Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. VCVVS035844, Kurt Lewin, Judge.
Mahoney & Soll, Paul M. Mahoney, and Richard A. Soll for Plaintiffs and Appellants.
Anderson, McPharlin & Conners, Michael S. Robinson, and Michael J. Kowalski for Defendant and Respondent.
OPINION
RICHLI, J.
Plaintiffs entered into a contract with Joe Caminiti (doing business as KNC Construction, Inc.) for the construction of a house. They also entered into a construction loan agreement with High Desert Federal Credit Union (High Desert). According to plaintiffs, Caminiti pressured them into paying more for work already included in the contract, performed defective work, and failed to finish the house on time; hence, they fired him.
Plaintiffs then filed this action against both Caminiti and High Desert. With respect to High Desert, they asserted only a single cause of action, for breach of the construction loan agreement. Caminiti filed a cross-complaint against plaintiffs. At trial, after plaintiffs rested, High Desert moved for a nonsuit, which the trial court eventually granted. The jury then returned a verdict in favor of Caminiti, awarding him $250,000 against plaintiffs. The trial court entered judgment accordingly.
Plaintiffs also named Surety Company of the Pacific (Surety) as a defendant. Surety was served and filed an answer. However, it did not participate in the trial. We speculate that it may have agreed to be bound by any judgment against Caminiti.
Plaintiffs settled with Caminiti for a lesser amount; in exchange, plaintiffs waived their right to appeal from the judgment in his favor. Hence, Caminiti is not a party to this appeal.
Plaintiffs have appealed from the judgment in favor of High Desert. They contend that they presented sufficient evidence that High Desert breached the construction loan agreement by paying the following types of vouchers:
1. For work done under a separate contract for the construction of a recreational vehicle (RV) garage.
2. Not accompanied by lien releases.
3. For work that was only partially completed.
4. For work done by unlicensed subcontractors.
5. For work not done on plaintiffs’ property.
Although we do not agree with the trial court’s reasoning in every particular, we do agree that plaintiffs introduced insufficient evidence that they were entitled to recover against High Desert for any of these alleged breaches of contract. Accordingly, we will affirm.
I
FACTUAL BACKGROUND
In accordance with the applicable standard of review (see part II.A, post), we view the facts in the light most favorable to plaintiffs.
Plaintiffs Hubert (“Mack”) McKeever and Debra McKeever are husband and wife. Plaintiffs Rudy and Irene Acosta are Mrs. McKeever’s parents (i.e., Mr. McKeever’s in-laws).
In 2002, Mr. Acosta suffered a disabling stroke. Plaintiffs decided to have a home custom built to accommodate all four of them, and in particular to accommodate elderly, disabled residents. They entered into an agreement to purchase a lot on Farmington Street in Hesperia, and they opened escrow on it.
On January 25, 2003, plaintiffs entered into a contract with Caminiti for the construction of a house on the Farmington lot. The total price, as subsequently modified, was $456,717. Plaintiffs gave Caminiti a $15,000 down payment; thus, the amount they needed to finance was $441,717. Caminiti assured them that the house would be finished by December 2003.
The Acostas did not sign the contract at that time, but they later agreed to be bound by it, as modified.
On April 11, 2003, plaintiffs entered into a separate contract with Caminiti for the construction of a detached RV garage on the same lot. The price of the RV garage, as subsequently modified, was $82,280. Plaintiffs told Caminiti that they wanted to pay cash for the garage, rather than financing it as part of the construction loan.
Caminiti introduced plaintiffs to a loan broker, who had them submit a loan application to High Desert. On April 23, 2003, plaintiffs entered into a construction loan agreement with High Desert. The total amount of the loan was about $525,000, consisting of the $441,717 yet to be paid for construction and about $74,000 yet to be paid for the lot, plus closing costs. Caminiti gave High Desert a cost breakdown totaling $441,717.
The construction loan agreement, as relevant here, provided:
“[Plaintiffs] agree to execute or have executed a promissory note . . . [for] the construction on the property described herein. The loan[] is secured by a Deed of Trust encumbering [plaintiffs’] interest in the property described as:
“13425 Farmington St.
“Hesperia, CA 92345 [¶] . . . [¶]
“[Plaintiffs] agree to indemnify and hold [High Desert] harmless from and against all liabilities, claims, damages, costs, and expenses arising out of or resulting from the following:
“1) . . . the quality of workmanship and materials or the timeliness of completion of the work of improvement[.]
