Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. SCVSS111445, Christopher J. Warner, Judge. Affirmed.
Tomlinson, Prince, Cullen & Leahy, Timothy P. Prince and Sherry Khim for Plaintiff and Appellant.
Reid & Hellyer, David G. Moore and Steven G. Lee for Defendant and Respondent.
OPINION
King, J.
I. INTRODUCTION
Plaintiff Kathleen B., presently 62 years of age, appeals from a grant of summary judgment in favor of defendant William Shubeck on plaintiff’s complaint, seeking to hold defendant liable for damages she suffered as a result of “childhood sexual abuse.” The complaint was filed under the provisions of Code of Civil Procedure section 340.1, subdivision (a)(1), which allows the filing of an action for childhood sexual abuse “within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury... was caused by the sexual abuse.”
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Plaintiff contends she first became aware of a causal connection between defendant’s conduct and her psychological injury in 2002, thus making the 2003 filing of the present action timely. The trial court held otherwise; in granting defendant’s motion it found that “[p]laintiff cannot establish” that she brought her action within three years of becoming aware of the causal connection between defendant’s conduct and her injury. We agree with the trial court and therefore affirm its grant of summary judgment.
Plaintiff’s underlying complaint alleges that, from late 1961 through 1966, plaintiff, at the behest of and with the knowledge of The Church of Jesus Christ of Latter-day Saints (the Church), was the victim of sexual abuse by defendant. She contends that in 1961 and 1962, while 15 years of age, she was raped by 18-year-old defendant, who was then a priest with the Church. She further alleges that the Church, in an attempt to cover up the two incidents, forced her to marry defendant. At the time of the 1962 marriage, plaintiff was 15 years old and defendant was 18. She asserts that during the ensuing five-year marriage she was continually subjected to sexual and physical abuse at the hands of defendant, resulting in psychological injury. She further contends that she did not appreciate that her emotional distress was caused by defendant’s conduct until June 2002.
Prior to the trial court’s grant of the present motion for summary judgment and pursuant to our direction, the trial court granted a motion for summary judgment in favor of the Church based on the fact that the action was time-barred under the provisions of section 340.1, subdivision (b)(2). The Church’s summary judgment was discussed in our nonpublished opinion, Kathleen B. v. Corporation of The President of The Church of Jesus Christ of Latter-day Saints (Aug. 11, 2009, E045323).
Plaintiff filed her complaint on December 31, 2003. She alleged three causes of action against defendant: (1) sexual battery pursuant to Civil Code section 1708.5; (2) intentional infliction of emotional distress; and (3) breach of fiduciary duty and/or confidential relationship.
II. ISSUE ON APPEAL
The issue presented is whether plaintiff filed her action in a timely manner. In so determining, we are guided by section 340.1, subdivision (a)(1), which provides: “(a) In an action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within eight years of the date the plaintiff attains the age of majority or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever period expires later, for any of the following actions: [¶] (1) An action against any person for committing an act of childhood sexual abuse.” (Italics added.) It is undisputed that at the time of the filing of the present action plaintiff was over the age of 26. The issue thus presented is whether the action was filed within three years of plaintiff discovering that her psychological injury was caused by defendant’s sexual abuse.
On appeal, plaintiff contends that the trial court: (1) erred in sustaining defendant’s objections to both her and her psychologist’s declarations, which dealt primarily with plaintiff’s delayed discovery of the causal nexus between her injury and defendant’s conduct; (2) incorrectly concluded there was no triable issue of fact as to the date plaintiff first appreciated the causal connection between defendant’s conduct and her injury; and (3) abused its discretion in denying plaintiff’s motions for new trial and/or reconsideration. We affirm the trial court’s rulings in all respects.
III. DISCUSSION
A. The Trial Court’s Grant of Summary Judgment
Summary judgment is properly granted when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff’s causes of action, or shows that one or more elements of each cause of action cannot be established. The defendant must support its motion with affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. (§ 437c, subds. (b), (o)(2); Aguilar, supra, 25 Cal.4th at p. 849.)
A moving party defendant bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the initial burden of production is met, the burden shifts to the responding party plaintiff to demonstrate the existence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) The plaintiff may not rely upon the mere allegations in its complaint, but must set forth “specific facts” showing that a triable issue exists. (§ 437c, subd. (p)(2).) From commencement to conclusion, however, the moving party defendant bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law. (Aguilar, supra, at p. 850.)
