Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. CGC-02-416192
Margulies, J.
Appellant Margaret Seltzer filed a notice of attorney’s lien in a pending lawsuit after withdrawing as the plaintiff’s counsel. When that lawsuit settled, the defendant filed this interpleader action, depositing a portion of the settlement fund in an amount judged sufficient to satisfy Seltzer’s lien and joining Seltzer and her former client, Steven Krantz, as parties. Seltzer then filed a cross-complaint against the lawyer who had replaced her as Krantz’s counsel, respondent William Gwire. After one of Seltzer’s claims against Gwire was dismissed in response to a special motion to dismiss under Code of Civil Procedure section 425.16, the anti-SLAPP statute and Gwire was granted summary adjudication of another, the matter was tried to the court. Although Seltzer prevailed over Krantz, judgment was entered against her on her claims against Gwire. We affirm the judgment in Gwire’s favor.
“SLAPP,” the common abbreviation for the statute, stands for “strategic lawsuit against public participation.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)
I. BACKGROUND
On December 30, 2002, Tandberg, Inc. (Tandberg) interpleaded a fund of $40,000, joining as parties Seltzer, Krantz, and their respective sole proprietorships. The interpleader complaint alleged that Krantz had filed a lawsuit against Tandberg in 1997 (Tandberg action), in which he was represented by Seltzer. In October 2002, Seltzer filed a notice of attorney’s lien in the Tandberg action, claiming over $26,000 in unpaid fees, plus interest. Two months later, in December 2002, Tandberg and Krantz entered into a settlement of the Tandberg action requiring Tandberg to pay a sum of money to Krantz. Estimating that $40,000 would be sufficient to satisfy Seltzer’s lien, Tandberg reserved that amount from the settlement and interpleaded it. The complaint alleged that Krantz disputed the validity of Seltzer’s lien and requested an order compelling them to litigate.
In May 2003, Seltzer filed a cross-complaint in interpleader against, among others, Tandberg, Krantz, and Gwire, the attorney who replaced Seltzer as Krantz’s counsel in the Tandberg action and represented him during the settlement negotiations with Tandberg. This was later superseded by an amended cross-complaint. The amended cross-complaint alleged four causes of action against Gwire, including claims for enforcement of her attorney’s lien and money had and received to recover the fees allegedly owed by Krantz, as well as claims for intentional interference with contract and conversion. The allegations of the intentional interference claim premised Gwire’s liability on his conduct while acting as counsel for Krantz in connection with the Tandberg action. The conversion claim alleged Gwire “converted the property of Cross-complaint [sic] in the form of earnings for which she had a lien against any recovery into unearned fee compensation for himself.”
Gwire filed a special motion to strike the claim for intentional interference under the anti-SLAPP statute. On an interlocutory appeal, this court reversed the denial of that motion and ordered dismissal of the intentional interference cause of action. (Seltzer v. Gwire (Oct. 24, 2005, A107526) [nonpub. opn.].) The trial court stayed all proceedings during the pendency of the appeal.
Following remand from this court, Seltzer filed a motion for summary judgment of her remaining causes of action against Gwire and Krantz, and Gwire filed a cross-motion for summary judgment against Seltzer. When Krantz did not file an opposition, Seltzer’s motion was granted as to the claims against him. The trial court denied Seltzer’s motion against Gwire, however, concluding on the claims for enforcement of the lien and conversion that “a triable issue of fact exists as to whether Gwire fulfilled any duty to protect Seltzer’s interests in settlement proceeds.” Regarding the common count for money had and received, the court found “there is at least a triable issue of fact as to whether cross-defendant ever received any funds owing to Cross-Complainant Seltzer.” The trial court, however, granted Gwire’s motion for summary adjudication of this same claim, concluding: “There is no evidence Gwire received any money owing to Seltzer. To the extent the interpleaded fund is insufficient to cover Seltzer’s claims, Krantz, not Gwire, received money due to Seltzer.” Seltzer’s other two claims against Gwire survived his motion.
On September 9, 2004, prior to the stay of proceedings pending appeal of the special motion to strike, Seltzer had served a demand for production of 45 categories of documents on Krantz and Gwire. An entry in the trial court docket sheet indicates Seltzer filed a motion to compel with respect to this document request on February 10, 2005, but there is no copy of the motion in the appellate record. The stay was granted prior to hearing of this motion, and Seltzer apparently never pursued the motion to hearing after the stay was lifted.
