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,

 Plaintiff and Appellant,

v.

KAVEH M. KANANI,

 Defendant and Respondent.

B271240

(Los Angeles County

Super. Ct. No. LC101181)

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.

_____________________________
2

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, 

subdivision (a)1 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.
3

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 
4

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 
5

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 
6

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 
7

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 . . . .”].)
8

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 
9

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 

damages for tortious injury to property.

3

(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.)
10

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,
11

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 
12

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 similarlyworded 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,” 
13

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 noneconomic 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.)
14

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 

damages,”5is 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].)
15

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 

the statute’s deterrent effect.6 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.)
16

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 
17

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.)
18

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.