“In determining the propriety of a summary judgment, the trial court is limited to facts shown by the evidentiary materials submitted, as well as those admitted and uncontested in the pleadings. [Citations.] The court must consider all evidence set forth in the parties’ papers, and summary judgment is to be granted if all the papers submitted show there is no triable issue of material fact in the action, thereby entitling the moving party to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)” (Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1261.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202.)
“On appeal, this court exercises its independent judgment in determining whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law. [Citations.] We examine the evidence and independently determine its effect. [Citation.] We must uphold the judgment if it is correct on any ground, regardless of the reasons the trial court gave. [Citation.]” (Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn., supra, 92 Cal.App.4th at p. 1261.)
B. The Trial Court Did Not Abuse Its Discretion in Sustaining Defendant’s Objections to the Declarations of Plaintiff and Dr. Les Nouget
In ruling upon the motion for summary judgment, the court sustained objections to the entirety of plaintiff’s declaration and the declaration of psychologist Les Nouget. As to plaintiff’s declaration, the court concluded it was improper lay opinion and was contrary to her prior sworn deposition testimony. As to the declaration of Dr. Nouget, the court concluded it lacked foundation, was speculative, and irrelevant.
“A motion for summary judgment must be decided on admissible evidence in the form of affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice may be taken. [Citation.]... [¶] ‘Personal knowledge and competency must be shown in the supporting and opposing affidavits and declarations. [Citations.] [¶] ‘The affidavits must cite evidentiary facts, not legal conclusions or “ultimate” facts. [Citation.] [¶] ‘Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits. [Citation.]’” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1119-1120.)
We do not disturb evidentiary rulings made by the trial court in connection with a motion for summary judgment in the absence of an abuse of discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694; Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.) The trial court’s exercise of discretion is to be impartial, guided and controlled by fixed legal principles. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.) Such discretion is abused only when it is exercised in a capricious or arbitrary manner, or the ruling exceeds the bounds of reason. (Olsen v. Harbison (2005) 134 Cal.App.4th 278, 285.)
Looking first to the declaration of plaintiff, she stated that since the age of 15 she has been unable to sleep, and what sleep she has had was interrupted by frequent nightmares; her “sleep disorder, along with [her] symptoms of depression, anxiety, flashback, hypervigilance and learned dissociation all rendered [her] unable to function in almost all areas”; all of her medical treatment between 1992 and 1998 was for symptoms of being unable to sleep, and because of this disorder she was unable to see the connection between her injuries and the abuse; it wasn’t until her June 2002 hospitalization that “for the first time, [she] began to understand that [her] mental symptoms were related to [defendant] and the [Church].” (Underlining and bolding omitted.)
We believe plaintiff could competently testify to difficulty in sleeping and frequent nightmares. Additionally, she could properly declare that she did not see the connection between her injuries and the abuse until June 2002. All of these matters are well within her personal knowledge.
However, to the extent she diagnoses herself with depression, anxiety, hypervigilance, and learned dissociation, all of which contributed to an inability to function in most all areas, she is expressing an expert medical opinion for which there is no foundation. (See Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1599.) The court did not abuse its discretion in sustaining a lack of foundation objection to this statement; it was an inadmissible lay opinion.
Relative to the portion of the declaration where plaintiff stated that she did not see the connection between her injuries and the sexual abuse until June 2002, the trial court could properly sustain defendant’s objection, on the basis that the statement was contrary to her sworn deposition testimony. “In D’Amico [v. Board of Medical Examiners (1974) 11 Cal.3d 1], the California Supreme Court declared that ‘[w]here a plaintiff’s admissions in a deposition contradict statements in the plaintiff’s affidavits opposing the summary judgment, “the rule of liberal construction loses its efficacy and the granting or denial of the motion for summary judgment depends upon the issues of credibility. Accordingly, when a defendant can establish his defense with the plaintiff’s admissions sufficient to pass the strict construction test imposed on the moving party..., the credibility of the admissions are valued so highly that the controverting affidavits may be disregarded as irrelevant, inadmissible or evasive.”’ [Citations.] [¶]... In a nutshell, the rule bars a party opposing summary judgment from filing a declaration that purports to impeach his or her own prior sworn testimony.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1521-1522; see also Archdale v. American Internat. Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, 473.)