Although this document is entitled “Set Two,” we have been unable to find in the record an earlier demand for production of documents by Seltzer.
The docket sheet contains an entry on January 5, 2006 of a “Second Renotice” of a motion to compel filed by Seltzer. The motion itself is not contained in the record. Judging from docket sheet entries, hearing of the motion was continued twice. On February 27, a docket entry states that a motion to compel was taken off calendar “per request of the moving party,” but the moving party is not identified. The trail turns cold thereafter.
On January 18, 2006, Seltzer served a joint notice of deposition for Krantz and Gwire, along with a request for production of 51 categories of documents at the deposition. The record does not contain any response by Krantz or Gwire to this notice or any further discovery requests by Seltzer. According to the trial court docket sheet, on June 12, 2006, Seltzer filed a motion “to compel attendance, testimony, and production of documents at depositions and request for monetary and evidence sanctions,” but the motion itself is not included in the record. On June 26, a discovery commissioner entered an order entitled “Order on Motion to Compel Attendance, Testimony and Production of Documents at Depositions, and Request for Monetary and Evidence Sanctions,” apparently a ruling on this motion. The order directed Krantz, Gwire, and Gwire’s attorney, Tia Pollastrini, to appear for deposition and produce documents, but it limited the subject matter of the depositions of Gwire and Pollastrini to “the attorney’s fees and costs requested pursuant to Code of Civil Procedure § 425.16 only.” The order stated that it did not “preclude further deposition [of Gwire and Pollastrini], at a future date, on other substantive issues arising from the complaint and cross-complaint herein.” Seltzer’s request for sanctions was denied without prejudice. The next day, Seltzer served on Krantz and Gwire notices to appear at trial and produce documents, each with 70 categories of documents.
On July 24, Seltzer submitted a motion for sanctions against Krantz, Gwire, and Pollastrini, alleging they had failed to comply with the earlier discovery order. No written ruling was issued on that motion, but a reference in a pleading filed later by Seltzer indicates it was granted in part as to Krantz and denied as to Gwire and Pollastrini on August 2. On August 11, Seltzer filed an ex parte application for modification of that order, arguing Pollastrini and Gwire had not appeared for their depositions or produced documents, as they had agreed prior to hearing of the motion, and the parties appeared before a discovery commissioner. Later that day, they also appeared in front of Judge John J. Conway, who was assigned to conduct the trial. The parties announced to the court that the discovery commissioner had denied Seltzer’s ex parte application.
At the August 11 hearing before Judge Conway, Gwire told the court he had filed a motion to quash Seltzer’s notice to appear at trial and produce documents, arguing the notice did not state with sufficient particularity the documents to be produced. Seltzer explained to the court she had served a notice to appear designating broad categories of documents because Gwire “has produced no documents to me in discovery, and that was why I needed to do this.” She told the court Gwire had never responded to the document request she had made and, although she filed a motion to compel with respect to this request, it was taken off calendar “during the stay” and never heard. The court granted Gwire’s motion to quash, explaining: “[W]e have a case that was filed on December 30th, 2002.... [¶]... [¶]... [T]he production of documents was not actively pursued until 2004,... and... there were numerous stays and delays.... In January, there was a notice of the taking of depositions, and apparently the depositions did not go forward. There was no motion to compel production of documents. [¶]... [¶] It appears that plaintiffs’ counsel has not pursued by noticed motion the production of these documents.”
Trial commenced on August 14, 2006 and continued for 11 more days. In a statement of decision, Seltzer was awarded the fees claimed against Krantz, plus interest. Gwire, however, prevailed on the claims against him. In a judgment filed July 27, 2007 that summarized its ruling, the court noted Seltzer’s claims were without factual support, concluding “there was no credible evidence that Gwire had interfered with, obstructed or attempted to defeat Seltzer’s lien rights and no factual support in the evidence that Gwire converted any of Seltzer’s funds or aided or participated in any plan to deprive Seltzer of her funds.” The court subsequently granted in part a motion by Seltzer to tax costs, filing a detailed order that reduced Gwire’s requested costs by $314 to $6,734.
