Filed 5/13/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

SALLY KIM et al.,

Cross-complainants, Crossdefendants and Respondents,

v.

TWA CONSTRUCTION, INC.,

Cross-defendant, Crosscomplainant and Appellant;

KEITH TAI WONG,

Appellant.

 H045900

 (Santa Clara County

 Super. Ct. No. 16CV300709)

This appeal involves a dispute between a married couple (respondents Sally Kim 

and Dai Truong, collectively respondents) and their former general contractor, appellant 

TWA Construction, Inc. (TWA) and TWA’s owner, appellant Keith Tai Wong (Wong), 

whom they hired to construct a home on a wooded lot.1 During the early stages of the

1 Although Wong was not a named party in the trial court proceedings below, this 

court granted TWA’s request to add him as an appellant. This court granted TWA’s 

motion to substitute Wong as the appellant in the appeal of the judgment entered in favor 

of Truong and Kim on their cross-complaint against TWA. TWA remained the appellant 

in the appeal of the judgment entered in favor of Kim on TWA’s cross-complaint against 

Kim. We discuss TWA’s claim in section II.A., post and Wong’s claims in sections

II.B.–D., post. 
2

construction project, a subcontractor hired by Wong for tree trimming services damaged 

a large eucalyptus tree that was partly owned by Kim and Truong’s neighbor. 

The neighbor brought suit against Kim and Truong for damage to her property

resulting from the work on the eucalyptus tree, which precipitated the litigation that 

eventually resulted in this appeal.

2

 After the neighbor filed suit, Kim and Truong filed a 

cross-complaint against TWA for comparative negligence, breach of contract, express 

contractual indemnity, equitable indemnity, and other claims. TWA in turn filed a crosscomplaint against Kim and Truong alleging breach of contract and other claims. The 

complaint and cross-complaints proceeded to trial before a single jury.

During trial, Kim, Truong, and TWA settled the suit with the neighbor, which is 

not at issue in this appeal. The suits involving respondents’ and TWA’s cross-complaints

continued before the jury. TWA presented no evidence at trial that the subcontractor who 

worked on the eucalyptus tree was licensed to perform tree trimming work. Relevant to 

this appeal, the jury returned special verdicts finding TWA was 100 percent at fault for 

the neighbor’s damages and that Kim had paid TWA $10,000 for the tree trimming 

services performed by TWA’s subcontractor. The trial court entered judgment in favor of 

Kim for $10,000 on Kim’s cross-complaint and also in favor of Kim and Truong on their 

cross-claims against TWA. 

On appeal, TWA contends the judgment must be reversed because the trial court 

erred in its interpretation of the relevant licensing statute, Business and Professions Code 

section 7031.3

 In addition, Wong asserts the trial court misinterpreted the construction 

agreement, and substantial evidence does not support the jury finding that Kim paid

TWA $10,000 for tree trimming. For the reasons set out below, we affirm the judgment.

2 The neighbor later amended her complaint to add TWA as a defendant. 3 Unspecified statutory references are to the Business and Professions Code.
3 

I. FACTS AND PROCEDURAL BACKGROUND 

A. Factual Background4

Kim purchased real property located in a wooded area of Los Gatos (property).5

Kim and Truong planned to build a home and a bridge on the property. As part of the 

project, they sought to remove some trees, including a large eucalyptus tree (the 

eucalyptus).6

 The eucalyptus straddled the property line between their property and the 

property of their neighbor, Joan Todd. Kim and Truong did not at first understand that 

the eucalyptus was partially on Todd’s property and that they needed her permission to 

remove it. They assumed they could remove the eucalyptus because they had received 

permits from the county to do so. 

In February 2015, Truong and Kim first met with Wong to discuss hiring TWA as 

the general contractor to build their home. Wong was TWA’s owner, an experienced 

contractor, and served as Kim and Truong’s only point of contact with TWA during the 

events at issue here. TWA held a Class A (general engineering) and Class B (general 

building) license during all relevant times. Truong recalled showing Wong the 

eucalyptus in February 2015 and telling him they wanted it removed. 

Wong and Kim executed a written construction agreement dated September 28, 

2015 (construction agreement).7

 The construction agreement included provisions fixing 

the contract price at approximately $1.6 million, detailing the scope of work (including 

site work, bridge work, and the house and retaining walls), stating that all work would be 

4 These facts are taken from certain undisputed facts and the evidence presented to 

the jury. We resolve any conflicts in the evidence—including credibility of witnesses—

in favor of the jury’s findings. (See Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 

925–926.) 

5

 Kim took title in the property in her name only. 

6

 The eucalyptus tree was approximately 140 to 160 feet tall and had a trunk 

diameter of approximately six feet. Half the tree sat on Todd’s property and half on 

Kim’s property. 

7

 Truong was not a signatory to the construction agreement. 
4

performed by licensed individuals, indemnifying Kim from and against, inter alia, claims 

and damages arising from any negligence of TWA or its employees or subcontractors in 

performing work under the construction agreement, and addressing attorney and expert 

fees. Although the parties dispute whether tree removal was encompassed within the 

construction agreement or addressed in a separate agreement, it is undisputed that Wong 

agreed as part of the overall project to remove the eucalyptus.

To perform the tree work, Wong hired an individual named Marvin Hoffman,

whom Wong did not previously know and had located on the Web site “Craig’s List.”8

Wong testified that he had paid Hoffman $400 by check and $16,000 in cash, although he 

did not have proof of the cash payments. When he hired Hoffman for the project, Wong

had not verified Hoffman’s licensure status and could not recall whether he asked 

Hoffman about it. Wong believed Hoffman was a professional tree trimmer because 

Hoffman had a truck, trailer, and a large saw. 

On September 28, 2015, the same day Wong executed the construction agreement,

Hoffman began removing the eucalyptus. Wong was present at the site that day but did 

not assist in the tree work. Before Hoffman and his crew had finished removing the tree, 

Todd (the neighbor) told Hoffman’s workers to stop. Todd also contacted the police. 

Work on the eucalyptus tree ceased. 

Following this incident, Truong and Kim continued for a period of time to use 

TWA as their general contractor. Ultimately, however, the only work TWA did on the 

property was related to erosion control (performed by Wong himself) and on the trees

(performed by Hoffman). 

In April 2016, Truong and Kim terminated the contract with Wong, informing him

they could not secure a construction loan using TWA as the contractor. Truong and Kim 

8 Hoffman, who apparently could not be located after the litigation started, was not 

involved in the legal proceedings below, and is not a party in this appeal. 
5

eventually hired another contractor to complete the project. Kim paid TWA $16,000 for 

its work on the project. 

B. Procedural Background

In October 2016, Todd (the neighbor) brought suit against Truong and Kim for 

negligence, trespass, and other claims related to the work on the eucalyptus tree. Todd

later amended her complaint to add TWA as a defendant. 

Kim and Truong filed a cross-complaint against TWA for comparative negligence, 

breach of contract, express contractual indemnity, equitable indemnity, and other claims.

Their operative cross-complaint alleged, inter alia, that TWA was required to indemnify 

them for the amount of any judgment or settlement they might be compelled to pay in the 

lawsuit with Todd. The cross-complaint included a claim that TWA was expressly 

required to indemnify Kim under the terms of the written construction agreement. 

