Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. LC082239 James A. Kaddo, Judge.
Law Offices of Armen M. Tashjian and Armen M. Tashjian for Plaintiff and Appellant.
Peterson & Bradford, George E. Peterson, Avi Burkwitz and Richard Barrios for Defendants and Respondents.
WILLHITE, J.
INTRODUCTION
Plaintiff Maria Martinez sued defendants Habib S. Girgis, M.D. and Habib S. Girgis, M.D., Inc. (collectively referred to as Dr. Girgis) for medical malpractice arising from a miscarriage she suffered when Dr. Girgis failed to perform a procedure to prevent her cervix from dilating prematurely. Dr. Girgis brought a motion for summary judgment supported by expert declarations from two doctors stating that he met the applicable standard of care and that his failure to perform the procedure did not cause the miscarriage. The trial court found that the expert declaration submitted by Martinez in opposition to the motion for summary judgment lacked foundation for the opinions it expressed and failed to provide any basis or rationale to contradict the explanation of causation provided by Dr. Girgis’s experts.
Martinez contends on appeal that her expert witness’s declaration adequately established triable issues of material fact as to whether Dr. Girgis breached the standard of care and whether his failure to perform the procedure caused her miscarriage. Because we disagree, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Martinez alleged in her complaint that Dr. Girgis’s negligent failure to perform a timely cervical cerclage procedure, which he knew to be necessary to maintain her pregnancy, resulted in her suffering a miscarriage.
Dr. Girgis filed a motion for summary judgment, contending that his care and treatment of Martinez was at all times within the applicable standard of care, and that no negligent act or omission on his part caused or contributed to Martinez’s injuries, to a reasonable degree of medical probability.
The Motion for Summary Judgment
1. Declaration of Craig Towers, M.D.
In support of his motion for summary judgment, Dr. Girgis submitted the declaration of Craig Towers, M.D., in which he opined that Dr. Girgis’s treatment and care of Martinez was within the standard of care. Based on his review of Martinez’s medical records and films, and Dr. Girgis’s medical charts, Dr. Towers related the following facts in his declaration, which were also set forth in Dr. Girgis’s separate statement of undisputed material facts. Dr. Girgis first treated Martinez in March 2002 related to the surgical treatment of an ovarian cyst. Martinez reported that she had had one prior full-term pregnancy. In late August 2003, Martinez was examined by Girgis and found to be 7 weeks pregnant. On November 12, 2003, the pregnancy ended in a miscarriage. On that date, she was examined in the emergency room at Providence St. Joseph Medical Center, and found to have a cervix that was completely dilated. Her membranes had ruptured and she was in the process of having a spontaneous abortion. Ultrasound examination indicated an intrauterine fetal demise of more than 24 hours. Martinez was induced and delivered the 17 to 18 week old fetus.
Dr. Girgis examined Martinez on December 4, 2003, and recommended that she undergo a cervical cerclage procedure if she became pregnant again.
On September 9, 2004, Dr. Girgis examined Martinez and concluded she was six to seven weeks pregnant. A nurse from Dr. Girgis’s office attempted to telephone Martinez on the 17th and the 24th of September, 2004, but did not reach her. The nurse telephoned on October 4, 2004, and left a message on Martinez’s answering machine.
On October 11, 2004, Martinez went to Providence St. Joseph Medical Center and reported she was experiencing bleeding. An ultrasound was performed and she was given a diagnosis of a threatened abortion.
On October 21, 2004, Martinez was seen by Dr. Girgis, in the 12th to 13th week of her pregnancy. He performed an ultrasound on October 27, 2004, and saw that the fetus was at 14 weeks gestation, with normal amniotic fluid levels.
Dr. Girgis noted in his November 18, 2004 history and physical report that one week after Martinez’s office visit on October 21, 2004, Dr. Girgis had instructed his nurse to contact Martinez to schedule the cerclage procedure, but the nurse was unable to reach her. Dr. Girgis noted that his office unsuccessfully tried to reach Martinez by telephone again on October 27, 2004.
On November 18, 2004, Martinez was admitted to Providence St. Joseph Medical Center, having developed “brisk” vaginal bleeding and cramping. The emergency room physician diagnosed Martinez with an incompetent cervix and a threatened miscarriage. She was admitted to the labor and delivery department of the hospital.