Seltzer moved for a new trial, largely re-arguing the factual issues decided against her in the court’s statement of decision. She also claimed she had discovered that Gwire had suppressed evidence and that an employee of his law firm had made a similar claim against Gwire in a lawsuit against him. After hearing oral argument on the motion for a new trial, the trial court denied it summarily, along with Seltzer’s request to vacate the judgment and statement of decision.
II. DISCUSSION
Seltzer contends (1) the trial court erred in denying her motion for summary judgment and granting, in part, Gwire’s motion; (2) the trial court erred in refusing to enforce the notice to produce documents at trial and in denying Seltzer’s motion for sanctions as a result of Gwire’s failure to comply with discovery requests made during discovery; (3) the trial court’s statement of decision was inadequate; (4) the trial court improperly denied Seltzer’s motion for a new trial; and (5) the court should have disallowed certain of Gwire’s costs.
A. Motions for Summary Judgment
1. Denial of Seltzer’s Motion
Seltzer contends the trial court’s denial of her motion for summary judgment against Gwire was erroneous because (1) Gwire’s response to her statement of undisputed material facts did not properly dispute her facts, and (2) the trial court did not specify the material facts in dispute and the supporting evidence when ruling on the motion.
The general rule in California is that the wrongful denial of a motion for summary judgment is not grounds for reversal of a judgment when “a party moves for summary judgment on the ground that there is no triable issue of fact, the motion is denied, and the same questions raised by the motion are then decided adversely to the unsuccessful moving party after a trial on the merits which is itself free from prejudicial error.” (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 836 (Waller); see similarly California Housing Finance Agency v. Hanover/California Management & Accounting Center, Inc. (2007) 148 Cal.App.4th 682, 688–689.) The rationale, as explained by Waller, is that “[w]hen the trial court commits error in ruling on matters relating to pleadings, procedures, or other preliminary matters,.... that error may lead to reversal only if we are persuaded ‘upon an examination of the entire cause’ that there has been a miscarriage of justice.... Since we are enjoined to presume that the trial itself was fair and that the verdict in [the prevailing party’s] favor was supported by the evidence, we cannot find that an erroneous pretrial ruling based on declarations and exhibits renders the ultimate result unjust.” (Id. at p. 833.) The rule applies to an error in the form of the trial court’s order, as well as in the substance of its judgment. (Id. at p. 836.) Because Seltzer’s claims were resolved against her after a trial, she cannot raise the earlier denial of her summary judgment motion as grounds for reversal.
In her reply brief, Seltzer contends the issues decided at trial were different from the issues considered by the trial court on summary judgment. This is a recognized exception to the rule of Waller, since Waller’s rationale applies only if the basis for summary judgment was later resolved at trial. (Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 342–343 [reviewing denial of summary judgment on grounds of statute of limitations where trial court’s ruling at trial was restricted to amount of damages]; Geckstetter v. Frawley (2006) 135 Cal.App.4th 1257, 1268–1270.) It is clear, however, that the exception is inapplicable here. Seltzer moved for summary judgment on the merits of her claims against Gwire. The arguments she made and the evidence cited in her summary judgment motion were the same factual and legal issues decided at trial.
2. Gwire’s Motion for Summary Judgment
Seltzer contends the trial court erred in granting summary adjudication to Gwire on the common count for money had and received because “the ‘facts’ he adduced were not material and were not supported with admissible evidence.” She also argues the trial court’s order was defective because it did not identify disputed material facts and supporting evidence.
We find no basis for Seltzer’s general claim that Gwire’s motion for summary adjudication of the common count was not supported by admissible evidence. “The essential elements of an action for money and/or goods had and received are (1) a statement of indebtedness of a certain sum, (2) the consideration made by the plaintiff, and (3) nonpayment of the debt. [Citation.] However, ‘no recovery for money had and received can be had against a defendant who never received any part of the money or equivalent thing sued for.’ ” (First Interstate Bank v. State of California (1987) 197 Cal.App.3d 627, 635.) The gravamen of Seltzer’s claim was that, in the words of the amended cross-complaint, Gwire had received $26,000, “which belongs to Cross-complainant.” As the trial court concluded, the claim was factually unsupported because “[t]here is no evidence Gwire received any money owing to Seltzer. To the extent the interpleaded fund is insufficient to cover Seltzer’s claims, Krantz, not Gwire, received money due to Seltzer.”
