Fulle v. Kanani ( 2017 )

Filed 1/31/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JEANETTE E. FULLE, B271240
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. LC101181)
v.
KAVEH M. KANANI,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Huey P. Cotton, Judge. Reversed and
remanded.
Law Office of Dennis Ardi, Dennis Ardi; Garfield & Tepper
and Scott J. Tepper, for Plaintiff and Appellant.
Nelson Griffin, Edwin C. Mann, Raymond J. Muro; Law
Offices of Cleidin Z. Atanous and Cleidin Z. Atanous, for
Defendant and Respondent.
_____________________________
Respondent Kaveh Kanani shares a property line with his
neighbor, appellant Jeanette Fulle. Without obtaining Fulle’s
permission, Kanani hired workers to cut down the limbs and
branches of six trees located on Fulle’s property. Fulle sued for
trespass and negligence, seeking damages for injury to the trees,
restoration costs, and damages for annoyance and discomfort.
She sought enhanced damages under Civil Code section 3346,
1
subdivision (a) which provides trial courts with discretion to
treble damages to “compensate for the actual detriment” “[f]or
wrongful injuries to timber, trees, or underwood upon the land of
another.”
The trial court trebled Fulle’s economic damages but
declined to apply the multiplier to her damages for annoyance
and discomfort. The court reasoned that the use of the term
“actual detriment” in section 3346 limits the damage multiplier
to actual economic damages and does not extend to intangible,
noneconomic damages. We find no such limitation in section
3346 or the plain language of California’s other applicable timber
trespass statute (Code Civ. Proc., § 733). We also find no
indication that the Legislature intended to limit the availability
of annoyance and discomfort damages under these statutes. We
conclude that annoyance and discomfort damages are subject to
the statutory damage multiplier for trespass to timber, and
accordingly reverse and remand the matter to the trial court.
FACTUAL AND PROCEDURAL SUMMARY
Fulle has resided at her home in a hillside neighborhood of
Encino, California since 2001. Her property is located downhill
1
All further statutory references are to the Civil Code unless
otherwise indicated.
2
from a home acquired by Kanani in October 2013. The
contiguous properties are demarcated by a fence. Five mature
eucalyptus trees and a black walnut tree were located near the
fence on the Fulle property, which provided her home with
aesthetic benefits, shade, and privacy. The trees also partially
blocked Kanani’s view of the San Fernando Valley. Shortly after
acquiring his property, Kanani hired Carlos Salvador to trim
several trees. On November 16, 2013, Salvador and several
workers entered the Fulle property without her permission and
cut down the limbs and branches of the six trees.
Fulle filed a complaint for trespass and negligence against
Kanani in January 2014. She alleged that Kanani, without
obtaining her consent, directed Salvador to “cut the trees down to
less than half their height and denude them of all branches and
leaves,” leaving “bare tree trunks” and depriving her of the
“beauty, shade and privacy that that trees afforded.” Fulle
sought treble damages for trespass and double damages for
negligence under section 3346. She also sought damages for the
“annoyance and discomfort she suffer[ed] from the loss of the
shade and privacy . . . and for the annoyance and discomfort she
will suffer as and when repairs are made” to the property.
Kanani admitted in his answer that the trees partially blocked
his view and that he did not have Fulle’s permission to cut them
down. He admitted that the trees were cut but “denie[d] that he
did so or directed that it be done.”
Fulle’s brief before trial further explained the remedies she
sought. Because Kanani allegedly acted “willfully and
maliciously” when he ordered Salvador to cut the trees, Fulle
asserted that the measure of damages should be three times the
“actual detriment” under section 3346. Fulle argued that the
3
eucalyptus trees were irreparably damaged and needed to be
removed and replaced, which would require building a retaining
wall to shore up the hillside. Her damages calculation included
tree damage, loss of aesthetic benefits, and the costs of removing
and replacing the eucalyptus trees, building a retaining wall, and
aftercare of the trees. In addition, she sought annoyance and
discomfort damages, costs of renting another house during
construction, and interest.
The case was tried before a jury in November 2015. The
jury found by special verdict that Kanani’s agent, Salvador, cut or
trimmed Fulle’s trees and was acting within the scope of the
agency when he did so. The jury also found that Kanani acted
intentionally, willfully, and maliciously in causing Salvador to
enter Fulle’s property and cut or trim her trees. The jury
awarded $27,500 for damage to the trees, $20,000 for the cost of
repairing the harm, and $30,000 for “[p]ast noneconomic loss
(including annoyance and discomfort, loss of enjoyment of the
real property, inconvenience and emotional distress).”