TWA then filed a cross-complaint against Kim and Truong. TWA’s operative

cross-complaint alleged breach of contract based on the written construction agreement 

and sought damages, including lost profits.9 TWA also asserted an indemnification claim 

for Todd’s lawsuit against TWA. 

Prior to trial, Kim and Truong filed a motion in limine addressing the licensure 

status of Hoffman, the tree subcontractor. Kim and Truong requested that the trial court 

require TWA to make an offer of proof as to Hoffman’s licensure status. Kim and 

Truong argued that TWA had chosen to hire an unlicensed contractor to remove the 

eucalyptus, even though the state contractor’s license board required a specialty tree 

service license for that type of tree work (a “C-61/D-49 Tree Service Specialty license”). 

They asserted that, pursuant to section 7031, TWA had the burden of establishing proper 

licensure for the person it had hired for the tree work. The motion asserted that unless 

9 TWA claimed at trial, inter alia, that Kim had failed to comply with the 

contract’s termination provision and that she owed TWA $600,000 in lost profits. The 

jury rejected those claims, and they are not at issue in this appeal. 
6

TWA could prove the subcontractor it hired for the tree work had the requisite license, 

TWA was barred from recovering from Kim and Truong any money paid or owed to the 

unlicensed subcontractor. Kim and Truong contended TWA had the burden of proving 

the subcontractor’s licensure status with a verified certificate from the Contractors’ State 

License Board. TWA opposed the motion. 

The trial court heard argument on the motion in limine. Kim and Truong 

reiterated that they sought an offer of proof from TWA as to whether Hoffman had a 

valid contractor’s license. Kim and Truong clarified that the issue of licensure was 

related to their breach of contract cross-claim against TWA in that they contended that 

TWA should disgorge the $10,000 they had paid for tree work since it had been 

performed by an unlicensed subcontractor. TWA’s counsel asserted that the issue also 

pertained to TWA’s breach of contract claim against Kim because TWA was entitled to 

recover payment for all its work performed on the project. The trial court inquired of 

TWA’s counsel whether Hoffman was employed by TWA. TWA responded that it did 

not contend that Hoffman was a TWA employee. TWA did not suggest it had any 

evidence that Hoffman had been licensed or make any offer of proof on the subject.

The trial court granted Kim and Truong’s motion. It found that section 7031 

applied here where “suing general contractor seeks compensation for services of a 

purported unlicensed subcontractor under a subcontract between the general and 

subcontractor.” The trial court ruled that section 7031 barred TWA from “collecting 

compensation for services performed by the subcontractor for the tree trimming if, in 

fact, the subcontractor was unlicensed at the relevant time.” The ruling in effect allowed 

Kim and Truong to claim the money paid for the unlicensed contractor should be 

disgorged and disallowed TWA from presenting a claim for money owed for the tree 

removal work performed by an unlicensed subcontractor. The ruling did not explicitly 

bar any party from bringing evidence at trial as to whether Hoffman was licensed.
7

The jury trial occurred in two phases and lasted eight days. Phase 1 addressed

Todd’s suit against Kim, Truong, and TWA for damage to the trees on her property.

Todd called as witnesses Kim and an expert, who was a certified arborist. The arborist 

generally testified that the tree removal work that had been done on the eucalyptus was

unprofessional and fell below the standard of care. 

On the fifth day of the jury trial, Kim and Truong reached a settlement with Todd.

The settlement provided that Kim and Truong would pay Todd $50,000 and that Kim and 

Truong could take down the eucalyptus tree. Todd also settled with TWA. She 

dismissed her complaint with prejudice against TWA in exchange for TWA’s promise to

waive any claim for costs against her. 

Phase 2 of the jury trial addressed the claims in the cross-complaints. The jury 

heard testimony from Wong, Kim, and Truong, and one expert witness (Gary Ransone), 

who testified in support of Kim and Truong’s case-in-chief. Ransone, who was a general 

contractor, opined that it was simple to verify whether a subcontractor is properly 

licensed and insured by going to the Contractors’ State License Board Web site. Ransone

estimated the verification process takes approximately two minutes. Wong, Kim, and 

Truong also testified about Kim and Truong’s $16,000 payment to TWA. We discuss 

that testimony in further detail below. 

The trial court admitted numerous documents into evidence, including e-mails and 

text messages exchanged among Kim, Truong, and Wong, and the written construction 

agreement. 

The trial court gave the jury written instructions and special verdict forms. One of 

the special verdict forms addressed the payments for unlicensed tree work and was 

provided to the jury over TWA’s objection. It asked whether Kim paid TWA “any 

monies for the tree trimming work performed by [TWA’s] unlicensed subcontractor?” 

To that question, the jury answered yes. Because it answered yes, the jury was then 

asked “how much did [Kim] pay [TWA] for the tree trimming work performed by 
8

[TWA’s] subcontractor, Marvin Hoffman?” The jury answered $10,000. Additionally, 

the jury returned a special verdict finding that TWA was 100 percent negligent and at 

fault for the harm to Todd and that her damages were $9,098.

On February 6, 2018, the trial court entered judgments on both phases of the trial. 

Only the phase 2 judgment (hereafter judgment) is at issue in this appeal. Based upon the 

jury’s verdict that TWA was 100 percent liable for negligence and that Todd’s damages 

were $9,098, the trial court doubled that figure to $18,196, pursuant to statute.

10 The 

court entered judgment in favor of Truong and Kim in the amount of $18,196 on their 

cross-claims against TWA based on contributory negligence and indemnity and on Kim’s 

separate cross-claim for express contractual indemnity. The judgment ordered TWA to

disgorge the $10,000 paid for the tree trimming work performed by TWA’s unlicensed 

subcontractor.

11 It found in favor of Kim as to TWA’s cross-complaint against her for 

breach of contract. 

TWA timely filed a notice of appeal of the February 6, 2018 judgment.

Pursuant to the terms of the construction agreement, the trial court issued a

postjudgment order awarding Kim $137,821 in attorney fees and $22,505.16 in expert 

witness fees. The order also awarded Truong and Kim, as the prevailing parties,

$18,273.59 in costs and denied TWA’s motion to tax costs.

II. DISCUSSION

Appellants TWA and Wong collectively raise three claims against the judgment. 

TWA and Wong (together, appellants)12 contend the trial court erred as a matter of law in 

10 The trial court applied Civil Code section 3346 to double the damages. That 

statute “provides enhanced damages to plaintiffs suffering ‘wrongful injuries’ [citation] 

to timber, trees, or underwood.” (Scholes v. Lambirth Trucking Co. (2020) 8 Cal.5th 

1094, 1099.) 

11 The judgment does not specify the precise cross-claim in the cross-complaint to 

which the $10,000 payment pertains. 

