Continuing Trespass Statute of Limitations California

CACI No. 2030. Affirmative Defense - Statute of Limitations - Trespass or Private Nuisance

2030. Affirmative Defense - Statute of Limitations - Trespass or

Private Nuisance

[Name of defendant ] contends that [name of plaintiff ]'s lawsuit was not

filed within the time set by law. To succeed on this defense, [name of

defendant] must prove that [ name of plaintiff]'s claimed harm occurred

before [insert date three years before date of filing].

[If [name of defendant] proves that [name of plaintiff]'s claimed harm

occurred before [insert date three years before date of filing], the lawsuit

was still filed on time if [name of plaintiff] proves that the

[trespass/nuisance] is continuous. A [trespass/nuisance] is continuous if it

can be discontinued. Among the factors that indicate that the [trespass/

nuisance] can be discontinued are the following:

(a) That the [trespass/nuisance] is currently continuing;

(b) That the impact of the condition will vary over time;

(c) That the [trespass/nuisance] can be discontinued at any time, in a

reasonable manner, and for reasonable cost, considering the

benefits and detriments if it is discontinued.

[You must consider the continuous nature of the damage to the property

that a nuisance causes, not the continuous nature of the acts causing the

nuisance to occur.]]

New April 2008

Directions for Use

This instruction is for use if the defendant claims that the plaintiff's action was not

filed within the applicable three-year period for injury to real property. (See Code

Civ. Proc., § 338(b).) This instruction may be used for a permanent trespass other

than an action for damages for wrongful damage to timber, to which a five-year

statute applies. (See Civ. Code, § 3346(c).) It may also be used for a permanent

private nuisance. There is no limitation period for a public nuisance. (See Civ. Code,

§ 3490.) There is also essentially no statute of limitation for a continuing trespass or

continuing private nuisance, but damages for future harm are not recoverable. (See

Lyles v. State of California (2007) 153 Cal.App.4th 281, 291 [62 Cal.Rptr.3d 696]

[nuisance]; Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153

Cal.App.4th 583, 592 [63 Cal.Rptr.3d 165] [trespass].)

Include the optional second paragraph if there is an issue of fact as to whether the

trespass or nuisance is permanent or continuous. If applicable, include the last

sentence in the case of a nuisance.

If the plaintiff alleges that the delayed-discovery rule applies to avoid the limitation

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defense, CACI No. 455, Statute of Limitations - Delayed Discovery, may be adapted

for use.

See also CACI No. 3903F, Damage to Real Property (Economic Damage), and

CACI No. 3903G, Loss of Use of Real Property (Economic Damage).

Sources and Authority

• Three-Year Statute of Limitations. Code of Civil Procedure section 338.

• No Lapse of Time Can Legalize Public Nuisance. Civil Code section 3490.

• "[A] trespass may be continuing or permanent. A permanent trespass is an

intrusion on property under circumstances that indicate an intention that the

trespass shall be permanent. In these cases, the law considers the wrong to be

completed at the time of entry and allows recovery of damages for past, present,

and future harm in a single action, generally the diminution in the property's

value. The cause of action accrues and the statute of limitations begins to run at

the time of entry. . . . [¶] In contrast, a continuing trespass is an intrusion under

circumstances that indicate the trespass may be discontinued or abated. In these

circumstances, damages are assessed for present and past damages only;

prospective damages are not awarded because the trespass may be discontinued

or abated at some time, ending the harm. . . . Continuing trespasses are

essentially a series of successive injuries, and the statute of limitations begins

anew with each injury. In order to recover for all harm inflicted by a continuing

trespass, the plaintiff is required to bring periodic successive actions." (Starrh &

Starrh Cotton Growers, supra, 153 Cal.App.4th at p. 592.)

• "Two distinct classifications have emerged in nuisance law which determine the

remedies available to injured parties and the applicable statute of limitations. On

the one hand, permanent nuisances are of a type where 'by one act a permanent

injury is done, [and] damages are assessed once for all.' . . . In such cases,

plaintiffs ordinarily are required to bring one action for all past, present and

future damage within three years after the permanent nuisance is erected. The

statutory period is shorter for claims against public entities. (Gov. Code,

§ 911.2.) Damages are not dependent upon any subsequent use of the property

but are complete when the nuisance comes into existence. [¶] On the other hand,

if a nuisance is a use which may be discontinued at any time, it is considered

continuing in character and persons harmed by it may bring successive actions

for damages until the nuisance is abated. Recovery is limited, however, to actual

injury suffered prior to commencement of each action. Prospective damages are

unavailable." (Baker v. Burbank-Glendale-Pasadena Airport Auth. (1985) 39

Cal.3d 862, 868-869 [218 Cal.Rptr. 293, 705 P.2d 866], internal citations and

footnotes omitted.)