In a declaration filed with the summary judgment motion, Gwire stated that $26,000, along with $14,000 to cover a potential interest claim, had been interpleaded with the court. This was competent evidence to demonstrate that Gwire had not received the money Seltzer claimed in her cause of action. The two issues for which Seltzer claims there was no competent evidence—whether Krantz actually owed Seltzer $26,000 and whether the lien was valid––were simply irrelevant to this cause of action, which is based on the receipt of another’s funds. Even assuming Krantz owed the money and Seltzer’s lien was valid, she had no claim for money had and received against Gwire.
We find no deficiency in the form of the trial court’s order. Code of Civil Procedure section 437c, subdivision (g) requires a court, upon granting a motion for summary adjudication, to “specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists.” The trial court’s order fully explained both the legal rationale for its ruling and the facts on which it based that ruling. In any event, because we find no substantive error in the court’s ruling, any deficiency of the order under section 437c is harmless error. (Hasso v. Hasso (2007) 148 Cal.App.4th 329, 338; Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1027.)
The full text of the substance of the trial court’s written ruling reads as follows: “In the 4th cause of action for Monies Had and Received, Seltzer claims that Gwire had and received funds owing to Seltzer from a settlement with Plaintiff Tandberg of an underlying lawsuit. Cross-Defendant Gwire shifted the burden to Cross-Complainant Seltzer by demonstrating Seltzer’s lack of evidence and inability to acquire evidence that Gwire ever received any money owing to Seltzer. Plaintiff Tandberg’s deposit in Interpleader of $40,000 with the court for the purpose of protecting Seltzer’s interest in settlement funds makes separate all funds owed to Seltzer from any funds received by Gwire as part of the Tandberg settlement. There is no evidence Gwire received any money owing to Seltzer. To the extent the interpleaded fund is insufficient to cover Seltzer’s claims, Krantz, not Gwire, received money due to Seltzer. Because Seltzer failed to raise a triable issue of fact as to whether Gwire received any funds owed to Seltzer, Gwire’s Motion [is granted].”
In her reply brief, Seltzer argues that it was improper for the trial court to conclude that disputed issues of fact precluded summary adjudication for her on this cause of action, yet did not preclude summary adjudication for Gwire. She cites no law that would prevent such a ruling as a matter of law, and we find no inconsistency in the trial court’s rulings. Seltzer’s cause of action against Gwire was based on her factual claim that, as she stated in the memorandum of law filed in support of her motion for summary judgment, “Krantz and Gwire failed to pay Seltzer’s fees from the settlement and instead diverted them to themselves.” In denying Seltzer’s motion, the trial court concluded that “at least” the evidence was in dispute on this issue, suggesting Seltzer had presented little or no evidence to support her claim. In light of the evidence presented by Gwire that the $26,000 allegedly owed to Seltzer was interpleaded, and Seltzer’s failure to present evidence to dispute this evidence, denial of her motion and grant of Gwire’s was justified and consistent.
B. Trial Court’s Refusal to Require Document Production
Seltzer contends the trial court erred in refusing to require Gwire to produce at trial documents responsive to the categories contained in her notice to appear.
“Appellate review of discovery rulings is governed by the abuse of discretion standard. ‘Where there is a basis for the trial court’s ruling and the evidence supports it, a reviewing court will not substitute its opinion for that of the trial court. [Citation.]’ [Citation.] ‘The trial court’s determination will be set aside only when it has been demonstrated that there was “no legal justification” for the order granting or denying the discovery in question.’ [Citations.] We defer to the trial court’s factual findings if they are supported by substantial evidence.” (Union Bank of California v. Superior Court (2005) 130 Cal.App.4th 378, 388.)
Pursuant to Code of Civil Procedure section 1987, a party can serve a notice to appear at trial in lieu of a subpoena. If served at least 20 days before trial, the notice can “include a request that the party or person bring with him or her books, documents or other things. The notice shall state the exact materials or things desired and that the party or person has them in his or her possession or under his or her control.” (Id., subd. (c), italics added.) Although this language has not been construed in the context of section 1987, Code of Civil Procedure section 1985, governing issuance of subpoenas duces tecum, contains similar language, requiring the affidavit accompanying the subpoena to “specify[] the exact matters or things desired to be produced.” (Id., subd. (b).) The language of section 1985 has been interpreted literally, requiring specificity in the designation of materials to be produced. (E.g., Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551, 565 [“The principal reason for the specificity requirement is to adequately apprise the custodian of what records are desired and the requested identification may be defeated by generality of description”]; Flora Crane Service, Inc. v. Superior Court (1965) 234 Cal.App.2d 767, 785–786.)