12 TWA and Wong did not file separate briefs in this appeal, and Wong was not 

added as an appellant until after TWA filed its opening brief. Our analysis specifies
9

its pretrial ruling on the application of section 7031. Appellants argue the ruling

effectively caused TWA to forfeit its claim for compensation from respondents for the 

tree work. Further, Wong asserts the written construction agreement does not include

tree removal and therefore Kim’s claims for indemnity and attorney fees based on that 

agreement cannot stand. In addition, Wong maintains substantial evidence does not

support the jury’s finding that Kim paid TWA $10,000 for tree services. Wong also 

challenges the postjudgment order awarding attorney fees to Kim and acknowledges that 

this issue rises and falls with his contractual claim. We address each claim in turn.

A. Pretrial Ruling Related to Business and Professions Code Section 7031

As described above, the trial court decided that section 7031 applied to the facts 

here—namely, where a general contractor seeks compensation for services of a purported 

unlicensed subcontractor under a subcontract between the general and subcontractor. The 

trial court ruled that the statute barred TWA from “collecting compensation for services 

performed by the subcontractor for the tree trimming under the subcontract if, in fact, the 

subcontractor was unlicensed at the relevant time.” The trial court’s ruling allowed Kim 

and Truong to present to the jury (as reflected in a special verdict form) that TWA had 

illegally hired an unlicensed subcontractor to do the tree trimming and let the jury decide 

the amount Kim paid for that illegal work. The ruling did not bar the introduction of 

evidence at trial as to whether Hoffman was licensed. 

On appeal, appellants primarily argue that this pretrial ruling was error and

“[e]ffectively [n]onsuited” their breach of contract claim and prevented them from 

recovering compensation for tree services.

whether the claims are made by one or both appellants, to the extent we can make this 

determination from the briefing. (See fn. 1, ante.) 
10 

1. Standard of Review 

TWA contends that the trial court erred in applying section 7031 as a bar to its 

claims against Kim and Truong to recover money for work done by Hoffman.

13 This is 

primarily a question of law which we review de novo. (See Vallejo Development Co. v. 

Beck Development Co. (1994) 24 Cal.App.4th 929, 937.) Additionally, as TWA alleges 

the pretrial ruling amounted to a nonsuit, we also independently review the trial court’s 

evidentiary ruling. (See City of Livermore v. Baca (2012) 205 Cal.App.4th 1460, 1473.) 

2. Section 7031 and General Principles 

Section 7031 is part of the Contractors’ State License Law (§ 7000 et seq.). It 

“imposes strict and harsh penalties for a contractor’s failure to maintain proper licensure. 

Among other things, the [Contractors’ State License Law] states a general rule that, 

regardless of the merits of the claim, a contractor may not maintain any action, legal or 

equitable, to recover compensation for ‘the performance of any act or contract’ unless he 

or she was duly licensed ‘at all times during the performance of that act or contract.’ 

(§ 7031, subd. (a).)” (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works 

Co., Inc. (2005) 36 Cal.4th 412, 418 (MW Erectors).) 

At the time of the trial court’s ruling, section 7031, subdivision (a) (hereafter 

section 7031(a)) stated in pertinent part that “no person engaged in the business or acting 

in the capacity of a contractor, may bring or maintain any action, or recover in law or 

equity in any action, in any court of this state for the collection of compensation for the 

performance of any act or contract where a license is required by this chapter without 

alleging that he or she was a duly licensed contractor at all times during the performance 

of that act or contract, regardless of the merits of the cause of action brought by the 

13 TWA’s argument appears to relate to TWA’s “breach of contract” claim which 

it asserted against both Kim and Truong. 
11

person.”14 (Former § 7031(a).) If licensure is controverted, the plaintiff must prove, by 

producing a verified certificate of licensure from the Contractors’ State License Board, 

that it held all necessary licenses during performance of the work. (§ 7031, subd. (d).) 

More generally, “[t]he purpose of the licensing law is to protect the public from 

incompetence and dishonesty in those who provide building and construction services. 

[Citation.] The licensing requirements provide minimal assurance that all persons 

offering such services in California have the requisite skill and character, understand 

applicable local laws and codes, and know the rudiments of administering a contracting 

business. [Citations.] [¶] Section 7031 advances this purpose by withholding judicial aid 

from those who seek compensation for unlicensed contract work. The obvious statutory 

intent is to discourage persons who have failed to comply with the licensing law from 

offering or providing their unlicensed services for pay.” (Hydrotech Systems, Ltd. v. 

Oasis Waterpark (1991) 52 Cal.3d 988, 995 (Hydrotech); see also Lewis & Queen v. N. 

M. Ball Sons (1957) 48 Cal.2d 141, 151 (Lewis & Queen) [explaining that § 7031(a) 

“represents a legislative determination that the importance of deterring unlicensed 

persons from engaging in the contracting business outweighs any harshness between the 

parties”].) 

Subcontractors are governed by the licensing law. (§ 7026.) “Both owners and 

general contractors are entitled to protection against illegal subcontract work by 

unlicensed persons. Hence, an unlicensed subcontractor may not recover compensation 

for his work from either the owner or the general contractor.” (Hydrotech, supra, 52 

Cal.3d at p. 997.) In one older appellate decision that construed the predecessor to

section 7031(a), the court found the provision to apply “to a subcontractor as well as to a 

contractor” seeking relief, and the court held that the “contract between the plaintiff and 

his subcontractor, who was not licensed as required by law, was illegal and void,” so the 

14 The current version of section 7031(a) is not materially different (but changes

“he or she was” to “they were”). 
12 

general contractor was barred from seeking disgorgement based on a void contract. 

(Holm v. Bramwell (1937) 20 Cal.App.2d 332, 335.) 

The California Supreme Court has not directly addressed the factual situation 

presented here as applied to section 7031(a), where a licensed general contractor seeks 

compensation from an owner for work performed by an unlicensed subcontractor.15 

Our higher court, however, has explained the rationale of that statute in broad 

terms and detailed the policy for its application. Thus, section 7031 bars all actions, 

regardless of the equities and however they are characterized, which effectively seek 

“compensation” for illegal unlicensed contract work. (Hydrotech, supra, 52 Cal.3d at 

p. 997.) Thus, if the primary “relief sought is compensation” for the unlicensed work, 

then “section 7031 bars the action.” (Id. at p. 1002.) “[C]ourts may not resort to 

equitable considerations in defiance of section 7031.” (Lewis & Queen, supra, 48 Cal.2d 

at p. 152.) 

With these principles in mind, we turn to the application of section 7031 to the 

facts and circumstances here. 

3. Analysis 

At the outset, we recognize that TWA does not explicitly concede in this court that 

Hoffman was unlicensed. TWA notes there was no evidence presented at trial that 

Hoffman was unlicensed at the time he performed the tree work and asserts it would be 

“erroneous to assume that Hoffman was, in fact, unlicensed.” However, TWA provides 

no authority for that assertion of error. 

15 In MW Erectors, the California Supreme Court addressed a different legal 

question; however, a footnote in that decision states “while the statutory scheme 

contemplates that nonlicensure must be raised as a defense, no statutory provision 

explicitly requires a duly licensed contractor who is suing for money attributable to the 

work of another entity to affirmatively allege that the other entity was duly licensed.” 

(MW Erectors, supra, 36 Cal.4th at p. 424, fn. 5.) 
13

Having carefully reviewed the record, we decide there is no basis to reasonably

infer from the trial evidence that Hoffman was licensed for the tree work. (Cf. Kinda v. 

