Barham v. Southern California Edison Co.

VIRGIL BARHAM et al., Plaintiffs and Appellants, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Appellant. (Super. Ct. No. SCV 15326) GTE CALIFORNIA INCORPORATED, Plaintiff and Respondent, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Appellant. (Super. Ct. No. SCV 21749) DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Plaintiff and Respondent, v. SOUTHERN CALIFORNIA EDISON COMPANY, Defendant and Appellant. No. E021243 (Super. Ct. No. SCV 22649) California Court of Appeal Fourth Appellate District Division Two Filed August 30, 1999
CERTIFIED FOR PARTIAL PUBLICATION*
        APPEALS from the Superior Court of San Bernardino County. Carl E. Davis, Judge. (Retired judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part.
        G. Greg Aftergood; Reid & Hellyer and David C. Moore for Plaintiffs and Appellants.
        William C. Falkenhainer; Dwyer, Daly, Brotzen & Bruno, Toni Rae Bruno and Douglas W. Schroeder for Defendant and Appellant.
        Robert H. Wyman; Sottile & Taketa and Donn S. Taketa for Plaintiff and Respondent GTE California Incorporated.
        Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Charles W. Getz, IV, Assistant Attorney General and Nam Yon Kim, Deputy Attorney General, for Plaintiff and Respondent California Department of Forestry and Fire Protection.

        This case involves a dispute regarding defendant Southern California Edison Company's (SCE) responsibility for damages sustained by the various plaintiffs as a result of a wildfire, commonly known as the Mill Creek fire, which broke out on October 27, 1993. The fire was alleged to have resulted from a failure in SCE's overhead power line equipment. After a bifurcated jury trial, judgments were entered on June 20, 1997, in favor of plaintiffs Virgil and Alice Barham (the Barhams) on their causes of action for negligence, nuisance and trespass in the amount of $400,500, and in favor of plaintiffs GTE California Incorporated (GTE) and California Department of Forestry and Fire Protection (CDF), on their causes of action for negligence in the amounts of $193,804 and $295,637, respectively. SCE appeals each of the judgments entered claiming several grounds of error. As to all three judgments, SCE asserts five errors in evidentiary rulings, a cumulative prejudicial effect requiring reversal, a lack of substantial evidence to support the liability verdict, and an error in a jury instruction alleged to have combined theories of negligence and negligence per se. In addition to the above, as to the Barhams' judgment SCE asserts an error in a jury instruction on the proper measure of damages and an error in awarding postjudgment interest. Also, as to GTE, SCE claims error in the awarding of prejudgment and postjudgment interest. Finally, as to CDF, SCE claims error in the awarding of prejudgment interest. We find each of SCE's assertions of error to be without merit and therefore affirm the judgments.
        On October 7, 1997, the court amended the Barhams' judgment nunc pro tunc to reflect judgment in favor of SCE on the Barhams' cause of action for inverse condemnation. The Barhams appeal, claiming they were entitled to prevail on their cause of action for inverse condemnation. ¹ We agree and reverse the Barhams' judgment as to that cause of action.

FACTS         At approximately 6:37 on the morning of October 27, 1993, strong Santa Ana wind conditions caused a section of SCE's 12,000-volt (12kv) power line to break. That uninsulated line momentarily contacted an uninsulated 33,000-volt (33kv) line suspended above it, sending 33kv of power down the 12kv line. When that extra voltage hit a 15,000-volt rated lightning arrester (AR-182) on a pole three-quarters of a mile away, the arrester failed, causing superheated components to fall to the ground, igniting a brush fire. Richard Cale, a meteorologist, estimated that at the time the fire broke out, the wind speeds averaged 21 miles per hour with 37-mile-per-hour gusts 10 feet above the ground, and averaged 30 miles per hour with 44-mile-per-hour gusts 45 feet above the ground.
        Paul Woodruff, traveling down Highway 38 in San Bernardino County, arrived near the subject pole very soon after the fire ignited. At that time the wind was beginning to blow flames across the road. Shortly after his arrival he noted there was vegetation burning in a 10-foot long triangular area which came as close as 3 or 4 feet from the subject pole. There was a clearing of vegetation around the pole but there was some vegetation within the clearing area which was burning. The flames were being blown down canyon to the southwest, away from the pole. Mr. Woodruff never saw vegetation burning to the north of the subject pole.
        Kurt Hayden, a heavy equipment operator employed by the United States Forest Service at the Mill Creek ranger station, also responded to the scene of the fire shortly after it broke out. When he arrived, he determined the fire appeared to have come from the area at the bottom of the pole. An area within 3 to 4 feet from the base of the pole still had hot ash and smoke in it but the flames had moved some 70 feet to 50 yards from the pole. While he was in the area of the pole, he observed a "backburn" phenomenon, where the flames burned back from their starting point into the wind instead of with it, to the northeast of the pole. That area had not yet begun burning when he first arrived at the scene.
        Bruce Brown, a fire investigator, was assigned by his employer, the CDF, to investigate the cause and origin of the Mill Creek fire. He was directed by Don Buyak of the United States Forest Service to the location where the fire was believed to have started, in the vicinity of the subject pole. Mr. Brown prepared an investigation report, which he later admitted had some discrepancies with times as well as other problems. He also admitted he had not previously investigated any wildland fires where high voltage electrical transmission facilities were involved and did not know what a lightning arrester was or what the internal components of one looked like. He noticed some damage at the top of the subject pole and some debris on the ground within a 10-foot area around the pole that appeared to have once been an insulator. He also saw some burn patterns within this 10-foot area, some 12 to 20 inches from the pole. He visually examined the burn indicators within a 15-foot radius of the pole and concluded the fire had begun within the 10-foot clearance area. His examination also revealed the presence of a backburn phenomenon to the north of the pole.
        Oscar Burrell, Chief of the Fire Prevention Bureau of the CDF in Santa Cruz, was assigned to assist Mr. Brown in his investigation. In attempting to confirm or disprove Mr. Brown's conclusions, he also visited the scene around the subject pole, performed an investigation and prepared a report of his findings. While he was investigating, he found pieces of the lightning arrester both within and outside the 10-foot radius of the pole. He also concluded that the area of origin of the fire was within the 10-foot radius of the subject pole and that the burn to the north of the pole was a backburn.
        Klaus Radtke, a resource scientist, reconstructed the fuels which were available within the 10-foot radius of the pole on the day of the fire, as well as the fire start and fire spread. He observed flammable plant materials and evidence of burned vegetation within the 10-foot radius of the pole in the post-fire photographs. He also opined the most likely place the fire began was near a bush within the 10-foot radius of the pole.
        SCE hired a landscape contractor to remove vegetation to mineral earth in a 10-foot radius under certain of its power poles, including the subject pole, for fire prevention purposes. This removal was to occur one time per year. In 1993, the subject pole was cleared on March 11. The contractor was not surprised at the level of vegetation which had regrown in the clearance zone by the time of the fire.
        Joseph Osterhout, an electrical engineer who specializes in lightning arresters, has observed many kinds of staged over-voltage situations to test lightning arresters. Typically, when arresters "fail" due to over-voltage, the superheated internal components fall below where the arrester is mounted, while the porcelain shell pieces are projected outward. In his opinion, while the internal silicon carbide blocks would retain enough heat to ignite a fire after falling from the pole, the porcelain pieces are far less likely to have done so. Absent the action of other forces upon the silicon carbide blocks, generally they would fall to the ground below where they were housed in the arrester, approximately 4 feet northwest of the pole. Mr. Osterhout did not attempt to perform any calculations with respect to the effect the prevailing winds would have had on the falling silicon carbide blocks.
        Lester Hendrickson, a metallurgic engineer and physicist, attempted to determine the probable cause of the subject fire, including the likely trajectories of objects falling from the position of the failed lightning arrester. In his opinion, absent any forces on them, the silicon carbide blocks would have dropped straight down out of the arrester. However, because of the action of the wind on them, they would have moved from 3.25 to 7.42 feet from the spot where they began to fall, depending on wind velocity. He also analyzed the heat retention characteristics of the components of the arrester and determined the silicon carbide blocks would have been the most likely elements to have ignited brush after falling from the pole.
        T. C. Cheng, a professor of electrical engineering, testified the silicon carbide blocks would have been propelled out to the southeast when the arrester broke and would not have landed within the 10-foot radius of the pole. Charles Hickey, an SCE investigator with experience investigating failed lightning arresters, testified in some instances, the arrester blows up and the silicon carbide blocks are propelled as far as 40 feet. He could not recall ever having seen a situation where the internal components of the arrester were within the 10-foot area directly below the arrester.
        The United States Forest Service ended up participating in fighting this fire as a mutual aid situation since it was so close to its jurisdiction. The fire began in an area of CDF responsibility and went through several territorial boundaries. CDF responded first and was therefore the primary firefighting agency for this fire.

