Opinion
H049621
08-30-2023
JEAN KIM, Plaintiff and Appellant, v. SAGE VETERINARY CENTERS, LP, Defendant and Respondent.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 19CV359393)
LIE, J.
Plaintiff Jean Kim sued defendant SAGE Veterinary Centers, LP for veterinary malpractice and related causes of action. Granting SAGE's motion for summary judgment, the trial court determined that SAGE had met its initial burden and that Kim's own declaration as a layperson failed to raise a triable issue of material fact as to whether the applicable standard of care had been met.
We independently reach the same conclusion as the trial court in its grant of summary judgment and find no abuse of discretion in its denial of Kim's motion for a new trial. We therefore affirm the judgment.
I. BACKGROUND
A. The Operative Complaint
In the operative second amended complaint, Kim set forth causes of action for: (1) veterinary malpractice; (2) gross negligence, (3) violation of Business and Professions Code section 17200, et seq.; and (4) wrongful destruction. Kim alleged that in December 2018, she brought her cat to SAGE for treatment of anorexia. She alleged that SAGE did not provide reasonable care or sufficient medical attention to her cat. Ultimately, her cat died.
As to the first two causes of action, Kim alleged that SAGE failed "to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonable careful specialists would use in similar circumstances." For the third cause of action, Kim alleged that SAGE engaged in a fraudulent business practice by "intentionally misrepresent[ing] the SAGE 24/7 Critical Care Unit as critical care emergency specialist care that has a worker that stays there consistently to timely treat an emergency while in SAGE control/charge." In the fourth cause of action, Kim alleged that SAGE paid for a "fraudulent autopsy report to prohibit a malpractice complaint" but did not get Kim's "authorization to get the autopsy report."
B. SAGE's Motion for Summary Judgment
On April 1, 2021, SAGE moved for summary judgment and, in the alternative, summary adjudication of Kim's second amended complaint. The following evidence was before the trial court on the motion:
We take the following facts from the parties' separate statements of undisputed facts, evidence admitted in conjunction with the motion for summary judgment, and admissions in the parties' briefs. (See Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1186, fn. 4.)
On October 2, 2018, Kim took her cat to South Bay Animal Hospital &Resort due to inappropriate urination, hematuria, and bloody urine. The cat was "fractious and difficult to manage." After sedation, the veterinarian at the hospital examined Kim's cat and diagnosed it with periodontal disease and grade II hematuria.
On October 17, 2018, Kim took her cat to VCA Vets &Pets Animal Hospital (VCA) because of additional health problems. VCA assessed Kim's cat as having a comminuted fracture of the right proximal femur.
Kim contends the fracture resulted from malpractice at VCA.
Kim next took her cat to Santa Clara Pet Hospital where, on December 4, 2018, the cat was diagnosed with anorexia, dehydration, suspected feline asthma, femoral fracture-chronic, and history of cystitis. The vet discussed with Kim the possibility of humane euthanasia due to the femoral fracture and liver disease, which Kim declined. The vet then recommended hospitalization and aggressive treatment and suggested sending her to another vet or a different hospital to avoid any delay.
On December 5, 2018, Kim brought her cat to SAGE but left because SAGE was too busy to see the cat that evening. Kim and her cat returned the next day and the vet assessed the cat as having anorexia, enzymatic hepatopathy, azotemia, a right femoral fracture, neutrophilic leukocytosis, and lower airway disease. Kim's cat received subcutaneous fluids and anti-nausea medication and a recommendation to return for more aggressive testing if his appetite did not return in a few days.
Kim returned to SAGE with her cat three days later. The vet recommended hospitalization so that Kim's cat could be rehydrated and undergo surgery the next day. That night, SAGE found Kim's cat unresponsive and he did not recover from cardiac arrest.