Carpenter (2016) 247 Cal.App.4th 1268, 1286 [“The Evidence Code defines an inference 

as ‘a deduction of fact that may logically and reasonably be drawn from another fact or 

group of facts found or otherwise established in the action.’ (Evid. Code, § 600[, subd. 

(b).”].) The trial court’s ruling did not preclude TWA from proffering such evidence at 

trial on that question, for example by offering into evidence any licensing board 

certificates. Nor does TWA contend the tree work at issue on the eucalyptus did not 

require a specialized license. Since the licensure status of Hoffman was at issue in the 

trial, and TWA had the opportunity to but did not offer any evidence that Hoffman had 

the requisite license, there is no basis from which to infer that Hoffman was licensed for 

the tree work he performed at the property. We therefore assume for purposes of our 

independent analysis of the applicability of section 7031 that Hoffman was unlicensed in 

September 2015 when he performed the tree work on the eucalyptus.

16

We turn now to whether the trial court erred in deciding that section 7031 barred 

TWA from seeking recovery from Kim and Truong for the value of Hoffman’s work. 

The resolution of this question hinges on the applicability of section 7031 to TWA’s 

claim. The interpretation of a statute presents a question of law, which we review de 

novo. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332 (Goodman).)

A court’s primary goal in construing a statute “is to determine and give effect to 

the underlying purpose of the law.” (Goodman, supra, 47 Cal.4th at p. 1332.) In so 

doing, “our first task is to look to the language of the statute itself. [Citation.] When the 

language is clear and there is no uncertainty as to the legislative intent, we look no further 

and simply enforce the statute according to its terms.” (DuBois v. Workers’ Comp. 

16 While arguing we must infer all evidence in his favor as to the relevant facts, in 

addressing the legal scope of section 7031, Wong also assumes “arguendo” that Hoffman 

is unlicensed.
14

Appeals Bd. (1993) 5 Cal.4th 382, 387–388 (DuBois).) Thus, “ ‘ “[i]f the words of the 

statute are clear, the court should not add to or alter them to accomplish a purpose that 

does not appear on the face of the statute or from its legislative history.” ’ [Citation.] In 

other words, we are not free to ‘give words an effect different from the plain and direct 

import of the terms used.’ ” (Goodman, at p. 1332.) 

Additionally, we must consider the meaning of the statutory section in the context 

of the entire statute and the statutory scheme of which it is a part. (DuBois, supra, 5 

Cal.4th at p. 388.) “The words of the statute must be construed in context, keeping in 

mind the statutory purpose, and statutes or statutory sections relating to the same subject 

must be harmonized, both internally and with each other, to the extent possible.” 

(Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 

(Dyna-Med).) “Where uncertainty exists consideration should be given to the 

consequences that will flow from a particular interpretation.” (Ibid.)

Beginning with the words of the statute, we observe that while the plain meaning

of section 7031 is unambiguous, its application to the factual scenario at hand is not 

immediately clear. Section 7031(a) states, with exceptions not relevant here, that “no 

person engaged in the business or acting in the capacity of a contractor, may bring or 

maintain any action, or recover in law or equity in any action, in any court of this state for 

the collection of compensation for the performance of any act or contract where a license 

is required by this chapter without alleging that they were a duly licensed contractor at all 

times during the performance of that act or contract regardless of the merits of the cause 

of action brought by the person.”17 (§ 7031(a).) The statute authorizes a person who 

uses the services of an unlicensed contractor to “bring an action in any court of 

competent jurisdiction in this state to recover all compensation paid to the unlicensed 

17 For ease of reference, and because the current and former versions of the statute 

are not materially different, we cite the current version of section 7031. (See fn. 14, 

ante.)
15

contractor for performance of any act or contract.” (Id., subd. (b).) It provides that when 

the issue of licensure is controverted, the burden of proof falls on the licensee. (Id., subd. 

(d).) 

The plain meaning of the subdivision (a) provision in section 7031, as construed 

by our Supreme Court, is “that, except as expressly otherwise provided, a contractor may 

not sue to collect compensation for performance of ‘any act or contract’ requiring a 

license without alleging that he or she was duly licensed ‘at all times during the 

performance of that act or contract.’ (§ 7031(a).)” (MW Erectors, supra, 36 Cal.4th at 

p. 425; see also Hydrotech, supra, 52 Cal.3d at pp. 991–992.) Its purpose, understood in 

the broader context of the Contractors’ State License Law, is to provide some assurance

that persons offering contractor services in California meet baseline qualifications and 

discourage noncompliance with the licensing law. (Id. at p. 995.) 

Important to our analysis here, “[s]ection 7031 advances this purpose by 

withholding judicial aid from those who seek compensation for unlicensed contract 

work.” (Hydrotech, supra, 52 Cal.3d at p. 995.) It reflects “a legislative determination” 

as to “the importance of deterring unlicensed persons from engaging in the contracting 

business . . . by denying violators the right to maintain any action for compensation in the 

courts of the state.” (Lewis & Queen, supra, 48 Cal.2d at p. 151.) 

In short, the plain and unambiguous meaning of section 7031(a) is that it bars a 

contractor in California from bringing an action for compensation for the unlicensed 

performance of an act or contract where a license is required. The Supreme Court has 

construed section 7031(a) as imposing a complete bar to any recovery of compensation 

for unlicensed work “by specifying that a contractor is barred from all recovery for such 

an ‘act or contract’ if unlicensed at any time while performing it.” (MW Erectors, supra,

36 Cal.4th at p. 426, italics omitted.) But whether that bar extends to a licensed
16

contractor for his use of an unlicensed subcontractor is not immediately apparent from 

the text of section 7031(a) alone.18 

To clarify the intended scope of section 7031(a), we consider the term 

“ ‘[c]ontractor’ ” as defined in the statutory scheme. The statute states that 

“ ‘[c]ontractor’ ” includes both “subcontractor and specialty contractor.” (§ 7026.) It 

specifies that a person is a “ ‘[c]ontractor’ ” within the meaning of the statute regardless 

of whether that person does the work “himself or herself or by or through others.” (Ibid.) 

Thus, the bar imposed by section 7031(a) applies broadly to those in contractor roles. 

Taken together, sections 7026 and 7031(a) subject subcontractors to the same rules as

contractors, prohibiting a subcontractor from taking legal action to recover compensation 

from the owner or general contractor for unlicensed work performed by the 

subcontractor. (§§ 7026, 7031(a); see Hydrotech, supra, 52 Cal.3d at p. 997.) 

Scrutinizing the plain language of these provisions more closely, it is at least 

arguably ambiguous whether section 7031(a) is limited to the scenario in which the entity 

(or person) who seeks to “bring or maintain [the] action” for compensation and the entity 

that has “perform[ed] [the] act or contract where a license is required” are strictly the 

same. (§ 7031(a).) If that were the proper reading of the statute, then it would not extend 

to TWA on these facts because TWA brought the action for breach of contract (and was 

properly licensed) but neither TWA nor any TWA employee actually performed the tree 

work. Conversely, section 7031(a) would encompass the facts here if it extends to a 

person “acting in the capacity of a contractor” (§ 7031(a)) who does the work requiring a 

license “by or through others” (§ 7026). Only this latter construction attempts to 

reconcile the technical application of section 7031 with the broad definition of contractor 

supplied by section 7026. 