[This Part Is Not Certified for Publication]
I DISCUSSION A. Substantial Evidence Supports the Jury's Finding of Liability Against SCE
        SCE claims the evidence was insufficient to support to jury's finding of negligence because it was not credibly established the fire started within 10 feet of the pole. ² It is true that "'[s]ubstantial' evidence . . . is not synonymous with 'any' evidence" (Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 51) but rather "is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value" (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651). However, it is equally true that we must consider the evidence in the light most favorable to the prevailing parties, giving them the benefit of every reasonable inference and resolving conflicts in support of the judgment. (Orange County Employees Assn. v. County of Orange (1988) 205 Cal.App.3d 1289, 1293.) The appellate court has no "power to judge the effect or value of the evidence, weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it. (Adamson v. Department of Social Services (1988) 207 Cal.App.3d 14, 20 [254 Cal.Rptr. 667].) Unless a finding, viewed in light of the entire record, is so lacking in evidentiary support as to render it unreasonable, it may not be set aside. (Northern Inyo Hosp. v. Fair Emp. Practice Com. (1974) 38 Cal.App.3d 14, 24 [112 Cal.Rptr. 872].)" (Huang v. Board of Directors (1990) 220 Cal.App.3d 1286, 1294.)
        After a thorough review of the record, it is clear there was more than sufficient evidence from which the jury could reasonably conclude the fire began within the 10-foot radius of the subject pole. Paul Woodruff, an eyewitness, testified he saw flames within the clearing area around the pole. Kurt Hayden, who was on the scene within minutes of the fire's outbreak, determined the fire had started within 3 to 4 feet from the base of the pole. Bruce Brown and Oscar Burrell investigated the cause of the fire and found the burn indicators showed the fire had begun within 10 feet of the pole. SCE claims Brown's investigation was inadequate and his conclusions factually unsupported. However, we cannot say as a matter of law that his inspection was so devoid of merit so as to allow us to remove its consideration from the province of the jury. Expert witnesses Klaus Radtke, Joseph Osterhout, and Lester Hendrickson all determined the fire began within 10 feet of the pole. Giving, as we must, the benefit of every reasonable inference to the testimony of these witnesses, we cannot say, as SCE urges, that the testimony of each of them is inherently incredible. The conflicting testimony of SCE's witnesses does not alter this determination. (Huang v. Board of Directors, supra, 220 Cal.App.3d at p. 1294.) The evidence supports the jury's finding of liability. SCE's attempt to re-argue its case before this court does not change that fact.

B. The Trial Court Did Not Commit Reversible Error in its Jury Instructions
        SCE asserts three instances of instructional error which it claims demand reversal. In each case, we find no error and therefore no basis for reversal.

