KABRAN v. SHARP MEMORIAL HOSPITAL

Appellant’s Petition for Review

Cal.June 26, 2015

f y S2a439 3 SUEREMEcourt Ss JUN 962015 IN THE Frank A. McGuire Clerk SUPREME COURT OF CALIFORNIA =P@PUY SHARP MEMORIALHOSPITALdba SHARP REHABILITATION CENTER Defendant, Appellant, vs. BERTHE FELICITE KABRAN, Successor in Interest to EKE WOKOCHA, Plaintiffand Respondents. AFTER A DECISION BY THE COURT OF APPEAL FOURTHAPPELLATE DISTRICT, DIVISION ONE CASE No. D064133 PETITION FOR REVIEW LOTZ, DOGGETT & RAWERS, LLP JEFFREY S. DOGGETT (SB No. 147235; jdoggett@Idrlaw.com) PATRICK F. HIGLE (SB No. 222585; phigle@ldrlaw.com) 101 West Broadway, Suite 1110 San Diego, California 92101 (619) 233-5565*FAX:(619) 233-5564 ATTORNEYS FOR DEFENDANT, APPELLANT, SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTER : IN THE | SUPREME COURT OF CALIFORNIA SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTER Defendant, Appellant, and Petitioner, VS. BERTHE FELICITE KABRAN, Successorin Interest to EKE WOKOCHA, Plaintiffand Respondents. AFTER A DECISION BY THE COURT OF APPEAL FOURTHAPPELLATEDISTRICT, DIVISION ONE CASE No. D064133 PETITION FOR REVIEW LOTZ, DOGGETT & RAWERS, LLP JEFFREY S. DOGGETT (SB No. 147235; jdoggett@ldrlaw.com) PATRICK F. HIGLE (SB No.222585; phigle@Idrlaw.com) 101 West Broadway, Suite 1110 San Diego, California 92101 (619) 233-5565*FAX:(619) 233-5564 ATTORNEYSFOR DEFENDANT, APPELLANT, AND PETITIONER SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTER TABLE OF AUTHORITIES CASES Erikson v. Weiner (1996) 48 Cal.App.4th 1663, 1666-67, 1669, 1672-73 Deere ee ener ener mentee ee eee eee eee n eee ees ~4., -6-,-7-,-11-,-14- Crespo v. Cook (1959) 168 Cal.App.2d 360, 363-64 coc cvecveeveees -4- Sitkei v. Frimel (1948) 85 Cal.App.2d 335, 338-39 .ccccecccvecuees -4- Tri-County Elevator Co. V. Superior Court (1982) 135 Cal.App.3d QTL, 277 vacncnnccccncercareesevesseseesereecessesceeesens -13- Siegal v. Superior Court (1968) 68 Cal.2d 97, 101-102) we. cccevees -13- CODES California Code of Civil Procedure §659 ................ ~7-,-13-,-14- California Code of Civil Procedure §659a re-1-,-2-,-3-,-4-,-6-,-7-,-8-,-9-,-10-,-11-,-13-, -14-,-15- California Code of Civil Proceduresection 660 pete eens -8-,-10-,-13- California Code of Civil Proceduresection 661 ................. -8- COURT RULES California Rules of Court Rule 8.500(b)(1) «1... ee ee eee eee -11- California Rules of Court, Rule 8.204(c)(1) 0... 6. ee cee ee eee ~16- ii TABLE OF CONTENTS ISSUE PRESENTED ...... cc cee cece eee terete cece enes -1- INTRODUCTION: WHY REVIEW SHOULD BE GRANTED............... ~3- LEGAL DISCUSSION 2... cece ccc cence nett een eeeeees -6- UNIFORMITY OF DECISION IS NECESSARY WHENTHE DECISIONS OF TWO COURTSOF APPEAL ARE IN DIRECT CONFLICT .........4. ~6- CONCLUSION 2... ccc ccc cere cence eee eeeeas ~15- CERTIFICATE OF WORD COUNT ..... cc eee cece eee -16- ADDENDUM ..... ccc cece cece eect eee e enn enenens -17- IN THE SUPREME COURT OF CALIFORNIA SHARP MEMORIAL HOSPITALdba SHARP REHABILITATION CENTER Defendant, Appellant, and Petitioner, VS, BERTHE FELICITE KABRAN, Successorin Interest to EKE WOKOCHA, Plaintiffand Respondents. PETITION FOR REVIEW ISSUE PRESENTED California Code of Civil Procedure §659a reads, “[w]ithin 10 days of filing the notice, the moving party shall serve upon all other parties and file any affidavits intended to be used upon such motion. Such other parties shall have ten days after such service within which to serve upon the moving party and file counter-affidavits. The time herein specified may, for good cause shownbyaffidavit or by written stipulation ofthe parties, be extended by any 1judge for an additional period of not exceeding 20 days. | . This is how former California Code of Civil Procedure §659a read before a 2014 amendment. Because the original motion for new trial here was filed in 2013, the former statute, as presented here, applies. 1 Is the 30-day aggregate period as set forth in California Code of Civil Procedure §659a jurisdictional, such that if a moving party fails to file and serve “affidavits intended to be used” upon a motion fora newtrial within that 30 day aggregate period, the trial court cannot consider any late-filed affidavits? INTRODUCTION: WHY REVIEW SHOULD BE GRANTED This case presents a matter ofstatewide importance - whether the time constraints in California Code of Civil Procedure §659a (hereinafter “section 659a”) are jurisdictional, such that a court cannot consider late-filed documents. Following a 10-week medical malpractice trial in San Diego County Superior Court in late 2012, the jury returned a verdict in favor of Defendant, Appellant, and Petitioner, SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTER.The parties stipulated to allow Plaintiffin the underlying action an additional 20 days past the 10 daysallotted by section 659afor filing and serving of affidavits in support of a motion for newtrial, giving Plaintiffuntil April 1, 2013 (a court holiday)to file any such affidavits. Plaintiff attempted to file its moving papers and affidavits on April 2, 2013, which were rejected by the Superior Court for failure to submit the mandatory filing fee. The filing was therefore “cancelled” by the court clerk. Plaintiff thereafter was successful in filing the moving papers andaffidavits with the court on April 5, 2013. The San Diego Superior Court granted Plaintiff's motion for a new trial. Then-Defendant SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTER appealed from that decision. On May 20, 2015, the California Court ofAppeal, Fourth Appellate District, held that the time constraints in section 659a were not jurisdictional, andthat the Superior Court did not exceed its ‘jurisdiction in considering the late-filed documents. In prior appellate decision, however, the California Court ofAppeal, Third Appellate District, held that the time constraints in Section 659a were jurisdictional.” Erikson v. Weiner (1996) 48 Cal.App.4th 1663, 1672-73. The Superior Court in that underlying case considered late-filed affidavits, which the Court of Appeal, Third Appellate District ruled was error pursuant to section 659a. Id. at 1666, 1674. The May 20, 2015 decision by the Court of Appeal, Fourth Appellate District, is in direct conflict with the Court of Appeal, Third Appellate District’s decision in Erikson, as well as the First and Second Appellate Districts’ previous decisions cited in footnote 2 below. Here, the Court of Appeal, Fourth Appellate District, expressly disagreed withErikson, supra, 48 Cal.App.4th 1663, on whether section 659ais jurisdictional. The Erikson Court answered yes, while the Court of Appeal here answered no,stating “[w]e are not persuaded by Erikson’s analysis and reasoning.” (Typed opn. It should be noted that the mandatory nature of the aggregate time limits of section 659a have also been addressed by the Court ofAppeal, First District (Crespo v. Cook (1959) 168 Cal.App.2d 360, 363-64), and by the Court of Appeal, Second District (Sitkei v. Frimel (1948) 85 Cal.App.2d 335, 338-39). These cases were also cited in oral argument. 4 p.12). As a result, this decision by the Court of Appeal, Fourth Appellate District, has created a direct conflict in California law. A review by the California Supreme Court is necessary not only to secure uniformity of decision, but also to settle an important question of law. LEGAL DISCUSSION UNIFORMITYOF DECISION IS NECESSARY WHEN THE DECISIONS OF TWO COURTSOF APPEAL ARE IN DIRECT CONFLICT Erikson v. Weiner is a 1996 Court of Appeal, Third Appellate District decision. That case was a medical malpractice action where a jury found the defendant doctor negligent and awarded damagesto Plaintiff. Erikson, supra, 48 Cal.App.4th at 1666-67. The Defendant doctorfiled notice of intention to movefor a newtrial. /d. at 1667. The Defendant asked for, and was granted, an additional 20 days past the 10 daysallotted by section 659a for filing and servingofaffidavits in support ofthe motion for new trial. Jd. The Defendant filed an affidavit within the 30 day aggregate due date,and filed others after the deadline. /d. The Superior Court admitted the late-filed affidavit. Jd. at 1669. The Court of Appeal, Third Appellate District, citing section 659a, stated that “we decide that the provision of Code of Civil Procedure section 659athatthe trial court may extendthe period within whichtofile an affidavit in support of a newtrial ‘not exceeding 20 days’ is mandatory. Accordingly, wewill not consider the defendant’s affidavits filed after the expiration ofthat period.” Jd. at 1666. The reasoning behind the Erikson decision holding that section 659a was jurisdictional was explained thoroughly in the opinion. Jd. at 1672-73. The Erikson court notes that “[s]ection 659a provides that the moving party shail file his affidavits within 10 days and prescribes a precise and expressly limited remedy for failure to comply.’ The trial court ‘may, for good cause shownbyaffidavit or by written stipulation of the parties, [extend the time to file] for an additional period ofnot exceeding 20 days.’” Id. at 1672 (emphasis in original). The court continued, “[s]ince the 20-day period may not be exceeded the trial court has no discretion to admit affidavits submitted thereafter. That being the consequenceplainly entailed by the statute, the statute must be read as mandating only that remedy.” Jd. The Erikson court further reasonedthatall ofthe related statutory time framesfor initiating and resolving a new trial motion are also mandatory. /d. “The notice ofnew trial must be given within 15 days ofmailing the notice of entry ofjudgment;a late filing is void.” /d., citing California Code of Civil Procedure section 659. “The court must resolve the motion by 60 days from the date of mailing the notice ofentry of judgment; this time period is It is well-established that the /0-day limitis not jurisdictional, as the statute itself provides for a discretionary extension by thetrial court. However, the 30-day aggregate time limit is jurisdictional according to the language ofthe statute. jurisdictional.” Jd., citing California Code of Civil Procedure section 660. “The opposing party must have at least 10 daysto file counter-affidavits.” /d., citing section 659a.” “Whenthe time to file counter-affidavits has expired the respective parties are entitled to five days’ notice by mail ofthe hearing.” Jd., citing California Code of Civil Procedure section 661. The Erikson court continued, [i]n light ofthese associated time frames, the extension of time to file affidavits beyond the aggregate 30-day period provided in section 659a will almost always encroach upon the interests of the opposing party to her allotted time for response to the new trial motion or upon the period in which the court may deliberate after submission.” Jd. “These considerations also impel the viewthat the aggregate period is mandatory. Where statutory requirementsare intended by the legislature to provide protection or benefit to individuals they are likely to be construed as mandatory.” Jd. at 1672-73. In this case, the San Diego Superior Courtjury rendered its verdict on December13, 2012. (AA at pp. 91-94.) Judgment was entered on February 5, 2013. (AA at pp. 95-99.) Notice ofEntry ofJudgment waspersonally served on all parties on February 14, 2013. (AA at pp. 104-105.) Plaintiff successfully filed notice of intent to move for a new trial within the statutory provided 15-day time frame, on March 1, 2013. (AA at pp. 100-101; section 659(a)(2).) Pursuant to section 659a, Plaintiffthen had 10 days, or until March 11, 2013, to file its moving papers and “any affidavits intended to be used 8 upon such motion”. However, also pursuant to section 659a, all parties stipulated to allow Plaintiff the additional 20 days provided bystatuteto file moving papers and any supporting affidavits. (AA at pp. 102-103.) Plaintiffmissed the new deadline to file moving papers and supporting affidavits on April 1, 2013 (a Court holiday). Plaintiff first attempted to file moving papers and supporting affidavits on April 2, 2013, but the moving papers and supporting affidavits were rejected by the San Diego County Superior Court because they were not supported by the requiredfiling fee. (AA at pp. 106-169.) Plaintiff then successfully filed moving papers, supporting affidavits, and the filing fee with the San Diego County Superior Court on April 5, 2013. (AA at pp. 170-240.) This was three days beyond the aggregate maximum time allotted by section 659a, and thus the San Diego County Superior Court should not have consideredthe late-filed documents, and exceededits jurisdiction in doing so. Also on April 3, 2013, Plaintiff in the underlying medical malpractice case appeared in San Diego County Superior Court on an ex parte basis to request that the Court hear Plaintiff's Motion for New Trial on August 15, 2013.* (AA at pp. 104-105.) Pursuant to California Code of Civil Procedure 4 It should be noted that Plaintiff re-filed the original papers directly in the department on April 3, 2013, again withouta filing fee. 9 section 660, the Superior Court had only 60 days to hear and ruleonPlaintiff's motion. However, because April 5, 2013 was the date of the valid filing of Plaintiff's moving papers and affidavits, that left only 10 days (out of the potential 30 days allotted by section 659a) for Defendant, Appellant, and Petitioner SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTERtofile its opposing papers andaffidavits, and to have the Superior Court hear and rule on the motion. However, at the ex parte hearing, it was ordered that SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTERfile and serve its opposition papers and affidavits by 12:00 p.m. on April 10, 2013, leavingitjust seven days to do so. (AA at pp. 241.) SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTERwas entitled, under section 659a,to a full 10 daysto file its opposition and moving papers,as well as an additional 20 days if good cause were shownorthe parties so stipulated. This was in violation of section 659a, and thus the San Diego County Superior Court exceededits jurisdiction in doing so. In fact, this very scenario at hand highlights why all the timelimits for noticing/bringing a motion for a newtrial are jurisdictional. The San Diego County Superior Court heard Plaintiff's Motion forNew Trial on April 12, 2013, and granted it. Defendant, Appellant, and Petitioner SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTER appealed the San Diego County Superior Court’s decision to 10 considerthe late-filed documents and grant a new trial. The Court ofAppeal, Fourth Appellate District, disagreed with the established Erikson matter, supra, 48 Cal.App.4th 1663, as to whether the Court has discretion to admit affidavits submitted after the 30-day aggregate time period set forth in section 659a. The Erikson Court answered that the statute was jurisdictional, while the Court of Appeal, Fourth Appellate District here answered it was not, stating “[n]or are we persuaded by Erikson’s interpretation of the statute and its purported consequences.” (Typed opn. p.13). As such, interpretation of section 659a and the corresponding established, published case law, is an important question of lawwarranting this Court’s consideration. California Rules ofCourt Rule 8.500(b)(1). The Court of Appeal here also stated that because SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTERfailed to challenge the timelinessofthe Plaintiff s filed movingpapers andaffidavits, or the period oftime in whichit wasleft to file opposing papersin the Superior Court, and instead challenged the motion onits merits, SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTERmaynotforthe first time on appeal challenge the Superior Court’s power to considerPlaintiff's newtrial motion. (Typed opn. p.16). ll SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTERcould notobjectto the late filing ofPlaintiff's affidavits at the April 12, 2013 hearing on Plaintiff's Motion for New Trial because SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTERcould haveno idea at that time that the moving papers and affidavits which Plaintiff hadfiled and served on April 2, 2013 had been rejected by the Superior Court. The only persons whocould conceivably be charged with notice would be the Plaintiff, the Superior Court clerk, and perhaps the Superior Court department where the motion would be heard. Plaintiff served SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTERits moving papers and affidavits on April 2, 2013, none of which had a “FILE STAMP CANCELLED”indication on them. Presumably the Superior Court returned the cancelled filings to Plaintiff. The Superior Court’s ruling on April 3, 2013, eliminated most of the statutory time SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTER had to gather affidavits and mount an opposition. SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTER simply cannot be held to a standard whereby every pleading or documentit is served must be crossed-check within the Superior Court system for validity. SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTERcould not have waived whatit could 12 not have possibly known. Instead, SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTER raised the argument at the first opportunity it had uponlearning ofPlaintiff's April 2, 2013 rejected moving papersandaffidavits - which was at the Court ofAppeal. Furthermore,if indeed section 659a is jurisdictional, as is the case for California Code of Civil Procedure section 659 and section 660 (Tri-County Elevator Co. v. Superior Court (1982) 135 Cal.App.3d 271, 277; see also Siegal v. Superior Court (1968) 68 Cal.2d 97, 101), then jurisdiction cannot be