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Stevens v. 396 Investment Co.5/17/2005
reservoir."
The court granted the motion for summary adjudication. It determined that whether Water Code section 6101 created a mandatory duty on the part of Anaheim in favor of Vista Royale was a question of law for the court, not a matter for the jury. The court concluded that "Anaheim owed plaintiffs a mandatory duty to report the slope failure and seepage from the Olive Hills Reservoir to the Division of Safety of Dams pursuant to Water Code [section] 6101. [Citations.]"
Anaheim says that the court "improperly granted" the motion. However, as 396 points out, the jury did not impose liability on Anaheim with respect to the failure to comply with the mandatory duty under Water Code section 6101. In its special verdict, the jury responded in the affirmative to the question, "Did . . . Anaheim fail to promptly report the slope failure to the Division of Safety of Dams?" and responded in the negative to the question, "Was . . . Anaheim's failure to promptly report the slope failure a cause of the slope failure?"
Anaheim maintains that even though the jury did not impose liability on account of the purported Water Code violation, the court still committed reversible error. The problem, as Anaheim sees it, is the jury instruction arising out of the granting of the motion for summary adjudication.
The challenged jury instruction reads in pertinent part as follows: "The plaintiff group seeks to have . . . Anaheim held legally responsible for the slope failure based upon a claim that . . . Anaheim failed to discharge a mandatory duty. [ ] The court has already determined the following: . . . [ ] 2, The slope failure allegedly caused by the seepage of the Olive Hills Reservoir is the type of damage [against] which Water Code section 6101 is intended to protect. [ ] 3, The plaintiff suffered the type of injury sought to be protected [against] by Water Code section 6101. [ ] . . . [ ] 6, Anaheim owed plaintiffs a duty, a mandatory duty, to promptly report the slope failure and seepage from Olive Hills Reservoir to the Division of Safety of Dams pursuant to Water Code section 6101. [ ] The remaining elements of such claim for failure to discharge a mandatory duty are, 1, Did Anaheim fail to promptly report the slope failure to the Division of Safety of Dams? [ ] 2, And if so, was that failure a cause of the slope failure?"
Anaheim asserts that the court's view of the seepage was erroneous and "the impact of the court's instruction resonated in the jury's special verdict." Indeed, Anaheim contends " he court all but told the jury Anaheim was a bad actor, deserving blame." We do not see how.
The court did not tell the jury that it had found both that Anaheim had a mandatory duty and that Anaheim had failed to comply with that duty. Such a statement arguably could have been construed as telling the jury that Anaheim was a "bad actor." Instead, the court told the jury it had determined that Anaheim had a mandatory duty and said it was up to the jury to determine whether or not Anaheim had complied with that duty. In other words, it was up to the jury to determine whether Anaheim was a "bad actor."
Even assuming, without deciding, that the court erred in its determination that Anaheim owed the plaintiffs a duty under Water Code section 6101, the jury instructions based thereon did not result in a miscarriage of justice that would warrant reversal. "A judgment may not be reversed on appeal, even for error involving `misdirection of the jury,' unless `after an examination of the entire cause, including the evidence,' it appears the error caused a `miscarriage of justice.' (Cal. Const., art. VI, ยง 13.) When the error is one of state law only,
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