“2) . . . acts of neglect or omission by . . . contractor . . . . [¶] . . . [¶]
“5) the time or manner of completion of the work by the . . . contractor.
“6) . . . the sufficiency, validity, form, content or execution of any document or other writing submitted to [High Desert] . . . . [¶] . . . [¶]
“[Plaintiffs] agree that funds are to be disbursed according to [High Desert’s] voucher program. Vouchers will be completed and signed by the General Contractor . . . for completed work or delivered materials. Vouchers will be accompanied by invoices and lien releases when submitted to [High Desert] for payment. . . .
“Disbursements will be made in accordance [with] the above paragraph provided [plaintiffs are] not in default of any term or condition of this agreement. [¶] . . . [¶]
“[Plaintiffs] agree to pay the full contract price to their chosen contractor, who in turn is solely responsible for the hiring and payment of sub-contractors.
“[High Desert] is not authorized to provide [plaintiffs] with copies of the cost breakdown [or] paid vouchers nor in any other manner [to] disclose how much or to whom funds are being disbursed.”
Under High Desert’s internal voucher program procedures, when a loan is approved, High Desert gives the general contractor a set of blank vouchers. When a subcontractor has performed work on the project, it submits an invoice. The general contractor then gives the subcontractor a voucher. The subcontractor fills out the voucher, signs the lien release at the bottom, attaches its invoice, and presents the voucher to High Desert.
Meanwhile, High Desert sends an inspector out to the project twice a month. The inspector fills out a worksheet noting the percentage of work completed. High Desert charges the borrower an inspection fee (in this case, $3,425.38).
High Desert checks the voucher against the invoice, the cost breakdown, and the inspection worksheet; if they all match, High Desert then pays the subcontractor. High Desert makes no effort to determine whether any subcontractor is licensed.
Plaintiffs soon became disenchanted with Caminiti’s services. He did not actually begin construction until November 2003. He then insisted that they pay extra for items that they believed were already included in the contract price. He departed in several respects from the plans and specifications. Plaintiffs began to discover defects in the construction.
On February 24, 2004, Debra McKeever met with Debra Geiger of High Desert. Mrs. McKeever asked for copies of all paid vouchers. Ms. Geiger told Mrs. McKeever that, pursuant to the construction loan agreement, she was “not allowed to see any of that information.”
Mrs. McKeever also said she suspected that some of the subcontractors were unlicensed. Ms. Geiger responded that High Desert did not pay any unlicensed subcontractors.
Finally, Mrs. McKeever told Ms. Geiger that “we actually had two contracts with Mr. Caminiti and we suspected that he might be using the funds for the house for . . . the RV garage . . . .” Ms. Geiger merely responded that “she didn’t know anything about that.”
On August 17, 2004, plaintiffs ordered High Desert to freeze the loan funds. On August 22, 2004, they terminated Caminiti. At that point, the house was still only about 60 percent complete. High Desert had paid out a little over $300,000 of the loan funds, leaving about $140,000 unpaid.
After Caminiti was terminated, High Desert did agree to give plaintiffs copies of all of the vouchers it had paid and the supporting documentation. As a result, plaintiffs discovered that High Desert had paid vouchers:
1. For work done on the RV garage.
2. Not accompanied by lien releases.
3. For only partially completed work.
4. For subcontractors who plaintiffs believed were unlicensed.
5. For work that plaintiffs believed had been done elsewhere than on their property.
Plaintiffs took over the role of general contractor and completed the construction of the house. In the course of doing so, they discovered numerous additional defects in Caminiti’s work. Plaintiffs also obtained a new construction loan from a different lender; on December 6, 2004, they paid off the High Desert loan.
II
DISCUSSION
Plaintiffs contend that they introduced sufficient evidence that High Desert had breached the construction loan agreement by paying vouchers that it was not supposed to pay.
A. General Legal Background.
“‘[C]ourts traditionally have taken a very restrictive view of the circumstances under which nonsuit is proper. The rule is that a trial court may not grant a defendant’s motion for nonsuit if plaintiff’s evidence would support a jury verdict in plaintiff’s favor. [Citations.] [¶] In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give “to the plaintiff[’s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor . . . .”’ [Citation.]” (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214-1215, quoting Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 117-118.)