Contrary to the language of Code of Civil Procedure section 1987, Seltzer’s notice to appear did not specify “exact” materials to be brought to trial. Rather, in the manner of a discovery request, it listed broad and general subject matter categories, instructing Gwire to bring documents fitting those categories, should any exist. During argument, Seltzer frankly admitted that the notice to appear was made in lieu of a discovery request. Given the generality of the categories of the notice to appear and their failure to designate any specific materials, the trial court did not abuse its discretion in concluding the notice did not satisfy the requirements of section 1987.
Seltzer argues that she was not required to file a motion to compel with respect to the notice to appear because Gwire did not file timely objections to it. The argument misunderstands the trial court’s rationale. The trial court did not quash the notice to appear because Seltzer had not filed a motion to compel as to the notice to appear. Rather, the court refused to permit Seltzer to conduct last-minute discovery through service of a noncompliant notice to appear because she had not been diligent in pursuing a motion to compel this discovery during the prior three and one-half years the matter had been pending. We find nothing in the record before us to call into question the court’s reasoning. Although Seltzer served a request for production of documents on Gwire and moved to compel when he failed to produce documents, the motion was taken off calendar by the stay of proceedings pending appeal and never heard. Seltzer later filed a notice of deposition on Gwire with an attached request to produce documents. When she made a motion to compel with respect to that notice, the court limited the responses to issues related to a motion for attorney fees, rather than the merits of this dispute. Although the order did not preclude further discovery on other topics, there is no indication in the record Seltzer followed up on this order, other than through a motion for sanctions. The trial court’s ruling that Seltzer failed to pursue available remedies to obtain production of documents from Gwire regarding the merits of her claims prior to trial is fully supported by this record.
Seltzer also argues the discovery commissioner should have imposed sanctions in response to her motion for sanctions filed in July 2006 or, alternatively, the trial judge should have done so. Because we do not have a complete record regarding that motion, particularly no transcript of the discovery commissioner’s oral rulings, we have no basis for reviewing the commissioner’s exercise of discretion. The commissioner’s order must therefore be affirmed. (See, e.g., Defend Bayview Hunters Point Com. v. City and County of San Francisco (2008) 167 Cal.App.4th 846, 859–860.) Further, we find no evidence to support Seltzer’s contention the commissioner referred to the trial judge for decision her ex parte motion to modify the order denying sanctions. On the contrary, when Seltzer reported the results of the ex parte hearing before the discovery commissioner to the trial judge, she stated the commissioner had referred action against Krantz to the judge but “[the commissioner is] not going to revisit the discovery order he made as to Mr. Gwire on the 3rd because it was a motion for sanctions, not an order to compel, and he wasn’t going to revisit the question of sanctions in that order, even though my motion was to modify that ruling based on subsequent noncompliance.”
C. Statement of Decision
Seltzer contends the trial court’s statement of decision was defective because (1) it included findings as to Seltzer’s claims against Krantz, despite the earlier grant of summary judgment on her claims against him, (2) the trial court did not resolve all factual issues with respect to her claims against Gwire, and (3) the statement of decision did not render a decision with respect to the enforcement of lien cause of action.
“Upon the timely request of one of the parties in a nonjury trial, a trial court is required to render a statement of decision addressing the factual and legal bases for its decision as to each of the principal controverted issues of the case. [Citation.] A statement of decision need not address all the legal and factual issues raised by the parties. Instead, it need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision.” (Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1124–1125.) “[A] trial court is not required to respond point by point to issues posed in a request for a statement of decision. ‘ “The court’s statement of decision is sufficient if it fairly discloses the court’s determination as to the ultimate facts and material issues in the case.” [Citations.]’ ” (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 500.) “ ‘ “[U]ltimate fact[]” ’ is a slippery term, but in general it refers to a core fact, such as an element of a claim or defense, without which the claim or defense must fail. [Citation.] It is distinguished conceptually from ‘evidentiary facts’ and ‘conclusions of law.’ ” (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 559.)