        1. Reading the Instructions in Sequence Was Not Error
        SCE first asserts the jury was confused because the court gave the instructions on negligence and negligence per se, changing some of the words and reading them in sequence, "without grammatical stops" so as to make them essentially one instruction. SCE urges this "amalgamated" instruction misled the jury into believing there was only one standard of care (that dictated by Public Resources Code section 4292) and improperly shifted the burden to SCE to show it did not violate that code section.
        SCE's novel argument is entirely untenable. It is not necessary for a trial court to use particular language in giving an instruction when the charge is a correct statement of the law. (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335.) The record does not reflect any impropriety in the manner in which the instructions were presented to the jury. As GTE astutely observes, how is the court to instruct the jury without reading the instructions one after the other? Further, on a written record, how is this court to determine whether "grammatical stops" were utilized by the trial court? The jurors were instructed to consider the instructions as a whole, each in light of the others, and were given a written copy of the instructions for use in deliberations. SCE has not shown the manner in which the instructions were read created any prejudicial error. Therefore this argument fails. (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1213.)

        2. Giving a Negligence Per Se Instruction Was Not Error
        SCE next argues there was no substantial evidence to establish the applicability of Public Resources Code section 4292, and no evidence that it was violated or that any violation caused damage to plaintiffs. Therefore, SCE urges, the negligence per se instruction was improperly given. An instruction may only be given when the theory it advances is supported by substantial evidence. (Bains v. Western Pacific R.R. Co. (1976) 56 Cal.App.3d 902, 905.) It is prejudicial error to instruct a jury on a statutory duty which does not apply. (Schaffer v. Claremont Country Club (1959) 168 Cal.App.2d 351, 359.)
        The record supports the potential application of Public Resources Code section 4292 to this case. The entire liability phase of the trial proceeded under the assumption, by all parties, that SCE was required to have maintained a minimum 10-foot clearance radius around the subject pole. Richard Rocha, the claims adjuster who investigated this incident on behalf of SCE, testified it was his understanding that SCE was required by statute to maintain a 10-foot clearance around this pole 12 months a year. Timothy Lewis, one of SCE's experts, testified that Public Resources Code section 4292 applies in San Bernardino County 12 months a year. As indicated above, there was ample evidence that the fire which caused damage to the plaintiffs began in uncleared vegetation within the 10-foot clearance area. There is substantial evidence to support the application of Public Resources Code section 4292. ³ The negligence per se instruction was properly given by the court.

        3. SCE Invited Any Error in the Instructions Regarding the Barhams' Measure of Damages
        SCE argues the trial court, by failing to adequately distinguish between personal property and real property, improperly instructed the jury that the Barhams' measure of damages for property destroyed by the fire was the fair market value of the property at the time of its destruction. SCE urges reversal is appropriate. We disagree.
        We do not reach the issue of whether the jury may have been confused by the failure of the trial court to consistently distinguish between the remedies appropriate for personal versus real property damage because SCE invited that error. When the conduct of a party gives effect to the error, that party may not assert the error as grounds for reversal on appeal. (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1686.) Further, a party who either expressly or impliedly agrees to a particular ruling or procedure at trial has forfeited the right to attack that ruling or procedure on appeal. These rules are particularly applicable in the arena of jury instructions. (Ibid.) Invited error will apply even when the instructions given differ from those requested if the two are substantially the same. (Jentick v. Pacific Gas & Elec. Co. (1941) 18 Cal.2d 117, 122.)
        While SCE may not have requested the specific instructions which were given by the trial court, the instructions SCE did request, if given, would have resulted in the identical problem about which it now complains. With respect to the damages phase of the trial, SCE requested the court read BAJI Nos. 11.72, 11.73, and 14.21. Those instructions do not distinguish between real property and personal property. Damages for both were potentially compensable to the Barhams in this case, by SCE's own admission. After thorough review of the instructions given, we find no reason to believe the jury would have been any less apt to confuse personal and real property damages had SCE's instructions been given. Having requested the jury be instructed in a substantially similar manner, SCE will not now be heard to complain the jury might have been confused by the instructions.

C. The Trial Court Did Not Abuse its Discretion in Making Evidentiary Rulings
        SCE next asserts the court abused its discretion with respect to five separate evidentiary rulings and claims the cumulative effect of these errors mandates reversal. In each of the five instances, we find no abuse of discretion and therefore no basis for reversal.
        The standard of review on a trial court's rulings to allow or exclude evidence is abuse of discretion. (Olson v. American Bankers Ins. Co. (1994) 30 Cal.App.4th 816, 826.) It is only when the alleged abuse of discretion clearly results in a miscarriage of justice that relief is possible. (Ibid.)

        1. The Court Did Not Abridge SCE's Right to Cross-examine Joseph Osterhout
        SCE complains the court improperly sustained objections to its cross-examination of Joseph Osterhout regarding how the wind would affect his opinions about the trajectory of the silicon carbide blocks as they fell from the arrester. However, SCE had already questioned Mr. Osterhout regarding the basis for his conclusion that the blocks would generally fall straight down. Mr. Osterhout indicated that would be the case "[i]f there were no other forces acting on them." SCE also got Mr. Osterhout to concede he had not done any calculations to determine what effect the wind might have on the trajectory of the falling blocks and that he "would agree that wind would have some influence" upon how far the blocks went as they fell. ⁴ Thus, SCE had already established that Mr. Osterhout had omitted this potentially critical element in reaching his opinion that the blocks would generally fall straight down. Since Mr. Osterhout had already admitted he had not considered those variables, the court did not abuse its discretion in refusing to allow SCE to elicit testimony from Mr. Osterhout regarding the specific effects of the wind on the silicon carbide blocks versus a two-pound piece of porcelain insulator or precisely how far the silicon blocks traveled as a result of the wind.

