition, and the costs, if any, of recovering the possession.
(b)(1) Except as provided in paragraph (2), for purposes of subdivision (a), the value of the use of the property shall be the greater of the reasonable rental value of that property or the benefits obtained by the person wrongfully occupying the property by reason of that wrongful occupation.
(2) If a wrongful occupation of real property subject to this section is the result of a mistake of fact of the wrongful occupier, the value of the use of the property, for purposes of subdivision (a), shall be the reasonable rental value of the property.”
Accordingly, Section 3334 entitles landowners who are victims of trespass to recover: (1) the benefits obtained by the trespassing party as a result of the trespass; (2) costs to remediate the damage caused to the property by the trespass; and (3) costs incurred by the landowner to evict the trespassing party.
Section 3334 was amended by the Legislature in 1992. Prior to the 1992 amendment, the first prong of damages (i.e., “value of the use of the property”) was measured solely by the reasonable rental value of the property. As such, in instances where the trespasser could still profit from the trespass despite having to potentially pay reasonable rent and nominal remediation if caught, the specter of a
potential judgment did not deter the profitable trespass. The paradigm of this benefited tortfeasor was the company that dumped
toxic waste on already worthless land that would be forced to only pay nominal damages to the landowner, while avoiding the costs of proper disposal of its waste.
The Legislature came to find this result offensive.
In 1991, the Legislature decided to discourage opportunistic trespassers. To that end, the Legislature amended Section 3334 to add subsection (b). Subsection (b) provides a harsher penalty for the opportunistic trespasser. Specifically, Subsection (b) eliminated any economic incentive to commit trespass by disgorging the opportunistic trespasser of all of its ill-gotten gains if caught and sued.
Only three cases have interpreted Section 3334 – Watson Land Co. v. Shell Oil Co. (2005) 130 Cal.App.4th 69, dealing with remediation for a leaky pipeline; Starrh and Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583, dealing with remediation and costs-saved from leaky wastewater ponds; and Bailey v. Outdoor Media Group (2007) 155 Cal.App.4th 778, dealing with revenues
of a trespassing billboard operator.
Starrh concluded that “benefits obtained” is derived from the profits directly resulting from the trespass, together with the costs the trespasser was able to avoid by trespassing. (Starrh, supra, 153 Cal.App.4th at pp. 604-605.)
Bailey likewise awarded plaintiff the trespasser’s profits, but went on to consider whether the trespasser would be entitled to deduct its expenses. Bailey put the issue of gross versus net profits within the discretion of the trial court. The court noted that “any financial benefit obtained as a result of the trespass” necessarily included the profits the opportunistic trespasser generated as a direct result of the trespass. (Id. at p. 784.) This was because the Legislature intended to eliminate any financial incentive for trespass so as to discourage trespass. (Id. at p. 786.)
Here is a rough sketch of how the restitutionary “benefits obtained” theory evolved in California trespass law:
Don v. Trogan Const. Co. (1960) 178 Cal.App.2d 135. This is the pre-statute “dirt case,” in which the owner of a vacant parcel sued a nearby developer for storing dirt on his property. The court, reversing the trial court’s ruling that the unproductive owners were entitled only to nominal damages because they “had lost nothing,” awarded fair rental value. “[I]f only nominal damages are awarded, the appropriators of the use of land could gain a virtually expense free use of property for profitable purposes on the single condition that the owner did not presently intend to lease the land or to use it himself.”
Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770. Decided before the amended § 3334 went into effect. An oil company flooded wastewater onto plaintiff’s mineral estate, amounting to trespass since plaintiff did not consent despite defendant’s purported good-faith belief that the surface owner’s consent sufficed. Although the amount of harm was unascertainable, courts may establish damages in any way appropriate to the facts of the case, and “[e]quity does not wait upon precedent which exactly squares with the facts in controversy, but will assert itself in those situations where right and justice would be defeated but for its intervention.” The court affirmed the application of quasi-contract damages based on the amount of the oil company’s unjust enrichment, calculated by the price-per-barrel of properly disposing of the wastewater.
Civ. Code, § 3334 was amended 1992 to include “benefits obtained.”
Watson Land Co. v. Shell Oil Co. (2005) 130 Cal.App.4th 69. This is the first case to apply “benefits obtained” under § 3334. Shell’s trespassing pipeline leaked gasoline and the jury awarded $3.9MM against Shell for remediation, but also $14MM on top of that as Shell’s “benefits.” The court of appeal reversed, holding this was a nonsequitur – there was no link showing how failure to remediate worked a benefit beyond simply paying for the remediation, and there was no evidence or argument of further benefits beyond remediation.
