Opinion
B227973 Los Angeles County Super. Ct. No. BC 383360
12-14-2011
FREDERICK BATES et al., Plaintiffs and Appellants, v. LAWRENCE DAVIS, Defendant and Respondent.
Matthew C. Brown for Plaintiffs and Appellants. Jacks & Maybaum and Bradley W. Jacks for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Los Angeles County, Richard Rico, Judge. Affirmed.
Matthew C. Brown for Plaintiffs and Appellants.
Jacks & Maybaum and Bradley W. Jacks for Defendant and Respondent.
Appellants appeal a judgment entered after the trial court dismissed their complaint against respondent Lawrence Davis on the ground that respondent, an attorney, could not defend himself against appellants' claims without violating an attorney-client privilege. Appellants assert that because the successor trustee of a family trust last amended and restated on April 10, 2003 (2003 trust) has waived the privilege, the trial court should not have granted respondent's motion for protective order against disclosure of allegedly privileged communications. We affirm.
Appellants are Frederick Bates, Andrea Brown, Todd Bates, Ryan Bates and Brett Bates.
FACTS AND PROCEDURAL HISTORY
The alleged facts are drawn from appellants' complaint and our prior opinion.
1. Prior Appeal
This is the second appeal involving the same parties. The parties previously were before this court in Bates v. Davis (Feb. 27, 2009, B204955) (nonpub. opn.), in which we held that appellants had made a prima facie showing under Civil Code section 1714.10 of a claim that respondent (1) had conspired with the former trustee of the 2003 trust to violate a duty owed appellants as beneficiaries of the trust and (2) breached an independent duty owed appellants not to convert their property.
2. Alleged Facts
Appellants are the grandchildren of Jack Calig and his predeceased spouse, Phyllis Calig. Jack Calig died on February 17, 2005, and his wife Phyllis died about one and a half years earlier, on June 16, 2003. Jack and Phyllis Calig were cosettlors and cotrustees of the 2003 trust. Upon Phyllis Calig's death, Jack Calig became the sole trustee of the 2003 trust.
Under the terms of the 2003 trust, appellants were to be the primary (65 percent) beneficiaries upon the death of both Phyllis Calig and Jack Calig. The 2003 trust also provided that, upon Phyllis Calig's death, one-half of the assets of the 2003 trust would be placed in an irrevocable portion of the 2003 trust. That irrevocable portion vested residuary benefits in appellants and other grandchildren of Phyllis and Jack Calig, and Jack Calig had only a lifetime interest in those assets.
Appellants alleged that the assets in the irrevocable portion of the 2003 trust had a value of approximately $5 million, of which appellants' 65 percent interest amounted to approximately $3.25 million as of the death of Phyllis Calig.
Before Jack Calig's death, respondent provided legal advice to Calig individually and as trustee of the 2003 trust. He also provided legal advice to Calig as trustee of another trust called the "Jack Calig 2004 Revocable Living Trust" (2004 trust). In contrast to the 2003 trust in which appellants were named beneficiaries, appellants were to receive no benefits under the 2004 trust. The 2004 trust instead named Jack and Phyllis Calig's children as beneficiaries with the grandchildren as beneficiaries only by right of representation.
Appellants allege that Jack Calig improperly transferred assts from the irrevocable portion of the 2003 trust into the 2004 trust and respondent "actively participated" in the transfer, with specific knowledge that some of those assets belonged to the irrevocable portion of the 2003 trust.
To prove respondent's active participation in the illegal removal of assets from the 2003 trust, it was appellants' intent to introduce as evidence a letter respondent purportedly wrote to Jack Calig dated March 1, 2004. The March 1, 2004 letter, which appellants attached to the complaint, stated that the 2003 trust was "defective" in a certain respect and would be ineffective in shielding the estate from estate tax at Jack Calig's death. The March 1, 2004 letter allegedly called for the conversion of assets from the 2003 trust into a new 2004 trust.
3. Complaint and Answer
The complaint alleged that the advice and directions respondent gave Jack Calig in connection with the 2003 trust, as well as documents prepared by respondent to carry out the plan allegedly laid out in the March 1, 2004 letter, resulted in a multitude of legal problems and litigation. Appellants claim that the plan resulted in damages of more than $1 million, for which appellants hold respondent responsible.
