Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC253369, Rodney Nelson, Judge; Mary Ann Murphy, Judge.
Nick A. Alden, in pro. per., for Plaintiff and Appellant.
Esther W. Nelson, in pro. per., for Defendant and Respondent.
RUBIN, J.
This case, which is before us for a second time, arises out of an attorney fee dispute between Attorney Nick A. Alden (appellant) and Esther W. Nelson (respondent). Appellant brought suit against respondent on various theories and respondent cross-complained for, among other things, conversion. A jury returned special verdicts in favor of appellant on his breach of implied contract and common count theories of liability and in favor of respondent on her cross-complaint for conversion. Appellant contends: (1) the trial court erred in overruling his demurrer to the conversion cause of action; (2) there was insufficient evidence of conversion; (3) evidence of the retainer agreement was improperly excluded; (4) a special instruction he requested was improperly denied; and (5) the form of the judgment is improper. We reverse the judgment in favor of respondent on the conversion cause of action of the third amended cross-complaint and otherwise affirm the judgment.
Respondent, who is in pro. per. on appeal, as she was at the trial, does not appeal from the judgment taken against her.
FACTUAL AND PROCEDURAL BACKGROUND
The following summary is taken from our prior opinion in this case, Alden v. Nelson (Jan. 29, 2004, B163106) [nonpub. opn.]. In 1989, an entity known as Palmdale 450, Ltd. owned a one-half undivided interest in 450 acres of real property located in Palmdale, California (the Palmdale property). Respondent loaned Palmdale 450, Ltd. $160,000, which was secured by a deed of trust recorded against the Palmdale property. At about the same time, respondent and five other persons formed a partnership known as the Heritage Group, the purpose of which was to loan money to Palmdale 450, Ltd. The Heritage Group took assignment of a note in the amount of $1,855,200, securing its interest in the Palmdale property (the Heritage Group note). At the time, the property was already subject to a first trust deed in the amount of $600,000.
In 1992, after Palmdale 450, Ltd. defaulted on the Heritage Group note, the Heritage Group foreclosed on the property. As a result, the Heritage Group became owners of an undivided one-half interest in the property, subject to the $600,000 first trust deed. In April 1992, Palmdale 450, Ltd. filed suit against the Heritage Group, alleging that its general partner lacked the authority to assign the note to the Heritage Group. In October 1993, counsel for Palmdale 450, Ltd. raised a potential conflict of interest between the Heritage Group and their attorneys in the action. Eventually, appellant was substituted in as counsel for the Heritage Group. Respondent understood that the title insurance company, which had been paying the Heritage Group’s attorney fees, would continue to pay appellant as “Cumis counsel.”
See San Diego Federal Credit Union v. Cumis Ins. Society, Inc. (1984) 162 Cal.App.3d 358; see also Civil Code section 2860 (“(a) If the provisions of a policy of insurance impose a duty to defend upon an insurer and a conflict of interest arises which creates a duty on the part of the insurer to provide independent counsel to the insured, the insurer shall provide independent counsel to represent the insured unless, at the time the insured is informed that a possible conflict may arise or does exist, the insured expressly waives, in writing, the right to independent counsel”).
Appellant, however, had a different understanding. In January 1994, appellant agreed to represent the Heritage Group in connection with the Heritage Group’s claims concerning its deed of trust on the Palmdale property. Appellant maintained that the terms of that representation were set forth in an Attorney-Client Contingency Fee Contract, which was signed by the individual members of the Heritage Group, including respondent (the retainer agreement). According to the retainer agreement, appellant was to receive 30 percent of any property or money recovered by the Heritage Group in the Palmdale action. Respondent denies ever signing the retainer agreement.
