Opinion
A101062.
7-28-2003
GLASS MOUNTAIN PUMICE, INC., Plaintiff, Cross-defendant and Appellant, v. BAY CITIES PAVING & GRADING, INC., Defendant, Cross-complainant and Respondent.
In this lawsuit over a road construction contract, the plaintiff, Glass Mountain Pumice, Inc. (Glass Mountain) appeals a judgment in favor of the defendant and cross-complainant, Bay Cities Paving & Grading, Inc. (Bay Cities). Glass Mountain recovered nothing on its complaint and Bay Cities recovered a judgment of $ 41,905.98, together with costs, including attorney fees, in the amount of $ 44,849.54, on its cross-complaint. We affirm.
PROCEDURAL HISTORY
Glass Mountain is in the business of mining and processing light-weight volcanic rock, which is used as aggregate for concrete blocks and road construction projects. Bay Cities is a road construction contractor. In April 2000, the California Transportation Agency (CalTrans) solicited bids for a project on the Highway 92 approach to the San Mateo Bridge, which called for a large quantity of light-weight aggregate to be placed on relatively unstable soil between rock barriers, known as gabion walls.
In the course of preparing a bid for the Highway 92 project, Steven Caudill, the chief estimator of Bay Cities, contacted several suppliers of light-weight aggregate and decided to base his bid on the terms offered in a telephone conversation by Glass Mountains sales manager, Russell Downie. These terms were confirmed in a purchase order issued by Bay Cities to Glass Mountain shortly after the bid date. The purchase order called for 18,064 cubic yards of light-weight fill and 5,164 cubic yards of light-weight backfill at a unit price of $ 27 per cubic yard. The disputed term of the purchase order stated: "Price based on maximum shrinkage of 10-15% when placed." Caudill testified that his notes of conversations with Downie confirm that Glass Mountain specified maximum shrinkage of 10 to 15 percent. Downie says that he merely estimated that the material could be expected to shrink between 10 and 15 percent under normal compaction methods. He denied ever using the term "in place."
The aggregate was shipped to the project site by rail and truck over a period of months beginning in June 2000. Bay Cities project manager, Jack Wu, testified that, while the quality of the material was appropriate, it became apparent "sometime into the job" that the quantity of material was not sufficient to meet the contract specifications. He claimed that they "always ended up short" as deliveries were made. He asked Kleinfelder, an environmental consulting firm, to perform tests and sent the test results to Russell Downie, with a letter dated October 20, 2000, expressing his concerns.
Dan Ridolfi, the Kleinfelder engineer supervising the test, testified that the firm first tested a sample of the aggregate for shrinkage, i.e., "the difference between the delivered quantity and the final fill volume," by using CalTrans test method 212, a test incorporated in the project specifications. The test method measured compaction by a process of "jigging" or vibrating the material in a steel can so as to reduce volume. The firm determined that the "measured shrinkage factor was somewhere between 17 and 33 percent." This measurement conformed to field reports that Bay Cities was experiencing shrinkage on the order of 20 to 25 percent.
Glass Mountain took three months to respond to the Bay Cities letter. In a letter dated January 10, 2001, its president, Niilo Hyytinen, stated that the material was properly sold by the yard as per specifications. Bay Cities immediately replied with a letter claiming that it had overpaid Glass Mountain $ 64,880 for the light-weight fill delivered to the project. The calculation was based on an estimate of shrinkage above 12.5 percent and a CalTrans measurement of the fill volume. At this point, Bay Cities stopped ordering the material from Glass Mountain and secured from another supplier the light-weight aggregate needed to complete the job.
Glass Mountain subsequently filed an action for breach of contract against Bay Cities. In an amended complaint filed May 22, 2001, it claimed to have delivered 20,378.22 cubic yards of material to the project. Alleging that it was paid for only 17,525 cubic yards, Glass Mountain claimed damages of $ 77,029.92, based on Bay Cities failure to pay it for 2,852.95 cubic yards at $ 27 per cubic yard. Bay Cities filed a cross-complaint for breach of contract alleging that Glass Mountain had refused to reimburse it for an overpayment. It alleged that Glass Mountain delivered 13,442.41 cubic yards and Bay Cities paid it for 17,525.26 cubic yards. Since the job turned out to require no more than 15,122.71 cubic yards, Bay Cities overpaid Glass Mountain for 2,402.55 cubic yards. Based on the contract price of $ 27 per cubic yard, Bay Cities claimed damages of $ 64,868.85.