        2. The Court Did Not Abuse Its Discretion in Refusing to Allow SCE to Read John St. Clair's Deposition
        SCE contends the court abused its discretion when it refused to allow the introduction of certain deposition testimony from John St. Clair, an expert withdrawn by the plaintiffs, as the result of the trial court's determination that its probative value was outweighed by its prejudicial effect under Evidence Code section 352. ⁵
        The trial court's discretion to exclude evidence where its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time or create substantial danger of prejudice, or confusion of issues, or of misleading a jury, is not absolute, but must be exercised reasonably in accord with facts before the court. (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 674.) However, in weighing the probative value of evidence against its prejudicial effect, the court need not definitively express itself regarding its decision so long as the record affirmatively shows that weighing occurred and there is adequate basis for appellate review. (People v. Arias (1996) 13 Cal.4th 92, 155.)
        In the instant case, there is ample evidence in the record to support our conclusion the court did indeed consider the factors necessary to an appropriate analysis under Evidence Code section 352. The parties' argument over the admission of Mr. St. Clair's testimony was lengthy and the court listened to and considered each point of view. (Compare People v. Garceau (1993) 6 Cal.4th 140, 178-179 [trial court engaged in meaningful weighing process when it heard argument from both sides].)
        The record also shows the court had ample basis to support his decision regarding the value of the evidence. Contrary to SCE's assertion, the trial court did examine Mr. St. Clair's deposition in determining which parts of it would be admitted. The court determined that because even SCE's expert agreed that Mr. St. Clair's calculations were based upon an incorrect drag coefficient, admitting the testimony would only serve to confuse the jury. Also contrary to SCE's position, it is not clear Mr. St. Clair's testimony was exculpatory of SCE. Rather, it appears Mr. St. Clair testified the silicon blocks would have traveled a maximum of 14 feet. Given the other testimony that the arrester was 4 feet upwind from the pole, Mr. St. Clair's testimony would still put the blocks falling within the 10-foot clearance area. The fact that Mr. St. Clair had the wind exerting greater force on the blocks than Hendrickson did does not mitigate that ultimate conclusion.
        The record supports our conclusion that the trial court did not abuse its discretion in refusing to allow SCE to read portions of John St. Clair's deposition.

        3. The Court Did Not Abuse Its Discretion in Admitting Evidence of the Sonoma Fire and Destruction of Other Homes.
        SCE claims the court erred in allowing plaintiffs to cross-examine Timothy Lewis regarding a fire he investigated which was not substantially similar to the instant fire. SCE further claims the court erred in allowing plaintiffs to cross-examine Thomas Kenster as to the number of homes damaged in other fires caused by SCE. Finally, SCE alleges these errors were compounded by improper closing argument. SCE initially asserted the admission of that evidence and the improper argument was unduly prejudicial, then in its reply brief, argued that it was also irrelevant. It was neither.
        Evidence Code section 210 defines relevant evidence as "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." Evidence relevant to one issue but not another is not inadmissible, but rather should be the subject of a limiting instruction. (Toomes v. Nunes (1938) 24 Cal.App.2d 395, 398.) On appeal, SCE may only challenge the trial court's ruling as to the specific objections raised. New grounds for objecting to the admission of evidence will not be considered for the first time on appeal. (People v. Bury (1996) 41 Cal.App.4th 1194, 1201.) The law relevant to the trial court's consideration of SCE's objection under Evidence Code section 352 is stated in section C.2., above.
        SCE objected to CDF's questions to Timothy Lewis regarding his involvement with previous investigations of wildfires caused by lightning arresters, and specifically the Sonoma fire, on the grounds the information sought was irrelevant and immaterial. SCE commits a large portion of its argument on this point to the proposition the Sonoma fire was irrelevant because it was not substantially similar to the instant fire. However, SCE utterly fails to address the relevance of the evidence on the issue of expert background and qualification. The questions were clearly relevant to the issue of Mr. Lewis's prior experience with such investigations and therefore his qualification to criticize the manner in which Mr. Brown conducted his investigation into this fire. ⁶ Therefore, the trial court was correct in refusing to exclude the evidence.
        SCE also objected to the Barhams questioning Thomas Kenster about the number of houses he was evaluating on behalf of SCE in other litigation, claiming the evidence was irrelevant and immaterial. As with the testimony sought from Mr. Lewis, the evidence is relevant to Mr. Kenster's background and qualification as an expert. In addition, in the case of Mr. Kenster, the question is also relevant to his bias as it may tend to show his testimony is swayed in favor of SCE due to a continuing business arrangement.
        There was also an objection to the query regarding the number of homes Mr. Kenster was evaluating on behalf of SCE under Evidence Code section 352. Again, there is ample evidence in the record that the trial court gave this objection the consideration it merited. Great deference is given to the right of cross-examination of expert witnesses on the subject of their qualifications. (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 796.) Therefore, the probative value of the evidence was very high. Further, SCE raised the issue of Mr. Kenster's prior work on its behalf on direct examination. SCE has failed to explain why the mention of the number of homes involved would create any greater prejudice to it, or that the jury was swept from their rationality by this evidence. (See, e.g., People v. Smith (1973) 33 Cal.App.3d 51, 68-69, disapproved on other grounds in People v. Wetmore (1978) 22 Cal.3d 318 [in light of other evidence prejudicial admission of gruesome photographs of mutilated victims did not improperly sway jury].) The potential prejudicial effect of Mr. Kenster's testimony was very small. Accordingly, we conclude the trial court committed no error in allowing Mr. Kenster to testify to the number of houses he had evaluated for SCE.
        Next, SCE argues the court improperly overruled its objection to GTE's closing argument because it mentioned the fire had consumed "4500 acres and homes and other property" when there had been no evidence of those facts introduced at trial. ⁷ Our review of the record reveals that no miscarriage of justice resulted from this argument. The court offered to provide the jury with a curative admonition. (See, e.g., People v. Visciotti (1992) 2 Cal.4th 1, 53-54 [to extent argument lacked basis in evidence it was correctable by an admonition from the court].) However, SCE declined. Further, in reviewing the record as a whole, the alleged errors were harmless, since, even had a curative instruction been given, it was not probable that SCE would have obtained a more favorable result. The remark was isolated and noninflammatory, and does not appear to have been aimed at arousing the passion or prejudice of the jury.