The Heritage Group was ultimately successful in the Palmdale action, but a dispute arose as to the money owed appellant. In a letter to each of the members of the Heritage Group and its real estate agent, dated November 14, 2000, appellant advised: “I will do everything necessary to cooperate in the sale [of the property]. However, I will do whatever it takes to protect my interest. I would like to remind everyone involved that, without my hard work, there would be no property to sell. Did anyone expect me to have done all that work for free.” After suggesting two alternatives for settling the fee dispute, appellant concluded: “If I do not hear from each and every one of you within one week, I will have no other choice but to file a lawsuit to protect my interest. I would like everyone to understand that, the filing of the lawsuit would kill the deal, something I am trying very hard to avoid.” Eventually, all of the members of the Heritage Group, except for respondent, granted appellant the agreed upon 30 percent interest in their share of the property recovered in the Palmdale action.
Appellant filed suit against respondent. The operative first amended complaint (FAC) alleges causes of action for declaratory relief, breach of contract, common count, account stated, bad faith denial of contract and interference with contractual relations. Respondent denied the allegations and filed a cross-complaint, then an amended cross-complaint (FACC), for intentional interference with economic relationship (first cause of action), conversion (second cause of action), unfair business practices (third cause of action), and money had and received (fourth cause of action). Appellant’s demurrer to the FACC was granted without leave to amend as to the “17200 claim” and with leave to amend as to the intentional interference with economic relationship and conversion causes of action. Appellant’s demurrer to the second amended cross-complaint’s (SACC) third cause of action for accounting was sustained without leave to amend; his demurrer to the first cause of action for intentional interference with economic relationship was overruled, without prejudice to appellant pleading privilege as a defense; as to the second cause of action for conversion, appellant’s demurrer was sustained with leave to amend. The trial court granted appellant’s motion to strike the punitive damages allegations.
Appellant demurred to the conversion cause of action on the grounds that it was vague and ambiguous and time-barred. In a tentative ruling, the trial court stated: “The general demurrers, insofar as they are based on a statute of limitations argument, are overruled, as [appellant’s] argument goes beyond the pleadings.” The record on appeal does not include a reporter’s transcript for the hearing on the demurrer to the FACC and the minute order from that hearing does not expressly adopt the tentative ruling’s distinction between the statute of limitations grounds and the vagueness grounds of the demurrer to the conversion cause of action; it states only that the demurrer to the second cause of action is sustained with leave to amend.
Appellant once again demurred to the conversion cause of action on the grounds that it was time-barred. This time, appellant’s argument cited to respondent’s responses to his Second Set of Special Interrogatories, which he attached as exhibits to the demurrer. Respondent objected to the consideration of the interrogatories and responses as “improper extrinsic evidence.” The record does not include a reporter’s transcript of the hearing, or any written ruling on the objections. The minute order states: “The demurrer to the second cause of action is sust[ai]ned; 10 days to amend so as to better describe the converted files.” From the absence of any reference to the statute of limitations in the minute order, we infer that the trial court overruled the demurrer insofar as it reasserted the statute of limitations argument.
On July 25, 2002, respondent filed the operative third amended cross-complaint (TACC) for intentional interference with economic relationship (first cause of action) and conversion (second cause of action). Appellant demurred to the second cause of action and filed a Code of Civil Procedure section 425.16 (§ 425.16) motion to strike the first cause of action. The trial court denied the motion to strike and overruled the demurrer. In our prior opinion, we found the order overruling the demurrer to be nonappealable and reversed the order denying the special motion to strike the first cause of action. Accordingly, the matter proceeded to jury trial on the FAC and the TACC’s second cause of action for conversion.
Section 425.16 is the anti-SLAPP statute. “SLAPP” is an acronym for Strategic Lawsuit Against Public Participation, which was coined by professors at the University of Denver and which has been adopted by our Supreme Court. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)
The jury trial, at which both parties represented themselves, commenced on March 13, 2008. On March 19, 2008, the jury returned a special verdict with the following findings:
1. Appellant and respondent entered into an implied contract; appellant did all or substantially all of the significant things the contract required him to do; all of the conditions for respondent’s performance occurred; respondent failed to do something that the contract required her to do; appellant was harmed by that failure; appellant’s damages were $25,000.
2. There was a contract between appellant and certain partners in the Heritage Group; respondent knew of that contract; respondent did not intend to disrupt the performance of that contract.
3. Respondent requested that appellant perform legal services for her; appellant performed the services as requested; respondent did not pay appellant for the services rendered; the value of those services was $25,000.