Dr. Girgis examined Martinez at the hospital, and found that her cervix was completely dilated and that a bulging membrane was visible. Dr. Girgis’s notes indicate he told Martinez that it was too late to perform a cerclage because the cervix was completely dilated. Dr. Girgis’s discharge summary dated November 23, 2004, noted that he evaluated Martinez for the possibility of performing a cerclage, but found it was not possible. He explained that the fetus would likely be delivered spontaneously, but could not survive at that gestational age. When Martinez’s membranes ruptured and she developed a fever, and no fetal heart tones could be detected, Dr. Girgis induced labor and the fetus was delivered stillborn.
Dr. Girgis’s separate statement of undisputed facts concluded with this fact; the opinions expressed in Dr. Girgis’s experts’ declarations were not included in the separate statement.
Dr. Towers opined that all of the care and treatment provided by Dr. Girgis to Martinez complied with the applicable standard of care. He concluded that Martinez’s miscarriage of November 23, 2004, was due to a placental abruption rather than an incompetent cervix. In light of Martinez’s previous miscarriage in 2003, Dr. Girgis exercised reasonable care in having considered the diagnosis of incompetent cervix and in planning to perform a cerclage, even though the cerclage would not have prevented the placental abruption and thus the miscarriage. Dr. Girgis acted with reasonable care in attempting, albeit without success, to schedule Martinez for the cerclage procedure some time before November 18, 2004.
Dr. Towers stated that, in his opinion, Martinez’s miscarriage was caused by placental abruption. The reported “brisk” bleeding and “great deal of blood coming from her vagina” were inconsistent with an incompetent cervix, and consistent with a placental separation. The pathology report dated November 27, 2004, noted an adherent clotted area of 30 percent with indentation and compression, which was characteristic of placental abruption. The ultrasound films of October 11, 2004, showed the cervix to be long and thick, which is inconsistent with an incompetent cervix, but Martinez presented with vaginal bleeding at that time. All of these findings were consistent with a placental abruption.
Even if Dr. Girgis had performed a cerclage procedure prior to November 18, 2004, the placental abruption would nevertheless have occurred, and Dr. Girgis would have had to remove the cerclage in order to deliver the fetus. The miscarriage would still have occurred. In short, Dr. Towers opined that, to a reasonable degree of medical probability, no negligent act or omission on Dr. Girgis’s part either caused or contributed to any injuries or damages alleged by Martinez.
2. Declaration of Stephen Romansky, M.D.
Stephen Romansky, M.D., stated in his declaration in support of the motion for summary judgment that he had reviewed the pathology slides from Providence St. Joseph Medical Center from November 13, 2003 (relating to Martinez’s previous miscarriage) and compared them to the pathology slides of November 23, 2004 (involving the miscarriage at issue here). He stated that, in his opinion, both miscarriages were a result of acute placental abruption associated with acute inflammation (“acute chorioamnionitis”) of the fetal membranes due to an ascending vaginal infection.
The November 13, 2003 pathology slides showed mild acute chorioamnionitis and findings of an associated acute abruption (“acute retroplacental bleeding”). Those findings indicated Martinez suffered an acute placental abruption on that date, caused by a bacterial infection.
The pathology slides of November 23, 2004, showed “very severe, diffuse and prolonged acute chorioamnio[ni]tis inflammation under the chorionic plate and necrotizing villitis, related to chorioamnionitis.” In Dr. Romansky’s opinion, these findings indicated that Martinez had a severe and prolonged ascending vaginal infection, leading to spontaneous uterine contractions and subsequent acute abruption of the placenta, and fetal demise. Therefore, Martinez’s November 2004 miscarriage was caused by an acute placental abruption, and was not associated with failure to perform a cervical cerclage. According to Dr. Romansky, performance of a cervical cerclage procedure by Dr. Girgis prior to November 18, 2004, would not have altered the clinical course for Martinez.
The Opposition to the Motion for Summary Judgment
In opposing the motion for summary judgment, Martinez did not dispute the majority of the facts set forth in Dr. Girgis’ separate statement. She disputed, however, that there was any failure on her part to be reasonably available to be contacted by Dr. Girgis’s office. Martinez stated that she did not receive a call from Dr. Girgis’s office on October 27, 2004, or thereafter, even though she was available by telephone during that time and had a working answering machine. In fact, Martinez attempted numerous times to schedule the cerclage procedure, inquiring by telephone and in person with Dr. Girgis’s office. Martinez had an appointment scheduled with Dr. Girgis on November 18, 2004, but was bleeding when she woke up that morning and was taken to the hospital.