Ordinarily, an objection to the trial court’s failure to resolve an ultimate fact in a statement of decision must be “conditioned on (1) an initial request that adequately ‘specif[ies]’ the ‘principal controverted issues’ as to which the requesting party seeks a statement of decision [citation]; (2) a failure by the statement to ‘resolve’ the ‘controverted issue’ thus specified, or an ambiguity in its resolution [citation]; and (3) a record showing that ‘the omission or ambiguity was brought to the attention of the trial court.’ ” (Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at p. 558.)
Seltzer argues that the trial court “did not address all of the controverted issues tendered by the [amended cross-complaint] against Gwire,” but she does not identify where she requested resolution of any such issue, nor where she brought the purported failure to the court’s attention. This alone would require rejection of her argument. (Yield Dynamics, Inc. v. TEA Systems Corp. supra, 154 Cal.App.4th at p. 559.)
More fundamentally, Seltzer makes her argument only in general terms and never clearly identifies what factual issues she contends were left unaddressed, nor does she demonstrate how resolution of those particular factual issues would have resulted in a decision in her favor. Based on comments in her reply brief, Seltzer appears to believe the court should have decided whether Gwire and Krantz concealed the settlement of the Tandberg action from her. As the statement of decision makes clear, however, this issue was immaterial to resolution of Seltzer’s claims. As the decision finds, Seltzer learned of the settlement on her own and provided timely notice of her lien to Tandberg’s counsel. Tandberg then interpleaded $40,000, which the court found sufficient to cover the lien amount. Accordingly, Seltzer could not have been damaged by any concealment of the settlement that might have occurred by Krantz and Gwire, and there was no error in the court’s failure to resolve the issue. Because Seltzer fails clearly to identify any other factual issue that she contends the trial court did not decide and fails to indicate where, in the trial court, she requested resolution of that issue or pointed out the court’s failure to decide it, as required before the issue can be raised on appeal, we find no basis for reversal on this ground. Moreover, our independent review of the statement of decision leads us to conclude that the trial court adequately covered the principal material contested issues. (E.g., Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1379–1380.)
We decline to address the propriety of the trial court’s inclusion of findings regarding Krantz in the statement of decision. In order to obtain reversal of a judgment, it is not sufficient to point out error; rather, the appellant must demonstrate that the error was prejudicial. (Code Civ. Proc., § 475; Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 311.) Seltzer prevailed on her claim against Krantz, and the inclusion of these findings had no impact on the court’s resolution of Seltzer’s claim against Gwire. There was therefore no prejudice.
We find no basis for Seltzer’s claim the trial court failed to resolve her second cause of action, entitled “Enforcement of Attorney’s Lien,” as against Gwire. The statement of decision contains a section expressly labeled “Attorney’s Lien and Interpleader.” The section discusses the claimed factual basis for both remaining causes of action alleged against Gwire, finds Gwire did nothing that would cause him to incur liability to Seltzer, and concludes “[i]t is the Court’s finding that Seltzer [has] not sustained her burden of proof on the essential elements of the causes of action against Gwire.” (Italics added.) Plainly, the court intended this discussion to apply to both of the surviving causes of action alleged against Gwire. In any event, because Seltzer’s lien was enforced in full against the interpleaded sum, she fails to demonstrate any prejudice from the court’s purported failure to address this cause of action.
As to Seltzer’s claim the trial court failed to enter judgment for Gwire on the second cause of action, the statement of decision states that judgment shall be entered for Gwire in the entire case, which necessarily includes the second cause of action. The judgment entered later by the court is the same.
D. Denial of New Trial Motion
“As our Supreme Court has explained, ‘[t]he right to a new trial is purely statutory, and a motion for a new trial can be granted only on one of the grounds enumerated in the statute.’ ” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1193.) “ ‘[A] trial judge is accorded a wide discretion in ruling on a motion for new trial and... the exercise of this discretion is given great deference on appeal. [Citations.] However, we are also mindful of the rule that on an appeal from the judgment it is our duty to review all rulings and proceedings involving the merits or affecting the judgment as substantially affecting the rights of a party [citation], including an order denying a new trial. In our review of such order denying a new trial, as distinguished from an order granting a new trial, we must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial.’ (Original italics.) Prejudice is required: ‘[T]he trial court is bound by the rule of California Constitution, article VI, section 13, that prejudicial error is the basis for a new trial, and there is no discretion to grant a new trial for harmless error.’ ” (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160–1161.) In determining whether prejudice has occurred, we apply the test of People v. Watson (1956) 46 Cal.2d 818, 836: “ ‘that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)
The discussion of Seltzer’s new trial motion in her opening brief reiterates each of the arguments made below, without clearly identifying those she intends to raise in this court and without making allowance for this court’s standard of review. Several of the claims—that her summary judgment motion should have been granted, there were errors in the statement of decision, and Gwire should have been forced to produce documents—replicate arguments made elsewhere on appeal and have been addressed previously. Because, as discussed above, those rulings were not erroneous, they were not grounds for the grant of a new trial.