4. Respondent had the right to possess the documents at issue; appellant intentionally prevented respondent from taking possession of those documents for a significant period of time; respondent did not consent to appellant retaining the documents; respondent was harmed; appellant was a substantial factor in causing respondent’s harm; respondent’s damages were $10,000.
Notice of Entry of Judgment was served by the court clerk on May 22, 2008. Appellant filed a timely notice of appeal from the judgment on July 21, 2008.
DISCUSSION
A. Appellant’s Appeal from the Judgment on the Cross-Complaint
The TACC’s second cause of action for conversion alleged that appellant asked respondent for her documents relating to the property; the documents were to be used in a lawsuit filed against the title company in which respondent was going to testify; respondent gave appellant all of her personal files related to the property; appellant removed about 50 pages of letters and other documents from those files; appellant refused to return these pages to respondent, despite respondent’s repeated demands that he do so; as a result, respondent suffered injury and was damaged; respondent expended time and money in pursuit of the converted property.
1. Demurrer to the Conversion Cause of Action
Appellant contends the trial court erred in overruling his demurrer to this cause of action for two reasons: (a) the TACC did not sufficiently identify the allegedly converted documents; and (b) the cause of action was time-barred. We find no error.
a) Identification of the Converted Documents
An order overruling a demurrer may be reviewed on appeal from the final judgment. (Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145, 1151.) Failure to state facts sufficient to constitute a cause of action is one ground for demurrer. But reversal of a judgment on the grounds that the complaint failed to state facts sufficient to constitute a cause of action is justified “ ‘only if the error resulted in a miscarriage of justice. [Citations.]’ [Citation.] ‘[E]ven though a complaint is defective in some particular, if the case is tried on the theory that it is sufficient and evidence accordingly is received without objection, the unsuccessful party cannot later effectively contest the sufficiency of the pleading. [Citations.]’ [Citation.] ‘[I]f [a] demurrer raises a fundamental defect of substance which cannot be cured, it is of course reversible error to overrule it. But if the defect, even though consisting of a failure to state a cause of action, is one of form, the usefulness of the demurrer seldom extends beyond the trial court.’ [Citation.]” (In re Athena P. (2002) 103 Cal.App.4th 617, 627; see also 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 985, p. 398 [“After a trial in which the defective complaint is treated as raising the issues, error in overruling the demurrer cannot have been prejudicial, and reversible error is not shown”].)
Here, after appellant’s demurrer was overruled, the case was tried on the conversion theory and the jury found in favor of respondent on that theory. Under these circumstances, apart from whether the TACC sufficiently described the documents allegedly converted, appellant has not demonstrated reversible error.
b. Statute of Limitations
In support of his contention that the TACC runs afoul of the applicable statute of limitations, appellant relies on respondent’s discovery responses, which he attached as an exhibit to his demurrer to the SACC (but not to his demurrer to the TACC) and which he maintains are a proper subject of judicial notice. The special interrogatories and answers upon which appellant relies on appeal are as follows:
1. Interrogatory No. 145: “State when was [the] last time you had a face to face meeting with [appellant].” Supplemental response: “June 29, 1996.”
2. Interrogatory No. 146: “State when was [the] last time you had any conversation with [appellant], telephonic or otherwise.” Supplemental response: “June 29, 1996.”
In the trial court, appellant relied not on respondent’s answers to interrogatory Nos. 145 and 146, but to her answers to interrogatory Nos. 123 (“State all the facts upon which you based your contention that [appellant] converted your files.”) and 129 (“Identify the files that [appellant] converted.”). In response to interrogatory No. 123, respondent stated: “[Appellant] took documents from me on three different occasions; two at [appellant’s] home and once during trial. I requested the documents back on numerous occasions as recently as December 4, 1998.” In response to interrogatory No. 129, respondent stated: “I do not recall.”