Here, plaintiff stated in her declaration that she did not understand the causal connection between her injuries and the sexual abuse until June 2002. In her deposition however, she testified in the following manner:
“Q. Okay. In between the time of the first alleged rape with [defendant] and the second alleged rape in January of 1962, did you experience any emotional pain or anguish or sorrow as a result of the first episode?
“A. Yes.”
“Q. Okay. What did you feel?
“A. I felt extreme anger, rage, sadness, depression. I could barely sleep. I could barely think; didn’t know what to do about anything. [¶]... [¶]
“Q. Okay. Other than what you’ve testified so far, did you have any other physical manifestations of the emotional hurt or distress that you were feeling during that period of time?
“A. It was on my mind every minute.
“Q. Okay.
“A. It was overwhelming.
“Q. Okay. Other than a change in your sleep, were there any other physical manifestations of this stress?
“A. I had trouble doing everything.”
“Q. During the first year of marriage was the abuse basically constant, or did it ebb and flow?... [¶]... [¶]
“A. The whole thing was total hell every minute there. I was ripped out of my life. All my choices in my life were taken away from me. I was required to live in prison imprisoned by [defendant]. I was a slave, a prisoner, and a sex slave. Every second for all that time was total hell physically, emotionally in every way. [¶]... [¶]
“Q. Okay. So with regard to any treatments that you have received since that time where you received treatment as a result of psychological injury caused by [defendant] and/or the [Church], the first time would be in 1992?
“A. 1992. [¶]... [¶]
“A. I had continual therapy from 1992 through a certain time period in 1994.
“Q. Okay. When was the next time period?
“A. Approximately 1996.
“Q. Until when?
“A. I don’t know when that ended. Maybe 1997.
“Q. Okay. And then there was another period?
“A. Then there was 2002, continuing currently.”
It is clear from the answers given by plaintiff at her deposition that she knew of the causal connection between her psychological injury and defendant’s conduct as far back as at least 1992. Thus, the trial court did not abuse its discretion in sustaining defendant’s objection to plaintiff’s self-serving contrary declaration.
Next, we look to the trial court’s handling of the declaration of plaintiff’s psychologist, Dr. Nouget. The court concluded that the declaration lacked foundation, was speculative, and irrelevant. In particular, the trial court indicated that Dr. Nouget did not state that he reviewed or in any fashion considered plaintiff’s medical records from 1992 to 1997, wherein plaintiff made very specific statements relative to her medical problems and defendant’s sexual abuse.
Dr. Nouget declared he had never treated plaintiff. He indicated he had met face to face with her in 2004 (approximately four years prior to the date of his declaration), for over 10 hours. He stated he had reviewed her medical records, “including those from 2002 through 2004.” He opined that plaintiff suffered from posttraumatic stress disorder (PTSD) and that oftentimes patients with this diagnosis have a “‘dissociative’ style/defense” wherein they remain incapacitated from their trauma and cannot move forward. He further opined that: “Plaintiff made therapeutic gains beginning in 2002 which allowed her necessary psychiatric integration, ego strength and capacity for judgment to have both the recognition that the sexual assault trauma at age 15 was in fact the cause of her ongoing PTSD and the ability to move ‘forward’ in filing a cause of action for damages related to this event. Prior to this time in 2002, the patient was too impaired to adequately utilize the information... to be simultaneously aware of both the circumstances of trauma and equally as important to be psychologically capable of taking action based upon such circumstances.” (Italics added.)
Initially, we agree with the trial court that the ultimate opinion rendered by Dr. Nouget is irrelevant. While we recognize that plaintiff’s evidentiary submission should be liberally construed (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769), Dr. Nouget’s declaration still misses the mark. As indicated, in order for plaintiff’s action to be timely, it must have been filed within three years from the date she discovered, or reasonably should have discovered, that the abuse caused her psychological injury. (Sellery v. Cressey (1996) 48 Cal.App.4th 538, 546-547 (Sellery).) Here, Dr. Nouget does not say that plaintiff first discovered in 2002 that the sexual abuse caused her psychological injury. Rather, he says that beginning in 2002, plaintiff “[had] both”the knowledge of the causal connection “and the ability to move ‘forward’ in filing a cause of action for damages related to this event.” There is no expression by Dr. Nouget as to the delineated issue of when plaintiff first acquired knowledge of the causal connection between the abuse and the injury. The fact that she had both knowledge and the ability to move forward with the action is not the relevant inquiry as to when the statute of limitations began to run. The relevant inquiry is only an awareness of the causal connection.