Appellants filed their complaint on January 7, 2008. After the remittitur issued in the prior appeal, respondent answered the complaint on November 19, 2009. The parties proceeded to litigate the case.
4. Motion for Protective Order and Dismissal
On May 20, 2010, respondent moved for a protective order or, in the alternative, an order to dismiss the action. Respondent asked the court to bar appellants from demanding any documents in discovery from respondent, or from asking any questions at respondent's deposition, that invaded the attorney-client privilege between respondent and his late client, Jack Calig, or his work product for legal services provided to Jack Calig. Respondent also asked the court to bar appellants from demanding from him any documents, or from asking him any questions at deposition, that would invade the right of privacy of Jack and Phyllis Calig, including tax information. In the event the trial court agreed that the attorney-client privilege barred respondent from disclosing attorney-client communications, respondent asked that the court dismiss the lawsuit because he could not adequately defend himself in the action without disclosing such privileged communications.
Respondent provided the court with an eight-page privilege log previously served upon appellants that listed and described the documents being withheld as subject to the attorney-client privilege and work product doctrine.
Appellants opposed the motion for protective order or for dismissal. In a memorandum of points and authorities, appellants claimed that the "correct" holder of the attorney-client privilege was appellant Frederick Bates, who "expressly waives the privilege and instructs [respondent] to permit disclosure of the confidential information." The memorandum asserted that respondent "is now free and able to defend himself without the attorney-client privilege being use[d] at once as a shield and sword against him." Appellants further contended that "[t]he only person with the power to remove assets from the 2003 Calig Trust was the then-acting Trustee of the Trust, who was Jack [Calig], and therefore [respondent] was clearly advising Jack in his capacity as Trustee of the 2003 Calig Trust in the March 2004 Letter and giving instructions regarding the administration of that Trust." (Underscoring omitted.) Appellants attached to the memorandum of points and authorities copies of the March 1, 2004 letter and 2003 trust that were previously attached as exhibits to their complaint. These documents were not authenticated, and appellants offered no declarations to support their contentions.
In reply to appellants' opposition memorandum, respondent argued that because he was alleged to have assisted Jack Calig in creating and funding the 2004 trust, the scope of the attorney-client privilege turned on his legal advice given in connection with the 2004 trust. In addition, the 2004 trust named successor trustees, who were the potential holders of the attorney-client privilege for the late Jack Calig. Respondent asserted there was no admissible evidence that Frederick Bates was the current holder of the privilege for Jack Calig, particularly as the 2003 trust attached to the opposition brief identified "David L. Burkhardt," not Frederick Bates, as the first successor trustee of the 2003 trust. Additionally, respondent argued that the complaint alleged that Frederick Bates had settled his claims in underlying probate court matters involving Jack Calig and a settlement agreement that appellants had produced in discovery indicated "Ellis Calig" was the current trustee of the 2004 trust. That settlement agreement also purported to recite that "Frederick [Bates] shall cease to have any and all authority which he presently yields as Special Administrator of the Estate of Jack Calig." Respondent contended that appellants had not provided the court with any declaration of Frederick Bates, any probate court order or any other competent evidence showing Frederick Bates to be the current holder of the attorney-client privilege for Jack Calig.
Respondent's motion for protective order or for dismissal was heard on June 25, 2010. Appellants' counsel appeared and asserted that respondent's counsel had falsely represented to the court that David L. Burkhart was the successor trustee of the 2003 trust. He orally requested, for the first time, that the trial court take judicial notice of a document that purportedly showed Burkhart had declined to act as trustee. The trial court refused to take evidence at the hearing, and it admonished counsel such matters should have been presented in writing with notice to the opposing party.
The trial court granted respondent's request for a protective order but denied respondent's motion to dismiss the action. In adopting its tentative ruling as its final order, the court expressly found that Frederick Bates "is not the holder of the privilege and cannot therefore waive it."