Code of Civil Procedure section 338, subdivision (c) establishes a three-year statute of limitations for conversion actions. Where the defendant acquires property lawfully, the statute of limitation on a conversion claim is not set in motion until the return of the property has been demanded and refused. (Coy v. County of Los Angeles (1991) 235 Cal.App.3d 1077, 1088; H. Russell Taylor’s Fire Prevention Service, Inc. v. Coca Cola Bottling Corp. (1979) 99 Cal.App.3d 711, 725.)
“ ‘A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. [Citation.] The running of the statute must appear “clearly and affirmatively” from the dates alleged.’ [Citation.]” (Lee v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 848, 854.)
Here, the TACC alleges that appellant lawfully obtained the documents – respondent gave them to him – but later refused to return them, despite demands that he do so. Because the TACC does not state the date on which appellant allegedly refused to return respondent’s documents, the running of the statute of limitations does not “appear clearly and affirmatively” from the dates alleged in the TACC. As such, the trial court properly overruled the demurrer on this ground.
Appellant’s reliance on respondent’s interrogatory responses for a contrary result is misplaced. In ruling on a demurrer, the court may take judicial notice of the plaintiff’s answers to interrogatories. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485.) In Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374, the court explained, “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. [Citation.] On a demurrer a court’s function is limited to testing the legal sufficiency of the complaint. [Citation.] ‘A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.’ [Citation.] The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. [Citation.]” Accordingly, in Joslin, the court held that the trial court could not consider deposition testimony to establish a disputed fact because the testimony was subject to different interpretations. (Id. at pp. 375-376.)
Here, respondent’s discovery responses are not the proper subject of judicial notice because they are subject to different interpretations. Her responses to special interrogatory Nos. 145 and 146 establish no more than that respondent’s last “face to face meeting” and/or “conversation” with appellant occurred on June 29, 1996. But a “face to face meeting” and a “conversation” suggest oral communications. Thus, these responses leave open the possibility that respondent had subsequent written communications with appellant about returning the documents. That she did so within three years of the cross-complaint being filed on February 20, 2002, can reasonably be inferred from respondent’s answers to other interrogatories. For example, she answered interrogatory No. 123 (“State all the facts upon which you based your contention that [appellant] converted your files.”) by stating that she “requested documents back on numerous occasions as recently as December 4, 1998. [Appellant] has never returned the documents.” And she answered No. 126 (“State all facts evidencing all the efforts you made to recover the files converted by [appellant].”) by stating that she “sent numerous letters to [appellant] requesting the return of the documents.” Both answers leave open the possibility that appellant’s refusal to return the documents – the event that sets in motion the statute of limitations – occurred within three years of the filing of the cross-complaint.
2. Insufficient Evidence of Damages for Conversion
Appellant contends there was insufficient evidence of the damages element of conversion adduced at trial. He argues that respondent’s inability to identify the documents with particularity and put a value on them, and her failure to testify as to the time and money she expended to recover the documents, was fatal to her claim. We agree.
Appellant’s argument that, inasmuch as respondent’s attorney photocopied all of appellant’s documents relating to the property, respondent has actually received the documents she alleges were converted is disingenuous since respondent was seeking return of the original documents, not photocopies.
The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. (Hernandez v. Lopez (2009) 180 Cal.App.4th 932, 939.) According to Civil Code section 3336, “[t]he detriment caused by the wrongful conversion of personal property is presumed to be: [¶] First-The value of the property at the time of the conversion, with the interest from that time, or, an amount sufficient to indemnify the party injured for the loss which is the natural, reasonable and proximate result of the wrongful act complained of and which a proper degree of prudence on his part would not have averted; and [¶] Second-A fair compensation for the time and money properly expended in pursuit of the property.” Emotional distress damages have also been allowed. (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 222; Gonzales v. Personal Storage, Inc. (1997) 56 Cal.App.4th 464, 476-477; Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 921.) “A trier of fact is entitled to decide evidentiary issues based on both evidence and inferences reasonably drawn from such evidence.” (Irving Nelkin & Co. v. South Beverly Hills Wilshire Jewelry & Loan (2005) 129 Cal.App.4th 692, 700 (Nelkin) [sufficiency of evidence of damages for conversion].)