“A lender that enters into a loan agreement to disburse the loan funds according to the terms of the loan documents, assumes a duty of care to act reasonably to abstain from injuring the borrower by its disbursal of funds. A lender may be liable to the borrower who is damaged as a result of the lender’s negligent disbursal of the loan funds.” (12 Miller and Starr, Cal. Real Estate, (3d ed. 2001) § 36:6, pp. 15-16, fns. omitted; see also Commercial Standard Ins. Co. v. Bank of America (1976) 57 Cal.App.3d 241, 247-248 [Fourth Dist., Div. Two].) However, “[t]he lender’s duty is restricted to its obligation to disburse the funds according to the terms of the loan documents.” (12 Miller and Starr, Cal. Real Estate, supra,§ 36:6, p. 16.)
Here, the construction loan agreement provided: “[Plaintiffs] agree that funds are to be disbursed according to [High Desert’s] voucher program.” From that language, standing alone, it could be argued that plaintiffs agreed that disbursements could be made in accordance with the voucher program, but High Desert did not agree that it could only make disbursements in accordance with the voucher program. Shortly afterward, however, the construction loan agreement also provided: “Disbursements will be made in accordance [with] the above paragraph provided [plaintiffs are] not in default of any term or condition of this agreement.” (Italics added.) Thus, it appears that High Desert did promise to make disbursements in accordance with its voucher program.
The trial court ruled, among other things, that High Desert’s internal voucher program procedures were intended to benefit High Desert, not its borrower, and therefore High Desert could choose to waive them. It is true that “ . . . ‘“[a] contracting party may waive provisions placed in a contract solely for his benefit. [Citations.]”’ [Citation.]” (Reeder v. Longo (1982) 131 Cal.App.3d 291, 296, quoting Doryon v. Salant (1977) 75 Cal.App.3d 706, 712.) Here, the voucher program served to ensure that the loan funds went into the improvement of the subject property; it also lessened the risk that mechanic’s liens would be filed against the property. Certainly this protected High Desert’s interest in the collateral. At the same time, however, it also protected plaintiffs’ interests. Thus, we cannot say that the construction loan agreement incorporated the voucher program solely for the benefit of High Desert.
In Commercial Standard Ins. Co. v. Bank of America, supra, 57 Cal.App.3d 241, we rejected a similar argument. There, much as here, a bank made a construction loan to a property owner. The bank “agreed to disburse the loan funds to [the general c]ontractor for work completed on the project as evidenced by inspection reports supplied by Bank employees.” (Id. at p. 245.) After the contractor defaulted, the surety that had bonded the contractor had to make payments to the owner (id. at pp. 245-246); thus, we held, the surety became subrogated to the owner’s rights against the bank. (Id. at pp. 246-247.) The surety sued the bank, alleging that, due to either failure to make proper inspections or failure to make disbursements in accordance with the inspection reports, the bank had disbursed excessive funds to the contractor. (Id. at pp. 245-246.)
We noted: “ . . . Bank contends that it exercised control over the distribution of the loan proceeds not for the benefit of Owner, but for its own benefit and that, therefore, it owed no duty to Owner with respect to disbursement of the loan proceeds. We have little doubt that Bank’s prime motivation was the protection of its own interest, but having agreed to and undertaken to disburse the loan proceeds in accordance with the value of the construction as it progressed, Bank owed to Owner the duty to exercise reasonable care in so doing. [Citation.]” (Commercial Standard Ins. Code, §. Co. v. Bank of America, supra, 57 Cal.App.3d at pp. 247-248.) The same is true of High Desert.
Admittedly, the agreement also provided that “[plaintiffs] agree to indemnify and hold [High Desert] harmless from and against all liabilities, claims, damages, costs, and expenses arising out of or resulting from . . . [¶] . . . [¶] . . . the sufficiency, validity, form, content or execution of any document or other writing submitted to [High Desert] . . . .” High Desert, however, did not move for nonsuit based on this provision. Moreover, the trial court did not grant nonsuit based on this provision. To the contrary, it found that “[p]laintiffs presented some evidence of arguable breaches of the . . . loan agreement” and that “[t]he issue of whether or not [High Desert] breach[ed] any provision of the loan agreement might otherwise be properly submitted to a jury, but for the fact that plaintiffs presented no evidence of any damages.” In any event, because this was an indemnity provision, it applied if — and only if — a third party asserted a claim against High Desert, arising out of the form of a document submitted to High Desert. It did not purport to exculpate High Desert from liability directly to plaintiffs themselves. (See generally Queen Villas Homeowners Assn. v. TCB Property Management (2007) 149 Cal.App.4th 1, 5-9.)
