Marshall v. Department of Water & Power

Decision Date28 March 1990
Docket NumberNo. B027345,B027345
Citation268 Cal.Rptr. 559,219 Cal.App.3d 1124
CourtCalifornia Court of Appeals Court of Appeals
PartiesErnest and Nelda MARSHALL and Ransbottom Limited Partnership, Plaintiffs and Appellants, v. DEPARTMENT OF WATER AND POWER OF the CITY OF LOS ANGELES, Defendant and Appellant.

James K. Hahn, City Atty., Edward C. Farrell, Chief Asst., and Roberta Scharlin Zinman, Deputy City Atty., for defendant and appellant.

Pat K. Bowen, for plaintiffs and appellants Ernest and Nelda Marshall.

Cummins & White, Marshall W. Vorkink, and Kent M. Bridwell, Los Angeles, for plaintiff and appellant Ransbottom Ltd. Partnership.

GOERTZEN, Associate Justice.

After the 1981 Chatsworth fire, several property owners and insurance companies filed suits against the Department of Water and Power of the City of Los Angeles (DWP) and the City of Los Angeles. 1 Pursuant to written stipulation, the actions were consolidated. Included in the various causes of action was one for inverse condemnation. With the exception of the inverse condemnation cause of action, the matter was tried to a jury, which found for DWP and against the plaintiffs. Simultaneously, the inverse condemnation cause of action was tried to the court, which found for the plaintiffs. A second jury was impaneled The DWP appeals, contending that substantial evidence is lacking; that the trial court erred when it refused to allow a jury trial on the issue of causation and when it impaneled a second jury to determine the amount of damages. We reject each of these contentions.

to determine the amount of damages to be awarded to the plaintiffs. The court awarded varying amounts of attorney fees.

The Ransbottom Limited Partnership (Ransbottom) and Ernest and Nelda Marshall (the Marshalls) appeal. Together they assert that the compensation awarded by the jury was inadequate as a matter of law, and prejudgment interest should have been included in the calculation of attorney fees. The Marshalls additionally argue that the court awarded inadequate attorney fees and request that we award attorney fees on appeal. 2 With the exception of the Marshalls' contention related to the adequacy of the attorney fees award, we also reject these assertions of error.

UNDERLYING FACTS

Plaintiffs' Case. The Chatsworth fire broke out at approximately 11:00 a.m. on October 31, 1981. It started in a field near the intersection of Plummer Avenue and Rudnick Avenue.

A series of power poles were located along the northerly edge of Plummer Avenue, including two poles near Rudnick Avenue which were designated 12-West and 13-East, respectively. Those poles were spaced approximately 160 feet apart and each supported three primary conductors (wires) which were designed to carry 4800 volts of electricity. Those wires were part of a power distribution circuit, the purpose of which was to provide electricity to consumers in the northwest section of Los Angeles City. This public improvement was undertaken by DWP, a governmental agency.

Angela Rasmussen and her three children witnessed the fire because they were tending their horses, which were corralled on the property adjacent to where the fire started. The day was windy, very dry and hot. Mrs. Rasmussen heard a zapping sound in the area of Plummer and Rudnick and within ten to fifteen seconds heard her daughter yell, "Fire!" Ms. Rasmussen immediately ran to get the water hose and, when she reached the hose, noticed that the power lines were down and jumping in the street. She saw white, blue and yellow sparks coming from the wires. The fire was located inside the fence of the adjacent property, running parallel to Plummer Avenue. After the fire was underway, Ms. Rasmussen noticed marks on the pavement made by the downed electrical wires. The fire went across the open field and up the hill. Immediately prior to the fire starting, Ms. Rasmussen did not see anyone either in the open field or in the surrounding area.

Erik Rasmussen was ten years old at the time of the fire. He was grooming his horse when he heard a loud booming sound. He looked toward the sound, and saw a wire down in the street. Two wires were jumping around in the street and sparking. After he heard his sister yell "Fire", Erik looked back to where the wires were. They were no longer both in the street; one was inside the field, next to the fire. When he first saw the fire, it was just starting and was a circle of about three feet in diameter. The wire was inside the circle of fire. Erik did not see the spark that set the fire. He attempted to smother the fire by shoveling dirt on it.