Here, respondent testified that, several days before she was to testify at a trial involving the title company, she brought her files to a meeting at appellant’s home. After spending a couple hours going through respondent’s files, appellant removed about 30 or 40 pages from the files; appellant assured respondent he would return these pages to her. At the time, it did not occur to respondent to inventory the documents appellant took. Respondent testified that she could not put a monetary figure on the documents appellant took “[a]nd since I’m not asking for any money, you know, I don’t know that I really care that much about it after all this time. [¶] It just it just shows what kind of dealings I had with [appellant] and why I didn’t want to have anything to do with him, because he promised me he would give these things back, and he didn’t. And there are letters there where he says he will and no letters that say: here are your documents.” Respondent testified that she sent appellant “dozens of faxes and letters asking that you return my documents and a copy of the retainer agreement you claimed I signed.”
We note that respondent sought neither the provisional remedy of claim and delivery (Code Civ. Proc., § 511.010 et seq.), nor did she state a common law cause of action for detinue. (See Kelly v. McKibben (1880) 54 Cal. 192, 195 [explaining distinction between action to recover possession and action for conversion]; see also5 Witkin, Cal. Procedure, supra, § 693, p. 111 [“detinue” is an action for specific recovery of property where the original taking was lawful].)
Appellant testified that in the course of discovery, he provided respondent with a copy of every document he had relating to the Palmdale property; somewhere in those copies, he maintained, were copies of the documents respondent gave him. But, apart from whether giving respondent copies instead of returning her originals was sufficient, return of converted property does not prevent the injured party from suing for conversion. (Nelkin, supra, 129 Cal.App.4th at p. 700.)
Regarding the damages element of conversion, the jury was instructed that respondent had to prove the amount of money that would reasonably compensate her for the harm she suffered (i.e., damages). “However, [respondent] does not have to prove the exact amount of damages that will provide reasonable compensation. You must not speculate or guess in awarding damages. The following are the specific items of damages claimed by [respondent]: [¶] 1. The fair market value of the documents at the time [appellant] wrongfully exercised control over them; [¶] 2. Reasonable compensation for the time and money spent by [respondent] in attempting to recover the documents; and [¶] 3. Emotional distress suffered by [respondent] as a result of [appellant’s] conduct.”
After the jury returned its verdict, appellant moved for a directed verdict on the conversion cause of action arguing, “There was no number even suggested.” The trial court responded: “Emotional distress.”
Although emotional distress damages are available on a conversion cause of action, there was no evidence that appellant suffered any emotional distress as a result of appellant’s conduct. For this reason, the judgment in favor of respondent on the TACC’s second cause of action for conversion must be reversed.
B. Appellant’s Appeal from Rulings Related to the Complaint
Appellant challenges two rulings relevant to his complaint: (1) exclusion of the retainer agreement from evidence and (2) refusal to instruct the jury on “common fund.” Both rulings relate to the calculation of appellant’s damages from respondent’s breach of contract.
1. Evidence of the Retainer Agreement
Appellant contends the trial court erred in excluding from evidence Exhibit 1, which appellant testified was a copy of the retainer agreement signed by respondent, but which respondent maintained was a forgery. Although the jury awarded appellant $25,000 as damages for respondent’s failure to perform under an implied contract and as the value of the legal services appellant performed for respondent, appellant’s breach of written contract cause of action sought 30 percent of respondent’s share of the proceeds from the sale of the Palmdale property, which appellant calculated was $350,000 (at trial, respondent testified that she received $190,000 from the sale of the property). Appellant maintains that exclusion of the retainer agreement prevented him from having a fair hearing on his breach of written contract cause of action which sought damages in excess of the value of his services. He argues that whether the document was genuine was a matter for the trier of fact. Appellant misunderstands the basis of the trial court’s ruling excluding the evidence.
To the extent respondent contends that the trial court erred in excluding the document she maintained was the original of the retainer agreement that she signed but did not return to appellant, we do not consider the point because respondent did not appeal from the judgment. We decline respondent’s offer, made in a letter dated April 30, 2010, to provide this court with the original of the retainer agreement and copies of various other documents for comparison.