The new trial motion also listed five full pages of ethical violations allegedly committed by Gwire in connection with his dealings with Tandberg and Krantz. Having reviewed the claimed violations, and even assuming Seltzer’s claims to be true, we are persuaded that none of the alleged violations affected trial of Seltzer’s claims against Gwire or cast doubt on the validity of the trial court’s conclusions. Similarly, Seltzer’s general claims that Gwire suppressed evidence, without a description of the nature of the evidence suppressed, provide no basis for finding that the trial was unfair or that a different result might have been reached. Because this conduct was not shown to be prejudicial, it did not constitute a basis for the grant of a new trial.
Seltzer also claimed to have new evidence that would have affected the outcome of the trial. Subdivision 4 of Code of Civil Procedure section 657 permits the trial court to grant a new trial upon an adequate showing of “[n]ewly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.” Generally, a party seeking a new trial on this basis must show that “(1) the evidence is newly discovered; (2) he or she exercised reasonable diligence in discovering and producing it; and (3) it is material to the... party’s case.” (Plancarte v. Guardsmark (2004) 118 Cal.App.4th 640, 646.)
Seltzer first claimed that “[s]ince the conclusion of the testimony portion of the trial[,] I have received information from Krantz that there exists evidence that would demonstrate the falsity of Gwire’s arguments.” In purporting to describe that new evidence, however, Seltzer merely reiterated the various factual arguments she made at trial, without specifying what new evidence Krantz had revealed that would prove those contentions. Also, she did not demonstrate that the purported new information could not have been gained prior to trial with reasonable diligence. Accordingly, she failed to satisfy the requirements for grant of a new trial. Seltzer also claimed to have learned after the close of evidence that an attorney who had represented Gwire during the trial had filed suit against him. With respect to the impact of this on her own case, however, Seltzer merely speculated that “[e]vidence in this case will likely show that [the attorney] suppressed evidence in my case against Mr. Gwire for her own personal gain.” Because Seltzer did not make clear the content of the new evidence to be revealed by this litigation, explain how it would have changed the outcome of her trial, or explain why that evidence could not have been obtained earlier, there was no abuse of discretion in the trial court’s rejection of a new trial on this ground.
Seltzer also argued Gwire’s opposition was untimely and should have been stricken. Because we find no merit in Seltzer’s motion, the trial court’s decision not to strike the opposition was not prejudicial and does not justify reversal of the court’s order. (See, e.g., Sherman v. Kinetic Concepts, Inc., supra, 67 Cal.App.4th at pp. 1160–1161.)
E. Award of Costs
Seltzer argues that Gwire “failed to meet his burden” with respect to the following costs listed in his memorandum of costs: a $40 filing fee for an ex parte motion, $220 in fees relating to an early settlement conference, a $40 refiling fee for a motion for attorney fees, costs relating to his deposition, photocopying costs, and messenger fees.
Gwire contends Seltzer is precluded from challenging the costs order because she did not file a separate notice of appeal. While postjudgment orders ordinarily must be the subject of a separate notice of appeal, when a judgment awards costs but provides for their later determination, as this one did, an appeal of the judgment encompasses appeal of the postjudgment order setting costs. (R.P. Richards, Inc. v. Chartered Construction Corp. (2000) 83 Cal.App.4th 146, 158.)
“The right to recover costs is purely a creature of statute, and the applicable statute defines the extent of a party’s right to recover costs.” (Benson v. Kwikset Corp. (2007) 152 Cal.App.4th 1254, 1279.) Under Code of Civil Procedure section 1032, “the party who prevails in any action or proceeding ‘is entitled as a matter of right to recover costs....’ [Citation.] Section 1033.5, subdivision (a), contains a list of items allowed as recoverable costs.... Subdivision (b) contains a list of items that ‘are not allowable as costs, except when expressly authorized by law....’ An item neither specifically allowable under subdivision (a) nor prohibited under subdivision (b) may be allowed or denied in the discretion of the court. [Citation.] All costs awarded must be ‘reasonable in amount’ and only be for items ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’ [Citation.] [¶] A costs award is reviewed on appeal for abuse of discretion.” (El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc. (2007) 150 Cal.App.4th 612, 616–617.)