18 The parties have not identified on-point authority that addresses this or a similar 

factual scenario. Nor has this court’s independent research uncovered any such cases. 
17

To resolve the ambiguity, we look to other provisions of the statute and the 

statutory scheme of which it is a part, seeking to harmonize the sections with each other 

and internally. (DuBois, supra, 5 Cal.4th at p. 388; Dyna-Med, supra, 43 Cal.3d at 

p. 1387.) We conclude that to narrowly construe section 7031(a) to allow TWA’s claim 

for compensation to proceed under the circumstances here (thus reversing the trial court’s 

order) would undermine certain other provisions of the statutory scheme governing 

contractor licensing and contravene the policy behind the statute. 

Section 7031 “has as its purpose the enforcement of the Contractors License 

Law.” (Asdourian v. Araj (1985) 38 Cal.3d 276, 282, (Asdourian), superseded by statute 

on another ground as stated in Construction Financial v. Perlite Plastering Co. (1997) 53 

Cal.App.4th 170, 175.) As noted, ante, it both bars recovery in a court of law for any 

contractor or subcontractor who performed the act or contract unlicensed (§ 7031(a)) and

authorizes a person who utilizes the services of an unlicensed contractor or subcontractor

to bring a court action to recover the compensation paid for that unlicensed work (§ 7031, 

subd. (b).) These parallel methods of statutory deterrence are referred to, respectively, as 

the “ ‘shield’ ” and “ ‘sword’ ” of the Contractors’ State License Law. (Loranger v. 

Jones (2010) 184 Cal.App.4th 847, 854.) Subdivisions (a) and (b) of section 7031 thus 

represent two ways in which the Contractors’ State License Law reinforces licensing 

requirements and penalizes violations. 

Other provisions of the statutory framework further incentivize contractors to 

comply with licensing rules. For example, a licensed contractor who enters into a 

contract with an unlicensed contractor is subject to discipline by the Contractors’ State 

License Board. (§ 7118; see Wang v. Division of Labor Standards Enforcement (1990) 

219 Cal.App.3d 1152, 1158.) And the penalty for failure to comply with other rules, 

specifically regarding employee workers’ compensation insurance coverage, is automatic 

suspension by operation of law of the contractor’s license (§ 7125.2), rendering the 

unlicensed contractor subject to the section 7031 bar for purposes of bringing an action 
18

for compensation. (See Smith v. Workers’ Comp. Appeals Bd. (2002) 96 Cal.App.4th 

117, 127 [noting the Legislature has “harnessed the licensing requirements . . . to serve 

the statutory goals of the workers’ compensation system”.]) 

This comprehensive statutory framework has as its purpose the “protect[ion of] the 

public” by imposing “strict and harsh penalties for a contractor’s failure to maintain 

proper licensure.” (MW Erectors, supra, 36 Cal.4th at p. 418.) Against this backdrop, 

we agree with the trial court’s observation that it would be unreasonable to permit TWA 

to collect compensation for work performed by an unlicensed subcontractor when all 

facets of the Contractors’ State License Law are directed at ensuring licensing 

compliance. 

The essence of TWA’s overarching claim, as we understand it, is that Hoffman’s 

licensure status was legally irrelevant because it is undisputed that TWA was itself 

licensed to perform the task in question. However, from the precedent set forth above, 

California law contains a strong policy barring actions that effectively seek compensation 

for unlicensed work. Section 7031 accomplishes this policy purpose “by denying a 

contractor ‘access to the courts to recover for the fruits of his labor . . . when he violates 

the statute.’ ” (Asdourian, supra, 38 Cal.3d at p. 282.) 

Furthermore, it is clear that an unlicensed subcontractor may not recover 

compensation for his work from either the owner or the general contractor. (Hydrotech, 

supra, 52 Cal.3d at p. 997.) To nevertheless enable a contractor to recover compensation 

for the performance of unlicensed work, simply because the work was accomplished by 

hiring a subcontractor, would circumvent the purpose of section 7031 and render 

meaningless the section 7031 bar and expansive definition of contractor to include work 

performed “by or through others” (§ 7026). It also would undermine other enforcement 

mechanisms (i.e., § 7118). We decline to adopt a statutory construction that would 

produce such a result that is inconsistent with the overarching statutory scheme. (See 
19

Dyna-Med, supra, 43 Cal.3d at p. 1387; see also Flannery v. Prentice (2001) 26 Cal.4th 

572, 578.) 

TWA advances several “public policy” arguments for the proposition that section 

7031 should not apply to the circumstances at issue. In our view, none of these 

arguments are legally or factually relevant. 

TWA maintains the evidence reflects Hoffman was a “more competent tree cutter” 

than Wong and that, relatedly, “ ‘licensed’ is not the same as ‘competent.’ ” TWA does 

not explain the legal relevance of this distinction. It argues that a rule “requiring general 

contractors to use only licensed subcontractors does not effectively serve” the policy of 

protecting the public from unskilled or shoddy workmanship.

We note that the application of section 7031 does not require general contractors 

to use only licensed subcontractors; in theory, general contractors remain free to hire 

unlicensed subcontractors. However, general contractors who use unlicensed 

subcontractors may not turn to the courts to recover compensation for those services if a 

dispute arises. (See MW Erectors, supra, 36 Cal.4th at p. 430, fn. 10.) 

Further, the California Supreme Court has rejected a similar rationale proffered by 

an out-of-state contractor, who was not licensed in California. The out-of-state contractor 

contended “its unique skills should exempt it from section 7031.” The California 

Supreme Court disagreed, observing “the licensing law achieves its protective purpose by 

requiring that a contractor’s competence and qualifications, however unique, be 

examined and certified by the expert agency charged with the law’s enforcement.” 

(Hydrotech, supra, 52 Cal.3d at p. 996.) Wong’s personal judgment that Hoffman was 

more competent than he at tree work does not substitute for a similar conclusion by the 

licensing agency.

TWA argues it could have hired inexperienced employees “and would not have 

run into any licensing problems.” However, that is not what occurred here. On appeal, 

TWA claims that Hoffman was in fact TWA’s employee. Appellants concede that this 
20

argument was not raised below and that, in fact, TWA’s counsel stated to the trial court, 

in direct response to its question about whether Hoffman was employed with TWA, that 

TWA did “not contend that he was employed.” Nevertheless, they appear to maintain the 

issue of Hoffman’s employment status was not forfeited because it is a purely legal 

argument, which we may address in our de novo review. We are not convinced this issue 

is a purely legal one, as the parties dispute whether Hoffman was, in fact, Wong’s 

employee and argue, at length, the legal implications that flow from that factual question. 

(See Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767.) By failing to raise 

it in the trial court, TWA has forfeited any claim that Hoffman was an employee of 

TWA.

