Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Los Angeles County Super. Ct. No. BC160056. Bruce Mitchell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Kiesel Boucher Larson, Raymond P. Boucher, Michael Eyerly; Arias, Ozzello & Gignac, Mike Arias, Arnold C. Wang for Plaintiffs and Appellants.
Marlin & Saltzman, Louis M. Marlin, Lynn P. Whitlock for Defendant and Respondent.
BOREN, P.J.
This appeal concerns the Willed Body Program (WBP) at the University of California, Los Angeles (UCLA). The parties are litigating UCLA’s alleged mishandling of WBP donor remains after completion of medical study and research. Appellant Robert Bennett, Jr., is the son of a decedent who donated her remains to the WBP. Bennett challenges on appeal the trial court’s judgment in favor of UCLA. We affirm.
FACTS
We first reviewed this case after demurrers were sustained, and determined that the negligence, fraud and contract claims alleged in Bennett’s complaint were broad enough to survive demurrer. (Bennett v. Regents of University of California (Jul. 23, 2001, B135382) [nonpub.opn.].) In the second appeal, we reviewed the trial court’s denial of class certification. We concluded that “the factual basis for plaintiffs’ class claim—multiple, simultaneous incineration of human remains—is not an actionable wrong in the context of a university’s WBP.” (Bennett v. Regents of University of California (2005) 133 Cal.App.4th 347, 351 (Bennett II).)
The present appeal involves the individual claims of Robert Bennett, Jr., regarding the disposition of his mother Loraine Bennett (decedent), a WBP donor. In 2004, the trial court granted UCLA’s motion for summary adjudication as to Bennett’s causes of action for breach of contract; breach of the implied covenant of good faith and fair dealing; intentional misrepresentation; concealment; and negligent misrepresentation. The court denied UCLA’s motion as to Bennett’s negligence claim, finding that there “is a triable issue as to whether or not the donor’s remains were mishandled.”
While opposing UCLA’s motion for summary adjudication, in January 2004, Bennett did not request a continuance to conduct discovery on his individual claims to locate supporting evidence. On the contrary, Bennett was satisfied with the state of the evidence. He argued, “[t]here is [ ] copious evidence that defendants cremated multiple bodies at a time and co-mingled human cremains with medical waste and animal remains.”
In 2005, this court rendered its opinion in Bennett II. Based on that decision, UCLA asked the trial court to reconsider its former ruling and grant summary adjudication on Bennett’s sole remaining cause of action for negligence. UCLA argued that Bennett II “constitutes new law supporting granting of the prior motion.” Bennett opposed UCLA’s motion, contending that (1) it was untimely, and (2) this court’s decision in Bennett II cannot be imported into Bennett’s individual claim of wrongdoing. Bennett requested a continuance to conduct further discovery, anticipating new information to establish that decedent’s remains were mishandled by being “mixed in with animal waste and syringes, etc. . . .”
At the July 26, 2006, hearing on UCLA’s motion, Bennett listed his claims with respect to UCLA’s alleged mishandling of decedent’s cremains: mixing her ashes with animal carcasses; incomplete cremation; and failure to track the whereabouts of her remains. Plaintiff’s counsel conceded that “nobody knows what happened to [decedent’s] ashes.” As a result, it was not possible to say whether decedent’s cremains were mixed with animal carcasses or incompletely cremated. There is no record whether decedent’s body was used for fresh tissue or for gross anatomy (dissection for study) purposes. In any event, there is no way to prove whether or not UCLA spread decedent’s cremains in a rose garden, a promise alleged by Bennett.
Cremains are the ashes of a cremated person. (Bennett II, supra, 133 Cal.App.4th at p. 352, fn. 1.)
The trial court granted UCLA’s motion for reconsideration. After reconsidering its prior ruling on the motion for summary adjudication, the court summarily adjudicated Bennett’s negligence cause of action in favor of UCLA. Because this disposed of the only remaining cause of action, the court entered judgment in favor of UCLA. Bennett appeals from the judgment.