Ex Parte Application Filing Fee: Seltzer challenges a $40 filing fee paid by Gwire in connection with an ex parte application for “Order Staying Order re: Return of Funds to Krantz.” Seltzer argued in the trial court that because this ex parte application was made as part of the disqualification of Gwire from representing Krantz in the interpleader proceeding, she should not be charged with it. Filing fees are generally recoverable. (Code Civ. Proc., § 1033.5, subd. (a)(1).) Because Seltzer did not include a copy of this ex parte application in the appellate record, we have no basis for finding that the trial court abused its discretion in allowing this cost item, and we affirm on that basis. (See, e.g., Defend Bayview Hunters Point Com. v. City and County of San Francisco, supra, 167 Cal.App.4th at pp. 859–860 [issue must be resolved against party that fails to provide adequate record for review].)
Early Settlement Conference Fees: Seltzer also challenges $200 in fees paid for “BASF Early Settlement Conference Fee” and $20 for “Filing Fee–Request for Continuance of [Early Settlement Conference].” In her motion before the trial court, Seltzer claimed that these “are neither ‘filing’ nor ‘motion fees.’ ” Because the trial court disallowed the $20 filing fee, we need not address it. Assuming the $200 settlement conference fee was not allowable as a matter of right under Code of Civil Procedure section 1033.5, subdivision (a), neither was it disallowed under subdivision (b). Because participation in the early settlement program was a reasonably necessary cost of the litigation, there was no abuse of discretion in the trial court’s allowance of the fee under section 1033.5, subdivision (c). (See, e.g., Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 975.)
Motion Refiling Fee: Seltzer challenges a $40 “Filing Fee–Refiling of Motion for Attorneys Fees purs[uant] to court order.” In the trial court, Seltzer contended the fee should be disallowed because Gwire’s initial filing was incompetent; on appeal she contends it should be disallowed because it “must be directed to the department who ruled on his cost and fee applications for the anti-SLAPP attorneys fees.” The court order directing this filing reveals it was done for the court’s convenience, rather than as a result of any fault of Gwire’s. Seltzer provides no authority requiring this cost, which was a necessary expense of the litigation, to be recovered in the attorney fees proceeding, rather than in a cost memorandum filed after trial, and we find no impropriety.
Deposition Costs: Seltzer points to a $25.72 difference between the amount sought by Gwire for deposition transcript costs and the actual invoice amount for the same transcript. Under line item No. 3 of the trial court’s order taxing costs, this amount was already taxed against Gwire’s allowable costs.
Messenger Fees: Seltzer challenges the allowance of messenger fees. While not specifically provided for in Code of Civil Procedure section 1033.5, such fees are allowable at the discretion of the trial court. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 858.) The trial court’s order on the motion to tax costs demonstrates that it reviewed Gwire’s messenger costs individually, disallowing some and allowing others. Seltzer makes no attempt to distinguish between allowed and disallowed messenger costs. As in Benach, we find no abuse of discretion in allowance of some messenger fees here, given “the complexity of legal issues involved in this action [and the] sheer volume of motions and pleadings filed and served,” which would have “prevented [counsel] from filing documents in advance of court deadlines.” (Ibid.)
Photocopying Costs: Seltzer challenges fees allowed for the copying of exhibits submitted in connection with Gwire’s motion for summary judgment and opposition to a motion for attorney fees because these were not incurred for the copying of exhibits used at trial. While copying costs for exhibits not presented to the trier of fact are not specifically allowed by Code of Civil Procedure section 1033.5, neither are they precluded. (See id., subds. (a)(12) & (b)(3).) Accordingly, they may be allowed under subdivision (c)(2) if “reasonably necessary to the conduct of the litigation.” Given the significance of these motions to the conduct of the litigation, the trial court did not abuse its discretion in concluding these copying costs were reasonably necessary.
III. DISPOSITION
The judgment of the trial court is affirmed.
We concur: Marchiano, P.J., Graham, J.
[] Retired judge of the Marin County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.