- “Benefits obtained” cannot include remediation, which is a separate category independently described in § 3334(a) [“The detriment . . . is deemed to be . . . the reasonable cost of repair or restoration . . . .”].
- “Benefits obtained” could not include savings of costs of proper disposal as in toxic dumping cases because there was apparently no evidence how Shell saved any costs – negligent leakage is not like opportunistic dumping in which the trespasser takes willful advantage of the trespass. Shell was “not using the leak to effectuate disposal or obtain some other financial gain separate from the failure to remediate the trespass.”
- Importantly, plaintiff did not argue “benefits obtained” should be measured by the value of the product pumped through the trespassing pipeline. Instead, plaintiff’s economics expert argued a time-value-of-money theory. (Based on Shell’s cost of cash, plaintiff argued every $1 in remediation was worth over $4 at time of judgment.)
- “Benefits obtained” must be measured by the trespassing activity “itself”: “‘Benefits’ are not ‘obtained’ by reason of a wrongful occupation unless the trespass itself provided the trespasser with a financial or business advantage.” The court gives no further explanation, but it can be harmonized with Starrh, where the dumping itself was the benefit – not the oil production. (Damages assessed as the value of the cost of proper disposal plus remediation.) And with Bailey, where the billboarding itself was the benefit, with damages as the revenues. But not with leaking, because there’s no benefit in leaking “itself”: the only benefit could be derivative, such as the cost-savings in not maintaining the line).
Starrh and Starrh Cotton Growers v. Aera Energy, LLC (2007) 153 Cal.App.4th 583. Confirming a broad interpretation of § 3334, the court also limits “benefits obtained” to those established by a “direct link” to the trespass.
Aera, a Shell subsidiary at Belridge Field in Kern County, stored wastewater in unlined ponds, which polluted the already-poor-quality groundwater of neighbor’s agricultural land. Aera had alternative methods, but none more economically efficient. The trial court concluded the “benefits obtained” was “restricted to costs saved or avoided by the wrongful trespass.” Reversing, Bailey held “[t]here is nothing in Civil Code section 3334 or its legislative history to suggest that the phrase “benefits obtained” should be read narrowly.” Provided “there is a direct link between the financial benefit and the trespass,” “‘benefits obtained’ may include profits enjoyed by [the trespasser] that are directly linked to the wrongful trespass.”
- The “direct link” requires showing “the profit earned by the trespasser actually was tied to the decision leading to the trespass,” and it “is not enough to simply measure the profits earned in any given time period or proportion them to a particular part of the trespasser’s business.” Thus, the court rejected the owner’s argument that but for the trespass, Aera “would have to shut down production of its wells and forgo the profits that accompany production.” The court held this “ignores the possibility that not all of the produced [waste]water . . . ended up in Starrh’s [property],” and “also ignores the alternative methods of disposal available to Aera.” “The unquestionable intent in [trespassing] was to maximize profits; however, this does not mean that no profits would be earned if other methods were selected.”
Bailey v. Outdoor Media Group (2007) 155 Cal.App.4th 778. Confirming § 3334 is not limited to toxic-dumping cases, Bailey imposed benefits-obtained damages against a trespassing billboard operator, who sold billboards after failing to renegotiate an expired lease. The trial court limited damages against the trespassing sublessee to the value of the property. The court held this was error and awarded the actual revenues. Noting the case was unlike the toxic-dumping case in Starrh where the benefits amounted to the costs avoided, Bailey held the benefits obtained were the revenues directly linked to the trespass. The trial court in its discretion may offset expenses, which defendant has the burden to establish by “credible evidence.”
Bailey does not contemplate externalities of planned byproducts to economic activity as in Starrh, or externalities of unplanned setbacks to economic activity as in Watson. Remediation in required in either case, but “benefits obtained” require the activity to be beneficial in itself.
- “Benefits obtained” is meant to “discourage,” not “punish”: “By amending section 3334 to include the “benefits obtained” as a measure of damages, the Legislature did not intend to punish the wrongful occupier. The legislative history, recounted above, indicates that the purpose of the amendment was to discourage the dumping of toxic waste on vacant land with little or no rental value by eliminating the financial benefit gained by that dumping.” The question, then, is “financial benefit” – anything more would improperly “punish”; anything less would fail to “discourage.”
We will never pursue a false cause, and we will never pursue a true cause the false way. Every case we are offered is an opportunity to help our clients protect their property, their business, and their livelihood.