5. Renewed Motion to Dismiss
On July 12, 2010, respondent filed a renewed motion to dismiss the action, alleging he could not fully and adequately defend himself against appellants' complaint without disclosing confidential attorney-client communications. Respondent noted in particular that the trial court had previously ruled the holder of the attorney-client privilege was Ellis Calig, but there was no showing Ellis Calig, once contacted, would not waive the privilege. Respondent informed the court that respondent's counsel had since communicated with counsel for Ellis Calig, and Ellis Calig had declined to waive the attorney-client privilege. Respondent argued that because the content and nature of respondent's legal advice to Jack Calig on estate planning and tax issues was at the very center of the claims being brought against him in the complaint, respondent could not effectively defend himself in the present action without disclosing his confidential attorney-client communications with Jack Calig.
Appellants filed no opposition to respondent's renewed motion to dismiss the action.
Respondent's renewed motion came on for hearing on August 9, 2010. At the hearing, the trial court inquired of appellants' counsel the reason for appellants' failure to file any opposition to respondent's motion. Counsel stated he had not filed an opposition on appellants' behalf because "the same issues . . . are being brought up again and again" and the current motion was only "more of the same." In light of appellants' failure to file any written opposition to the motion to dismiss and counsel's failure to adequately explain the omission, the court granted the motion. The court's minute order indicated: "The motion is granted as [respondent's] due-process rights would be violated because Ellis Craig has refused to waive the privilege. The inability to use the privileged communications will prevent [respondent] from being able to adequately present a defense."
When the trial court granted the motion to dismiss based on the attorney-client privilege, it took a pending motion for terminating sanctions based on appellants' failure to comply with its discovery orders off calendar.
6. Denial of Motion for Reconsideration
On July 13, 2010, appellants moved for reconsideration of the trial court's ruling on the motion for protective order. Appellants claimed there were "new facts and evidence," namely: (1) that the basis of appellants' complaint was the 2003 trust, not the 2004 trust as stated in respondent's reply and the court's June 25, 2010 tentative ruling; (2) a certification of trust for the 2003 trust prepared by Frederick Bates; and (3) the "improperly denied" request for judicial notice of Burkhart's "Declination to Act." Although appellants now attached over 200 pages of exhibits to their motion for reconsideration, they offered no declaration to authenticate the exhibits.
The trial court denied the motion for reconsideration. The court found that appellants had failed to show new or different facts, circumstances or law, as required by Code of Civil Procedure section 1008. Additionally, the court explained that it had reviewed the protective order that was the subject of the motion for reconsideration, this court's prior opinion and appellants' purported new evidence. Even if the supposedly new evidence had been timely presented, the court stated, it would not change the court's ruling on the protective order. The court remained convinced the posture of the case and respondent's inability to obtain a waiver of the attorney-client privilege prevented him from defending himself from appellants' claims.
7. Judgment
A judgment was entered in favor of respondent and against appellants on October 6, 2010. Appellants timely appealed from the judgment.
STANDARD OF REVIEW
Respondent notes that as the trial court made factual findings, the judgment is reviewed under the substantial evidence standard. The trial court found that "[t]he action revolves entirely around [respondent's] representation of the Decedent [Jack Calig] and to disclose privileged information would violate his ethical and fiduciary obligations. [Respondent's] due-process right to present a defense would be violated here because he would not be able to adequately present defenses that may be supported by privileged communications. There does not appear to be any way that [respondent] can adequately defend against this action without a violation of his due-process rights." Appellants' opening brief fails to discuss the applicable standard of review. We shall presume the substantial evidence standard of review applies to the trial court's findings. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
The trial court's ruling on the motion for reconsideration is reviewed under the abuse of discretion standard. (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.)
DISCUSSION
1. Failure to Comply with Rules of Court
Respondent argues the judgment should be affirmed because appellants have not set forth a full and complete discussion of the case below and the appellate issues, and they otherwise have generally not complied with California Rules of Court, rule 8.204.We agree.
All further rule references are to the California Rules of Court.