conferred by waiver. It is well-established that violations ofthe time limits ofCalifornia Code of Civil Procedure section 659 and section 660 render a motion for newtrial “denied by operation of law”. Siegal, supra, 68 Cal.2d at 101-102. Thus,the trial court possesses no discretion and cannot simply act in excess ofjurisdiction in ruling on the motion. Rather, the court lacks fundamentaljurisdiction to rule at all on matters violating these sections. The Court ofAppeal, Fourth Appellate District’s ruling in this instance concludes that the time limits in section 659a are not jurisdictional. (Typed opn. p. 15). In support of this conclusion, the Court of Appeal, Fourth Appellate District, looks to the language of section 659a, andindicating that “shall” does not mean “mandatory”in this instance. (Typed opn.pp. 12-13). However, as pointed out in Erikson, not only does “shall” mean “mandatory” 13 as used in section 659a, but the same use of the word “shall” is in fact interpreted to be jurisdictional in nature under California Code of Civil Procedure section 659 (holding that under California Code of Civil Procedure section 659 late filing of a notice of new trial is void). California Code Civil Procedure section 659 provides no additional language whichwould lead to a different conclusion as to its “mandatory” nature than that which is contained in section 659a. Erikson, supra, 48 Cal.App.4th at pp. 1672-73 14 CONCLUSION The Court of Appeal, Fourth Appellate District’s ruling that the time constraints foundin section 659a are notjurisdictional has serious implications for Plaintiffs and Defendants, alike, throughout the state. Its holding is in direct conflict with the Court ofAppeal, Third Appellate District, which would not considerlate filed documents pursuantto section 659a,creating uncertainly in the interpretation ofthe statute going forward. It is essential that this Court grant review. Dated: JuneQF2015 LOTZ, DOGGETT & RAWERS, LLP JEFFREY S. DOGGETT PATRICK F. HIGLE » QB UgGtk'.Higle, Esq. =~ annfor Defendant, Appellant, and Petitioner, SHARP MEMORIAL HOSPITAL dba SHARP REHABILITATION CENTER 15 CERTIFICATE OF WORD COUNT (California Rules of Court, Rule 8.204(c)(1)) The text of this brief consists of 2,703 words as counted by the Corel WordPerfect Office X5 word-processing program used to generate the brief. Dated: JuneZY2015 aye “Patrick F. Higle 16 ADDENDUM 17 Filed 5/20/15 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATEDISTRICT DIVISION ONE STATE OF CALIFORNIA BERTHEFELICITE KABRAN, D064133 as Successorin Interest, etc., Plaintiff and Respondent. (Super. Ct. No. 37-2010-00083678- v. CU-PO-CTL) SHARP MEMORIALHOSPITAL, Defendant and Appellant, APPEAL from an orderof the Superior Court of San Diego County, JohnS.- Meyer, Judge. Affirmed. Berman & Riedel and William Michael Berman; Kenneth M.Sigelman & Associates and Kenneth M.Sigelman, Penelope A.Phillips; Jon R. Williams for Plaintiff and Respondent. Lotz, Doggett & Rawers and Jeffrey S. Doggett, Evan J. Topol for Defendant and Appellant. Defendant and appellant Sharp Memorial Hospital dba Sharp Rehabilitation Center (Sharp) appeals from an order granting plaintiff and respondent's Berthe Felicite Kabran's motion for new trial following a special verdict on a causeofaction for medicalPp malpractice in which the jury found Sharp was negligentin the care and treatment of plaintiff's predecessor, Dr. Eke Wokocha, butthat the negligence was not a substantial factor in causing harm.! Sharp contendsthetrial court acted in excessofits jurisdiction by granting a new trial because the motion was untimely, rendering the order void. It further contends the court abusedits discretion because the evidence proffered by plaintiff in support of the new trial motion was cumulative and consistent with defense expert trial testimony, and thus would not change the outcomeofthe trial. We conclude that no jurisdictional defect appears in the court's new trial order and, as a result, Sharp may notraise its appellate contentions as to the motion's timeliness for the first time on appeal. Wefurther concludethe trial court did not manifestly abuseits discretion in assessing the new evidence—results of an autopsy conducted on Dr. Wokocha—and ruling onthis record thatplaintiff should be granted a new trial. Accordingly, we affirm the order. FACTUAL AND PROCEDURAL BACKGROUND In 2008, Dr. Wokocha began developing weakness in his upper extremities. By early 2009, he was experiencing progressive numbness,tingling, and weaknessin his limbs, requiring him to use a wheelchair and walker. Medical resonance imaging (MRI) conducted in late 2008 showed twodistinct problems in the same location ofhis cervical spine: narrowing of the spinal canal (cervical stenosis) as well as a mass, later determined I Wokocha,a clinical psychologist, died after the jury returnedits verdict, and the court substituted Kabranas his successor in interest. We referto plaintiff at times as Dr. Wokochaasdothe parties on appeal. to be a low-grade astrocytoma or tumor, on the backside of his spinal cord. Dr. Wokochaunderwent spinal decompression surgery on January 7, 2009, and five days later was transferred to Sharp's rehabilitation center, After the evening of January 16, 2009, while at Sharp, he experienced a rapid declinein his condition resulting in complete quadriplegia. Dr. Wokocha sued Sharp and others for negligence, and trial commencedin October 2012. The case wastried in part on the theory that while at Sharp Dr. Wokocha was mishandled by an occupational therapist during an attempted transfer from his bed to a shower commodechair, resulting in spinal shock and active bleeding (a hematoma), which caused his rapid deterioration to quadriplegia.2 Theparties presented conflicting expert testimony on the issues of negligence and causation, including based on the appearanceof various MRIs taken of Dr. Wokocha's spine in January and February 2009, July 2011, and August 2012. The jury returned a special verdict finding Sharp was negligentin its care and treatment of Dr. Wokocha, but that the negligence was not a- substantial factor in causing him harm. On March 1, 2013, Kabran timely filed and served her notice of intention to move for a new trial on grounds, amongothers, of newly discovered evidence. Several days later, pursuant to the parties' stipulation, the court granted her an extension of time until Monday, April 1, 2013, which happenedto be a courtholiday, to file and serve her motion and supporting affidavits. On April 2, 2013, Kabran personally served her notice 2 Trial proceeded only against Sharp and John Jahan, M.D., one of Dr. Wokocha's treating physicians. of motion and motion for newtrial, along with two supporting declarations. She attemptedto file the papers in the superior court that day, but ultimately, because the requisite filing fee was not paid, the court clerk cancelled the file stamp anddid not process the motion.3 On April 3, 2013, Kabran successfully applied ex parte for an order settingthe new trial motion for hearing on April 12, 2013. The court ordered Sharp's opposition papers to be filed and served by noon on April 10, 2013. Kabran's new trial | motion was eventually filed with the court on April 5, 2013, and her supporting declarations were filed on April 9, 2013. Kabran’s new trial motion asserted newly discovered evidence, namely, the results of an autopsy assertedly showingthat the damage to Dr. Wokocha's spine wasnotthe result of his tumor, and that "the [defense] witnesses whotestified that the markedly ‘abnormal area on MRI consistedentirely of a malignant astrocytoma, and/or that it was unrelated to trauma, were wrong." In support of the motion, Kabran submitted a declaration from Guerard Grice, M.D., who with another doctor had performed an autopsy, removed Dr. Wokocha's brain and spinal cord, and examined slides of tissue blocks taken from the cervical spinal cord. Kabran also submitted a declaration from her trial expert Jeffrey Gross, M.D., a neurological surgeon. Kabran argued thatthe tissue obtained from the autopsy from the “obliterated” portion of Dr. Wokocha's cervicalspinal 3 Wegrantplaintiff's requestto judicially notice the San Diego Superior Court's April 4, 2013 noticeto filing party (Evid. Code, §§ 452, subd. (d) {allowing judicial notice of court records], 459, subd. (a)) as well as the fact that March 31, 2013, was Cesar Chavez day. (Evid. Code, § 451, subd. (f) [judicial notice of facts of generalized knowledge].) 