        4. The Trial Court Did Not Abuse Its Discretion in Allowing Testimony From Radtke and Lewis About Their 1996 Inspections of the Area of the Subject Pole
        SCE claims the trial court erred when it allowed plaintiffs to elicit testimony from Klaus Radtke and Timothy Lewis regarding the vegetation growth they observed around the subject pole in 1996. SCE twice moved for a mistrial contending plaintiffs had elicited testimony in contravention of the court's ruling on its motion in limine to preclude evidence of observations about the condition of the vegetation within 10 feet of the subject pole made in 1996. ⁸ SCE claimed such evidence would inflame the jury against it or cause the jury to conclude brush present in 1996 was also present at the time of the fire. Both times, the mistrial was denied.
        While it is true that evidence of a condition changed over time does not necessarily prove the nature of the condition at the time of the incident (see, e.g., Roddiscraft, Inc. v. Skelton Logging Co. (1963) 212 Cal.App.2d 784, 801), the type of vegetation which might be expected to have been in the area at the time of the fire, as evidenced by the types found in 1996, and how that vegetation would burn, was certainly relevant to the issues at trial. We also find, on review of the record as a whole, that the jury was not misled or confused by the testimony to which SCE objects. With respect to Mr. Radtke's testimony, the court issued an appropriate admonition, indicating to the jury "obviously, don't infer, because something was there in '96, it was there in '93 or vice versa, unless there's some scientific basis for making that assumption." SCE's claim the admonition itself misled the jury is without merit. Given a proper basis for concluding the same vegetation was extant in both 1993 and 1996, the jury reasonably could reach that conclusion. Therefore, telling the jury it could not, under any circumstances, make that inference would have been error. SCE declined the court's invitation to issue an additional admonition to the jury after Mr. Lewis's deposition transcript was read. Again, we find that Mr. Lewis's testimony that the kind of grass he saw in 1996 could have acted as a firebrand if the wind had been blowing was not prejudicial to SCE so as to result in a miscarriage of justice. There was ample evidence of the specific vegetation which existed in the 10-foot circle at the time of the fire to support the jury's verdict.

        5. SCE Has Not Shown the Trial Court Abused Its Discretion by Allowing Radtke to Testify About Firebrands
        SCE complains the trial court should not have allowed Mr. Radtke to testify about firebrands since he could not state with certainty they had played a part in the subject fire. However, at trial SCE objected on the grounds the questions lacked foundation and called for the witness to speculate. In response to the objections, the trial court questioned the witness regarding his ability to answer the proffered questions without engaging in speculation, and to establish whether the witness was qualified to offer testimony on the subject. Mr. Radtke testified he had experience with firebrand modeling on a larger scale. That sufficiently qualified him to testify. That he did not have the basis to conclude firebrands were a factor in this fire was a subject for cross-examination and went to the weight of his testimony, not to its admissibility. (Douglas v. Ostermeier (1991) 1 Cal.App.4th 729, 739.) Even on direct examination, Mr. Radtke informed the court he did not have a model to predict what small fuels, such as were found in this fire, would do. But, he opined favorably to SCE, they "may not even glow long enough to be carried" in winds higher than 10 miles per hour. Thus, we also conclude SCE has failed to demonstrate how Mr. Radtke's testimony regarding firebrands resulted in a miscarriage of justice.
        Since we have determined that SCE has not shown the trial court committed error in any of its evidentiary rulings, we do not address SCE's contention that cumulative errors created a prejudicial effect which requires reversal. Even were we to exclude all of the testimony which is the subject of SCE's appeal, there would be ample evidence in the record to support the jury's decision.

D. The Trial Court Did Not Err in Awarding Prejudgment and Postjudgment Interest
        SCE argues the awards of prejudgment interest to GTE and CDF were improper because their damages were not capable of being made certain prior to judgment. ⁹ SCE also contends the court improperly awarded postjudgment interest to GTE and the Barhams from the date of the entry of the verdict instead of the date of entry of judgment. We disagree.

        1. The Amount of Damages Owed to Both GTE and CDF Was Capable of Being Made Certain
        SCE essentially claims that because the damages figures it received from GTE were "cryptic" and because both GTE and CDF altered the amounts of their claims just before trial, the amounts were not certain as contemplated by Civil Code section 3287, subdivision (a). ¹⁰
        The test for recovery of prejudgment interest under Civil Code section 3287, subdivision (a), is whether defendant (1) actually knows the amount of damages owed plaintiff, or (2) could have computed that amount from reasonably available information. (Chesapeake Industries, Inc. v. Togova Enterprises, Inc. (1983) 149 Cal.App.3d 901, 907.) The certainty required by Civil Code section 3287, subdivision (a), is not present and prejudgment interest is not proper when a trier of fact must determine whether a plaintiff is entitled to an amount of damages based upon conflicting evidence. (Wisper Corp. v. California Commerce Bank (1996) 49 Cal.App.4th 948, 960.) If the defendant does not know or cannot readily ascertain damages, the plaintiff must provide the defendant with some statement and supporting data from which the necessary determination can be made. (Conderback, Inc. v. Standard Oil Co. (1966) 239 Cal.App.2d 664, 690.) However, the fact that a plaintiff made errors in the original calculations provided to defendant does not make the damages uncertain. (KGM Harvesting Co. v. Fresh Network, supra, 36 Cal.App.4th at pp. 391-392.) Adjustments, such as the subtraction of improperly included or duplicated items, do not make damages uncertain. (Marine Terminals Corp. v. Paceco, Inc. (1983) 145 Cal.App.3d 991, 996-998.) The fact that the ultimate award differs from the amount requested by the plaintiff does not make the damages uncertain. (Esgro Central, Inc. v. General Ins. Co. (1971) 20 Cal.App.3d 1054, 1062.) If the defendant does not dispute the amount of the damages, but only the method by which they were calculated, or whether plaintiff is entitled to a particular element of damages, prejudgment interest is properly awarded. (Marine Terminals Corp. v. Paceco, Inc. supra, 145 Cal.App.3d at pp. 996-998; Esgro Central, Inc. v. General Ins. Co., supra, 20 Cal.App.3d at pp. 1061-1062.)
        The trial court awarded GTE prejudgment interest on the hardware used to temporarily and permanently repair GTE's facilities from April 26, 1996, the date upon which SCE received itemized statements from GTE describing each item claimed, including the number of feet of cable. SCE did not raise any issues as to the certainty of the damages figures on cross-examination of GTE's witnesses. SCE did not put on any witnesses to dispute the amount of GTE's damages. Further, SCE specifically conceded the damages amount of $193,804, testified to by GTE's witnesses, was undisputed. The fact that the court ultimately reduced the amount upon which prejudgment interest was awarded is of no consequence. ¹¹ While the figures originally provided by GTE may not have been calculated to their final certainty, they were assuredly capable of being calculated after the fashion in which GTE calculated them in the end. The amount of damage sustained was finite. The only real question was whether SCE was liable for the damage. Thus, we conclude the award of prejudgment interest to GTE based upon the certainty of the amounts was not error.
        The trial court awarded CDF prejudgment interest on the amount of the judgment, $272,904, from August 1, 1996. At the hearing on prejudgment interest, SCE never argued that the damages claimed by CDF were not certain. It only argued about the date upon which it received documentation of the amounts from CDF, an argument on which it prevailed. Our review of the record reveals when cross-examining CDF's damages witnesses and when introducing the testimony of its own damages witness, SCE disputed only the method by which the damages were calculated, or whether CDF was entitled to a particular element of damages. The only argument offered was that CDF was not entitled to certain of its itemized damages in the amount of $22,000. As indicated by the case law cited above, such minimal variances and adjustments do not render the damages uncertain, nor does the fact that the ultimate verdict differed from the amount originally provided by the plaintiff. Thus, as with GTE, we conclude the award of prejudgment interest to CDF based upon the certainty of the amounts was not error.