Appellants' opening brief raises but a single contention on appeal, i.e., that "[a]ppellant FREDERICK BATES is the trustee of the 1993 Trust, and [he] had the legal authority to waive [the] attorney-client privilege as to communications between Respondent and the predecessor trustee of the 1993 Trust." Appellants claim the trial judge acted "beyond his jurisdiction" when he "erroneously" found that appellant Frederick Bates "is not the trustee of the 1993 Trust [citation] — which is the erroneous finding that ultimately led to the certainty of the dismissal of Appellants' complaint against Respondent."
Appellants' counsel indicates that references in the opening brief to "1993" should be read as "2003" and references to "1994" should be read as "2004."
Appellants' opening and reply briefs demonstrate a profound misunderstanding of the function and power of the reviewing court. As we have explained: "It is a fundamental rule of appellate review that the judgment appealed from is presumed correct and ' " 'all intendments and presumptions are indulged in favor of its correctness.' " [Citation.]' [Citation.] An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. 'Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.' [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]" (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; accord, Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799.) It is also incumbent upon the appellant, by citation to admissible evidence in the record, to establish error by the trial court. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) It is the duty of counsel to refer the reviewing court to the portions of the record that support appellants' contentions on appeal, failing which the court may treat the point as waived. (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 862.)
Rule 8.204(a)(1)(B) requires that each brief state each point under a separate heading or subheading summarizing the point and that each point be supported by argument and, if possible, citation to authority. If an appellant fails to provide a separate heading for each argument, that argument is forfeited on appeal. (San Joaquin River Exchange Contractors Water Authority v. State Water Resources Control Bd. (2010) 183 Cal.App.4th 1110, 1135.) Appellants' opening brief only sets forth an "Introduction," "Statement of the Case," "Argument" and "Conclusion," with no subheadings setting forth the specific proceedings below or the legal arguments demonstrating why the judgment should be reversed. Thus, we may disregard appellants' undifferentiated arguments.
Appellants' single argument, moreover, is only perfunctorily set forth in conclusory fashion, with only a single citation to case authority and no attempt to develop the argument. Such practice runs afoul of the requirement under rule 8.204(a)(1)(B) that an appellant support each point by argument and, if possible, citation to authority. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 ["absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived"]; see T.P. v. T.W. (2011) 191 Cal.App.4th 1428, 1440, fn. 12 [court may decline to consider argument that "is not stated under a separate heading, is not sufficiently developed, and is unsupported by citation of authority"].)
Rule 8.204(a)(2)(C) further requires that appellants "[p]rovide a summary of the significant facts limited to matters in the record." Appellants' "Statement of the Case" is only two paragraphs long. The statement omits significant facts and fails to provide a full and fair description of the proceedings below.
Moreover, a reviewing court begins with the presumption that the record contains evidence of every finding of fact by the trial court. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.) Appellants arguing the lack of substantial evidence "'are required to set forth in their brief all the material evidence on the point and not merely their own evidence.'" (Ibid.; Clark v. Superior Court (2011) 196 Cal.App.4th 37, 53.) A failure to set forth all the material evidence is a forfeiture of the point on appeal. (Clark v. Superior Court, at p. 53.) Appellants here present only one side of the facts and issues. To the extent appellants complain the trial court's findings are unsupported by substantial evidence, therefore, appellants' contention has been forfeited.
2. Failure to Preserve Issue
Appellants claim the trial court below had no "jurisdiction" to hold that Frederick Bates is not the trustee of the 2003 trust and that Probate Code section 17000, subdivision (a) gives the Los Angeles Superior Court probate court "exclusive" jurisdiction of proceedings concerning the internal affairs of trusts. Appellants argue that the trial judge "acted beyond his jurisdiction" in finding that Frederick Bates was not the trustee of the 2003 trust.