4 Sharp now contends the new trial motion was untimely because plaintiff did not pay the required filing fee until April 5, 2013, after the prescribed time limitforfiling the motion. Responding to plaintiff's argumentthat Sharp forfeited timeliness contentions by failing to raise them in the trial court, Sharp arguesthe statutory time periods, including the periods in whichto file opposing papersor affidavits in supportof a newtrial motion, _ are jurisdictional, andasa result it cannot have waived anyobjection to the untimely filing in the trial court. As an additional ground to reverse the order granting a new trial, Sharp asserts in its opening and reply briefs that the trial court erred by shortening timeforit to respond to the motion in violation of Code of Civil Procedure? section 659a, depriving it of the mandatory 10 days within whichto either prepare counteraffidavits or obtain an extension oftimeto file them, Because the record does not contain a reporter's transcript of the April 3, 2013 ex parte hearing on the matter, Sharp has movedto produce additional "evidence" by wayofits counsel's declaration as to what he said at that ex parte hearing.® 5 Statutory references are to the Code of Civil Procedure unless otherwise specified. 6 Plaintiff's counsel responds to that motion by submitting his own declaration recounting what occurredat the hearing, contradicting Sharp's counsel's declaration. We deny Sharp's motion to produce new evidence undersection 909, as the circumstances do not warrant our acting as a fact finder on matters occurring before thetrial court. Generally speaking, we review the record as it was before thetrial court. (In re ZethS. (2003) 31 Cal.4th 396, 405.) "[T]he ‘circumstances under which an appellate court can receive new evidence after judgment, or orderthe trial court to do so, are very rare. For this court to take new evidence pursuantto statute (§ 909) . . . , the evidence normally must enable the Court of Appeal to affirm the [order], not lead to a reversal.’ " US, v. 6 A. Applicable Law Section 659, governing new trial motions, providesin part: "(a) The party intending to movefor a newtrial shall file with the clerk and serve upon each adverse party a notice ofhis or her intention to movefor a newtrial, designating the grounds upon which the motion will be made and whetherthe samewill be made uponaffidavits or the minutes of the court, or both,either: [{] (1) After the decision is rendered and before the entry ofjudgment. [J] (2) Within 15 days of the date of mailing notice of entry ofjudgmentbythe clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment... ." "[C]ompliance with the 15-day requirementof section 659is jurisdictional," and absent compliance trial court is "without power to entertain the motion." (Tri-County Elevator Co. v. Superior Court (1982) 135 Cal.App.3d 271, 277.) When a notice of intention to movefor newtrialis timely filed, it “shall be deemed to be a motion for a newtrial on all the grounds stated in the notice.” (§ 659, subd. (b).) Thus, " ‘when the adverse party has been given duenotice that . . . a motion (for a newtrial) will be made and is fully apprised of the groundsto be urged the jurisdiction of the court is complete.’ ” County ofSan Diego (2014) 223 Cal.App.4th 1214, 1227, fn. 4, quoting Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1090; see also Monsan Homes, Inc. v. Pogrebneak (1989) 210 Cal-App.3d 826, 830 ["The powerto invoke [section 909] should be exercised sparingly, ordinarily only in order to affirm the lower court decision and terminate the litigation, and in very rare cases where the record or new evidence compels a reversal with directions to enter judgment for the appellant").) Whatever arguments counsel made before the court at the April 3, 2013 ex parte hearing are not evidence, much less new evidence. (dn re ZethS., at p. 414, fn. 6 [it is axiomatic that unsworn statements of counsel are not evidence].) And in any event, even if we considered counsel's declarations submitted on appeal, their dispute over whatthey arguedat the hearing fails to meet these stringent standards. 7 (Nichols v. Hast (1965) 62 Cal.2d 598, 600.) "The purpose ofnotice under section 659 is to give the adverse party a reasonable opportunity to oppose a motion for a new trial on its merits.” (Ibid.) Section 659a sets out time limits for filing accompanying affidavits and briefs supporting and opposingthe notice of intention to move for new trial.7 It has been long held that the time limits for filing affidavits and counteraffidavits for new trial motions, though "strict" (Clemens v. Regents of University ofCalifornia (1970) 8 Cal.App.3d 1, 21), are notjurisdictional. (Fredrics v. Paige (1994) 29 Cal.App.4th 1642, 1648; Wiley v. Southern Pacific Transportation Co. (1990) 220 Cal.App.3d 177, 188; Clemens,at p. 21; Boynton v. McKales (1956) 139 Cal.App.2d 777, 782; see Smith v. Whittier (1892) 95 Cal. 279, 295, called into doubt on other grounds by intervening statute in Caira v. Offner (2005) 126 Cal.App.4th 12, 35; Spottiswood v. Weir (1889) 80 Cal. 448, 451 [no error in allowingfiling of counteraffidavits after time fixed by the code]; 8 Witkin, Cal. Procedure (Sth ed. 2008) Attack on Judgmentin Trial Court, § 65, p. 650 ["Affidavits or declarations [in connection with a new trial motion] filed too late may be disregarded. | [Citations.] On the other hand,the time limits are notjurisdictional. The court maystill consider anaffidavit or declaration evenifit is filed after the deadline"]; but see Erikson 7 Section 659a provides: “Within 10 days offiling the notice, the movingparty shall serve upon all other parties andfile any brief and accompanying documents, including affidavits in support of the motion. The otherparties shall have 10 days after that service within which to serve upon the moving party andfile any opposing briefs and accompanying documents, including counteraffidavits. The moving party shall have five days after that serviceto file any reply brief and accompanying documents. These deadlines may, for good cause shownbyaffidavit or by written stipulation of the parties, be extended by any judge for an additional period not to exceed 10 days." 8 v. Weiner (1996) 48 Cal.App.4th 1663, 1671-1672 (Erikson) {aggregate 30-day time period of section 659a for filing affidavits is mandatory and jurisdictional].) Thus, the | court may, but need not, reject affidavits filed after those time limits. “The powerofa trial court to rule on a motion for a new trial expires 60 days after (1) the clerk mails the notice of entry ofjudgment, or (2) a party serves written notice of entry ofjudgment on the party moving for a newtrial, whicheveris earlier, or if no such notice is given, then 60 days after filing of the first notice of intent to move for a new trial. (§ 660.) If the motion for a new trial is not ruled upon within the 60-day time period, then 'the effect shall be a denial of the motion without further order of the court.’ (§ 660.) The 60-day time limit provided in section 660 is jurisdictional. Consequently, an order granting a motion for a newtrial beyondthe relevant 60-day time periodis void for lack ofjurisdiction." (Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 500; see Mercer v. Perez (1968) 68 Cal.2d 104, 123; Siegal v. Superior Court (1968) 68 Cal.2d 97, 101.) B. There is No Jurisdictional Defect in the Court's Order In this case, there is no dispute Kabran timely filed her notice of intention to move for new trial onMarch 1, 2013, and that the notice ofintention set forth the grounds fora new trial—newly discovered evidence—raised both below and now on appeal.8 Upon this filing, the trial court's "jurisdiction [was] complete," and Sharp was provided a reasonable opportunity to defendthe motion,“forplaintiff['s] notice clearly stated that the motion would be made on the ground [of newly discovered evidence]." (Nichols v. Hast, supra, 62 Cal.2d at p. 600.) Thetrial court thereafter set dates for Sharp's opposition, and Sharp opposedthe motion on the merits withoutraising any issue asto its ability to respondwithin the time limits ordered by the court or the timeliness of the motionin general. Thetrial court did not address timelinessin its ruling, which was issued within the 60-day jurisdictional time-frame. (§ 660.) Weneed not address Kabran's argument that her accompanying papers were in fact timely filed on April 2, 2013, notwithstanding the clerk's cancellation ofthe file- stamp. Even assuming arguendo shefailed to meetsection 659a'sfiling deadline for supporting affidavits, the trial court did not lose fundamentaljurisdiction to act on plaintiff's motion by virtue of that circumstance, and thelate filing did not render the court's order, or its acceptanceofthelate-filed papers, void. Sharp's arguments to the contrary rely on cases addressing the untimely filing of a riotice ofintention to move fora new trial. (See Kientz v. Harris (1953) 117 Cal.App.2d 787 [plaintiff's notice of intention to file a motion for new trial was untimely filed after courtrejected it for the absence of a filing fee, requiring appellate court to dismiss appealas untimely filed]; Davis v. Hurgren (1899) 125 Cal. 48 [affirming denial of motion for new trial where appellants’ notice of 8 Thoughitis not includedin the record, Sharp assertsits notice of entry of judgment was served on February 14, 2013. 