We also reject TWA’s argument that there was “an unjust result” as evidenced, for 

instance, by the jury’s finding that TWA was 100 percent negligent. This argument 

sounds in equity, but our higher court has ruled that, when applicable, section 7031 bars 

all actions that effectively seek compensation for illegal unlicensed contract work,

regardless of the equities. “Because of the strength and clarity of this policy, it is well 

settled that section 7031 applies despite injustice to the unlicensed contractor. Section 

7031 represents a legislative determination that the importance of deterring unlicensed 

persons from engaging in the contracting business outweighs any harshness between the 

parties.” (Hydrotech, supra, 52 Cal.3d at p. 995, italics omitted.) 

Relatedly, we reject TWA’s conclusory assertion of instructional error and error as 

to the second special verdict. While framed as instructional error, its argument appears to 

be identical to the legal question of whether the trial court misapplied section 7031. As 

we have rejected its claim, we are not convinced any instructional error occurred. 

Moreover, TWA’s instructional error claim appears to seek to reweigh the evidence at 

trial as appellants highlight trial testimony that they claim show Kim and Truong had 

“some degree of fault” (underlining omitted) for the tree damage. 
21 

For all of these reasons, we decide that section 7031 bars even a licensed general 

contractor in California from bringing an action for compensation for an act or contract 

performed by an unlicensed subcontractor where a license is required. Therefore, TWA 

has not satisfied its burden of demonstrating error in the trial court’s pretrial ruling 

applying section 7031. 

B. Interpretation of the Construction Agreement 

Wong also seeks reversal of the judgment on the independent ground that the 

written September 28, 2015, construction agreement does not include tree work and, thus, 

the express indemnification and attorney fees provisions in that agreement do not apply 

to this dispute. Wong contends tree removal was plainly outside the scope of work listed 

in the construction agreement, and he maintains tree work was part of a separate, oral 

“side agreement” between TWA, Kim and Truong. Respondents counter that tree 

services were part of the construction agreement. 

1. Standard of Review 

“When there is no material conflict in the extrinsic evidence, the trial court 

interprets the contract as a matter of law.” (Wolf v. Walt Disney Pictures & Television

(2008) 162 Cal.App.4th 1107, 1126.) This is true even when “extrinsic evidence renders 

the contract terms susceptible to more than one reasonable interpretation.” (Id. at 

p. 1127.) “When the competent extrinsic evidence is in conflict, and thus requires 

resolution of credibility issues, any reasonable construction [following a trial] will be 

upheld if it is supported by substantial evidence.” (Iqbal v. Ziadeh (2017) 10 Cal.App.5th 

1, 8.) Respondents assert there is disputed extrinsic evidence as to whether the tree work 

was included in this contract so that substantial evidence review applies. However, our 

review of the trial record discloses no material conflict in admissible evidence relevant to 

interpreting the construction agreement. The evidence consists mainly of the 

construction agreement itself and e-mails and other communications among Kim, 

Truong, and Wong. We therefore independently review the construction agreement. 
22 

2. Legal Principles 

The fundamental goal of contractual interpretation is “to give effect to the mutual 

intention of the parties as it existed at the time of contracting, so far as the same is 

ascertainable and lawful.” (Civ. Code, § 1636.) “[R]ational interpretation requires at 

least a preliminary consideration of all credible evidence offered to prove the intention of 

the parties. Such evidence includes testimony as to the ‘circumstances surrounding the 

making of the agreement . . . including the object, nature and subject matter of the 

writing . . . ’ so that the court can ‘place itself in the same situation in which the parties 

found themselves at the time of contracting.’ ” (Pacific Gas & E. Co. v. G.W. Thomas 

Drayage etc. Co. (1968) 69 Cal.2d 33, 39–40, fn. & internal citations omitted.) 

The rules of contract interpretation are well-settled. “The language of a contract is 

to govern its interpretation, if the language is clear and explicit, and does not involve an 

absurdity.” (Civ. Code, § 1638.) “When a contract is reduced to writing, the intention of 

the parties is to be ascertained from the writing alone, if possible; subject, however, to the 

other provisions of this Title.” (Civ. Code, § 1639.) “A contract may be explained by 

reference to the circumstances under which it was made, and the matter to which it 

relates.” (Civ. Code, § 1647.) “If the language in the contract is ambiguous, ‘it must be 

interpreted in the sense in which the promisor believed, at the time of making it, that the 

promisee understood it.’ (Civ. Code, § 1649.) This inquiry does not consider the 

subjective belief of the promisor but, rather, the ‘objectively reasonable’ expectation of 

the promisee.” (Linton v. County of Contra Costa (2019) 31 Cal.App.5th 628, 636.) “If, 

after this second inquiry, the ambiguity remains, ‘the language of a contract should be 

interpreted most strongly against the party who caused the uncertainty to exist.’ (Civ. 

Code, § 1654.)” (Ibid.) 

3. Contractual Provisions 

The construction agreement states that it consists of that agreement and four 

exhibits which represented “the entire agreement of both parties and supercede[s] any 
23 

prior oral or written agreement.” The four exhibits are described as: “Cost Breakdown 

and Payment Schedule” (Exhibit A); “Plan and Specifications” (Exhibit B); 

“Construction Schedule” (Exhibit C); and “Finishes Schedule” (Exhibit D).19 

Article 1 of the agreement is titled “Scope of Work” and states in full that “In 

accordance with all the terms and conditions set forth in this agreement, Contractor 

agrees to supply all labor and materials necessary to complete the Home which includes 

the following work: [¶] 1. Site Work to include all grading, erosion control, sanitary 

system, storm drain system, water system, propane, and utilities [¶] 2. Bridge abutments 

and fire turnaround walls [¶] 3. House and retaining walls.” 

The agreement sets forth a fixed price payment of $1,614,000, subject to certain 

adjustments not relevant to this appeal. 

The agreement also sets forth several general conditions and provisions including 

one related to “Workmanship and Materials” that states, inter alia, that all work “shall be 

performed by licensed individuals to perform their said work as outlined by law” and one 

related to subcontracting that gave TWA (i.e., contractor) the right “to subcontract any 

portion of the work hereunder, and all work performed by Contractors will be subject to 

all the applicable terms and conditions of this Agreement.” Additionally, the agreement 

contains a provision restating that the agreement and the documents incorporated therein 

“constitute the entire Agreement between the parties, and supersede all prior or 

contemporaneous or written agreements, proposal, estimates, bids, representation, 

discussion and promises.” 

4. Extrinsic Evidence 

Prior to the contract’s execution on September 28, 2015, Wong, Truong and/or 

Kim exchanged various communications. We focus primarily on the communications 

explicitly discussing tree work. 

19 The agreement that was admitted into evidence at trial did not include the four 

attachments. 
24

On September 6, 2015, Wong e-mailed Truong with a proposed pricing and 

payment for the contract titled “Attachment A.” (Some capitalization omitted.) The 

pricing and payment listed in Attachment A contemplated a total price of $1,614,200 for 

labor and materials and included a payment of $1,000 as deposit, $30,600 for tree 

removal, and $10,000 for erosion control. 

On September 10, 2015, Wong sent an e-mail to both Kim and Truong related to 

the Attachment A that Wong had previously sent. Kim questioned Wong about the total 

for the site work. In response to her question, Wong responded to both Kim and Truong 

that “I use[d] my management fee and profit to pay for grading tree removal and 

driveway. The total [is] still the same. $1,614,200. I can meet with you to go over 

contract. Thanks.” 