As respondent points out, appellants fail to cite the portion of the record in which they raised an issue of jurisdiction in the trial court. "It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal. A party who fails to raise an issue in the trial court has therefore [forfeited] the right to do so on appeal." (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117; The Fifth Day, LLC v. Bolotin (2009) 172 Cal.App.4th 939, 962; see In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
It is clear that "the sort of jurisdiction provided by [Probate Code section 17000, subdivision (a)] is not the sort of fundamental jurisdiction, i.e., implicating the competency or inherent authority of the court, the lack of which would render a judgment void." (Harnedy v. Whitty (2003) 110 Cal.App.4th 1333, 1345.) Thus, "even in a county having a formal probate department, a nonprobate department does not lack fundamental jurisdiction over a probate matter. Instead, . . . the probate department has 'primary' jurisdiction and a nonprobate department 'secondary' jurisdiction of probate-related proceedings. . . ." (Id. at p. 1344.) By not raising the issue before the trial court, appellants are barred by principles of waiver and estoppel from challenging the "jurisdiction" of the trial court for the first time on appeal. (Ibid.)
3. Substantial Evidence
The record reflects substantial evidence to support the trial court's finding that Ellis Calig is the current holder of the attorney-client privilege for the late Jack Calig and that Ellis Calig has refused to waive the privilege. Based on such finding, the trial court properly dismissed the action because respondent's rights of due process would be violated due to his inability to use privileged communications in mounting an adequate defense against appellants' claims.
"The attorney-client privilege 'authorizes a client to refuse to disclose, and to prevent others from disclosing, confidential communications between attorney and client." [Citations.] . . . [Citation.] [¶] In addition to the attorney-client privilege, an attorney owes to his or her client the duty of confidentiality outlined in Business and Professions Code section 6068. That statute provides in relevant part, 'It is the duty of an attorney to do all of the following: [¶] . . . [¶] (e)(1) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.' [Citation.] The duty of confidentiality is broader than the attorney-client privilege [citation] and 'survives the termination of the attorney's representation.'" (Dietz v. Meisenheimer & Herron, supra, 177 Cal.App.4th at pp. 785-786.) This privilege survives the death of the client. Upon the client's death, the privilege is held by the personal representative of the client. (Evid. Code, § 953, subd. (c) ["holder of the privilege" means, among others, the "personal representative of the client if the client is dead"].) Absent a waiver of the attorney-client privilege by someone who is authorized to waive the privilege on the client's behalf, the attorney is duty-bound to claim the privilege. (Reilly v. Greenwald & Hoffman, LLP (2011) 196 Cal.App.4th 891, 902-903; Evid. Code, § 955.)
A. Protective Order
In the court below, respondent provided a declaration stating that he performed trust and estate legal services for Jack Calig prior to his death. Respondent also stated he never had any attorney-client relationship with any of the appellants. He never offered them any legal advice, nor did he communicate with them regarding any of Jack Calig's trusts or any other aspect of Jack Calig's estate planning. Respondent also proffered evidence to support his contention that Ellis Calig is the trustee of Jack Calig's 2004 trust.
Respondent provided authenticated copies of a demurrer filed in one of the Calig probate cases on behalf of Ellis Calig as trustee of the 2004 trust, a petition for an order in a Calig probate case by "Ellya Calig" (i.e., Ellis Calig) as trustee for the 2004 trust, and a settlement agreement and general release for portions of the Calig estate disputes identifying Ellis Calig as trustee of the 2004 Calig trust. The settlement agreement, executed in July 2006, states that "[t]he Settling Parties agree, accept, and acknowledge that upon the execution of this Agreement, Frederick [Bates] shall cease to have any and all authority which he presently yields as Special Administrator for the Estate of Jack Calig." The settlement agreement was signed by Ellis Calig, both individually and as trustee of the 2004 trust, and by all five appellants.
In contrast, appellants offered no declaration from Frederick Bates or any other appellant, or from appellants' counsel. There was no evidentiary basis to support appellants' arguments regarding the proper holder of the attorney-client privilege, nor was there any authentication for the documents attached to the opposition memorandum. Appellants failed to provide any evidence to support their contention that Frederick Bates is the holder of the attorney-client privilege for the late Jack Calig.
Based on the evidence presented by respondent, and the lack of any admissible evidence from appellants, the trial court had substantial evidence to find that Frederick Bates is not the holder of the privilege and cannot therefore waive it. The evidence respondent presented showing the holder of the attorney-client privilege was other than Frederick Bates sufficiently supported the court's issuance of a protective order precluding discovery of confidential attorney-client communications between respondent and Jack Calig.