A court may prohibit designated matters from being introduced into evidence as a sanction for discovery abuse. (Code Civ. Proc., § 2023.030, subd. (c); New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422; Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447, 1455-1456.)
We begin with a summary of the discovery dispute regarding the original retainer agreement, which belies appellant’s assertion that he produced the document. Request No. 19 of Respondent’s First Set of Requests For Production of Documents sought, “[A]ll documents that support your allegations that a true and correct copy of the retainer agreement with [respondent] is attached as Exhibit ‘A’ to the FAC.” Appellant’s response to the document request included the following preliminary statement: “It should be noted that [appellant] has not completed [his] investigation of the facts relating to this case, has not completed [his] discovery in this action, and has not completed [his] preparation for trial. All of the answers contained herein are based only upon such information and documents which are presently available and specifically known to [appellant] and disclose only those contentions which presently occur to [appellant]. [¶]... The following production of documents is made request [sic] without prejudice to [appellant’s] right to produce evidence of any subsequently discovered facts which [appellant] may later discover or recall. [Appellant] accordingly reserves the right to change any and all answers herein as additional facts are ascertained.... The answers contained herein are made in good faith effort to supply as much factual information as specifically as is presently known, but should in no way be to the prejudice of the Defendant in relation to discovery, research or analysis. [Appellant] also objects to the production at the time and place requested.” There followed this response to each document request, including No. 11: “All documents in [appellant’s] possession will be made available for [respondent] to copy.”
On April 8, 2003, respondent moved to compel further responses on the grounds that this response did not comply with Code of Civil Procedure former section 2031, subdivision (g)(1) (“A statement that the party to whom an inspection demand has been directed will comply with the particular demand shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production”). Appellant wrote to respondent’s then-counsel on April 11, 2003, and offered to make the document he claimed was the original retainer agreement signed by respondent available for examination upon 24 hours’ notice. Appellant did not, however, file a verified supplemental response to the document production request, as required by the statute.
In a letter to appellant dated April 24, 2003, respondent’s then-counsel purported to confirm a telephone conversation in which it was agreed that the hearing on the motion to compel would be continued pending appellant’s release of the original documents to a copy service for copying and, if the “original documents need to be inspected, we will work out a mutually agreeable time and location.” (Underscoring omitted.) But in a declaration filed in support of the motion to compel, respondent’s counsel averred that he had not heard from appellant since April 24, 2003.
On June 6, 2003, the trial court granted respondent’s motion to compel production of documents. It ordered appellant to produce all responsive documents on or before June 30, 2003, and further ordered appellant to serve a verified response to the request for production “confirming that all responsive documents have been produced.” As we noted, appellant admitted that he never produced Exhibit 1.
Immediately prior to trial, appellant gave the trial court the original of a document the trial court described as entitled “ ‘Attorney-Client Contingency Fee Agreement’ signed by [respondent].” During his testimony, appellant referred to Exhibit 1 as “the retainer agreement signed by [respondent].” But respondent testified that Exhibit 1 was not the retainer agreement she signed. On the contrary, respondent explained that at a meeting in appellant’s office, she signed a retainer agreement, but she took the signed agreement home and never gave it to appellant. Because on its face, the agreement required that it be signed by both appellant and respondent, respondent understood that she did not enter into an attorney-client agreement with appellant because she did not return the document to appellant for his signature. Respondent did not want to enter into the agreement because she was dissatisfied with appellant’s answers to her questions during the meeting at his office. Respondent identified Exhibit 29 as a copy of the signed retainer agreement that she took home from appellant’s office after the meeting, and never returned to appellant. Exhibits 1 and 29 do not appear to be the same document, most notably because the pagination is different.
After appellant rested his case-in-chief, he sought to have Exhibit 1 admitted into evidence. The trial court ascertained that (1) respondent maintained that her signature on Exhibit 1 was forged; (2) appellant’s attorney fee claim was predicated entirely on Exhibit 1; and (3) appellant never produced Exhibit 1 in discovery because, he claimed, it was never requested and because he had attached the document as an exhibit to various pleadings over the course of the litigation.