        2. The Trial Court Did Not Err in Its Award of Postjudgment Interest
        SCE complains the court erred when it ordered postjudgment interest in favor of the Barhams and GTE from the date of the verdict as opposed to the date of the judgment. While there may have been some imprudent language used in the judgments, there was ultimately no error which worked to SCE's detriment.
        California Rules of Court, rule 875, provides that interest at the legal rate measured from the date of the verdict along with any interest awarded by the court is to be included in the judgment. See also, Dixon Mobile Homes, Inc. v. Walters (1975) 48 Cal.App.3d 964, 975, disapproved on other grounds in Bullis v. Security Pac. Nat. Bank (1978) 21 Cal.3d 801 [judgment includes interest between verdict and judgment].
        The Barhams' judgment indicates interest on the judgment of $400,500 is to be received from the date of the verdict until paid. The Barhams were entitled to have the interest between the verdict and the judgment included into the judgment amount. Because it is apparent from the judgment that the postverdict but prejudgment interest was not added into the $400,500 sum, there is no inappropriate recovery. Had it been included, the amount of the judgment would have been higher but only by the amount of accrued interest. The ultimate amounts owing by SCE would be identical.
        GTE's judgment indicates interest on the judgment of $193,804 is to be received from the date of the verdict until paid. As with the Barhams, the postverdict but prejudgment interest was not included in the judgment amount. In addition, California Rules of Court, rule 875, required the clerk to include the $9,214 of prejudgment interest in the judgment amount. This amount was not added to the judgment either. Therefore there is no inappropriate recovery as to those amounts.
        SCE's argument that GTE benefits from an unauthorized double recovery is without merit. When prejudgment interest is included in the award, the entire award, including the prejudgment interest, bears interest from the verdict until judgment. (Dixon Mobile Homes, Inc. v. Walters, supra, 48 Cal.App.3d at p. 975.)
        SCE's assertion that California Rules of Court, rule 875, impermissibly conflicts with Code of Civil Procedure section 685.020, subdivision (a), is unfounded. SCE fails to recognize the distinction between a judgment and an award. California Rules of Court, rule 875, applies to amounts awarded before they become judgments. Code of Civil Procedure section 685.020, subdivision (a), provides that interest accrues on a money judgment from the date of entry of judgment. There is no money "judgment" until judgment is entered. Therefore, the two provisions do not conflict.
        While we find the judgments could have been more specific in their awards of postjudgment interest to the Barhams and GTE, we find neither party was awarded more than that to which they were entitled.