Lastly, the trial court expressed great concern as to the factual foundation of the expert’s opinion. Dr. Nouget specifically alluded to plaintiff’s medical records beginning only in 2002. Nowhere did he mention plaintiff’s medical records from 1992 through 1997, which were replete with references to the sexual abuse and the fact that plaintiff was having difficulties sleeping and functioning. As stated in Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523 and 524, and within the context of a summary judgment motion: “Expert witnesses normally testify concerning the bases for their opinions, and the court may require the expert to state the bases before giving his opinion. [Citation.] Standard instructions give juries the common sense directive that ‘[a]n opinion is only as good as the facts and reasons on which it is based.’ [Citation.] An expert’s opinion, even if uncontradicted, may be rejected if the reasons given for it are unsound. [Citation; Griffith v. County of Los Angeles (1968) 267 Cal.App.2d 837, 847 (expert opinions, though uncontradicted, are worth no more than the reasons and factual data upon which they are based); citation.]” Here, the trial judge specifically found the facts and reasons for Dr. Nouget’s opinions to be lacking, in that he did not consider plaintiff’s medical records between the dates of 1992 through 1997. We cannot say that sustaining an objection on the bases of foundation and speculation was not guided and controlled by fixed legal principles.
C. The Trial Court Properly Found That Plaintiff’s Action Was Time-Barred
Section 340.1 requires plaintiffs alleging psychological harms stemming from acts of childhood sexual abuse to be younger than 26 or to have had fewer than three years of actual or constructive knowledge of the nexus between the harms and the acts. “In an action for recovery of damages suffered as a result of childhood sexual abuse, the time for commencement of the action shall be within eight years of the date the plaintiff attains the age of majority or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever expires later.... [¶] [In]... an action against any person for committing an act of childhood sexual abuse.” (§ 340.1, subd. (a)(1).)
Memories of sexual abuse need not be repressed in order for a plaintiff to enjoy the benefit of delayed discovery. “In 1990, the Legislature amended section 340.1 to allow tolling of the statute of limitations until the plaintiff discovered, or should have discovered, the connection between the abuse and current injuries.” (Sellery, supra, 48 Cal.App.4th at pp. 545-546.) “The amendment’s legislative history establishes it was intended to toll the statute of limitations even for plaintiffs who recalled their abuse.” (Id. at p. 546.)
However, the period accrues once the plaintiff possesses actual or constructive knowledge of the nexus between the adulthood injury and the childhood sexual abuse. “‘A survivor of childhood sexual abuse often lacks the means or ability to ascertain his or her injuries and their cause within the traditional limitations period. Many victims of childhood sexual abuse have repressed all memory of the abuse for many years or, if they do remember the abuse, they minimize or deny its effects to the extent that they do not connect the abuse with later injuries. Generally, it is only when an adult survivor of sexual abuse enters therapy that any meaningful understanding of his or her injuries can be developed.’” (Sellery, supra, 48 Cal.App.4th at pp. 546-547, italics omitted, quoting the amendment’s author.)
Because plaintiff was more than 26 years old when she filed her complaint against defendant, the question is when she first had actual or constructive knowledge that her “psychological injury or illness... was caused by the sexual abuse.” (§ 340.1, subd. (a)(1).) Defendant argues that plaintiff’s medical history demonstrates that plaintiff had constructive knowledge of this link as early as 1992, when she entered therapy. From this, he argues that plaintiff’s action is barred by the statute of limitations. Plaintiff contends that her lawsuit is not barred because she experienced intermittent mental incapacity, and this incapacity prevented her from understanding the causal connection until mid-2002.
We agree with defendant. Although we do not foreclose the possibility that a victim of childhood sexual abuse may lack actual or constructive knowledge of the nexus between her injuries and childhood sexual abuse even after entering therapy, the evidence herein demonstrates that plaintiff had the requisite knowledge no later than July 1997.
As earlier indicated, plaintiff testified at her deposition as follows:
“Q. Okay. So with regard to any treatments that you have received since that time where you received treatment as a result of psychological injury caused by [defendant] and/or the [Church], the first time would be in 1992?