10 intention was filed late due to absence offiling fee]; Douglas v. Janis (1974) 43 ' Cal.App.3d 931, 936 [where notice of intention to move for newtrial was nottimely filed within 15 days from plaintiff's notice of entry ofjudgment, the trial court acted outside of its jurisdiction in granting the motion and the order was void]; Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 152-153 [order on new trial void whereplaintiff's first notice of intention to move for new trial wasfiled prematurely, and second notice of intention was filed three days after the 15-day period from the mailing of the notice of entry of judgment,thetrial court's act in hearing the motion andtheparties’ participation in the hearing did not conferjurisdiction on the court].) These cases are inapposite because there is no dispute Kabran's notice of intention to move for newtrial in this case was filed within the 15-day jurisdictional deadline. Sharp asserts that the jurisdictional rule for the notice of intention to move fora new trial "applies to the motion itself and supportingaffidavits." Butits authority cited for this proposition, Douglas v. Janis, supra, 43 Cal.App.3d at p. 936, did not involve any issue concerning the filing of the supporting motion andaffidavits; it says nothing about the timeliness of such papers. Sharp also relies on Erikson, supra, 48 Cal.App.4th 1663 for the proposition that the 30-day outside time limit for filing affidavits in support of a newtrial motion are jurisdictional, and that the court had no powerto considerplaintiff's supporting affidavits. {n Erikson, the defendant, a medical doctor, moved for a newtrial based in part on grounds of juror misconduct. (Erikson, supra, 48 Cal.App.4th at p. 1667.) The defendantthereafter obtained a 20-day extension oftime in which to file his supporting 11 affidavits. On the last day of the extension,hefiled an affidavit of one juror, and 15 days later, he filed two additional affidavits, one from a juror named Gonzales, whichthetrial court ultimately accepted into evidence. (/d. at pp. 1667, 1669.) Nevertheless, the trial court denied the new trial motion. (/d. at p. 1669.) The Third District Court of Appeal affirmed the order, declining to consider the late-filed affidavits. (Erikson, supra, 48 Cal.App.4th at p. 1666.) On appeal, the plaintiff argued the timelimits forfiling affidavits was mandatory and that the Gonzales affidavit could not be considered. (/d. at p. 1670.) At the outset ofits discussion of that issue, the Erikson court characterized plaintiff's claim as arguing "the aggregate 30-day time period provided in section 659a forfiling affidavits in support of a new trial motionis mandatory (also calledjurisdictional)." (/d. at p. 1671, italics added.) Focusing on the statute's use of the word “shail,” the court held the period was mandatory and jurisdictional, reasoning also that section 659a specified a "consequence" for exceeding the time limit, namely the ability to obtain an additional extensionoftime by the court. (/d. at p. 1672.) It further reasoned that the time period was jurisdictional because any extension beyond the aggregate 30-day period of time would encroach upon the interests of the opposingparty's allotted timeto file counteraffidavits or the period for the court to deliberate on the motion. (/d. at pp. 1672-1673.) Erikson distinguished several cases stating that the time limits forfiling affidavits are not jurisdictional. (/d. at p. 1673.) Weare not persuaded by Erikson's analysis and reasoning. Generally, “requirements relating to the time within which an act mustbe doneare directory rather than mandatory or jurisdictional, unless a contrary [legislative] intentis clearly 12 expressed." (Edwards v. Steele (1979)25 Cal.3d 406, 410; see People v. Allen (2007) 42 Cal.4th 91, 102; Brewer Corporation vy. Point Center Financial Ine. (2014) 223 Cal.App.4th 831, 854.) Section 659a contains noclear legislative intentthatits requirements are jurisdictional. The fact the deadlines are expressed in mandatory terms (i.e., "Within 10 days offiling the notice, the moving party shall serve . . .", italics added) is not determinative. “[I]t should not beassumed that every statute that uses [the term “shall"] is mandatory." (People v. Lara (2010) 48 Cal.4th 216, 227; People v. Allen, supra, 42 Cal.4th at p. 102 ["Neither the word 'may,’ nor the word ‘shall,’ is dispositive"J.) And,the newtrial statutes contain other "mandatory" requirements that if unmet, do not result in a void order or an orderin excess ofthe trial court's jurisdiction. (See Nichols v. Hast, supra, 62 Cal.2d at pp. 600-601 [trial court is not deprived ofjurisdiction where a party fails to comply with section 659's requirementthat a notice of intention to move for a newtrial "shall" state whether the motion will be made upon affidavits or the minutes of the court].) Thus, Erikson's focus on the use of "mandatory" language (Erikson, supra, 48 Cal.App.4th at p. 1672) does not compelits conclusion that the time limitations are jurisdictional. Norare we persuaded by Erikson's interpretation of the statute and its purported consequences. According to the Erikson court, the prescribed "remedy" for noncompliance with the 10-day filing deadline is that the trial court may extend the time to file for an "additional period of not exceeding 20 days," and it reasoned that the court therefore “has no discretion to admit affidavits submitted thereafter.” (Erickson, supra, 48 Cal.App.4th at p. 1672.) We do not read section 659a as either prescribing a remedy, 13 or specifying a consequenceorpenalty for a party's failure to meet the 10-day deadline specified therein (or the 30-day aggregate extended period)forfiling affidavits. The Statute merely gives the party the option to obtain an extension of that time. “The Legislature's failure to include a penalty or consequence for noncompliance with the statutory procedure. . . indicates that the requirementis directory rather than mandatory." (People v. Lara, supra, 48 Cal.4th at p. 217.) | Webelieve the Eriksoncourt also confused the mandatory vs. directory dichotomy by equating a violation of a "mandatory" requirementwith a lack of fundamental jurisdiction. "'A typical misuse of the term "jurisdictional"is to treat it as synonymous with "mandatory." There are many timeprovisions,e.g., in procedural rules, which are not directory but mandatory; these are binding, and parties must comply with them to avoid default or other penalty. But failure to comply doesnot render the proceeding void ++." (Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 274.) "A lack ofjurisdiction in its fundamental or strict sense results in ' "an entire absence of powerto hear or determine the case, an absenceof authority over the subject matter or the parties.” (Citation.] On the other hand, a court may have jurisdiction in the strict sense but nevertheless lack " ‘jurisdiction’ (or power) to act except in a particular manner, or to give certain kinds ofrelief, or to act without the occurrenceofcertain procedural prerequisites.” (Citation.] When a court fails to conductitself in the manner prescribed, it is said to have acted in excess ofjurisdiction.'" (People v. Lara, supra, 48 Cal.4th at p. 224.) id The Erikson court incorrectly concluded that the defendant's failure to meet the section 659a deadline deprivedthe trial court of any ability to accept the evidence. We disagree with that conclusion. Rather, in light of the general rule and the absence of clear legislative intent to the contrary, we conclude the period in which to file opposing papers, whetherit be 10 or 30 days, is notjurisdictional in the fundamental sense, butis only jurisdictional in the sense that it deprives the court of powerto act exceptin a particular manner, Or to act without the occurrence of certain procedural prerequisites. Accordingly, the court's acceptance of such evidence was in excessofits jurisdiction, but nevertheless within its fundamentaljurisdiction. (People v. Lara, supra, 48 Cal.App.4th at p. 224.) Our conclusionis consistent with the weightof authority cited above (see part I (A), ante), holding that the section 659a deadlines are not jurisdictional. C. Sharp May Not Raise its Timeliness Challenges The foregoing analysis compels us to conclude that Sharp maynotraise for the first time on appeal its arguments as to timeliness. The distinction between an act thatis beyond a court's jurisdiction in the fundamental sense and an actthat is in excess of jurisdiction is important. " '[A] claim based on a lack of[ ] fundamentaljurisdiction] may be raised for the first time on appeal. [Citation.] "In contrast, an act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time.”'" (People v. Lara, supra, 48 