Martinez also submitted the declaration of Charles A. Ballard, M.D., in opposition to the motion for summary judgment. Dr. Ballard stated that he had “read and reviewed medical records and documents in the matter of Maria Martinez v. Habib Girgis, M.D.,” including the declarations submitted by Drs. Towers and Romansky, and was familiar with the medical issues presented in the case.
Dr. Ballard explained that cerclage is a procedure whereby a suture is placed around the cervix in order to prevent dilatation. He stated that because Martinez “was known to be susceptible to painless dilatation, passing and aborting, the cerclage was needed to be done and it was medically necessary as indicated by Dr. Girgis. Unfortunately Dr. Girgis failed to perform the cerclage procedure which caused spontaneous aborting of the fetus.” Dr. Ballard opined that the standard of care required the doctor to communicate with the patient and make sure the procedure was scheduled at approximately 13 to 14 weeks of pregnancy. Dr. Ballard stated that Dr. Girgis’s failure to perform the cerclage procedure caused harm to Martinez and her baby, and that “[a] timely done cerclage would have prevented the spontaneous abortion.”
Martinez also filed objections to the evidence offered by Dr. Girgis in support of the motion for summary judgment. Specifically, she asserted that the medical records from Dr. Girgis’s office and from the hospital had not been properly authenticated.
The Reply to the Opposition
Dr. Girgis filed a reply, contending that Martinez had failed to provide a competent declaration from an expert witness to dispute the conclusions regarding standard of care and causation stated in the declarations filed by Dr. Girgis in support of the motion for summary judgment. Dr. Ballard’s declaration did not state the basis for his opinion that Dr. Girgis was negligent and caused Martinez to suffer harm, or set forth any explanation or reasoning that adequately contradicted the opinions expressed by Drs. Towers and Romansky. Dr. Girgis also argued that Dr. Ballard had failed to state exactly which records he had reviewed in forming his opinions.
The Ruling
The trial court stated during the hearing on the motion for summary judgment that Dr. Ballard’s declaration did not establish causation because it failed to meet the standards for expert declarations as set forth in Kelley v. Trunk (1998) 66 Cal.App.4th 519 (Kelley). Dr. Ballard’s declaration did not state exactly what records he reviewed in forming his opinions. Furthermore, the declaration lacked foundation for the opinions expressed and failed to provide any basis, explanation, or rationale to contradict Dr. Romansky’s explanation of causation: that a severe infection led to acute placental abruption, which caused the miscarriage. Dr. Ballard’s declaration failed to explain why Martinez “was known to be susceptible to a miscarriage,” or even why, to a reasonable degree of medical probability, the failure to perform the cerclage caused the miscarriage. The court granted the motion for summary judgment on that basis.
Counsel for Martinez requested that the court rule on the evidentiary objections asserted in opposition to the motion. The court stated it would take the matter under submission, or continue the hearing. Martinez’s counsel then requested leave to correct the declaration submitted by Dr. Ballard to clarify which records he reviewed, but the court declined, stating it was not willing to expand upon what was already before it. The court continued the matter solely for the purpose of ruling on Martinez’s evidentiary objections.
At the continued hearing, the court stated that its previous ruling granting the motion for summary judgment stood. The court overruled Martinez’s evidentiary objections in their entirety. However, the court then permitted counsel to present further argument on the motion for summary judgment. Martinez’s counsel argued that there was a clearly disputed issue of fact regarding whether Dr. Girgis tried to contact Martinez to schedule a cerclage procedure, and Dr. Ballard stated in his declaration that failure to schedule the procedure was beneath the standard of care. Dr. Girgis’s counsel argued that the more important issue involved in the motion for summary judgment was causation, and Martinez had not addressed that issue. The court reiterated its ruling that the motion for summary judgment was granted, for the reasons it previously stated.
After conceding in her opening brief on appeal that the trial court sustained no evidentiary objections and therefore the entire record is before this court for de novo review, Martinez asserts for the first time in her reply brief that the trial court erred in overruling her objections to certain evidence offered by Dr. Girgis in support of his motion for summary judgment. It is well settled that appellate courts do not consider issues first presented in an appellant’s reply brief. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 214; Estate of Bennett (2008) 163 Cal.App.4th 1303, 1313.)