On September 15, 2015, Wong e-mailed Kim and Truong asking if it was okay if 

his “tree guy” started cutting the “tree.” (Capitalization omitted.) Truong responded: 

“As long as you are sure we can do this ahead of the grading permit. Euc [sic] trees are 

not protected so we assume it’s ok. The oak trees to be removed per the plans I don’t 

believe we can touch yet?” 

Also on September 15, 2015, Truong sent Wong (copying Kim) a version of the 

construction agreement. Truong stated he took Wong’s contract and “cleaned it up” and 

added various provisions that included a termination clause. His e-mail also addressed 

the eucalyptus trees stating “Lastly, there is discussion with county about whether we 

need a permit to cut down the eucalyptus trees. We are almost certain we may not need 

one since they are unprotected trees and we have a mitigation plan in place as part of the 

permits submittal. Hope to have confirmation over next day or so.” Truong’s e-mail 

contained an attached contract that contains the identical terms to the contract Wong and 

Kim signed on September 28, 2015. 

On September 16, 2015, Truong forwarded to Wong an e-mail from a county 

employee confirming that the eucalyptus tree that is the subject of this appeal could be 
25 

removed. In his e-mail forwarding that communication, Truong wrote: “Tai, looks like 

we’re OK with euc [sic] tree removal. Go ahead. To back us up we already included the 

trees for removal in the latest plans.” 

5. Analysis 

We begin with the language of the construction agreement. “ ‘ “When a dispute 

arises over the meaning of contract language, the first question to be decided is whether 

the language is ‘reasonably susceptible’ to the interpretation urged by the party. If it is 

not, the case is over.” ’ ” (Brown v. Pacifica Foundation, Inc. (2019) 34 Cal.App.5th 

915, 931.) 

As set forth above, the agreement’s main provisions do not address tree work. But 

while the scope-of-work provision does not mention trees explicitly, neither does it 

exclude tree services work. We are not convinced that the language of the scope-of-work 

provision standing alone establishes that appellants’ interpretation that there was a “side 

agreement” for the tree work is the more reasonable one. To the contrary, supporting the 

respondents’ interpretation that the tree work was included therein, the written agreement 

contains a provision that states that it is the “entire” agreement of the parties. The scope 

of work provision includes “site work” and a reasonable understanding of that phrase 

includes tree trimming and removal on the project site. 

Moreover, we may consider extrinsic evidence in deciding whether a contract’s 

language is “ ‘reasonably susceptible’ to the interpretation urged.” (Winet v. Price (1992) 

4 Cal.App.4th 1159, 1165 (Winet), quoting Blumenfeld v. R.H. Macy & Co. (1979) 92 

Cal.App.3d 38, 45.) Here, relevant extrinsic evidence, as detailed above and discussed 

further below, showed that it is at least a reasonable interpretation of the construction 

agreement that the tree work was included in the construction agreement. We therefore 

conclude the written agreement is reasonably susceptible to the interpretation advanced 

by respondents, although it is ambiguous whether it in fact did so. 
26

Admissible extrinsic evidence aids us in this “second step” of interpreting the 

contract to resolve the ambiguity. (Winet, supra, 4 Cal.App.4th at p. 1165.) Based on 

our independent review of the agreement and the relevant admissible evidence, we 

conclude that at the time of contracting Kim and Wong mutually intended that the tree 

work be included in the construction agreement. 

To advance his interpretation of the construction agreement as excluding tree 

work, Wong appears to rely solely on the scope of work provision quoted above, pointing

out that the provision does not specifically list “tree trimming or removal” as part of the 

scope of work. However, as we have noted, the language itself is ambiguous in this 

regard insofar as the “scope of work” provision does not purport to be an exhaustive list 

of the work to be included, and the contract elsewhere does not specifically exclude tree 

work. We are not convinced by Wong’s interpretation that the written agreement on its 

face did not cover tree work and that therefore the work was covered by a separate side 

agreement. 

Moreover, the construction agreement expressly disavowed any prior side 

agreements (to the extent any were created) in its language that the agreement and the 

documents incorporated therein “constitute the entire Agreement between the parties, and 

supersede all prior or contemporaneous or written agreements, proposal, estimates, bids, 

representation, discussion and promises.” Additionally, as reflected in the extrinsic 

evidence, there appears to be no dispute that the parties negotiated a price of $30,600 for 

the tree work and that Wong factored this price into the overall fixed price of 

approximately $1.6 million for his labor and materials quoted in the construction 

agreement. The tree work directly related to the construction of the home and bridge, and 

the parties expressed a mutual understanding that removing the eucalyptus was a 

necessary initial step in the construction project. 

Contemporaneous e-mails involving Wong, Truong, and Kim discussed work on 

the eucalyptus tree in the context of preparing and finalizing the written construction 
27

agreement, such as the September 15, 2015 e-mail from Truong to Wong attaching a 

version of the contract and discussing the eucalyptus in the e-mail. Wong himself

testified at trial that the tree work and the erosion control was performed under the 

construction agreement. Considering all of these facts and circumstances, we conclude 

that the construction agreement included tree removal work. 

To support the argument that there was a separate agreement as to tree work, 

Wong emphasizes on appeal that Wong “thought” or “believed that he had reached an 

agreement to provide tree services in February 2015,” months before the written contract 

was executed. But a “part[y’s] undisclosed intent or understanding is irrelevant to 

contract interpretation.” (Founding Members of the Newport Beach Country Club v. 

Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 956.) Therefore, this 

argument does not assist Wong.

Wong also claims the construction agreement was prepared by respondents and 

cites generally to Civil Code section 1654 for the proposition that any ambiguity should 

be construed against Kim. However, Civil Code section 1654 states: “In cases of 

uncertainty not removed by the preceding rules, the language of a contract should be 

interpreted most strongly against the party who caused the uncertainty to exist.” (Civ. 

Code, § 1654.) This interpretive rule applies only if ambiguity remains after recourse to 

other rules of construction. Section 1654 “does not stand for the proposition that, in 

every case where one of the parties to a contract points out a possible ambiguity, the 

interpretation favored by the nondrafting party will prevail.” (Rainier Credit Co. v. 

Western Alliance Corp. (1985) 171 Cal.App.3d 255, 263.) We have concluded that, 

applying the other rules of contract interpretation, the contract is not ambiguous as to its 

inclusion of tree work in its scope. Therefore, Civil Code section 1654 is irrelevant.

For these reasons, we conclude that, applying ordinary rules of contract 

interpretation, the most reasonable interpretation of the written construction agreement is 
28 

that it included tree work, including the work on the eucalyptus at the heart of this 

dispute. We therefore reject Wong’s claim of error on this ground. 

C. Substantial Evidence of $10,000 Payment for Tree Trimming 

Wong asserts there is no substantial evidence to support the jury’s special verdict 

finding that Kim had paid TWA $10,000 for the tree trimming services performed by 

Hoffman. He maintains that Kim paid three checks totaling $16,000, one of which was 

$10,000 for erosion control, and thus there is no substantial evidence that she paid TWA 

for tree trimming work, let alone that she paid $10,000. Respondents counter that 

appellants forfeited this argument in their briefing in this court because their opening 

brief fails to provide material facts favorable to the judgment on this evidentiary issue. 