After the verdict was read and the jury excused, Fulle
moved for treble damages, and the court requested briefing on
the application of section 3346. Fulle contended that the term
“actual detriment” as used in the statute includes both the
damage to the trees and the harm that she personally suffered as
a result, thus the multiplier applied to both economic and
noneconomic damages. Kanani argued that the damage
multiplier should only apply to economic damages and
maintained that only double damages were warranted.
The trial court entered a judgment on November 23, 2015.
The judgment doubled economic damages under section 3346 but
declined to apply the multiplier to noneconomic damages
4
awarded by the jury. Fulle moved to vacate the judgment and
enter an amended judgment seeking to treble all damages
awarded by the jury.
Following briefing by the parties, the trial court granted
the motion to vacate. The court stated that it had made an error
and intended to exercise its discretion to impose treble damages
under section 3346. The court entered an amended judgment in
February 2016, which trebled economic damages. The court,
however, declined to treble noneconomic damages under the
statute. The court noted that “‘[d]etriment’” is generally defined
by section 3282 as “a loss or harm suffered in person or property.”
But the use of the term “‘actual detriment’” in section 3346, the
court reasoned, suggested the Legislature intended to narrow
recoverable damages to “actual economic damages as opposed to
more intangible non-economic damages.”
This timely appeal followed.
DISCUSSION
This case presents an issue of first impression in
California: whether annoyance and discomfort damages
resulting from injuries to trees may be doubled or trebled under
the timber trespass statutes. (§ 3346; Code Civ. Proc., § 733.)
“Statutory interpretation is a question of law that we
review de novo. [Citation.] ‘Our fundamental task in
interpreting a statute is to determine the Legislature’s intent so
as to effectuate the law’s purpose. We first examine the statutory
language, giving it a plain and commonsense meaning. We do
not examine that language in isolation, but in the context of the
statutory framework as a whole in order to determine its scope
and purpose and to harmonize the various parts of the
5
enactment. If the language is clear, courts must generally follow
its plain meaning unless a literal interpretation would result in
absurd consequences the Legislature did not intend. If the
statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the
statute’s purpose, legislative history, and public policy.’
[Citation.]” (Bruns v. E-Commerce Exchange, Inc. (2011) 51
Cal. 4th 717, 724.)
Section 733 of the Code of Civil Procedure (section 733) was
originally enacted in 1851. (See Stats. 1851, ch. 5, § 251, p. 92.)
The statute was incorporated into the Code of Civil Procedure in
1872, and since has read: “Any person who cuts down or carries
off any wood or underwood, tree, or timber, or girdles or
otherwise injures any tree or timber on the land of another
person, or on the street or highway in front of any person’s house,
village, or city lot, or cultivated grounds; or on the commons or
public grounds of any city or town, or on the street or highway in
front thereof, without lawful authority, is liable to the owner of
such land, or to such city or town, for treble the amount of
damages which may be assessed therefor, in a civil action, in any
Court having jurisdiction.” (17A West’s Ann. Code Civ. Proc.
(2015 ed.) foll. § 733, p. 219.)
When the Legislature adopted the Civil Code in 1872, it
borrowed a similar timber trespass statute from the New York
Field Code.2 Unlike section 733, which appears to mandate treble
2
In enacting the Civil Code, the “Legislature had before it a
report prepared in 1871 by the California Code
Commission . . . [citation]. The commission prefaced its
recommendations by observing that the majority of California’s
existing statutes ‘have been taken, from time to time, from sister
6
damages, former Civil Code section 3346 included two damage
measures: “For wrongful injuries to timber, trees, or underwood
upon the land of another, or removal thereof, the measure of
damages is three times such a sum as would compensate for the
actual detriment, except where the trespass was casual and
involuntary, or committed under the belief that the land belonged
to the trespasser, or where the wood was taken by the authority
of highway officers for the purposes of a highway; in which cases
the damages are a sum equal to the actual detriment.” (Former
Civ. Code, § 3346, repealed by Stats. 1957, ch. 2346, § 2, p. 4076.)
Section 3346 remained unchanged until it was repealed,
amended, and reenacted in 1957. (Stats. 1957, ch. 2346, § 2,
p. 4076.) The new section 3346 preserved the original language
regarding treble damages, but added a double damages provision.