The scope of High Desert’s duty, however, was not unlimited. Under the construction loan agreement, it was up to Caminiti, in the first instance, as general contractor, to certify by signing a voucher that the work for which payment was sought had been done. High Desert had a duty to perform inspections, but only to confirm that the work had, in fact, been done. High Desert also had a duty to check that each voucher was accompanied by an invoice and a lien release. Finally, High Desert had a duty to check each voucher against the invoice, the cost breakdown, and the inspection sheet. High Desert had to perform all of these duties with reasonable care. (Commercial Standard Ins. Co. v. Bank of America, supra, 57 Cal.App.3d at p. 248; see also Allred v. Bekins Wide World Van Services (1975) 45 Cal.App.3d 984, 989 [contracting party was “bound, as a matter of law, to use at least reasonable care and skill” in performance of the contract].) Beyond that, however, High Desert had no general duty of inquiry.
B. Application to Plaintiffs’ Claims.
We will now apply these general principles to each of plaintiffs’ particular claims.
1. Vouchers for work done on the RV garage.
Plaintiffs introduced evidence that High Desert had paid at least five vouchers that were wholly or partially for work done on the RV garage. One of these (voucher No. 43453) was paid before February 24, 2004, when Mrs. McKeever told High Desert that Caminiti “might” be applying construction loan funds to the separate RV garage contract; four (voucher Nos. 43487, 43488, 43493, and 43502) were paid after.
At trial, plaintiffs listed 10 vouchers that they claimed High Desert had paid for work done on the RV garage. In this appeal, however, they list only seven.
High Desert argues that it was entitled to apply construction loan funds to any work done on the property. It cites two provisions of the construction loan agreement, namely that: (1) “[Plaintiffs] agree to execute . . . a promissory note . . . [for] the construction on the property described herein”; and (2) “The loan is[] secured by a Deed of Trust encumbering [plaintiffs’] interest in the property described as: [¶] 13425 Farmington St. [¶] Hesperia, CA 92345[.]” These provisions, however, merely address the terms of the note and deed of trust that plaintiffs are to execute; they do not address the disbursement of construction loan funds.
The provision that did address the disbursement of construction loan funds stated that disbursements would be made in accordance with High Desert’s voucher program. Under that program, High Desert was supposed to check each voucher against, among other things, the cost breakdown submitted by Caminiti. Under the contract for the construction of the house, the amount to be financed was $441,717. The cost breakdown, in turn, totaled exactly $441,717. Obviously, the cost breakdown did not include any of the cost of the RV garage. It follows that High Desert was supposed to make payments only for work done on the house and not for any work done on the RV garage.
At the same time, however, as we discussed earlier, High Desert did not have any general duty of inquiry. The mere fact that an invoice happened to refer to a “garage,” or even an “RV garage,” would not have alerted High Desert that it was being asked to pay for work that was outside the scope of the original house contract; houses are normally built with garages. The only way High Desert could have figured this out on its own would have been if it had received a voucher coded under one of the categories on the cost breakdown (e.g., concrete) after all of the loan funds in that category had already been exhausted.
The situation changed, however, once Mrs. McKeever advised High Desert that there was a separate contract for the RV garage and that Caminiti might be seeking payment out of the loan funds for work done on the RV garage. A reasonable jury could find that, once High Desert had this knowledge, in the exercise of reasonable skill and care, it could not pay vouchers for work done on a “garage” without, at a minimum, making some further inquiry. Otherwise, the loan funds could have been exhausted before construction of the house was finished, causing unpaid subcontractors to file mechanic’s liens. This would not have been in the interest of either plaintiffs or High Desert.
High Desert challenges Mrs. McKeever’s credibility on this point. Because we are reviewing a nonsuit, however, we must accept Mrs. McKeever’s testimony as true.
Nevertheless, as the trial court correctly ruled, plaintiffs failed to show that they were damaged. They were personally liable to pay for construction work on both the house and the RV garage. Whenever High Desert used loan funds to pay for work done on the RV garage, plaintiffs’ liability under the house contract increased, but their liability under the RV garage contract decreased by a corresponding amount. While the mistake did create the potential of mechanic’s liens being filed, it was undisputed that this potential never materialized.