DISCUSSION
1. Appeal and Review
Appeal is taken from the final judgment, after the trial court granted UCLA’s motion for reconsideration and summarily adjudicated Bennett’s sole remaining claim. We have appellate jurisdiction. (Code Civ. Proc., § 904.1, subd. (a)(1).) “A trial court’s ruling on a motion for reconsideration is reviewed under the abuse of discretion standard.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.) “A defendant’s motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002, 1003; § 437c, subd. (c).)
All further statutory references are to the Code of Civil Procedure.
2. Propriety of UCLA’s Motion for Reconsideration
Parties may bring motions for reconsideration based upon “new or different facts, circumstances, or law.” (§ 1008, subds. (a)-(b).) Also, “[i]f a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.” (§ 1008, subd. (c).) Bennett argues that the trial court could not reconsider its prior ruling on UCLA’s motion for summary adjudication because Bennett II “offers no new law that would affect Mr. Bennett’s individual claims.”
The outcome of Bennett II does affect Bennett’s individual claims. In Bennett II, we reviewed claims made by all of the potential class members—including Bennett. Bennett brought this action “on behalf of himself and all others similarly situated.” We determined that Bennett’s (and the class’s) claim regarding multiple, simultaneous incinerations of humans remains is not an actionable wrong in the context of a WBP, as a matter of law. This is new law, in a published case, which is res judicata as to Bennett himself. Because Bennett II affected Bennett’s ability to assert certain claims, it is clearly germane to his individual case.
Under the circumstances, given the res judicata effect of Bennett II, the trial court would have been remiss if it failed to reconsider its prior ruling on the issue of whether UCLA mishandled the remains of WBP donors. Mishandling of donor remains was the sole issue remaining in Bennett’s lawsuit. We ruled in Bennett II that UCLA did not mishandle donors’ remains by incinerating them en masse at the completion of medical study and research. The trial court properly revisited the case before trial to determine whether any triable issue of fact existed after the appeal was decided in Bennett II.
Bennett contends that UCLA’s motion for reconsideration is, in fact, a renewed motion for summary adjudication that was made without 75 days’ advance notice. As with a motion for reconsideration, a renewed motion for summary adjudication must be based on new facts or law. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1099.) A party’s written motion must satisfy the requirements of section 437c, subdivision (f)(2), or 1008. (Id. at p. 1108.)
Section 437c, subdivision (f)(2) provides, in pertinent part, “a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.”
As discussed above, UCLA’s motion is based on new law; specifically, Bennett II is new law of the case pertinent to Bennett’s individual claim that decedent’s remains were mishandled. Because the motion for reconsideration was appropriately granted, based on new law of the case, Bennett’s argument regarding the notice requirements for a renewed motion for summary adjudication do not impact the result.
Bennett does not contend that the motion for reconsideration was untimely or improperly noticed. He argues only that it was not based on “new law.”
3. Denial of a Continuance
Bennett asserts that the trial court was required to continue the case to allow him to conduct further discovery under the summary judgment statute. However, UCLA asked the court to revisit its prior ruling, which the court did by granting the motion for reconsideration. Further discovery is not mandated on a motion for reconsideration.
The statute provides, “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. . . .” (§ 437c, subd. (h).)
The trial court’s denial of a request for a continuance lies within its discretion. (California Automobile Ins. Co. v. Hogan (2003) 112 Cal.App.4th 1292, 1305.) The purpose of allowing a continuance is to mitigate the harshness of summary judgment “‘for an opposing party who has not had an opportunity to marshal the evidence[.]’” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253.) A continuance may be denied if the party requesting it has not been diligent in seeking the information needed to oppose summary judgment: “There must be a justifiable reason why the essential facts cannot be presented. An inappropriate delay in seeking to obtain the facts may not be a valid reason why the facts cannot then be presented.” (Id. at p. 257; Desaigoudar v. Meyercord (2003) 108 Cal.App.4th 173, 190.)