(See generally Ghera v. Sugar Pine Lumber Co. (1964) 224
States, and mostly from New York.’ [Citation.] The commission
proposed to continue borrowing, this time from a draft New York
Civil Code, widely known as the Field Code.” (Fluor Corp. v.
Superior Court (2015) 61 Cal. 4th 1175, 1200 (Fluor), italics and
fn. omitted.) The Field Code timber trespass provision is
identical to former section 3346. (See Commissioners of the
Code, The Civil Code of the State of New York, Report Complete
(1865), § 1871, p. 579.) “Despite efforts over many decades, the
Field Code was never enacted in New York.” (Fluor, at p. 1200 &
fn. 33.)
Section 733 also appears to have been borrowed from a
prior version of the New York Civil Code. (Compare § 733 with
Former N.Y. Civ. Code, § 911 (1850) [“Every person who cuts
down, or carries off, any wood or underwood, tree or timber, or
girdles or otherwise injures any tree . . . on the land of another
person . . . without lawful authority . . . is liable to the owner of
such land . . . for treble the amount of damages, which may be
assessed therefor . . . .”].)
7
Cal. App. 2d 88, 89-91 (Ghera).) Section 3346, subdivision (a)
currently reads: “For wrongful injuries to timber, trees, or
underwood upon the land of another, or removal thereof, the
measure of damages is three times such sum as would
compensate for the actual detriment, except that where the
trespass was casual or involuntary, or that the defendant in any
action brought under this section had probable cause to believe
that the land on which the trespass was committed was his
own . . . the measure of damages shall be twice the sum as would
compensate for the actual detriment, and excepting further that
where the wood was taken by the authority of highway officers
for the purpose of repairing a public highway or bridge upon the
land or adjoining it, in which case judgment shall only be given in
a sum equal to the actual detriment.”
Sections 733 and 3346 were construed and harmonized in
Drewry v. Welch (1965) 236 Cal. App. 2d 159 (Drewry). In that
case, the court observed that the treble damages provisions in
both statutes have been construed to be discretionary rather than
mandatory. (Id. at p. 180.) The court further noted that section
733 has been interpreted to apply only in situations where the
cutting of trees or timber was done willfully and maliciously.
(Ibid.) The court concluded that “the effect of section 3346 as
amended, read together with section 733, is that the Legislature
intended . . . to leave the imposition of treble damages
discretionary with the court, but to place a floor upon that
discretion at double damages . . . . There are now three measures
of damages applicable to the pertinent types of trespass: (1) for
wilful and malicious trespass the court may impose treble
damages but must impose double damages; (2) for casual and
involuntary trespass, etc., the court must impose double
8
damages; and (3) for trespass under authority actual damages.”
(Id. at p. 181, italics omitted; accord Ostling v. Loring (1994) 27
Cal. App. 4th 1731, 1742 (Ostling).)
The measure of damages to be doubled or trebled under
sections 733 and 3346 is not limited to the value of the timber or
the damage to the trees. The statutes have been interpreted to
permit doubling or trebling the full measure of compensable
3
damages for tortious injury to property. (Salazar v. Matejcek
(2016) 245 Cal. App. 4th 634, 643 (Salazar); Heninger v. Dunn
(1980) 101 Cal. App. 3d 858, 861 (Heninger).) “The measure of
damages in California for tortious injury to property is ‘the
amount which will compensate for all the detriment proximately
caused thereby . . . .’ (Civ. Code, § 3333.) Such damages are
generally determined as the difference between the value of the
property before and after the injury.” (Heninger, at pp. 861-862.)
3
This view is consistent with the interpretation by the
courts of New York of that state’s former timber trespass statute,
which appears to have been the model for section 733. (See
McCruden v. Rochester R. Co. (N.Y. Cir. 1893) 5 Misc. 59, 66
[under former statute plaintiff has “the right to treble all the
damages which he might recover in the action of trespass, instead
of merely the value of the wood carried away”], citing Van Deusen
v. Young (1864) 29 N.Y. 9, 25.) It also appears that the New York
courts never addressed the issue of whether noneconomic
damages resulting from timber trespass were subject to trebling
under the former statute, which was most recently revised in
2003, and now limits recovery to “treble the stumpage value of
the tree or timber or two hundred fifty dollars per tree, or both
and for any permanent and substantial damage caused to the
land or the improvements thereon as a result of such violation.”
(N.Y. Real Prop. Acts. Law § 861(1); see also 2003 McKinney’s
Session Law News of N.Y., Ch. 602.)