Monique Rasmussen was 14 years old on the day of the fire. As she was grooming her horse, she heard a big boom or snapping sound coming from behind her. She turned and saw the wires over Plummer Street had broken and were down in the street. Within 15 seconds she saw the fire on the adjacent property. Monique estimated the fire to be about five feet in diameter when she first saw it. She noticed that the winds made the wires Several residents of the area heard the sounds made by the downed wires, saw the wires sparking, and witnessed the fire.

move, causing them to create a noise, and that the wires would occasionally spark when hitting the ground. Monique never saw a power line in the street showering sparks across into a grassy field. She attempted to fight the fire by shoveling dirt on it.

Captain Bruce Frashure of the Los Angeles City Fire Department was in command of the first fire engine to arrive at the scene. At that time, he had been employed by the fire department for 12 years, working mostly in fire suppression. Upon arrival at the fire, he noticed "a hot wire down in the street." He also observed burn marks on the pavement. "It appeared that the wires had arced in the street and left ... the mark on the asphalt." He recalled seeing one mark that "resembled a snake going across Plummer from what appeared to be a hot wire" toward the place where the fire had started. Based upon his observations, Captain Frashure believed that the fire had originated near the corral fence at Plummer and Rudnick, in the brush about five to ten feet from the edge of the roadway surface on Plummer.

At two different times that day, Captain Frashure examined the area to determine where the fire had started. On both occasions, he searched for possible sources of fireworks, flammable liquids, incendiary devices or "anything that could possibly ignite a fire." He found none. Finding no source of ignition and hearing no one describe any suspicious activity, Captain Frashure made the initial determination that the fire probably had been caused by the arcing wires. This remained his opinion at the trial.

With regard to flammable liquids, Captain Frashure "kicked up the dirt looking for every possibility of moist spots underneath the area" and also used his nose. He explained, "[i]f they had used incendiary flammable liquids in the area, I am pretty sure I would be able to smell it." Based on his experience, Captain Frashure opined that the fire's origin, within a five foot radius, was near the corral at Plummer and Rudnick, placing it off the pavement and in the grassy area. He also determined that the broken power line was long enough to reach into the area.

Cyrillis W. Holms, Jr., is a private fire investigator with substantial experience in his field. He was retained by Cummins & White, the law firm representing the insurance plaintiffs, to conduct an investigation of the Chatsworth Fire. He personally examined the scene on two occasions, taking photographs, checking for burn patterns, and identifying the structure which had been consumed in the fire. He began walking along Plummer and worked his way back and forth across the field.

At about 30 or 40 locations, he got down and looked for "burn indicators." These are minor obstructions, such as dirt clods, cans, fence posts, or other objects, which tend to protect adjacent material from the advancing flames. These create a "shadow" effect or difference of heat intensity, thereby leaving telltale evidence of the fire's direction.

Mr. Holms identified and interviewed several witnesses, including residents of the fire area and the Rasmussen family. In addition, he reviewed the transcript of Captain Frashure's deposition, as well as the report of the Fire Department arson investigator.

Based upon his investigation and prior experience, Mr. Holmes concluded that the fire "was a direct result of the downed power lines generating the heat to cause ignition of the grass." In his opinion, it did not make any difference whether the heat had been caused by sparking or arcing. He noted that either end of the broken power line could have produced an electrical arc. He opined that the fire had originated in the northeast corner of the field, spreading west and south from there.

William Cass was employed as an arson investigator for the Los Angeles City Fire Department and was assigned to investigate the Chatsworth Fire of October 31, 1981. At the time of trial, he had investigated in excess of 2300 fires for cause and origin. On November 3, 1981, he and his partner examined the scene. They walked Investigator Cass observed some apparent burn or scorch marks within two distinct areas of the pavement on Plummer Avenue. With the use of a measuring tape, he further determined that the broken wire from pole 12-West was long enough to reach into the adjacent field where the fire had apparently started. He also interviewed two witnesses. Based upon these inquiries, Inspector Cass formed the opinion that "a downed power line had started the fire."

through the area, looking for possible sources of ignition. They examined the probable area of origin, walked back to the base of the hill, and found no possible sources of ignition.

When he was called to testify at trial, Inspector Cass had changed his opinion. He...

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