This lawsuit was filed in 1996. Over the last 11 years, discovery has been conducted, including the depositions of appellant Bennett and the WBP employees at UCLA; the deposition testimony addressed the manner in which WBP donor remains were handled. (See Bennett II, supra, 133 Cal.App.4th at pp. 352-353.) Bennett now claims that “[n]o discovery [has] been conducted specifically concerning Mr. Bennett’s individual claims.” This is implausible. As the lead plaintiff in the proposed class action, Bennett’s claims are representative of those made by the entire class. The discovery that was conducted over the years related just as much to Bennett as it did to other potential class members. More to the point, Bennett did not see any need—three and a half years ago—to conduct further discovery on his individual claims when he opposed UCLA’s motion for summary adjudication: he argued, in 2004, that there was “copious evidence” to support his claims that UCLA commingled human remains with medical waste and animal remains. Finally, we note that Bennett delayed for another half year after Bennett II before initiating additional discovery on his individual claim. Prejudice to UCLA may be presumed, because after a decade, memories fade and witnesses die.
In his 2004 opposition to UCLA’s motion for summary judgment on his individual claims, Bennett declared that he would not have delivered decedent to the WBP had he known “that UCLA would dump my mother’s remains in a landfill.” In 2005, we wrote in Bennett II that there was a failure of proof on the claim that any WBP donors were disposed of in a landfill. (133 Cal.App.4th at pp. 357-358.) Presumably, Bennett and the other class members submitted their best evidence with respect to the landfill claim. After Bennett II, Bennett is not entitled to relitigate the landfill issue.
In his request for further discovery, Bennett voiced his intent to establish that UCLA was negligent because it “cannot account for what was done with Loraine Bennett’s ashes.” We made clear in Bennett II that the WBP is entitled to incinerate the remains of many donors simultaneously and to commingle the cremains, noting that it “would be unduly burdensome to require a medical school to label and account for a willed-body donor’s dissected tissue, organs, sinew and bones, and to ensure that all of the components are retrieved and cremated together, assuming that it is even possible to do so.” (133 Cal.App.4th at p. 356.) Our holding acknowledges that a cadaver may be reduced for anatomical study over a long period of time, and some body parts kept longer for study—perhaps even indefinitely. (Id. at pp. 355-356.) Given this holding, UCLA cannot be held accountable for knowing the whereabouts of decedent’s remains. Indeed, it is conceivable that some of decedent’s remains are still in UCLA’s possession.
Another court recently held that a university’s WPB has “no legal duty to track bodies donated under the WBP for the benefit of a donor’s family” unless the donation agreement required the WPB to return the remains to the family. (Conroy v. Regents of University of California (2007) 151 Cal.App.4th 132, 141.) The Conroy court rejected a claim that a university WBP was negligent because it “could not account for the body’s specific use and the final disposition.” (Id. at p. 140. Accord: Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 180 [no duty to return WBP donor cremains to the family or keep them segregated from those of other WBP donors].) The court in Conroy and in Melican distinguished a WBP’s duties from the legal duties owed by mortuaries and crematories that contract with families to provide specified services. (See Christensen v. Superior Court (1991) 54 Cal.3d 868 and Saari v. Jongordon Corp. (1992) 5 Cal.App.4th 797.)
Bennett seeks discovery to learn whether decedent’s cremains were mixed with animal waste and syringes. The syringe claim requires no further discovery because it fails as a matter of law. We wrote in Bennett II that in a WBP, “human remains may even be consolidated into a common container with nonorganic material such as needles prior to incineration.” (133 Cal.App.4th at p. 356.)
With respect to the commingling with animal carcasses, there are two problems. First, despite 11 years of litigation, no evidence has ever been adduced supporting this claim. Second, the parties agree that the whereabouts of decedent’s remains are unknown. There is no way to establish that decedent’s remains were mixed with animal carcasses, assuming that such a thing ever occurred with any donor. Bennett cannot recover without “a well-founded substantial certainty that his or her decedent’s remains were among those reportedly mistreated . . . . A generalized concern that the remains of a relative may have been involved, arising out of a media report of a pattern of misconduct, is insufficient to satisfy the requirement that there be a direct connection between a defendant’s conduct and the injury suffered by the plaintiff.” (Christensen v. Superior Court, supra, 54 Cal.3d at p. 902; Bennett II, supra, 133 Cal.App.4th at p. 358.) Because decedent’s ultimate disposition is unknown, there is no substantial certainty her remains were mistreated. Under the circumstances, further discovery would not be productive.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.