B. Order of Dismissal
The trial court also had substantial evidence to support its subsequent order dismissing the case based on due process grounds. Having found that Frederick Bates was not the holder of the attorney-client privilege, the court had initially refused respondent's request to immediately dismiss the case, noting "[t]here is no indication that once contacted, Ellis [Calig] will not waive the privilege." Following this order, respondent's counsel engaged in an exchange of communications with counsel for Ellis Calig, who ultimately advised that "Once again you haven't been told by the holder of the privilege (as determined by the court) to waive the privilege."
Having obtained Ellis Calig's negative response to a request for waiver of the attorney-client privilege, respondent again moved for dismissal of the action. Respondent's counsel provided the court with a copy of a series of e-mails between himself and counsel for Ellis Calig on the subject. These e-mails were authenticated by respondent's counsel.
Appellants' counsel failed to file any written opposition to the motion to dismiss. Nor did appellants' counsel bring an ex parte application or other proceeding to continue the hearing on the motion. At the hearing of the motion to dismiss, the trial court repeatedly inquired of counsel for appellants why he had not filed a written opposition. Counsel failed to provide any reasonable explanation for his failure but only responded that "these are the same issues that are being brought up again and again, and it's over the same issue, and the only thing I can do is paper the file . . . with more of the same." In light of appellants' failure to provide a written opposition to the motion, the court granted the motion to dismiss. When a party fails to file opposition papers, the trial court is entitled to treat the failure as an admission that the motion is meritorious. (See Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 [purpose is to prevent introduction of legal theories without proper notice to opposing counsel and court].) Appellants' counsel did not ask the court for any continuance of the hearing. The court therefore properly treated the motion as unopposed.
Respondent argues that the judgment must be affirmed under the substantial evidence rule, as substantial evidence supports the court's finding that respondent's due process rights would be violated because Ellis Craig, the holder of the attorney-client privilege, refuses to waive the privilege. The court ruled that "[t]he inability to use the privileged communications will prevent [respondent] from being able to adequately present a defense." Upon this record, we find no error in such ruling. (See General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1190 ["where the elements of a wrongful discharge in violation of fundamental public policy claim cannot . . . be fully established without breaching the attorney-client privilege, the suit must be dismissed in the interest of preserving the privilege"]; Solin v. O'Melveny & Myers (2001) 89 Cal.App.4th 451, 463 [it is "fundamentally unfair for a client to sue a law firm for the advice obtained and then to seek to forbid the attorney who gave that advice from reciting verbatim, as nearly as memory permits, the words spoken by his accuser during the consultation"].)
4. Motion for Reconsideration
We further hold that the trial court properly denied appellants' motion for reconsideration. Code of Civil Procedure section 1008, subdivision (a) (section 1008) provides that any party affected by an order "may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application" to the court to reconsider the matter. (Italics added.)
In support of the motion for reconsideration, appellants proffered a certification of trust signed by appellant Frederick Bates on July 13, 2010, 15 days after the trial court granted the protective order. Appellants argued that an April 6, 2006 pleading from one of the Calig probate cases further supported their contention that Frederick Bates is the proper holder of the attorney-client privilege. Respondent argued, and the trial court agreed, that such documents did not constitute the type of "new" evidence properly supporting a section 1008 motion for reconsideration. (See, e.g., Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1468 [declaration of physician prepared after grant of crucial motion was not "new evidence" because information could have been presented at time of original ruling].) A party seeking reconsideration must not only provide new or different facts but a satisfactory explanation for the failure to produce such evidence at an earlier time. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689.) The information must be such that the moving party could not with reasonable diligence have discovered or produced it previously. (New York Times Co. v. Superior Court, supra, at p. 213.) Here, no showing was made that the "new" documents were not previously available or could not have been produced even with the exercise of reasonable diligence.
In light of our finding that appellants failed to present new or different facts on reconsideration, we need not address the propriety of the court's ruling the motion for reconsideration was untimely filed.
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DISPOSITION
The judgment is affirmed. Respondent is to recover costs on appeal.
FLIER, J. WE CONCUR:
BIGELOW, P. J.
GRIMES, J.