The Motion for Reconsideration
Martinez filed a motion for reconsideration of the order granting summary judgment, along with a revised declaration from Dr. Ballard. In counsel’s declaration, he explained that the further declaration was necessary because counsel, through his oversight, had considered the original declaration adequate to establish triable issues of fact, and had failed to identify the records reviewed by Dr. Ballard with enough specificity.
Dr. Girgis filed opposition to the motion for reconsideration, arguing that Martinez had not stated new or different facts, circumstances, or law that would warrant reconsideration.
The trial court entered judgment in favor of Dr. Girgis on March 16, 2009. Hearing on the motion for reconsideration was held ten days later, on March 26, 2009. The court denied the motion for reconsideration, stating that Martinez’s counsel did not provide an adequate explanation for the failure to provide a sufficient declaration from Dr. Ballard in opposition to the motion for summary judgment.
This timely appeal from the judgment followed.
DISCUSSION
I. Summary Judgment
A. Standard of Review on Summary Judgment
“Following a grant of summary judgment, we review the record de novo for the existence of triable issues, and consider the evidence submitted in connection with the motion, with the exception of evidence to which objections were made and sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1176.)
The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. A defendant bears the burden of persuasion that “[o]ne or more of the elements of the cause of action” in question “cannot be separately established,” or that “defendant establishes an affirmative defense” thereto. (Code Civ. Proc., § 437c, subd. (o).) The party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he or she carries the burden of production, he or she causes a shift, and the opposing party is then subjected to a burden of production of his or her own to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)
B. Medical Malpractice
“Medical providers must exercise that degree of skill, knowledge, and care ordinarily possessed and exercised by members of their profession under similar circumstances. (Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108, fn. 1.)” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.) “The elements of a medical malpractice claim are: ‘“‘(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.’ [Citation.]”’ (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.)” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468, fn. 2.)
C. Expert Evidence
Dr. Girgis moved for summary judgment on the basis that Martinez could not establish that Dr. Girgis breached a duty of care or that his purported failure to perform the cerclage procedure was the cause of Martinez’s injuries. The trial court concluded that Dr. Girgis had satisfied his initial burden of production on these issues, and that the burden thus shifted to Martinez to raise a triable issue of fact. The court found that the declaration submitted by Martinez’s expert witness, Dr. Ballard, was defective in several respects, and therefore Dr. Girgis’s evidence as to the applicable standard of care and causation stood unrebutted.
When a defendant moves for summary judgment and supports his or her motion with an expert declaration that the defendant’s conduct fell within the community standard of care, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. (Powell v. Kleinman, supra, 151 Cal.App.4th at p. 123, citing Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)
“‘Cases dismissing expert declarations in connection with summary judgment motions do so on the basis that the declarations established that the opinions were either speculative, lacked foundation, or were stated without sufficient certainty. [Citations.]... It is sufficient, if an expert declaration establishes the matters relied upon in expressing the opinion, that the opinion rests on matters of a type reasonably relied upon, and the bases for the opinion. [Citation.]’ (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 718.) An expert’s opinion, however, ‘may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. [Citation.] Moreover, an expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. [Citations.]’ (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.)” (Powell v. Kleinman, supra,151 Cal.App.4th at p. 123.)
In the case cited by the trial court here, Kelley, supra, 66 Cal.App.4th 519, the court concluded that the declaration submitted by the defendant doctor in support of his motion for summary judgment was insufficient to carry the defendant’s burden in moving for summary judgment. (Id. at p. 524.) The court found the expert declaration was inadmissible because it did not disclose the required foundational showing of what matters the expert relied on in forming the opinion expressed (see Evid. Code, § 801, subd. (b)), and the opinions expressed in the declaration were unsupported by reasons or illuminating explanations regarding the crucial issues involved in the case. (Kelley, supra, at p. 524.) The statutory standard for granting a motion for summary judgment “is not satisfied by laconic expert declarations which provide only an ultimate opinion, unsupported by reasoned explanation.” (Id. at p. 525.)