9
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.” (Id. at p. 862.) For
example, a plaintiff may recover the costs of restoring the
property to its condition prior to the injury––even if such costs
exceed diminution in value––so long as there is a valid “personal
reason” to do so. (Id. at p. 864; see, e.g., Kallis v. Sones (2012)
208 Cal. App. 4th 1274, 1279-1281 [doubling not only the amount
of damages determined for the tree, but also the amount awarded
for restoring the property, including installation of a new tree
and aftercare costs].)
“[A]nnoyance and discomfort” is another theory under
which a plaintiff may recover damages for tortious injury to
property in California. In Kornoff v. Kingsburg Cotton Oil Co.
(1955) 45 Cal. 2d 265, 272 (Kornoff), the California Supreme
Court recognized that “‘an occupant of land may recover damages
for annoyance and discomfort that would naturally ensue . . . .’”
from a trespass on the plaintiff’s land. In that case, defendant
operated a cotton gin on land adjacent to plaintiffs’ property.
Operating the gin caused the “lawns, flowers, shrubs, window
screens, hedges and furniture” on the plaintiffs’ property to be
“covered with a thick coating of dust and lint and ginning waste.”
(Id. at p. 273.) The court noted that defendant’s trespass, while
not of “the type to cause fright or shock or even physical illness,”
nevertheless caused the plaintiffs “much annoyance and
discomfort.” (Ibid.) Even though plaintiffs had suffered no
physical injury, the court concluded they were entitled to
compensation because their annoyance and discomfort was the
natural and proximate cause of defendant’s trespass. (Id. at pp.
272-273; see also Armitage v. Decker (1990) 218 Cal. App. 3d 887,
10
905 [“The general rule is simply that damages may be recovered
for annoyance and distress, including mental anguish,
proximately caused by a trespass”].)
In Kelly v. CB&I Constructors, Inc. (2009) 179 Cal. App. 4th
442 (Kelly), the court applied Kornoff in a case involving a
negligently-started brushfire that destroyed dozens of trees on
the plaintiff’s property. (Kelly, at pp. 448-451, 456-459.) The jury
awarded damages for the cost of restoring the property, lost
rental income, tree damage, and plaintiff’s annoyance and
discomfort. (Id. at p. 450.) The court of appeal reversed the
damage award for annoyance and discomfort because plaintiff did
not reside on the property at the time of the fire. (Id. at pp. 456-
459.) Although the court indicated annoyance and discomfort
damages may be available in trespass cases involving injury to
trees, it held that such damages are recoverable only by the
“immediate [and] personal possessor” of the damaged property.
(Id. at p. 458.)
Together, Kornoff and Kelly stand for the proposition that a
plaintiff may recover damages for annoyance and discomfort
proximately caused by tortious injuries to trees on her property if
she was in immediate and personal possession of the property at
the time of the trespass. (See Kornoff, supra, 45 Cal.2d at p. 272;
Kelly, supra, 179 Cal.App.4th at pp. 456-459.) However, Kelly did
not address the question presented in this case: whether
recoverable annoyance and discomfort damages are subject to the
damage multiplier for timber trespass under sections 733 and
3346.
We first turn to section 733, which provides that “[a]ny
person who cuts down or carries off any wood or underwood, tree,
or timber, or girdles or otherwise injures any tree or timber on
11
the land of another person . . . is liable to the owner of such
land . . . for treble the amount of damages which may be assessed
therefor . . . .” The plain language of this provision is not
ambiguous. It permits trebling the “amount of damages which
may be assessed” for cutting down or injuring trees on another
person’s land. “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.’” (Salazar, supra, 245
Cal.App.4th at p. 643, quoting Civ. Code, § 3333; see also
Heninger, supra, 101 Cal.App.3d at p. 861.) Because it is
established that annoyance and discomfort damages may be
assessed for tortious injuries to trees (see Kornoff, supra, 45
Cal.2d at p. 272; Kelly, supra, 179 Cal.App.4th at pp. 456-459), it
follows that such damages are subject to section 733’s treble
damages provision.4
4
This reading of section 733 is consistent with a recent
decision by the Supreme Court of Washington authorizing treble
damages for emotional distress under that state’s similarly-
worded timber trespass statute. (See Pendergrast v. Matichuk
(2016) 379 P.3d 96, 101-102 (Pendergrast).) The Washington
statute provides: “Whenever any person shall cut down . . . any
tree . . . on the land of another person . . . without lawful
authority, in an action by the person . . . against the person
committing the trespasses . . . any judgment for the plaintiff shall
be for treble the amount of damages claimed or assessed.”
