State Ready Mix, Inc. v. Moffatt & Nichol

Filed 1/8/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

STATE READY MIX, INC., 2d Civil No. B253421 (Super. Ct. No. 56-2012-00423313-CU-BC- VTA) Cross-Complainant and Appellant, (Ventura County)

v.

MOFFATT & NICHOL,

Cross-Defendant and Respondent.

Mixing concrete, like baking a cake, is fraught with problems when the recipe is not followed. Here, concrete supplier, State Ready Mix, Inc. (State), wrote the concrete mix design (the recipe) and prepared a bad batch of concrete that was used to construct a harbor pier. State blames the bad concrete on the civil engineer who drafted the pier plans and helped the general contractor by gratuitously reviewing State's concrete mix design. In the words of Clare Boothe Luce, "No good deed goes unpunished." (See Wright v. Beverly Fabrics, Inc. (2002) 95 Cal.App.4th 346, 348.) When State was sued to recoup the cost of replacing the concrete, it filed a cross-complaint for equitable indemnity and contribution against the civil engineer, Moffatt & Nichol (Moffatt). The trial court sustained, without leave to amend, Moffatt's demurrer to the second amended cross-complaint. State appeals. We affirm and conclude the cross-complaint is barred by the economic loss rule. (Aas v. Superior Court (2000) 24 Cal.4th 627, 643.) State cannot seek equitable indemnity or

contribution for damages caused by the breach of its own contract. (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1041- 1044 (Stop Loss).) Facts and Procedural History In 2012, Bellingham Marine, Inc. (Bellingham), a marine project manager, hired Major Engineering Marine, Inc. (Major) to construct a travel lift pier at the Channel Islands Harbor. Bellingham hired Moffatt, a civil engineering firm, to prepare the plans for the pier. The plans required that the concrete have an air entrainment of two to four percent and that the concrete, when cured, attain a compressive strength of 5,000 PSI in 28 days. Major's contract with Bellingham provided that if the concrete failed to meet the 5000 PSI compression strength standard, that it would be removed and replaced at Major's expense. After Major hired State to supply the concrete, State submitted a concrete mix design (Mix Design SR5ORD) stating that Micro-Air (an air entrainment chemical) would be added to each batch of concrete.1 Moffatt, at the request of Major, reviewed and approved Mix Design SR5ORD It was not part of Moffatt's job duties. On February 14, 2012, State delivered seven truck loads of wet pre- mixed concrete to the project site. After the concrete was cast, Major's testing lab took a sample that showed the concrete had a compressive strength of only 3,650 PSI at 28 days. Major asked State to investigate. In a March 9, 2012 email, State's technical advisor reported: "The day of the pour, 2-14-2012, State Ready Mix encountered a mechanical failure in their chemical dispensing equipment and had to manually add the 'Air Entrainment' chemical into the trucks. There was an error in the