[End of Part Not Certified for Publication]
II THE BARHAMS' CROSS-APPEAL         The Barhams appeal from the portion of the judgment granted in favor of SCE on the Barhams' cause of action for inverse condemnation. They claim the trial court erred when it determined there had been no taking for a public use. We agree and reverse.
        Typically, a party cannot appeal from a judgment in its favor. (In re Marriage of Brockman (1987) 194 Cal.App.3d 1035, 1041-1042.) There are, not surprisingly, exceptions to this general rule. When a party is awarded less than has been demanded, that party may appeal from the unfavorable part of the judgment. In the instant case, while the Barhams are the prevailing party, they are nonetheless aggrieved by the judgment in favor of SCE on their inverse condemnation action due to the prejudgment interest (see, e.g., Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368, 390) and additional damages they would be entitled to receive under Code of Civil Procedure section 1036. ¹² Therefore, we must consider the cross-appeal.
        In order to prevail on their cause of action for inverse condemnation, the Barhams must prove that a public entity has taken or damaged their property for a public use. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 939-940.) Article I, section 19 (formerly § 14) of the California Constitution has been interpreted by our Supreme Court to mean that "any actual physical injury to real property proximately caused by [a public] improvement as deliberately designed and constructed is compensable . . . whether foreseeable or not." (Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 263-264.)
        In the instant case, we have already concluded there was substantial evidence to support the jury's finding that SCE's negligence was a substantial cause of damage to property owned by the Barhams. We must now determine whether SCE was a "public agency" which damaged the Barhams' property for a "public use." Whether a use is public or private is a question of law. (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 369-370.) Therefore, we independently review the decision of the trial court. (San Diego Gas & Electric Co. v. City of Carlsbad (1998) 64 Cal.App.4th 785, 792.)
        An inverse condemnation action is an eminent domain action initiated by one whose property was taken for public use, as opposed to by the condemning public agency. As such, the principles of eminent domain law apply to inverse condemnation proceedings. (Belmont County Water Dist. v. State of California (1976) 65 Cal.App.3d 13, 19, fn. 3.) Public Utilities Code section 612 provides, "An electrical corporation may condemn any property necessary for the construction and maintenance of its electric plant." "Electric plant" includes electrical transmission facilities such as those at issue in this case. (Pub. Util. Code, § 217.) "'Electrical corporation' includes every corporation or person owning, controlling, operating, or managing any electric plant for compensation within this state, except where electricity is generated on or distributed by the producer through private property solely for its own use or the use of its tenants and not for sale or transmission to others." (Pub. Util. Code, § 218, subd. (a).) Therefore, generally, condemning private property for the transmission of electrical power is a public use and inverse condemnation will apply. (Slemons v. Southern Cal. Edison Co. (1967) 252 Cal.App.2d 1022, 1026.) The fundamental policy underlying the concept of inverse condemnation is to spread among the benefiting community any burden unproportionately borne by a member of that community, to establish a public undertaking for the benefit of all. (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 558.)
        At oral argument SCE strongly urged that inverse condemnation principles should not apply in this case because SCE is a privately owned public utility, not a public entity. In support of this position, SCE cited Breidert v. Southern Pac. Co. (1964) 61 Cal.2d 659, for the proposition that a public utility (there a railroad) may only be liable in inverse condemnation when it jointly participates with a public entity in depriving a person of property rights. However, the cases Breidert cites as authority do not support the interpretation urged by SCE. In no way was it the coparticipation with a public entity which was dispositive. Two other cases cited by SCE urging it should not be likened to a public entity, Automatic Sprinkler Corp. v. Southern Cal. Edison Co. (1989) 216 Cal.App.3d 627 and Moreland Investment Co. v. Superior Court (1980) 106 Cal.App.3d 1017, are specifically limited to their facts and to the statutory schemes involved therein. (See Automatic Sprinkler Corp. at p. 633, and Moreland Investment Co. at pp. 121-122.)
        On the other hand, in Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, which held that a public utility was a state actor subject to the equal protection guarantee when hiring employees, the Supreme Court held that a public utility is in many respects more akin to a governmental entity than to a purely private employer. The court held, "[m]oreover, the nature of the California regulatory scheme demonstrates that the state generally expects a public utility to conduct its affairs more like a governmental entity than like a private corporation." (Id. at p. 469.) Further, it concluded, under the circumstances imposed by the regulatory scheme, "we believe . . . that a public utility may not properly claim prerogatives of 'private autonomy' that may possibly attach to a purely private business enterprise." (Id. at p. 470.) Thus, there are cases in which the courts are willing to hold public utilities to the standards imposed on public entities.
        We believe this is such a case. Were we to adopt SCE's position, we would be required to differentiate between damage resulting from the operation of a utility based solely upon whether the utility is operated by a governmental entity or by a privately owned public utility. Publicly owned electric utilities have been held liable in inverse condemnation in situations virtually identical to this case. (See Marshall v. Department of Water & Power (1990) 219 Cal.App.3d 1124 and Aetna Life & Casualty Co. v. City of Los Angeles (1985) 170 Cal.App.3d 865.) We are not convinced that any significant differences exist regarding the operation of publicly versus privately owned electric utilities as applied to the facts in this case and find there is no rational basis upon which to found such a distinction. We conclude, under the factual scenario here present, SCE may be liable in inverse condemnation as a public entity. Further, Article I, section 19 of the California Constitution and the cases which interpret and apply it, have as their principal focus the concept of public use, as opposed to the nature of the entity appropriating the property.
        In addressing the concept of public use, the parties have commingled the analysis of which entities may be liable and which uses may be public. They have focused on the issue of whether SCE could have exercised eminent domain over the land on which its electrical transmission facilities were located. Their arguments concern SCE's ownership of the land (SCE claims the construction of electrical transmission facilities on its own land creates a private as opposed to a public use), and whether a franchise from San Bernardino County to SCE establishes a joint enterprise (the Barhams argue it does and based upon that joint action, a public use exists). As stated above, the joint action concept is foreign to our analysis. Further, these assertions miss the point entirely. The question does not concern the land upon which the electrical transmission facilities were located. Rather, the issue is whether the Barhams' property was taken for a public use, i.e., the transmission of electric power to the public. The evidence reflects the circuit, of which the subject pole and transmission wires were a part, provides electric service to more than 1,000 households. Based upon the above cited authority, we must conclude that the transmission of electric power through the facilities which caused damage to the Barhams' property was for the benefit of the public. (See, e.g., Slemons v. Southern Cal. Edison Co., supra, 252 Cal.App.2d at p. 1026 [electric transmission lines to three customers was a public use].) Thus, the Barhams' property was "taken or damaged" for a public use.
        This case differs from Cantu v. Pacific Gas & Electric Co. (1987) 189 Cal.App.3d 160, which held inverse condemnation did not apply, and which was heavily relied upon by the parties and the trial court. As did the parties in this case, the court in Cantu focused its analysis on the means by which the public utility obtained the land upon which its facilities were located and not, as SCE urged at oral argument, on the private corporate status of the utility. The facilities at issue in Cantu were found to have been designed to fulfill an individual need. The court concluded the use was "unlike the construction of permanent transmission towers or power lines . . . which are designed to transmit electricity over a much greater area . . . ." (Id. at p. 164.) Those are precisely the type of facilities with which we are concerned in the present case. The Cantu court based its decision upon a public policy conclusion that under the specific facts of that case, when the running of line extensions to plaintiffs' residence is what caused plaintiffs' damage, it would be unfair to spread the cost to the public at large through inverse liability. (Id. at p. 165.) It also concluded since the utility had not exercised eminent domain to obtain the land, it had not "made an economic business decision" to assume liability if its facilities caused damage to neighboring property. (Ibid.) Therefore, the public policy basis for the court's decision was not overcome by principles of eminent domain. As previously illustrated, the facts of our case involve a much greater service to the public at large. Cantu does not alter our decision.
        Similarly, Customer Co. v. City of Sacramento, supra, 10 Cal.4th 368, cited by SCE, is distinguishable. Customer sustained damages in excess of $275,000 in the form of damage to real property, lost inventory and clean-up costs when City police officers used tear gas and mace to subdue and apprehend a felon who had taken refuge inside Customer's convenience store. It thereafter sued the City claiming inverse condemnation. (Id. at pp. 371-375.) The court held the City's actions constituted an exercise of its police powers which required no compensation under the just compensation clause. (Id. at pp. 383-385.) In so doing, the court recognized its earlier decision in Holtz v. Superior Court (1970) 3 Cal.3d 296, that inverse condemnation liability is limited to physical injuries to real property caused by a public improvement as deliberately constructed and planned. From this it concluded "the property damage for which Customer seeks to recover bears no relation to a 'public improvement' or 'public work' of any kind. Instead, the damage was caused by actions of public employees having 'no relation to the function' of a public improvement whatsoever." (Customer Co. v. City of Sacramento, supra, 10 Cal.4th at p. 383.) A clear distinction has been recognized between inverse condemnation which arises out of damage to property caused by the construction or maintenance of public works and that which arises out of an exercise of police powers. (See, e.g., Rose v. City of Coalinga (1987) 190 Cal.App.3d 1627, 1633-1634.) In the instant case, the damage arose out of the functioning of the public improvement as deliberately conceived, altered and maintained. Therefore, even under the principles outlined in Customer, the Barhams are entitled to recover in inverse condemnation in the instant case. (Customer Co. v. City of Sacramento, supra, 10 Cal.4th at p. 382.)
        SCE urges Customer stands for the proposition that conduct which amounts to negligence cannot support inverse condemnation liability. We do not agree. In fact, several courts have held inverse condemnation principles apply in cases very similar to that at bar. (See, e.g., Marshall v. Department of Water & Power, supra, 219 Cal.App.3d 1124 [homeowners recover in inverse condemnation for property consumed by brush fire resulting from downed power cables]; Aetna Life & Casualty Co. v. City of Los Angeles, supra, 170 Cal.App.3d 865 [homeowners recover in inverse condemnation for property consumed by brush fire resulting from arcing power cables].) Customer provides no basis for invalidating these cases.
        The Barhams filed a request for judicial notice in support of their cross-appeal. By order dated January 21, 1999, we reserved ruling on that request for decision with the appeal. Because we find the matters as to which judicial notice was requested unnecessary to our decision, we decline to exercise our discretion to take judicial notice of those documents. (Evid. Code, § 459.)