Cal.4th at p. 225.) "[{A]} claim that a trial court acted in excess ofits jurisdiction, as 15 opposed to lacking fundamental jurisdiction to act, is subject to forfeiture by failing to preserveit in the trial court." (People v. Taylor (2009) 174 Cal.App.4th 920, 937-938.) Because Sharp did not challenge below eitherthe timeliness of plaintiff's filed supporting papers and affidavits, or the period of time in whichit wastofileits opposition to plaintiff's motion, but rather opposed the motion on the merits, it may not for the first time on appeal challenge the court's powerto consider plaintiff's new trial motion. We therefore turn to Sharp's claims as to the correctness ofthetrial court's new trial order. Ul. New Trial Order A. Legal Principles and Standard ofReview | "To entitle a party to have a newtrial on [the ground of newly discovered evidence], ‘it must appear... "1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable onretrial of the cause; 4. That the party could not with reasonable diligence have discovered and producedit at the trial; and 5. That these facts be shownby the best evidence of which the case admits."'" (People v. Williams (1962) 57 Cal.2d 263, 270; see Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161; Easom v. General Mortg. Co. (1929) 101 Cal.App. 186, 194.) "[T]he rule . . . that a new trial should not be granted where the evidence is merely cumulative, must be regarded(in this state) not as an independentrule, additional to those established by the provisions of section 657 of the code, but as a mereapplication of those rules, or, as it has been expressed, as 'a corollary of the requirement that the newly 16 discovered evidence must be suchas to rendera different result probable ona retrial of the case.' [Citation.] For... ‘it is evident that new evidence, although cumulative, might be of so overwhelming a character as to render a different result certain’ (or probable); and in such case under the expressprovisions of the code a new trial should be granted. The rule should therefore be construed as simply holding that cumulative evidenceis insufficient 'unless it is clear such evidence would change the result.’ [Citation.] Hence, ‘a new trial should not be refused merely because the evidence is cumulative in a case where the cumulation is sufficiently strong to rendera different result probable.‘ " (Oberlander v. Fixen & Co. (1900) 129 Cal. 690, 691-692.) Accordingly, "[e]ven where [evidence is cumulative], the court is not thereby precluded granting a new trial. ... The question before the trial court, even where the newly discovered evidenceis simply cumulative, is whether if such evidence had been presented on thetrial of the cause it would probably have produceda different result. The determination ofthat question is peculiarly within the province of the trial court. It is a matter addressed wholly to its discretion and as a general proposition whetherits ruling is favorable or unfavorable on a motion for new trial based on newly discovered evidence which appears to be merely cumulative, that discretion will not be reviewed except for manifest abuse." (Cahill v. E.B. & A.L. Stone Company (1914) 167 Cal. 126, 135; see also Brannock v. Bromley (1939) 30 Cal.App.2d 516, 519-520; People v. Lakenan(1923) 61 Cal.App. 368, 373.) Under the applicable abuse of discretion standard, the court's order granting a new trial must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found for the moving party on the theory relied upon 17 by the trial court. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412; People v. Williams, supra, 37 Cal.2d at p. 270; Slemons v. Paterson (1939) 14 Cal.2d 612, 615- 616.)? "So long as a reasonable or even fairly debatable justification under the law is shownforthe order granting the new trial, the order will not be set aside.” (Jimenezv. Sears, Robuck & Co. (1971) 4 Cal.3d 379, 387; Candido v. Huitt (1984) 151 Cal.App.3d 918, 922-923.) B. New Trial Evidence Dr. Grice's newtrial declaration recounted his autopsy findings from having examined slides of tissue blocks taken from Dr. Wokocha'scervical spinal cord. According to Dr. Grice, plaintiff's mid-cervical spinal cord was "markedly abnormal" with no remaining normalspinal cord at the abnormal area; the normal cordtissue had been replaced by "a disorganized neural proliferation accompanied byfibrosis— consistent with ‘traumatic’ neuroma." He stated that a traumatic neuroma“occurs in the 9 Weobserve that Sharp relies on the principle that motions for new trial on grounds of newly discovered evidence "are looked upon with disfavor ...." (People v. Williams, supra, 57 Cal.2d at p. 270; Shivers v. Palmer (1943) 59 Cal.App.2d 572, 576.) But "[d]istrust or disfavor of the motion does not mean 'that when the trial court has exercised its discretion and granted a new trial that such action is looked upon with either distrust or disfavor. In fact, it has been said that one ofthe most prolific causesof miscarriages ofjustice is the reluctanceoftrial judges to exercise the discretion with which they are clothed to grant a new trial when the circumstances show thatjustice would be thereby served. This by reason ofthe curtailed powerof appellate courts to disturb the discretion ofthetrial court onceit is exercised in such matters. It is recognized that despite the exercise of diligent effort, cases will sometimes occur where, after trial, new evidence most material to the issues and which would probably have produceda differentresultis discovered. It is for such cases that the remedy of a motion for a newtrial on the ground of newly discovered evidence has been given.'" (People v. Love (1959) 51 Cal.2d 751, 758; see also People v. Minnick (1989) 214 Cal.App.3d 1478, 1481.) 18 setting of trauma(e.g. blunt force injury)" and was not a neoplasm.!0 Dr. Grice stated: "There was no evidence whatsoever of a neoplasm (including an astrocytoma) in any part of the obliterated mid-cervical spinal cord segment. However, peripeheral to this mid- _ cervical area, where the spinal cord displayed its normal microscopic architecture, there was evidenceofan infiltrating astrocytoma, not forming a tumorous massperse, but composed of individual neoplastic astrocytes infiltrating the normal cord parencyma." It was Dr. Grice's opinion thatthe obliteration of plaintiff's spinal cord was "not likely due primarily to the presence of an astrocytic tumor," but rather "to a reasonable medical probability, that the completely obliterated mid-cervical spinal cord was replaced by a traumatic neuroma—in this instance caused by trauma." In his supporting new trial declaration, Dr. Gross averred that all of the defense causation experts testified that plaintiff's neurological deterioration was caused by growth of the cervical spinal cord tumor. Dr. Gross recounted his opinionsattrial, stating: "I testified in deposition andat trial that the acute neurologic deterioration that Dr. Wokochasuffered late on January 16, 2009, and early on January 17, 2009, was caused by an acute traumatic injury to Dr. Wokocha's cervical spinal cord on the morning of January 16, 2009, and that the trauma responsible forthis injury was to a reasonable medical probability a whiplash-type (acceleration-deceleration) injury that occurred when Dr. Wokocha wasreturned to the bed following an attempted transfer to a shower commode chair.... The acceleration-deceleration injury resulted in the development of 10 Plaintiff's trial expert neuropathologist, Dr. Saleir Gultekin, testified that a “neoplastic process” would mean somesort of cancer. 