• "Historically, the application of the statute of limitations for trespass has been

the same as for nuisance and has depended on whether the trespass has been

continuing or permanent." (Mangini v. Aerojet-General Corp. (1991) 230

Cal.App.3d 1125, 1148 [281 Cal.Rptr. 827].)

• "[G]enerally the principles governing the permanent or continuing nature of a

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trespass or nuisance are the same and the cases discuss the two causes of action

without distinction." (Starrh & Starrh Cotton Growers, supra, 153 Cal.App.4th

at p. 594.)

• "Generally, whether a trespass is continuing or permanent is a question of fact

properly submitted to the jury. A trial court may remove the issue of fact from

the jury by directed verdict only if there is no evidence tending to prove the case

of the party opposing the motion." (Starrh & Starrh Cotton Growers, supra, 153

Cal.App.4th at p. 597, internal citations omitted.)

• "[T]he key question [in determining whether a trespass is continuous or

permanent] is whether the trespass or nuisance can be discontinued or abated

and there are a number of tests used to answer this question. A respected legal

treatise summarizes the various tests as follows: '[W]hether (1) the offense

activity is currently continuing, which indicates that the nuisance is continuing,

(2) the impact of the condition will vary over time, indicating a continuing

nuisance, or (3) the nuisance can be abated at any time, in a reasonable manner

and for reasonable cost, and is feasible by comparison of the benefits and

detriments to be gained by abatement.' " (Starrh & Starrh Cotton Growers,

supra, 153 Cal.App.4th at pp. 593-594, citing 8 Miller & Starr, Cal. Real Estate

(3d ed. 2000) § 22.39, pp. 148-149.)

• "The jury's conclusion that it was unknown whether the soil contamination could

be abated by reasonable means at a reasonable cost means that plaintiff had

failed to prove her claims of continuing nuisance and trespass." (McCoy v.

Gustafson (2009) 180 Cal.App.4th 56, 86 [103 Cal.Rptr.3d 37].)

• "[T]he 'continuing' nature of a nuisance 'refers to the continuing damage caused

by the offensive condition, not to the acts causing the offensive condition to

occur.' " (Lyles, supra, 153 Cal.App.4th at p. 291, internal citation omitted.)

• "[A] cause of action for damage to real property accrues when the defendant's

act causes 'immediate and permanent injury' to the property or, to put it another

way, when there is '[a]ctual and appreciable harm' to the property." (Siegel v.

Anderson Homes, Inc. (2004) 118 Cal.App.4th 994, 1005 [13 Cal.Rptr.3d 462],

original italics, internal citations omitted.)

• "Property damage cases . . . are different from medical malpractice cases in the

sense that, when property is damaged, there is ordinarily some wrongful cause.

Thus, when one's property is damaged, one should reasonably suspect that

someone has done something wrong to him and, accordingly, be charged with

knowledge of the information that would have been revealed by an investigation.

That particular property damage could result from natural causes does not mean

that the same property damage could result only from natural causes." (Lyles,

supra, 153 Cal.App.4th at pp. 287-288.)

• "The traditional rule in tort cases is that the statute of limitations begins to run

upon the occurrence of the last fact essential to the cause of action. Although

sometimes harsh, the fact that plaintiff is neither aware of his cause of action nor

of the identity of a wrongdoer will not toll the statute. [¶] The harshness of this

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rule has been ameliorated in some cases where it is manifestly unjust to deprive

plaintif fs of a cause of action before they are aware that they have been injured.

This modified rule has been applied to latent defects in real property and

improvements. In the case of such latent defects the statute of limitations begins

to run only when 'noticeable damage occurs.' " (Leaf v. City of San Mateo

(1980) 104 Cal.App.3d 398, 406-407 [163 Cal.Rptr. 711], internal citations

omitted, disapproved on another ground in Trope v. Katz (1995) 11 Cal.4th 274,

292 [45 Cal.Rptr.2d 241, 902 P.2d 259], original italics.)

Secondary Sources

2 Levy et al., California Torts, Ch. 17, Nuisance and Trespass, § 17.09[5] (Matthew

Bender)

Brown et al., California Practice Guide: Civil Procedure Before Trial, Ch. 6-C,

Pleadings ¶¶ 6:462-6:462.2 (The Rutter Group)

2 California Real Property Remedies and Damages, Ch. 11, Remedies for Nuisance

and Trespass (Cont.Ed.Bar 2d ed.) §§ 11.38-11.40

1 California Forms of Pleading and Practice, Ch. 11, Adjoining Landowners , § 11.24

(Matthew Bender)

22 California Points and Authorities, Ch. 225, Trespass, §§ 225.240-225.245

(Matthew Bender)

16 California Points and Authorities, Ch. 167, Nuisance , § 167.44 (Matthew Bender)

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Source: https://www.justia.com/trials-litigation/docs/caci/2000/2030/

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