DISPOSITION         The judgments for GTE and CDF are affirmed. The judgment for the Barhams is affirmed with the exception of the portion of the judgment which is in favor of SCE on the Barhams' claim for inverse condemnation, which is reversed. GTE, CDF and the
Barhams to recover their costs on appeal.


We concur:
        RICHLI, J.
        GAUT, J.


* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part I.
¹  The Barhams' notice of cross-appeal raised three assignments of error. However, at page 3 of their respondents'/cross-appellants' brief, they specifically abandoned all issues save their cause of action for inverse condemnation.
²  Plaintiffs claimed SCE was negligent per se since it violated Public Resources Code section 4292, which requires that anyone who owns an electrical transmission line which crosses brush covered land "maintain around and adjacent to any pole or tower which supports a . . . lightning arrester, . . . a firebreak which consists of a clearing of not less than 10 feet in each direction from the outer circumference of such pole or tower."
³  SCE argues Public Resources Code section 4292 cannot apply absent presentation of a declaration from the director of the agency with primary responsibility for fire protection in the area of the pole, stating clearance was necessary. This is nonsense. The testimony establishes a 10-foot clearance was required around the subject pole year round. It can therefore be reasonably inferred that whoever had responsibility for the area required it to be cleared at the time of the fire. SCE has failed to cite any authority which requires a greater showing.
⁴  This testimony was obtained after an objection to SCE's question was overruled because the court found that the question called for testimony that was "pretty much lay" testimony as opposed to expert opinion.
⁵  "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
⁶  In its reply brief, SCE argues the evidence is irrelevant to establish the witness's bias. This assertion misses the point. The relevant discussion revolves around the background and qualification of the expert, not his bias.
⁷  We summarily dispense with SCE's argument that the trial court abdicated its judicial function by indicating counsel should attempt to object as little as possible during closing argument. Our review of the record reveals SCE's position is baseless. The only instance of improper argument SCE raises on appeal was in fact objected to and ruled upon at the time the statement was made.
⁸  We note with respect to the portion of Mr. Radtke's testimony to which SCE objected, the objection cut off the answer and no testimony was actually elicited from the witness. It is difficult to imagine, in this situation, how SCE could have been prejudiced by testimony which was not offered.
⁹  Civil Code section 3287, subdivision (a), provides in part, "Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day . . . ."
¹⁰  The standard of review for decisions regarding prejudgment interest under Civil Code section 3287, subdivision (a), is not certain. (Compare, e.g., KGM Harvesting Co. v. Fresh Network (1995) 36 Cal.App.4th 376, 390-391 [independent review]; Sagadin v. Ripper (1985) 175 Cal.App.3d 1141, 1176 [abuse of discretion]; General Insurance Co. v. Commerce Hyatt House (1970) 5 Cal.App.3d 460, 473-475 [substantial evidence].) We find in this case the facts regarding the certainty of the damages are not in dispute. Rather, the issue is the application of the law to those facts to determine if certainty exists. Therefore, we independently review the trial court's decision. However, we note in this case, under any of the possible standards of review, we would affirm.
¹¹  Because the issue was not raised on appeal, we do not consider the propriety of the trial court's decision to award prejudgment interest on only a portion of GTE's damages. (1119 Delaware v. Continental Land Title Co. (1993) 16 Cal.App.4th 992, 1004.)
¹²  "In any inverse condemnation proceeding, the court rendering judgment for the plaintiff by awarding compensation, . . . shall determine and award or allow to the plaintiff, as a part of that judgment or settlement, a sum that will, in the opinion of the court, reimburse the plaintiff's reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of that proceeding in the trial court or in any appellate proceeding in which the plaintiff prevails on any issue in that proceeding." (Code Civ. Proc., § 1036.)