“A. 1992. [¶]... [¶]
“A. I had continual therapy from 1992 through a certain time period in 1994.
“Q. Okay. When was the next time period?
“A. Approximately 1996.
“Q. Until when?
“A. I don’t know when that ended. Maybe 1997.
“Q. Okay. And then there was another period?
“A. Then there was 2002, continuing currently.”
In a verified complaint for divorce filed in January 1965, over 34 years ago, plaintiff averred: “Since the marriage of the parties, defendant has treated plaintiff with extreme cruelty and has wrongfully inflicted upon her grievous bodily injury and grievous mental suffering.”
And from plaintiff’s medical records:
January 13, 1993: “[Patient] appeared tense & angry. [Patient] stated that she was forced to marry early at age 15 [to] the man who raped her. I suggested that 30 years ago teenagers had no rights & she was forced into the marriage. [Patient] cried.”
January 20, 1993: “[Patient] stated that she had further molestation memories & she was afraid to remember. I suggested that she allow the memories to come back if she’s ready. [Patient] cried.”
January 30, 1993: “[Patient] appeared depressed. [Patient] stated that she didn’t understand why the courts forced her to marry her first husband when he raped her. I suggested that it wasn’t the court but the [Church] who wanted to marry off this pregnant girl.”
July 10, 1997: “[Client] reported on recent interaction [with] her children and that on [sic] revealed that her second husband had molested her. Allowed [client] to vent. Validated her feelings, but challenged faulty cognitions. Options explored. [Client] has decided to file charges against first husband for her rape and pursue legal action against the [Church] for forcing her to marry her rapist....”
July 24, 1997: “[Client] reports she is pursuing litigation against her rapist, whom she claims is a pedophile. Educated [client] re: diagnostic criteria. Rapist does not fit criteria, but [client] resistant implying there could be no legal action [without] that designation. Urged [client] to get legal advice. [Client] agreed. [Client] continues to have trouble completing daily routine. [Client] interacted [with group] members by making a supportive comment then immediately segue into her own issues....”
October 2, 1997: “[Client] reports pursuing legal battle against the [Church] and her ‘rapist.’ Allowed [client] to vent. Validated her feelings, but challenged faulty cognitions. [Client] resistant. [Client] continues to find it difficult to complete household chores, staying up watching TV and spending all her time ‘healing her inner child.’ Discussed ‘balance’ in ones’ life. Other [group] members offered suggestions of leisure activities that help them create balance. [Client] resistant and tearful. Discussed transfer of [group] to other therapists. Termination issues explored. [Client] tearful....”
March 6, 1998: “[Client] was dressed & groomed appropriately. She was in a good mood & reported she had received [information] to help her lawsuit. Therapist explored how [client] felt & reinforced her determination. [Client] was active in helping other member problem-solve ways to deal [with] problems. Therapist explored [with client] what she was going to do [with information] if lawsuit didn’t happen & [client] reported she wanted to write a book which therapist reinforced. Therapist explored [with client] what healing meant to her. [Client] had a good definition of healing for her but no vision of when she felt she would reach that point. Therapist reinforced termination of services & the need to stay focused on goals....”
Plaintiff thus appeared to possess the requisite knowledge of the nexus between the acts and the harms as early as 1993. Even construing the records in the light most favorable to plaintiff, she appeared to have this knowledge no later than July 1997, when she mentioned pursuing legal action against defendant on no fewer than four occasions. Furthermore—and despite plaintiff’s contention—the record does not reflect that she was mentally incapacitated between July 1997 and July 2000 which, viewed in the light most favorable to plaintiff, would have been her final opportunity to file this lawsuit.
At pages 5, 6, and 7 of her opening brief, plaintiff argues that the statute of limitations was tolled pursuant to section 352. We believe plaintiff’s argument is misplaced. Section 352 deals with tolling of the statute because of insanity. As explained in Hsu v. Mt Zion Hospital (1968) 259 Cal.App.2d 562, 571, a case relied upon by plaintiff, “‘insane’ has been defined as a condition of mental derangement which renders the sufferer incapable of caring for his property or transacting business, or understanding the nature or effects of his acts.” The present record does not come close to suggesting such an incapacity. (See also Snyder v. Boy Scouts of America, Inc. (1988) 205 Cal.App.3d 1318, 1324-1325 [wherein the court found that under its facts, PTSD (the diagnosis rendered by Dr. Nouget in the present case), did not toll the running of the statute of limitations pursuant to section 352].)