The trial court refuted appellant’s claim that Exhibit 1 had not been requested in discovery, pointing out that in June 2003 (when respondent was represented by counsel) her motion to compel was granted as to various document requests, all of which would have called for production of Exhibit 1. Noting that Exhibit A to the FAC and trial Exhibit 1 were the same document, the trial court observed: “There were so many document requests that would have called for the production of this original document, Plaintiff’s Trial Exhibit 1, that I stopped at number 19 [all documents that support the allegation that Exhibit A to the FAC is a true and correct copy of the retainer agreement with respondent], when that document was unequivocally and specifically requested. Judge Nelson ordered it produced. It was never produced.” The trial court concluded, “So we have a situation in which the most critical document in the entire case was ordered produced by Judge Nelson and was never produced. And I’m sustaining [respondent’s] objection and [Exhibit] 1 will not be admitted.” At trial, appellant complained that the discovery requests did not require him to produce the original document and that he complied with the prior court order to produce the relevant documents for inspection and copying. We note that the record on appeal does not appear to include a verified response to the document request, as required by the June 2003 order.
Under these circumstances, the trial court reasonably exercised its discretion excluding Exhibit 1 as a discovery sanction.
2. Common Fund Instruction
Appellant contends the trial court erred in refusing to give the following special instruction he requested: “Where a common fund exists to which a number of persons are entitled and in their interest successful litigation is maintained for its preservation and protection, an allowance of counsel fees may properly be made from such fund. By this means all of the beneficiaries of the fund pay their share of the expense necessary to make it available to them.” As we understand his argument, it is that the $1,855,200 note held by the Heritage Group was a “common fund;” as a partner in the Heritage Group, appellant was one of a number of persons entitled to a share of that common fund; appellant represented the Heritage Group in litigation that successfully preserved and protected the group’s interest in the property; respondent benefited from that litigation inasmuch as she recovered $196,000 from the sale of the property; as a beneficiary of the litigation, respondent was obligated to pay appellant her fair share of the cost of appellant’s legal services from the proceeds of the sale.
“The common fund doctrine is based on the principle that ‘where a common fund exists to which a number of persons are entitled and in their interest successful litigation is maintained for its preservation and protection, an allowance of counsel fees may properly be made from such fund.’ [Citation.] The purpose of the doctrine is to allow a party, who has paid for counsel to prosecute a lawsuit that creates a fund from which others will benefit, to require those other beneficiaries to bear their fair share of the litigation costs. [Citation.] In other words, the common fund doctrine permits plaintiffs’ attorneys to recoup their fees from the fund.” (Northwest Energetic Services, LLC v. California Franchise Tax Bd. (2008) 159 Cal.App.4th 841, 878, citing Winslow v. Harold G. Ferguson Corp. (1944) 25 Cal.2d 274, 277 (Winslow).) “[W]here plaintiffs’ efforts have not effected the creation or preservation of an identifiable ‘fund’ of money out of which they seek to recover their attorney’s fees, the ‘common fund’ exception is inapplicable.” (Serrano v. Priest (1977) 20 Cal.3d 25, 37-38.)
During the discussion of jury instructions, the trial court indicated its disinclination to give appellant’s common fund instruction, observing that “there’s not one single bit of evidence as to a common fund here.” But it agreed to read the case appellant cited in support of the instruction, Winslow, supra, 25 Cal.2d at page 277, before making a final decision. After reading the case, the trial court refused the instruction.
The trial court properly refused appellant’s common fund instruction. Appellant was seeking recovery against respondent as an individual, not from any common fund.
3. Form of the Judgment
As we understand appellant’s contention, it is that the trial court erred in not awarding him costs as the prevailing party under Code of Civil Procedure section 1032, subdivision (a).
To the extent appellant complains that the judgment improperly allowed an award of costs to respondent, the contention is moot inasmuch as we reverse the judgment in favor of respondent and with it the award of costs.