In contrast, in Hanson v. Grode, supra, 76 Cal.App.4th 601 (Hanson), the appellate court reversed a summary judgment in favor of the defendant surgeons because it found the declaration of the plaintiff’s expert was sufficient to raise a triable issue of fact as to breach of duty and causation, although it was “at times a bit obtuse.” (Id. at p. 607.) The plaintiff’s opposing expert declaration sufficiently asserted “specific factual breaches of duty,” and that plaintiff had “suffered nerve damage during the surgery and that the care defendants provided was a cause of his injuries.” (Id. at p. 607.) The Hanson court disagreed with the suggestion made by the court in Kelley, supra, that an expert’s declaration on summary judgment was required to “set forth in excruciating detail the factual basis for the opinions stated therein.” (Id. at p. 608, fn. 6.)
However, as aptly pointed out by the court in Powell v. Kleinman, supra, 151 Cal.App.4th 112, the Kelley and Hanson cases may be reconciled. “The court in Kelley was considering the sufficiency of the declaration of the defendant’s expert in support of the defendant’s motion for summary judgment. In such cases, the defendant ‘bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.’ (Aguilar, supra, 25 Cal.4th at p. 845, fn. omitted.) Thus, the Kelley court was considering the burden of production to make a prima facie showing of the nonexistence of any genuine issue of material fact. To meet such a burden, the Kelley court concluded the declaration of the defendant’s expert had to be detailed and with foundation. (Kelley, supra, 66 Cal.App.4th at p. 524.) In contrast, the court in Hanson was considering the sufficiency of the declaration of the plaintiff’s expert in opposition to the defendant’s summary judgment motion. In such a case, the declaration submitted by the plaintiff did not have to be detailed, was entitled to all favorable inferences and was deemed sufficient to defeat the summary judgment motion. (Hanson, supra, 76 Cal.App.4th at pp. 607-608.) [¶] [B]oth the Kelley and Hanson courts properly applied the rule that, when considering the declarations of the parties’ experts, we liberally construe the declarations for the plaintiff’s experts and resolve any doubts as to the propriety of granting the motion in favor of the plaintiff.” (Powell v. Kleinman, supra, 151 Cal.App.4th at pp. 125-126.)
We agree with the court in Powell v. Kleinman, supra, that the more exacting requirements for expert declarations as described in Kelley are not applicable to expert declarations submitted by plaintiffs in opposition to a motion for summary judgment, and that we must liberally construe plaintiff’s evidence and resolve any doubts as to the propriety of granting summary judgment in favor of the plaintiff. We apply these standards when considering the sufficiency of Dr. Ballard’s declaration. Even under these more liberal standards, however, we deem Dr. Ballard’s declaration to be insufficient to raise triable issues of fact. Dr. Ballard’s declaration did not provide any evidence that would allow a reasonable trier of fact to find that failure to perform the cerclage procedure caused Martinez’s miscarriage. The conclusory statement in Dr. Ballard’s declaration that the procedure would have saved the pregnancy did not constitute evidence. (Cf. Hanson, supra, 76 Cal.App.4th at p. 607 [plaintiff’s expert declaration found adequate to defeat summary judgment, because it set forth “specific factual breaches of duty,” such as failure to investigate bleeding during surgery and symptoms of nerve injury, and statement as to causation that plaintiff suffered nerve damage during surgery and care provided by defendants was a cause of his injuries].)
Martinez argues on appeal that this is merely a case involving opposing experts who expressed different opinions on the issues of negligence and causation. Dr. Girgis’s experts, Drs. Towers and Romansky, stated the miscarriage was caused by acute placental abruption brought about by a bacterial infection, unassociated with failure to perform a cervical cerclage. Dr. Ballard stated that the spontaneous abortion was caused by Dr. Girgis’s failure to perform the cerclage procedure, and that Dr. Girgis fell below the required standard of care by failing to communicate with Martinez about scheduling the procedure. Martinez contends that this was sufficient to raise triable issues of material fact to avoid summary judgment.
However, Dr. Ballard’s declaration did not even mention the opinions as to causation set forth in the declarations of Drs. Towers and Romansky, that Martinez’s miscarriage was caused by acute placental abruption, which was brought about by a bacterial infection. Indeed, Dr. Ballard’s declaration added nothing to the conclusory allegation made in the complaint that Dr. Girgis’s failure to perform the cerclage procedure caused the miscarriage. He did not explain why a timely performed cerclage procedure would have prevented the spontaneous abortion; he merely stated that it would have. His opinion that Dr. Girgis breached his professional duty by failing to schedule the procedure became irrelevant because there was no triable issue of material fact regarding whether the cerclage procedure would have prevented the spontaneous abortion. “[W]hen an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an ‘expert opinion is worth no more than the reasons upon which it rests.’” (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117, quoting Kelley, supra, 66 Cal.App.4th at pp. 523-525.)