They further maintain substantial evidence supports the jury’s finding. 

1. Standard of Review 

“We will reverse a jury’s verdict only if it is unsupported by any substantial 

evidence, meaning to prevail on appeal defendants must show that the evidence was such 

as would justify a directed verdict in their favor. [Citation.] When applying the 

substantial evidence test, ‘we resolve “all conflicts in the evidence and all legitimate and 

reasonable inferences that may arise therefrom in favor of the jury’s findings and the 

verdict.” ’ [Citation.] We do not reweigh the evidence or judge the credibility of 

witnesses. [Citation.] The ‘power of the appellate court is limited to a determination of 

whether there is any substantial evidence, contradicted or uncontradicted, that will 

support the verdict.’ ” (Mathews v. Happy Valley Conference Center, Inc. (2019) 43 

Cal.App.5th 236, 251 (Mathews).) 

2. Trial Evidence Related to Payment 

It is undisputed that Kim paid TWA $16,000. Kim testified that in her crosscomplaint she sought reimbursement of the $10,000 that she attributed to about one-third 

of the unlicensed tree work (based on the original contract amount for tree removal work 
29

of approximately $30,000). Kim testified that the tree work was incomplete as a “grove” 

of trees was still there and the eucalyptus tree was also still on the property. 

The jury also received into evidence an e-mail dated April 21, 2016 (postfiling of 

the neighbor’s lawsuit), sent by Truong to Wong (and copying Kim) in which Truong 

summarized the work completed and payments made as of that date. Breaking down the 

$16,000 paid, Truong stated: “We paid in Sept. $1K deposit to start. Another $5K in 

Dec when we signed the bridge contract for the title Ins [sic] claim. Then we paid 

another $10K in Jan.” Truong stated “To make sure we’re on the same page, the tree 

work is 1/3 completed so far (with majority of work to cut big tree and remove. Also 

remove existing stumps and cut several more euc [sic] trees).” Truong stated that this 

amounted to “$10k.” Truong stated the erosion control work was “1/2 complete” and 

“[t]hat is $5K.” According to Truong’s estimate contained in the e-mail, the “total we 

owe you for work completed to date is $15K.” Truong testified that his understanding of 

the e-mail was that he valued the work performed for the tree at $10,000.

Wong responded to Truong’s e-mail essentially stating that he disagreed with 

Truong’s breakdown of the numbers contained therein. Wong stated he was paid 

$10,000 for erosion control. Regarding the tree work, Wong stated “you paid $6,000 for 

part of the $30,000 but I cut down 90% of the tree except half of the big one remaining” 

and he needed a “check for $18,000 for [the] work done.” (Capitalization omitted.) 

Wong also testified he was paid $10,000 for erosion control work and he did work 

on the “creek on both sides” and there was nothing left for him to do other than 

maintenance. By contrast, Kim testified that Wong did not complete the erosion control 

work, and she was never refunded any portion of the $10,000 she had paid. She also 

testified that TWA did not perform any work on the bridge, even though she had written 

a check to TWA for $5,000 for that work and Wong never returned that money. 
30 

3. Analysis 

Turning first to the question of forfeiture, we agree with respondents that 

appellants’ opening brief fails to acknowledge facts favorable to the judgment, including 

Truong’s and Kim’s testimony on the subject. An appellant is required to set forth in the 

appellate brief all material evidence on the point and not merely appellant’s own 

evidence. (Foreman & Clark Corporation v. Fallon (1971) 3 Cal.3d 875, 881.) A party 

“forfeits [] substantial evidence claims by failing to acknowledge evidence favorable to 

the judgment.” (Duarte Nursery, Inc. v. California Grape Rootstock Improvement Com. 

(2015) 239 Cal.App.4th 1000, 1016; see also Schmidlin v. City of Palo Alto (2007) 157 

Cal.App.4th 728, 737–738.) While the opening brief falls short of this standard, we 

decide Wong’s failure to summarize all of the evidence is not so egregious as to warrant 

forfeiture. (See Orozco v. WPV San Jose, LLC (2019) 36 Cal.App.5th 375, 391.) 

Nevertheless, Wong’s substantial evidence claim lacks merit. As set forth above, 

substantial evidence supports the jury finding that $10,000 paid by Kim was attributable 

to tree work performed under the construction agreement. On appeal, Wong insists that 

there is no evidence supporting the jury’s finding because Kim’s $10,000 check has the 

words “ ‘erosion control’ ” in the “memo” field of the check and “$16,000 minus $10,000 

does not equal $10,000.” Wong’s argument depends on the implicit premise that he had 

completed all the erosion control work, contrary to Kim’s testimony on that point. We 

may not second guess the jury’s factual resolution of this disputed point. We further note 

that testimony states Wong never started the bridge work for which he was given a check 

for $5,000, supporting that this payment in fact related to tree work rather than bridge 

work. Finally, the April 21, 2016, e-mail by Truong clearly attributes $10,000 to the tree 

work, and Wong does not dispute the authenticity of the e-mail. Thus, substantial 

evidence supports the jury’s finding that Kim paid $10,000 for the tree work that was 

performed. 
31

D. Attorney Fees 

The judgment granted Kim her reasonable attorney fees (and expert witness fees) 

pursuant to the terms of the “subject construction agreement” between Kim and TWA. 

Postjudgment, the trial court entered an order dated June 12, 2018. Regarding our 

jurisdiction, we conclude we have jurisdiction over this postjudgment order, 

notwithstanding that Wong did not file a separate notice of appeal as to that order. (See

Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 997 [holding that “when the judgment 

expressly makes an award of costs and/or fees”]; id. at p. 998 [but leaves the amounts for 

later determination “the notice of appeal [from the judgment] subsumes any later order 

setting the amounts of the award”].) 

Turning to the merits, Wong does not challenge the substance of the trial court’s

attorney fees order other than to argue that, if we reverse the judgment, then we must also 

reverse the award of attorney fees. Because we conclude there is no basis to reverse the 

judgment, we also affirm Kim’s legal entitlement to attorney fees as the prevailing 

party.

20 (See Mathews, supra, 43 Cal.App.5th at p. 251.)

III. DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal. 

20 Wong does not challenge as excessive the amount of the fee award. 
______________________________________

Danner, J.

WE CONCUR:

____________________________________

Greenwood, P.J.

____________________________________

Grover, J.

H045900

Truong, et al. v. TWA Construction, Inc., et al.
Trial Court: Santa Clara County Superior Court

No. 16CV300709

Trial Judge: Hon. Drew C. Takaichi

Counsel for Cross-defendant, Crosscomplainant and Appellant and for 

Appellant:

James J. Der, Jr.

Counsel for Cross-complainants, 

Cross-defendants and Respondents:

Anna DiBenedetto

William Lapcevic

DiBenedetto Lapcevic & Draa, LLP

H045900

Truong, et al. v. TWA Construction, Inc., et al.