Code of Civil Procedure section 1032 provides in part: “(a)(4) ‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034. [¶] (b) Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”
A prevailing party who claims costs must serve and file a memorandum of costs “within 15 days after the date of mailing of the notice of entry of judgment... or within 180 days after entry of judgment, whichever is first.” (Cal. Rules of Court, rule 3.1700(a)(1), italics added.) A prematurely filed memorandum of costs may be deemed filed and served on the earliest day it could have been properly served and filed. (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 880.) The failure to file a memorandum of costs is fatal to a claim for costs. (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 928 (Hydratec, Inc.).)
Here, after the jury returned the special verdict, the trial court directed appellant to prepare and submit a proposed judgment. On March 26, 2008, the trial court rejected appellant’s proposed judgment because it did not include the entire verdict verbatim and the proof of service was inadequate. The trial court ordered appellant to submit another proposed judgment on or before April 4, 2008, and scheduled an order to show cause regarding the proposed judgment for April 21, 2008.
The clerk’s transcript does not include a copy of the proposed judgment, but we granted appellant’s motion to augment the record with (1) a copy of a document entitled “Proposed Judgment, ” which indicates that it was received at the filing window on April 3, 2008; and (2) a copy of a Memorandum of Costs, which indicates it was received in the “Default Section” on April 3, 2008.
On April 21, 2008, the trial court rejected appellant’s second proposed judgment because it did not include the amount of the judgment in favor of appellant and respondent; the trial court ordered appellant to submit another proposed judgment and continued the order to show cause to May 21, 2008.
According to the May 21, 2008 minute order, neither appellant nor respondent appeared on that date; the afternoon before, appellant telephoned the courtroom and advised the staff that he would not be attending the hearing and “will not bring a judgment and will not pay attention to our request.” A judgment was signed and filed on that date which included the damages awarded to appellant and respondent; a blank space was left for costs in favor of both parties.
On June 10, 2008, appellant filed objections and a request for modification of the judgment, arguing that it improperly suggested that respondent was entitled to costs even though she was not the prevailing party. In a minute order dated June 11, 2008, the trial court stated: “Should [appellant] wish to request that the judgment entered by the Court be amended, [appellant] should file a noticed motion along with a memorandum of points and authorities as required by California Rules of Court, Rule 3.1113(b) so [respondent] has notice and opportunity to be heard. [¶]... [¶]... [Appellant] shall file the proposed amended judgment he is requesting the Court to enter as an exhibit to the motion. In any such motion, both parties shall state whether a memorandum of costs was filed pursuant to California Rules of Court, Rule 3.1700(a) and, if so, whether a motion to tax has been filed in accordance with California Rules of Court, Rule 3.1700(b). [¶] The parties are directed to the case of Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228 [(Rochin)] regarding the Court’s jurisdiction after entry of judgment.” Appellant did not file any such motion.
“It is true that a court has the inherent power to correct clerical error in its records at any time so as to conform its records to the truth, but it may not amend a judgment to substantially modify it or materially alter the rights of the parties under its authority to correct clerical error. [Citation.] The difference between judicial and clerical error rests not upon the party committing the error, but rather on whether it was the deliberate result of judicial reasoning and determination. The distinction between clerical error and judicial error is whether the error was made in rendering the judgment, or in recording the judgment rendered. [Citations.]” (Rochin, supra, 67 Cal.App.4th at p. 1238.)
The memorandum of costs attached to the motion to augment indicates it was “Rec’d” in the “Default Section.” There is nothing to indicate the memorandum was ever properly filed. From the trial court’s statements in the June 11, 2008 minute order, it is apparent that the trial court never saw the memorandum. Under these circumstances, we conclude that appellant did not file a timely memorandum of costs within the meaning of California Rules of Court, rule 3.1700. The failure to do so is fatal to his claim for costs. (Hydratec, Inc., supra, 223 Cal.App.3d at p. 928.)
DISPOSITION
The judgment in favor of respondent on the TACC’s second cause of action for conversion is reversed and the trial court is directed to enter an amended judgment in favor of appellant on that cause of action. In all other respects, the judgment is affirmed. Each party shall bear his or her own costs on appeal.
WE CONCUR: BIGELOW, P. J., FLIER, J.