When faced with a medical opinion that failure to perform the cerclage procedure did not cause or contribute to her miscarriage, in opposing the motion for summary judgment Martinez bore the burden of demonstrating causation by way of an adequate declaration of a medical expert expressing an opposing opinion. She did not meet that burden, and summary judgment was properly granted.
D. Martinez’s Request to Submit a Further Declaration by Dr. Ballard
At the hearing on the motion for summary judgment, Martinez’s counsel requested leave to correct the declaration submitted by Dr. Ballard to clarify which records he reviewed, but the court denied the request. On appeal, Martinez asserts that based upon the papers already filed regarding the motion for summary judgment, the trial court should have concluded that justice required that the matter be continued to allow counsel to submit a further declaration by Dr. Ballard. In support of this contention, Martinez cites Code of Civil Procedure section 437c, subdivision (h), which provides: “If it appears from the affidavits submitted in opposition to a motion for summary judgment... 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.” However, Martinez’s counsel did not rely on this statute In requesting leave to amend Dr. Ballard’s declaration. Even if he had done so, the statute requires that the party requesting relief must demonstrate that facts essential to justify opposition exist, but cannot then be presented for stated reasons. Martinez could not have demonstrated that the additional facts she proposed to include in a subsequent declaration by Dr. Ballard had been unavailable to her at the time she filed opposition to the motion for summary judgment. In short, we conclude that the trial court did not abuse its discretion in denying Martinez’s request to submit a further declaration, as there was no adequate justification stated for the patent insufficiency of Dr. Ballard’s declaration.
II. Motion for Reconsideration
Martinez further contends that the trial court erred by denying her motion for reconsideration, which she submitted along with a further declaration by Dr. Ballard in which he more explicitly identified the materials he reviewed and further explained his opinions regarding causation. We find no error.
As Martinez concedes, the trial court entered judgment in favor of Dr. Girgis on March 16, 2009, before the hearing on the motion for reconsideration was held, although it did not give notice of entry of judgment to the parties. Hearing on the motion for reconsideration was held ten days later, on March 26, 2009, at which time the trial court summarily denied the motion.
After entry of judgment, a superior court does not have jurisdiction to entertain or decide a motion for reconsideration. (See Aguilar, supra, 25 Cal.4th at p. 859, fn. 29.) Furthermore, even if judgment had not been entered, the motion for reconsideration did not meet the standards set forth in Code of Civil Procedure section 1008, subdivision (a), which require a showing of “new or different facts, circumstances, or law,” as well as a satisfactory explanation why they were not submitted initially. (Ibid.; see also Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 688, 690.)
The facts stated in Dr. Ballard’s amended declaration were known to him at the time he prepared his initial declaration. For purposes of a motion for reconsideration, Martinez’s counsel’s belief that further evidence was unnecessary to successfully oppose the motion for summary judgment was not sufficient reason to excuse the initial omission of the evidence. (Foothills Townhome Assn. v. Christiansen (1998) 65 Cal.App.4th 688, 692-693, fn. 6; disapproved on other grounds by Navellier v. Sletten (2002) 29 Cal.4th 82, 91-92, & fn. 7.) Having reviewed the relatively detailed explanations provided by Drs. Towers and Romansky stating their shared opinion that Martinez’s miscarriage was caused by placental abruption, and that the failure to perform a cerclage procedure had no effect on the outcome, it is puzzling that Dr. Ballard’s declaration would merely reiterate the conclusory allegation that the miscarriage was caused by the failure to perform a cervical cerclage, without any explanation, and without any refutation of Dr. Girgis’s expert’s descriptive opinions regarding causation. Indeed, the term “placental abruption” does not even appear in Dr. Ballard’s initial declaration. No satisfactory explanation was offered in the trial court, or now on appeal, as to why the “new or different facts” stated in Dr. Ballard’s amended declaration were not included in his initial declaration.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Dr. Girgis.
We concur: EPSTEIN, P. J.SUZUKAWA, J.