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Marion v. 396 Investment Co.5/17/2005
f San Diego, supra, 81 Cal.App.4th at p. 601, fn. 4.) The jury instruction provided by the court in this case adequately described this causation standard.
(c) Allocation of Damages
Separate and apart from the proper characterization of the "substantial factor" test, Anaheim reminds us that the court did not provide the jury with instruction on the allocation of damages. Anaheim sought an instruction to the effect that it could "not be held liable on any theory unless the parties asserting liability . . . established the proportion of water level increase attributable to the reservoir as opposed to other responsible sources." According to Anaheim, this instruction is patterned after language from Jordan v. City of Santa Barbara, supra, 46 Cal.App.4th 1245, and the court therefore erred in refusing this instruction.
The reporter's transcript shows that in denying the requested instruction the court stated: "I've been asked to revisit . . . Anaheim's special number 7, the authority for which is Jordan versus Santa Barbara. Unless I read too fast, I don't think Jordan applies. And specifically I have reference to [page] 1274 of that [case] where the appellate court discusses proportionality and inverse condemnation, the inverse condemnation being that for the judge. I don't think there's a jury issue, and my original ruling to refuse special 7 remains."
In citing this portion of the record, Anaheim does not explain to us why the court's analysis was erroneous. The court in Jordan v. City of Santa Barbara, supra, 46 Cal.App.4th at page 1274 stated, "A plaintiff in inverse condemnation must establish the proportion of damage attributable to the public entity from which recovery is sought. [Citation.]" In the case before us, the issue of inverse condemnation was decided by the court, not the jury. Therefore, we do not see how the court erred in declining to give the instruction with respect to the issues decided by the jury.
(d) Reasonableness Standard
In addition to the foregoing, Anaheim asserts that the court erred in failing to give an instruction based on a "reasonableness standard" as enunciated in Locklin v. City of Lafayette, supra, 7 Cal.4th 327 and Keys v. Romley (1966) 64 Cal.2d 396. The instruction Anaheim sought read as follows: "You may not find the City of Anaheim liable to any party on any legal theory unless you determine each of the following: [ ] 1) The City of Anaheim acted unreasonably in allowing the discharge of water from the reservoir; and [ ] 2) After construction of the reservoir, the plaintiffs and their predecessors in title took reasonable measures to protect their properties from any impact of the discharge of water from the reservoir."
The rule of reasonableness was articulated in Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d at page 567 as follows: " hen a public flood control improvement fails to function as intended, and properties historically subject to flooding are damaged as a proximate result thereof, plaintiffs' recovery in inverse condemnation requires proof that the failure was attributable to some unreasonable conduct on the part of the defendant public entities." However, the case before us involves neither a public flood control improvement nor properties historically subject to flooding. We agree with 396 that the "reasonableness standard" is inapplicable in the context before us and the court therefore did not err in declining to give the requested instruction.
As explained in Pacific Bell v. City of San Diego, supra, 81 Cal.App.4th 596, " he concerns that animated the rejection of the strict liability rule in the context of public flood control project
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