In theory, plaintiffs could have been damaged if they paid Caminiti in full under the RV garage contract. In that case, if High Desert also paid for work done on the RV garage, plaintiffs would, in effect, be paying double for the RV garage; moreover, the loan funds would be exhausted before the house was fully paid for. There was no evidence, however, that this occurred. The only evidence regarding the payments that plaintiffs actually made under the RV garage contract showed that they gave Caminiti a down payment of $2,000. Caminiti did admit using some of the cash that plaintiffs paid him under the RV garage contract for work on the house, while using some of the vouchers for work done on the RV garage. However, he insisted that both the cash and the vouchers “were not used for other structures and were not over billed or double billed but were used to build those structures on that property.” Thus, there was insufficient evidence of any damages.
Finally, even assuming the trial court erred, we now know that, even if we were to reverse and remand, plaintiffs could not prove that Caminiti was overpaid. The jury found in favor of Caminiti and against plaintiffs; indeed, it found that plaintiffs owed Caminiti $250,000. On remand, High Desert could assert these findings as collateral estoppel against plaintiffs. (See, e.g., Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc. (1981) 120 Cal.App.3d 622, 628-633.)
2. Vouchers lacking an executed lien release.
Plaintiffs introduced evidence that High Desert had paid at least eight vouchers even though they were not accompanied by lien releases. Ms. Geiger admitted that High Desert sometimes “missed” the fact that vouchers lacked lien releases. The McKeevers, however, both admitted that no liens had been filed against the property.
In moving for a nonsuit, counsel for High Desert argued: “Start with the . . . lien releases that they say weren’t signed. Even if they weren’t signed or filled out, there w[ere] no damages resulting from that because not one person filed a lien against the property because of that. Therefore, as a matter of law, no damages . . . .”
The trial court granted the motion, in part, because “plaintiffs presented no evidence of any damages. Establishing a breach is not sufficient to support a verdict. In an action on a contract the plaintiff must also establish that he suffered damages caused by the breach.”
Plaintiffs never explain what about this reasoning was erroneous. Hence, they have waived any challenge to it. In any event, the trial court was clearly correct. The purpose of requiring a lien release was to prevent subcontractors who had been paid from additionally filing mechanic’s liens. (Tesco Controls, Inc. v. Monterey Mechanical Co. (2004) 124 Cal.App.4th 780, 795.) Once the subcontractor performed the work, it was entitled to be paid; even assuming a lien release was a condition of payment to the subcontractor, if High Desert had insisted on lien releases, presumably the subcontractors would have supplied them. As long as no subcontractor filed a mechanic’s lien, the lack of lien releases was no harm, no foul.
In their statement of facts, plaintiffs also assert that High Desert also paid three vouchers without a sufficient supporting invoice. In the argument portion of their brief, however, plaintiffs do not contend that the trial court erred by granting a nonsuit with respect to these three vouchers. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [brief must “[s]tate each point under a separate heading or subheading . . ., and support each point by argument”].) Accordingly, they have waived any such contention.
3. Vouchers for work that was not completed.
The construction loan agreement provided: “[Plaintiffs] agree that funds are to be disbursed according to [High Desert’s] voucher program. Vouchers will be completed and signed by the General Contractor . . . for completed work or delivered materials.” (Italics added.)
Plaintiffs testified that High Desert had paid 10 vouchers for work that had not been completed. However, they clarified that they did not mean that the subcontractors seeking payment had not actually done the work that they claimed to have done; they meant only that more of the same such work remained to be done.
Plaintiffs’ interpretation of “completed work,” as used in the agreement, is unsound. It would prevent subcontractors from receiving progress payments, contrary to the custom and usage in the construction industry. (See, e.g., Bus. & Prof. Code, § 7108.5.) Indeed, as Caminiti, too, was paid under the voucher system, it would prevent him from receiving any payments until the house had been completely built. It is also significant that High Desert was allowed to pay vouchers for “delivered materials,” regardless of whether more such materials still had to be delivered.
It makes far more sense to construe “completed work” as work that has actually been performed. Such an interpretation would quite properly prevent High Desert from paying subcontractors in advance, while still permitting progress payments. There was no evidence that High Desert made any payments for work that had not been “completed” in this sense.
Plaintiffs also complain that High Desert paid for defective work. Neither the construction loan agreement nor High Desert’s voucher program required High Desert to determine that work was not defective before paying for it. Significantly, it had no practical way of knowing that work was, in fact, defective. Although High Desert did send inspectors to the job site, they were only supposed to determine what percentage of the work was complete; there was no evidence that they were supposed to determine (or even able to determine) whether the work was also properly done. At most, it is arguable that, if High Desert were on notice that work was defective, it might have a duty to inquire further before paying for it. However, there was no evidence of such notice.