19 an epidural hematoma which,by the early morning of January 16, 2009, had rendered Dr, Wokochaa near-total quadriplegic by compressing his spinal cord. It was myopinion to a reasonable medical probability that the acute neurological deterioration that occurred late on January 16, 2009, and early on January 17, 2009, was notrelated to the astrocytoma. It was also my opinion to a reasonable medical probability that, had the acute injury... caused by the transfer incident not occurred, Dr. Wokochato a reasonable medical probability, would not have deteriorated to near-total quadriplegia, would have successfully completed his course of rehabilitation, and would have been able to return to a largely independentlife that included resuming work as clinical psychologist." Dr. Gross stated that Dr. Grice's description correlated with what he saw on MRI studies, and that becauseplaintiff did not have treatment of any kind for the astrocytoma, the absence of tumorcells from the obliterated area of his spinal cord “elevates from a reasonable medical probability to a medical certainty my degree of confidence that Dr. Wokocha's neurological deterioration to near total quadriplegia on late January 16, 2009, and early January 17, 2009[,] was notin any wayrelated to his astrocytoma, and was caused by traumarelated to the transfer incident." Dr. Gross averred, "We now know with complete medicalcertainty that the tumor was not a causative factor... ." [n opposition, Sharp argued the autopsy findings were consistent with its defense experts’ trial opinions, and thus the new evidence was merely cumulative. It argued the evidence could have been discovered with reasonablediligence beforetrial by performing a further biopsy of Dr. Wokocha's spinal cord. It maintained none ofthe 20 evidence would change the resultofthetrial, in which the jury rejected plaintiff's causation theory. Sharp presented a declaration from its trial expert Douglas Miller, M.D., a neuropathologist, who averred,in part, that nothing in the autopsyslides would changehistrial opinion that, "with a reasonable degree of medical probability, Dr. Wokocha's demise was due to the presenceof a cervical cord astrocytoma, and not due to spinal cord necrosis from pressure from an epidural hematoma which was supposed to have resulted from an alleged drop incident." C. Analysis Sharp contendsthetrial court abused its discretion in granting a newtrial because plaintiff's assertedly new evidence was merely cumulative of the trial evidence. Specifically, Sharp points outthat both Dr. Grice and Dr. Gross in their declarations conclude that there was abnormalfibroustissuein plaintiff's mid-cervical spine replacing the spinal cord that was consistent with trauma. It argues, "[Dr. Grice's and Dr. Gross's] opinions. . . as is evident by Dr. Gross’ declaration alone, are entirely consistent and ‘substantially the same’as the testimony offered byplaintiff's experts at trial.” (Some capitalization omitted.) Sharp comparesthe circumstances to Evansv. Celotex Corporation (1987) 194 Cal.App.3d 74i and Smith v. Exxon Mobile Oil Corporation (2007) 153 Cal.App.4th 1407, in which courts addressed a party's ability to bring a new lawsuit against the same defendant based on assertedly new facts or evidence. But these cases involvednot motions for new trial on a claim of newly discovered evidence, but application of the doctrine of collateral estoppel, in which the court looks merely to whetheridentical issues were decided in successive actions (Vandenberg v. Superior 21 Court (1999) 21 Cal.4th 815, 828), not whether a different result in the sametrial would be reached upon new and different evidence. (Mills y. U.S. Bank (2008) 166 Cal.App.4th 871, 896 [former judgmentis collateral estoppel on issues that are raised even though some factual matters that could have been presented were not].) These authorities are inapposite. | 1 Sharp further maintains that Kabran admitted below the cumulative nature of the new evidence when she argued it showed histrial expert, Dr. Gross, "hadit right” and the cumulative aspect of the evidenceis evident from the court's ruling thatthe autopsy findings were supportive of plaintiff's position on causation. But as we have explained, 11 In Evans v. Celotex Corp., supra, 194 Cal.App.3d 741, a deceased man's family soughtto sue a defendant for wrongful death after the defendant had successfully defended a suit brought by the man duringhislifetime. In part, the family argued collateral estoppel could not be applied where "new facts have occurred since the judgment” and an autopsy permitted a "better diagnostic evaluation" showing asbestosis was the proximate cause of his death. (/d. at p. 747.) The court concludedthat the additional evidence did not changethe legal relationship of the deceased and the defendant and there were no new events for conditions that "caused a different legal doctrine to be applied”so as to preventapplication ofcollateral estoppel. (/d. at p. 748.) “An exceptionto collateral estoppel cannotbe grounded onthe alleged discovery of more persuasive evidence. Otherwise, there would be no endto litigation.” (/bid.) Smith relied on an equitable componentto collateral estoppel in which a priortrial does not provide “a full and fair opportunity to present a defense." (Smith v. ExxonMobil Corp., supra, 153 Cal.App.4th at p. 1420.) "[E]ven where the technical requirements [of collateral estoppel] are all met, the doctrine is to be applied ‘only where such application comports with fairness and soundpublic policy.'" (/d. at p. 1414.) In Smith, plaintiffs soughtto use collateral estoppel offensively to preclude a defendant from raising defensesto liability in a new lawsuit. Its defense was supported by testimony of a defense expert who was unable totestify in the priortrial due to the sudden death ofhis daughter while trial was in progress. In those "unusual and compelling circumstances," in whichthe priortrial did not provide a full and fair opportunity to present a defense, the appellate court concluded it would be unfair to apply collateral estoppel. (/d. at p. 1420.) 22 the fact the evidence is cumulative does not require denial of the newtrial motion; it is for the trial court to assess the evidence to determine whether the cumulationis sufficiently strong as to render a different result probable. (Oberlander v. Fixen & Co., supra, 129 Cal. at pp. 691-692; Cahill v. E.B. & A.L. Stone Company, supra, 167 Cal. at p. 135; Brannock v. Bromley, supra, 30 Cal.App.2d at pp. 519-520.) Sharp additionally argues that the proffered new evidence doesnot contradict the testimony of defense experts as plaintiff urged below.It arguesits experts at trial agreed that the abnormal area of Dr. Wokocha's spine consisted of both tumorandcysts; that there was a "cystic aspectof the 'tumor' " and tumorcells were integrated along the cyst walls. As Kabran points out, the trial evidence demonstrates that while an intraoperative biopsy was performed onthe mass in Dr. Wokocha's spinal cord during the January 7, 2009 decompression surgery, only “minute” fragments oftissue were obtained, and a definitive diagnosis of the mass was difficult. Plaintiff's expert neuropathologist, Dr. Gultekin, evaluated the material obtained during that biopsy. He explained thatin his experience with spinal cord tumors, such a “very, very small amountoftissue" was typically all that could be obtained; and that in Dr. Wokocha’s case, the pathologist to whom the sample was sent during surgery could not reach a certain diagnosis so she sent the slides to a world renowned expert at the Mayo Clinic, who describedit as a "frustratingly difficult diagnostic problem.” Dr. Gultekin had chosena representative photographofa slide from that biopsy and stated thatoverall it "doesn’t seem to be a diagnostically useful specimen" and “not really very informative per se." He denied 23 seeing anything on any portion ofthe slides he reviewed that permitted him to identify a tumorcell, and he testified that if he were to give a diagnosis as a neuropathologist clinician, he could notfind definitive evidence of tumorpresent. His overall conclusion based onthe slides and other materials he had reviewed was that the lesion in plaintiff's spine "may notactually be a tumor. I don't see any good evidencethatthis is an astrocytomain any of these elements that we have described.” Though Dr. Gultekin recognized a possibility of an astrocytoma,hetestified it would have to be "low grade at best..." | Dr. Gross,plaintiff's causation expert, testified at trial that he did not disagree that plaintiff's biopsy showed a low grade astrocytoma. However, according to Dr. Gross, plaintiff's February 2009 MRI showed a fluidfilled cyst, also called a syrinx or cystic myelomalacia, in the middle ofplaintiff's spinal cord, which was the result of trauma to the cord, namely, compressive pressure from a hematomathat occurred on January 16, 2009. Though he agreed astrocytomas could cause a syrinx, Dr. Grosstestified the cyst or syrinx wasnot tumor-related, nor was it related to plaintiff's earlier January 7, 2009 Surgery at Scripps. Dr. Wokocha's August 2012 MRI did not change Dr. Gross's conclusion that there was no relationship between the tumor andthe cyst; there was no significant progressionof the astrocytoma from October 2008 to August 2012. Dr. Gultekin similarly testified the syrinx shown in Dr. Wokocha's February 2009 MRI could form "from trauma, from tumor, or from a hematoma," andthat trauma could result from surgery or the chronic stenosis (narrowing). a4 The defense experts’ conclusions were decidedly conflicting. Sharp's neurosurgery expert, Dr. Duncan McBride,ultimately testified that a February 19, 2009 image of Dr. Wokocha's spinal cord was inconsistent with a traumatically caused syrinx and by July 2009 showed "complete utter invasion and overgrowth of tumor with the spinal cord just destroyedin there." Hetestified that Dr. Wokocha's August 2012 film showeda large tumor, not any cystic change dueto prior trauma. He opined thathad nothing else happened to Dr. Wokocha, he would have been a quadriplegic simply due to the growth or expansion of the