(Wash. Rev. Code Ann. § 64.12.030.) The court noted it is “well
established . . . that emotional distress damages are available
under the [Washington] timber trespass statute.” (Pendergrast,
at p. 101.) The court concluded that although “the legislature
would be well within its power to limit emotional distress
damages available under the timber trespass statute, it has not,”
12
The language of section 3346 poses a greater interpretive
challenge. It states in pertinent part: “For wrongful injuries to
timber, trees, or underwood upon the land of another, or removal
thereof, the measure of damages is three times such sum as
would compensate for the actual detriment . . . .” (§ 3346, subd.
(a).) According to Fulle, the term “actual detriment” includes
both detriment to property and resulting personal harms such as
annoyance and discomfort. She notes that the word “detriment”
is defined by section 3282, another Civil Code provision enacted
in 1872, as a “loss or harm suffered in person or property.”
Because annoyance and discomfort damages are recoverable for
trespassory injuries to trees (see Kelly, supra, 179 Cal.App.4th at
pp. 456-459), Fulle reasons that such personal harms are
therefore included within the “actual detriment” subject to
doubling or trebling under section 3346. The trial court
disagreed with her analysis. It reasoned the use of the term
“actual detriment” suggests a narrower measure of damages, and
concluded the damage multiplier is consequently limited to
“actual economic damages as opposed to more intangible non-
economic damages.”
We find no support for the proposition that the use of the
term “actual detriment” in section 3346 was intended to limit the
application of the damage multiplier to economic damages. The
ordinary meaning of the word “actual” does not provide much
guidance. It is generally defined as “existing in fact or reality” as
opposed to “false or apparent.” (Merriam-Webster’s Online
Dictionary (2017) < http://www.merriam-webster.com/dictionary/
and accordingly, “under the plain language of the statute,
[plaintiff] is entitled to treble damages on all damages awarded
under the timber trespass statute.” (Id. at p. 102.)
13
actual> [as of Jan. 20, 2017]; see also Black’s Law Dict. (10th ed.
2014) p. 44, col. 2 [defining “actual” as “[e]xisting in fact; real”].)
A similar legal term dating back to the 18th Century, “actual
5
damages,” is defined as an “amount awarded to a complainant to
compensate for a proven injury or loss” and is generally
synonymous with compensatory damages as opposed to nominal
or punitive damages. (Black’s Law Dict., supra, p. 471, col. 2.)
We are unable to discern whether the Legislature intended the
term to carry this technical meaning.
The general purpose of section 3346 and the limited
legislative history do not provide clarity. Courts have noted the
purpose of the statute is “to make timber appropriation
unprofitable. ‘The normal use of . . . section 3346 is in cases
where timber has been cut from another’s land, either with or
without knowledge that the cutting was wrongful. It has been
suggested that the purpose of the statute is to educate blunderers
(persons who mistake location of boundary lines) and to
discourage rogues (persons who ignore boundary lines), to protect
timber from being cut by others than the owner.’” (Heninger,
5
Fulle references two more recently enacted statutes
trebling “actual damages” that have been interpreted to apply to
damages for emotional distress and mental anguish. (See Friddle
v. Epstein (1993) 16 Cal. App. 4th 1649, 1660 [“injuries akin to
those for emotional distress . . . are ‘actual’ damages which shall
be trebled” under Pen. Code, § 637.2]; see also Beeman v. Burling
(1990) 216 Cal. App. 3d 1586, 1601-1602 [damages awarded under
municipal rent ordinance for mental anguish were “actual
damages” subject to trebling]; but see Balmoral Hotel Tenants
Assn. v. Lee (1990) 226 Cal. App. 3d 686, 689-697 [mandatory
trebling of damages for mental suffering under municipal rent
ordinance may produce unconstitutionally excessive penalties;
therefore “actual damages” limited to out-of-pocket expenses].)
14
supra, 101 Cal.App.3d at p. 868, quoting Gould v. Madonna
(1970) 5 Cal. App. 3d 404, 408.) When section 3346 was amended
in 1957, the Legislature was primarily concerned with enhancing
6
the statute’s deterrent effect. Nowhere in the legislative history
do we find any discussion of the term “actual detriment” or the
appropriate measure of damages subject to doubling or trebling.
Whatever the Legislature meant by “actual detriment,” we
cannot conclude that it intended in 1872 or 1957 to prospectively
bar recovery for annoyance and discomfort when this damage
measure was not expressly recognized for tortious injury to trees
in California until 2009 (see Kelly, supra, 179 Cal.App.4th at pp.