The case came up for a court trial on March 25, 2002. Following three days of testimony, the court issued a statement of decision finding for Bay Cities on its cross-complaint. Three findings are particularly pertinent to this appeal. First, the court found that Glass Mountain warranted that product shrinkage would not exceed 15 percent. Second, the shrinkage exceeded 15 percent as determined by the CalTrans 212 "jigging" method incorporated in the project specifications. Thirdly, the statement of decision found that Bay Cities "ultimately paid a total of $ 665,044.37 for the product when it was only legally obligated to pay [Glass Mountain] the sum of $ 623,138.39 (including the 15% maximum shrinkage)." Accordingly, the court found that judgment should be awarded to Bay Cities on its cross-complaint for $ 41,905.98, plus costs and attorney fees pursuant to a provision in the purchase order.
On September 27, 2002, the court entered judgment for Bay Cities in the amount of $ 41,905.98, together with costs, including attorney fees, in the amount of $ 44,849.54. Glass Mountain filed a timely notice of appeal.
DISCUSSION
As its only assignment of error, Glass Mountain claims that the record does not support the trial courts finding that there was excess shrinkage. It does not dispute that the contract warranted shrinkage not to exceed 15 percent or that the CalTrans 212 "jigging" method was the test required to determine shrinkage under the project specifications but rather predicates error on the "application of the parties agreement." In its opening brief, it contends that the finding of excess shrinkage was not based on measurements provided by use of the jigging method. Since the contract required measurements by this specific method, it reasons that there is no evidence of excess shrinkage in breach of contract. In its reply brief, Glass Mountain retreats from this position. Conceding that the finding of excess shrinkage was supported by evidence of the jigging method of measurement, it argues that the trial court erred by employing an additional method, CalTrans method 232. "The record is silent," it contends, "as to the shrinkage based on using the jigging method alone."
As Glass Mountain defines and limits its assignment of error, the issue of substantial evidence revolves around the testimony of Dan Ridolfi, the engineer for the consulting firm, Kleinfelder, who measured shrinkage at the request of Bay Cities. Ridolfi testified that he conducted or supervised "laboratory analysis and field measurements." The laboratory analysis employed the CalTrans 212 "jigging" method; the field measurements employed an alternative test, CalTrans method 232. Both methods indicated "that the shrinkage factor was greater than 15 percent." More precisely, the firm found that the "measured shrinkage factor was somewhere between 17 and 33 percent."
In his direct examination, Ridolfi testified almost exclusively on the subject of the CalTrans 212 "jigging" method, but, on cross-examination, he was questioned at length about the portions of his report dealing with field measurements. As Glass Mountain itself appears to concede in its reply brief, Ridolfis testimony on direct examination provides ample support for the trial courts finding that there was excess shrinkage as measured by the CalTrans 212 "jigging" method. Ridolfi testified that he used this method to test samples of material, which Bay Cities gave him from the aggregate delivered by Glass Mountain. His finding of excess shrinkage was based both on these laboratory tests and further in-field measurements.
In its reply brief, Glass Mountain appears to predicate error solely on Ridolfis use of in-field measurements in his report of shrinkage. "By attempting to capture an in place component," it argues that the tests failed to provide evidence of shrinkage "using the jigging method alone." The argument, however, fails to demonstrate error. Conceding that the project specifications required use of the jigging method of measurement, the fact that Ridolfi used other in-field methods for purposes of corroboration or comparison did not invalidate the tests that he conducted using this method. Glass Mountain fails to demonstrate that the in-field tests served as a substitute for the jigging method or obscured the inferences to be drawn from the use of the jigging method. Instead, Ridolfi testified that both methods supported his finding of excess shrinkage.
It is true that substantial evidence "is not synonymous with any evidence, but is evidence which is of ponderable legal significance. It must be reasonable in nature, credible, and of solid value; it must actually be "substantial" proof of the essentials which the law requires in a particular case. " (Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal. App. 3d 864, 871, 269 Cal. Rptr. 647, citing Estate of Teed (1952) 112 Cal. App. 2d 638, 644, 247 P.2d 54.) But in reviewing the record for substantial evidence, "we must examine all factual matters in the light most favorable to the prevailing parties and resolve all conflicts in support of the judgment." (Kruse v. Bank of America (1988) 202 Cal. App. 3d 38, 51, 248 Cal. Rptr. 217.)
We conclude that the testimony of the materials testing engineer, Ridolfi, provides ample support for the finding of excess shrinkage as measured by the CalTrans 212 "jigging" method. Viewing the findings in the light most favorable to the prevailing party, we find that Glass Mountain has failed to show that the evidence of other in-field methods of measurement introduced error into the trial courts finding. Since Glass Mountain does not challenge the calculation of damages, our conclusion calls for affirmance of the judgment.
The judgment is affirmed.
We concur, Marchiano, P. J., Stein, J.