tumor. David Allen Reardon, Sharp's neurooncologist, testified that Dr. Wokochahad a large lesion with an area of enhancementonhis cervical spinal cord, characteristic of an aggressive tumor. Sharp's causation expert, neuropathologist Douglas Miller, testified he had “zero doubt” that the January 7, 2009 biopsy showedastrocytoma, andthat without treatment for that tumor, Dr. Wokocha would be a complete quadriplegic even without any intervening event or development of a hematoma. He reviewed Dr. Wokocha's February 2009 MRI andtestified that the abnormal area was "absolutely not" a syrinx or myelomalacia. Hetestified he had no doubt based onall of the MRIs thatplaintiff had a low grade and expanding astrocytoma. Thus, as Sharp itself points out, its experts reached ultimate opinions, contradicting plaintiff's experts, that the tumor was the cause of plaintiff's quadriplegia. Dr. Wokocha's autopsy enabled a neuropathologist to examinetissue blocks of the obliterated portion of his spinal cord, which was now removedandfixed ina preservative, and resulted in a materially different type of sample allowing Dr. Grice to 25 specify whathad replaced the normal spinal cord tissue, and Dr. Gross to testify toa medical certainty about the cause of Dr. Wokocha’stotal quadriplegia. Indeed, Sharp's ownexpert, Dr. Miller, generally confirmed the importance of autopsy findings when he stated: "[O]bviously if Dr. Wokocha wereto expire and have an autopsy, and I was given the opportunity to look at what was in his cervical cord under the microscope,if I can't find any tumorthere, I would change myopinion, but short of that, I don't see any other means ofproviding evidencethat I'm wrong ...." Sharp arguesthat biopsy slides already existed and were reviewed by experts,butit is apparent from plaintiffs expert neuropathologist's testimony that the samples were so minute as to render diagnosis difficult.12 Where it is doubtful that evidence is cumulative, it becomesa matter of discretion, and unless there is a manifest abuseofit, the reviewing court will not interfere. (Brannock v. Bromley, supra, 30 Cal.App.2d at p. 521.) And, we give great weight to the court's conclusion that the new evidence madeit reasonably probable that plaintiff would have obtained a more favorable result. (Santillan v. Roman Catholic Bishop ofFresno (2012) 202 Cal.App.4th 708, 728.) "Thetrial court determines what evidenceto believe, and the evidence submitted by the prevailing party, along with its reasonable inferences, is deemed established." (Zbid.) 12 Sharp maintainsin passing that becausethis biopsyhad been performed,it can be argued that the information stemming fromplaintiff's autopsy was "available at the time oftrial" and that experts were permitted to offer opinions and theories on the make-up of the abnormaispinal tissue from theoriginal biopsy. Butthetrial judge reasonably concluded thata biopsy performed as a result of an autopsy would be materially different from the minute amountsoftissue taken in January 2009. 26 Given the limited scope of our review on thetrial court's grant of a newtrial (Candido v. Huitt, supra, 151 Cal.App.3d at p. 923), we affirm. We cannotsay underall of the circumstances, given the vastly conflicting medical expert opinionspresentedat trial, that the trial court, wholistenedto all of the trial evidence, manifestly or unmistakably abused its wide discretion as to compelus to reverse its decision. Finally, Sharp contends the new evidence does not make a different judgment probableonretrial becauseit does not advance plaintiff's trial theory that the alleged drop incident caused a hematoma that compressed plaintiff's spine and causedplaintiff's injury, and thus doesnotlink the incidentto plaintiff's injury. It recounts the expert testimonyrelating to the age of a hematoma removedfromplaintiff's spine on January 17, 2009, the day after the alleged drop incident, and argues that four defense experts agreed it was an old hematomathat predated the alleged drop incident. It argues the weight of the evidence was that the hematoma was not what compressedplaintiff's cervical spine, and points to plaintiff's own neurooncology expert who could notlink the hematomato plaintiff's traumatic injury.!3 The pointof plaintiff's motion for new trial 13‘ This theory was not presented in Sharp's opposition to the new trial motion, but was argued by counselduring oral argument. He argued that plaintiff's theory was that the blunt force trauma was the developmentof the hematoma, but the evidence showed the hematomadevelopedat Scripps Clinic, not Sharp. Counsel argued “the jury can decide causation on that fact alone" and thus did not need to decide what was inside the lesion on plaintiff's spine. The court respondedto this argumentin part by saying, ". .. I sat throughthe trial. [The jury] probably found that something happened that shouldn't have. ... He was dropped. Something happened. They didn't use the right commode, Anyway, something happened. [J] And then the question was what caused him to becomea flaccid quad. And that's where it got very heated, very complicated. There were many, many witnesses, And there was evidencehe didn’t have an astrocytoma; 27 was not to present evidencein strict keeping with its theory attrial, but to present new evidence that would cause a jury to reach a different conclusion as to causation. New evidence that a neuroma caused by traumareplaced plaintiff's normal spinal cord does not prevent a jury from reaching a conclusion that a drop causedplaintiff's quadriplegia notwithstanding the evidence of hematoma, which was highly contested attrial. DISPOSITION Theorderis affirmed. O'ROURKE,J. WE CONCUR: HUFFMAN,Acting P.J. HALLER,J. there's evidence that he did. There's evidence that he should be dead by now;there's evidence thathe's going to live another 50 years. I meanit was very, very—there was no real agreement on anything. Andthen wegetto the slides, and that was even more complicated with MRIs andstains. [ mean it was beyond the capability of most people-— nonmedical people to comprehend, I think.” 28 2 B h A S S E T A U E R B I B E R TE LE PH ON E: (6 19 ) 23 3- 55 65 S A N D I E G O , C A L I F O R N I A 92 10 1 10 1 W E S T B R O A D W A Y , S U I T E 11 10 M A N Y B G B O N Y N I A T A U e o 8 S J N DB D O e H R N e yY y N Y N N Y N NH N N O W D R Q m m o m o m o m m k p k e t o t A A R F D O N Y S F S F © B A A a B R D R E B S S SHARP MEMORIAL HOSPITAL, ET AL. V. BERTHE FELICITE KABRAN CASE NO. 37-2010-00083678-CU-PO-CTL 4" Crvit No. D064133 PROOF OF SERVICE VIA FEDERAL EXPRESS STATE OF CALIFORNIA, COUNTY OF SAN DIEGO I am employed in the County of San Diego, State of California. I am over the age of 18 and nota party to the within action. My business address is 101 W. Broadway, Suite 1110, San Diego, California 92101. I am readily familiar with the business practices of this office for collection and processing of correspondencefor overnight delivery via Federal Express courier. On JUNE 25, 2015, I served the foregoing document describedas: PETITION FOR REVIEW on all interested parties in this action by placing a true copy thereof enclosed in sealed envelopes addressedas follows: CALIFORNIA SUPREME COURT CALIFORNIA COURT OF APPEAL STATE BUILDING 4™ DISTRICT, DIVISION 1 350 MCALLISTER STREET 750 “B” STREET, SUITE 300 SAN FRANCISCO, CALIFORNIA 94102-7303 SAN DIEGO, CALIFORNIA 92101 SAN DIEGO SUPERIOR COURT WILLIAM M. BERMAN,ESQ. Hon. JOHN S. MEYER BERMAN & RIEDEL, LLP 330 WEST BROADWAY 12264 EL CAMINO REAL, SUITE 300 SAN DIEGO, CALIFORNIA 92101 SAN DIEGO, CA 92130 TEL.(858) 350-8855 FAX. (858)350-9855 ATTORNEYSFOR PLAINTIFFS KENNETH M. SIGELMAN,ESQ. KENNETH M. SIGELMAN & ASSOCIATES 1901 157 AVENUE, 2%° FLOOR SAN DigEGo, CA 92101 TEL. (619)238-3813 FAX (619) 238-1866 Co-COUNSEL FOR PLAINTIFFS VIA FEDERAL EXPRESS OVERNIGHT MAIL AS FOLLOWS: I am “readily familiar” with the firm’s practice of collection and processing correspondence and any other documents for mailing. Underthatpractice, it would be deposited with Federal Express Mail Service on that same day with postage thereon fully prepaid at San Diego, California in the ordinary course ofbusiness. | am awarethat on motion ofthe party served,service is presumedinvalid ifpostal cancellation date or postage meter date is more than one day after date ofdeposit for mailing in affidavit. Executed on JUNE 25,2015, at San Diego, California. 10 1 W E S T B R O A D W A Y , S U I T E 1 1 1 0 T E L E P H O N E : ( 6 1 9 ) 23 3- 55 65 S A N D I E G O , C A L I F O R N I A 92 10 1 E E S e o 6 S S N D N O H e h H R N O Y N V Y N Y N N N N K N = w e w s w e o e SHARP MEMORIAL HOSPITAL, ET AL. V. BERTHE FELICITE KABRAN CASE No. 37-2010-00083678-CU-PO-CTL 4" Crvit No. D064133 & (State) I declare under penalty ofperjury under the laws of the State of California that the aboveis true and correct. PROOF OF SERVICE-2-