460-462).
Kanani contends we should narrowly interpret sections 733
and 3346. This is consistent with our courts’ long-standing view
that the timber trespass statutes are punitive in nature and
therefore should be strictly construed. (Ghera, supra, 224
Cal.App.2d at p. 92; accord Drewry, supra, 236 Cal.App.2d at p.
172.) He notes the statutory language refers only to property
damage. Section 3346 states that it applies to “wrongful injuries
6
The legislative history of Assembly Bill 2526, 1957 Session,
indicates the double damages provision was added to section
3346 in order to more effectively deter timber appropriation by
those who carelessly or negligently fail to accurately determine a
boundary line. Assemblyman Frank P. Belotti, who introduced
the bill, corresponded with several landowners and officials from
the United States Department of the Interior, Bureau of Land
Management (BLM) regarding the need for more effective
enforcement. (See G. Kelton Steele, letter to Assemblyman
Frank Belotti, Feb. 12, 1957; James Doyle, Area Administrator of
the BLM, letter to Assemblyman Frank Belotti, Jul. 26, 1957;
R.R. Beal, State Supervisor of the BLM, letter to Assemblyman
Frank Belotti, Jul. 31, 1957.)
15
to timber, trees, or underwood upon the land of another, or
removal thereof.” Section 733 likewise refers only to damages
which may be assessed against a person who cuts down or injures
trees on another person’s land. Because neither section mentions
any type of personal harm or detriment, Kanani asserts the
statutes should not be interpreted to extend to noneconomic
damages such as those for annoyance and discomfort.
Fulle argues that the application of the rule of strict
construction to civil penalty statutes has been called into
question. In Smith v. Superior Court (2006) 39 Cal. 4th 77, 92,
the California Supreme Court declined to apply the rule when
interpreting Labor Code sections 201 and 203, which subject
employers to civil penalties for willful failure to pay wages to
discharged employees. The court distinguished a prior decision,
Hale v. Morgan (1978) 22 Cal. 3d 388, which had adopted a
narrow construction of a penalty clause that applies when a
landlord cuts off a tenant’s utilities (§ 789.3, subd. (b)). Smith
noted that “[t]he rule of strict construction of penal statutes ‘has
generally been applied . . . to criminal statutes, rather than
statutes which prescribe only civil monetary penalties.’
[Citation.] . . . Hale . . . ‘did not purport to alter the general rule
that civil statutes for the protection of the public are, generally,
broadly construed in favor of that protective purpose.’
[Citation.]” (Smith, at p. 92.) Although Smith casts some doubt
on the continuing application of the strict construction rule to
civil penalty statutes, the rule does not inform our decision in
this case.
No matter how strictly we construe section 733, the plain
language of that statute explicitly authorizes trebling the
“amount of damages which may be assessed” for cutting down or
16
injuring trees on another person’s land. Our cases are similarly
clear that annoyance and discomfort damages may be assessed
for this type of tortious injury to trees. (See Kornoff, supra, 45
Cal.2d at p. 272; Kelly, supra, 179 Cal.App.4th at pp. 456-459.)
On the other hand, the term “actual detriment” in section 3346 is
ambiguous. This ambiguity lends itself to a potentially stricter
construction. Because section 3346 refers only to “wrongful
injuries” to timber or trees, a plausible interpretation is that
“actual detriment” is limited to property harm and does not
extend to personal harms such as annoyance and discomfort.
We must, however, harmonize these two statutes where
reasonably possible, reconcile seeming inconsistencies between
them, and construe them to give force and effect to all of their
provisions. (Pacific Palisades Bowl Mobile Estates, LLC v. City of
Los Angeles (2012) 55 Cal. 4th 783, 805.) We do not read into the
plain language of section 733 any limitation based on a
corresponding strict construction of section 3346. In order to
harmonize these statutes and give full effect to each, we conclude
that annoyance and discomfort damages resulting from tortious
injuries to timber or trees are subject to the damage multiplier
under sections 733 and 3346. Where, as here, the jury finds
willful and malicious conduct by the defendant, the trial court
must award double damages and has discretion to award treble
damages for annoyance and discomfort. (See Ostling, supra, 27
Cal.App.4th at p. 1742.)
17
DISPOSITION
The judgment is reversed and the matter remanded to the
trial court for further proceedings consistent with this opinion.
Appellant shall recover her costs on appeal.
CERTIFIED FOR PUBLICATION.
EPSTEIN, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
18