4. Vouchers paid to unlicensed subcontractors.
Plaintiffs introduced vouchers showing that High Desert had made payments to Old West Builders, Inc. (voucher Nos. 43473, 43475, and 43480), Blue Skies Plastering (voucher Nos. 43493 and 43505), and Martinez Concrete (voucher Nos. 43482 and 43485).
Plaintiffs claim that they also introduced vouchers showing payments to SP Masonry (voucher Nos. 43507 and 66221). We cannot find these vouchers, however, in exhibit 67, which supposedly included all of the disputed vouchers.
Plaintiffs also attempted to introduce exhibit 59, consisting of records from the Contractors State License Board showing that there were no licenses in the name of Old West Builders, Inc., Blue Skies Plastering, SP Masonry, or “Pasqual Martinez, [doing business as] Martinez Concrete.” (Capitalization omitted.) Counsel for Caminiti objected that, even if there were no licenses in those particular names, the owner of each of the relevant companies (with the possible exception of SP Masonry) was in fact licensed. He also asserted that the owner of Martinez Concrete was Juan Martinez, not Pasqual Martinez, and that Juan Martinez was licensed.
The trial court ruled: “I’m not going to admit [exhibit] 59 at this time. . . . I’ll take judicial notice of the licensing as currently reflected in the [Contractors] State License Board [records]. But . . . I don’t know if this is relevant until it’s determined who worked on the project.” It added that, once that occurred, it would also have to determine, as a matter of law, whether it was the company or the owner of the company who had to be licensed.
In connection with the nonsuit motion, counsel for High Desert argued: “[W]ith regard to the unlicensed subcontractors, there’s no evidence of any law or ordinance or regulation that requires my client, the credit union, to check for licensing status of the subcontractors. Even if all four of those that are in issue were unlicensed, it’s not my client’s job . . . .”
The trial court then granted a nonsuit; in its ruling, it did not expressly address the issue of unlicensed contractors, although it did state that “plaintiffs presented no evidence of any damages.”
On this record, there was no evidence that any subcontractor was, in fact, unlicensed. In their opening brief, plaintiffs do not argue that the trial court erred by excluding exhibit 59. Hence, we may presume that it did not. Although the trial court did say that it would take judicial notice of the records of the Contractors State License Board, in context, it clearly meant it would do so if and when plaintiffs raised the issue again and demonstrated not only the true name of each of the relevant subcontractors, but also that the license had to be issued in that name, rather than in the name of an owner or other individual. Plaintiffs never did so. For example, they never introduced any evidence that it was Pasqual Martinez, rather than Juan Martinez, who went by the fictitious business name of “Martinez Concrete.” Thus, the trial court correctly ruled that there was no evidence of any damages.
Plaintiffs do assert belatedly, in their reply brief, that exhibit 59 “should have been admitted into evidence[.]” (Capitalization omitted.) They forfeited this contention, however, by failing to raise it in their opening brief. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.) They then doubly forfeited it by failing to support it — even in their reply brief — with reasoned argument and citations to pertinent authority. (Magic Kitchen LLC v. Good Things Internat. Ltd. (2007) 153 Cal.App.4th 1144, 1161.)
5. Vouchers for work on a different project.
Plaintiffs introduced evidence that High Desert had paid $8,000 on one voucher (voucher No. 43475) supported by an invoice addressed to “Oak Tree Homes,” for framing done at “Farmington.” Plaintiffs’ lot was on Farmington; however, because the invoice was addressed to Oak Tree Homes, rather than to Caminiti or his company, plaintiffs did not believe that the work had been done on their lot.
It is arguable that, in light of the discrepancy, High Desert had a duty to make some further inquiry before paying the voucher. Plaintiffs, however, introduced no evidence of the information that such a further inquiry would have produced. The discrepancy itself, standing alone, fell short of proving that the work actually had not been done on plaintiffs’ property. Plaintiffs’ suspicions on this head were speculative. Thus, again, plaintiffs failed to prove that they were damaged.
III
DISPOSITION
The judgment is affirmed. High Desert is awarded costs on appeal against plaintiffs.
We concur: RAMIREZ, P.J., MILLER, J.
Of these seven, two — voucher Nos. 43482 and 43485 — do not appear to belong on the list. Admittedly, the supporting documentation for these two vouchers does list $5,000 for work on “garage.” However, it also indicates that the $5,000 had already been paid, by separate check; hence, it was deducted before High Desert paid these vouchers.
We conclude that only five vouchers are in genuine dispute.