D. The Trial Court Did Not Abuse Its Discretion in Denying Plaintiff’s Motions for New Trial and Reconsideration
Following the grant of the motion for summary judgment, plaintiff filed motions for new trial and reconsideration. In support of the motions, she submitted the declarations of her attorney Timothy Prince and Kimberly Kupfer, a licensed marriage and family therapist. In addition to arguing that the trial court erred in its evidentiary rulings and in granting the summary judgment motion, plaintiff asserted she had obtained new and different facts from those submitted at the original motion and based thereon the court should grant her a new trial or, alternatively, reconsider its original order. Plaintiff argued that at the time of the motion for summary judgment her treating therapist, Kimberly Kupfer, refused to provide a declaration because Ms. Kupfer “prioritized [her] role as a treating therapist before [her] role as a trial consultant.”
The trial court denied both motions. It concluded: “[T]he Court does not believe that this is newly discovered evidence as is contemplated by the new trial statute, which could not have been discovered in the course of due diligence in proceeding with the action, and the Court believes that its earlier rulings on the Nouget declaration were the correct rulings on the law and sees no reason to reverse itself in that regard.”
“When, as here, a party files a motion under section 1008 for reconsideration of a ruling on a summary judgment motion, the trial court may not grant the motion unless it satisfies the requirements of section 1008. [Citations.] As this court stated in New York Times [Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212]: ‘Section 1008, subdivision (a) requires that a motion for reconsideration be based on new or different facts, circumstances, or law. A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. [Citation.]’ [Citation.] The trial court’s ruling on a motion for reconsideration under section 1008 is reviewed for an abuse of discretion. [Citation.]” (Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 723-724.) Similarly, we review the trial court’s ruling on a motion for new trial, wherein the basis for the motion is newly discovered evidence, for an abuse of discretion. To the extent the motion is premised on the argument that triable issues of fact were presented at the original motion for summary judgment, our review is de novo. (Doe v. United Air Lines, Inc. (2008) 160 Cal.App.4th 1500, 1505.)
First, as it relates to the denial of the motion for new trial on the basis that triable issues of fact were presented at the motion for summary judgment, we have performed a de novo review of the record for purposes of affirming the summary judgment order and, as such, conclude that the trial court did not err in denying the motion for new trial as it relates to there being no triable issue of fact. Relative to the trial court’s denial of the motions for new trial and reconsideration based on the theory of newly discovered evidence, we find it did not abuse its discretion in denying the motion.
Here the “newly discovered evidence” was the contents of the declaration of Kimberly Kupfer. Ms. Kupfer declared that she was a marriage and family counselor. She stated she had been treating plaintiff since approximately February 2004 and she had reviewed plaintiff’s psychological records dating back to 1993. Among other things, she opined that “[p]rior to [the beginning of 2002] the patient was too impaired to adequately utlize the information as previously mentioned, to be simultaneously aware of both the circumstances of trauma and equally as important to be psychologically capable of taking action based on such circumstances.” In explaining why the declaration was “newly discovered evidence” and not initially presented at the motion for summary judgment, plaintiff’s counsel declared: “We contatcted Kim Kupfer, LMFT prior to the hearing of the Motion for Summary Judgment, but she was unwilling to submit a declaration due to her desire to keep her role limited to treatment and not forensics. Kim Kupfer has since reconsidered. Therefore, I respectfully submit the treating practitioner Kim Kupfer declaration despite the failure to produce this at the time of the initial hearing on this matter.”
As alluded to by the trial court in denying the motion, the contents of Ms. Kupfer’s declaration was not newly discovered, and while she may have been a recalcitrant witness, plaintiff’s counsel could have asked for a continuance of the motion or secured her testimony by way of deposition. There is no abuse of discretion in such findings. (See Jones v. P.S. Development Co., supra, 166 Cal.App.4th at p. 725 [wherein the court discusses the availability of a motion to continue the summary judgment motion, or securing the necessary facts by way of deposition testimony].)
We find no error.
IV. DISPOSITION
We therefore affirm the trial court’s entry of summary judgment. Respondent shall recover his costs on appeal.
We concur: Richli Acting P.J. Gaut, J.