According to Necropsy Services Group's final necropsy report, Kim's cat died from "disseminated, metastatic histiocytic sarcoma involving lungs, kidneys, spleen, liver, and bladder." It was also noted in the report that "the chronic fracture of the femur was . . . associated with metastatic infiltration of neoplastic cells indicative of a pathological fracture of weakened bone."
Following a September 23, 2021, hearing, the trial court issued an order the same day granting SAGE's motion for summary judgment. It found that SAGE had submitted admissible evidence in the form of several declarations through which it met its initial burden of showing that its care for Kim's cat "met the applicable standard of care and that no act or omission by [d]efendant proximately caused [p]laintiff's injury-the death of her cat from cancer." The court stated that Kim could not raise a triable issue of material fact "through the evidence she has submitted-her own declaration and attached exhibits. As a layperson, she lacks the education or training necessary to challenge the conclusions reached by any of the medical professionals who submitted declarations in support of [d]efendant's motion."
C. Kim's Motion for New Trial
Kim filed a motion for new trial on the ground that the trial court made an error in law. On November 23, 2021, the court denied the motion for the same reasons expressed in its earlier order, finding that the original ruling was not erroneous as a matter of law.
Kim timely appealed the orders.
II. DISCUSSION
A. Appealability
As an initial matter, SAGE argues that Kim's appeal should be dismissed because it is taken from non-appealable orders. Kim appeals from the orders granting SAGE's motion for summary judgment and denying Kim's motion for a new trial. It is true that "an order granting summary judgment is not an appealable order. [Citations.] The appeal must be taken, instead, from a judgment entered on the basis of the summary judgment order." (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7.) Likewise, an order denying a motion for new trial is not an appealable order. (Fields v. Riley (1969) 1 Cal.App.3d 308, 311, fn. 1.) However, "when [an] order is followed by a judgment, the appellate court may deem the premature notice of appeal to have been filed after the entry of judgment." (Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 288.)
On January 19, 2022, this court issued an order to show cause regarding this very issue. After receiving the judgment of dismissal from the trial court, we discharged the order to show cause and, as SAGE acknowledges, we ordered that the appeal be deemed filed February 24, 2022, the date the trial court entered the judgment of dismissal.
SAGE contends the issue of appealability is still not resolved because the notice of appeal states the appeal is from two non-appealable orders instead of from the judgment. But a notice of appeal referring to an "order" can be construed to apply to a "judgment" when "it is reasonably clear the appellant intended to appeal from the judgment and the respondent would not be misled or prejudiced." (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20, 22, fn. omitted.)
Kim's intent to appeal from the judgment is clear, and there is no basis to conclude SAGE was misled or will be prejudiced in any manner. We therefore construe the notice of appeal as having been taken from the judgment and consider the merits of the appeal.
B. SAGE's Motion for Summary Judgment
Where a defendant has prevailed on summary judgment,"' "we review the record de novo to determine whether [they have] conclusively negated a necessary element of the plaintiff's case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial." [Citation.]' [Citation.]" (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; Genisman v. Carley (2018) 29 Cal.App.5th 45, 49 [defendant moving for summary judgment bears "the burden of showing that . . . one or more elements of the cause of action cannot be established"].) The moving defendant "bears the burden of persuasion that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.) But upon a defendant's prima facie showing of the nonexistence of such an element, the plaintiff "is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Ibid.) "We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party." (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.)
1. Specification of Reasons by Trial Court
Kim argues that the trial court violated Code of Civil Procedure section 437c, subdivision (g), which requires a trial court ruling on a summary judgment motion to "specify the reasons for its determination [and] . . . specifically refer to the evidence proffered in support of and, if applicable, in opposition to the motion that indicates no triable issue exists." Kim relies on Santa Barbara Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th 439, 449, where the appellate court noted the lack of any "oral or written statement of reasons" in determining that "the court clearly decided credibility issues, at least through its apparent decision to disregard certain contradictions in the evidence." But here, in contrast, the trial court issued a written order in which it specifically identified each of the declarations submitted by SAGE on which it relied in determining that SAGE's care of Kim's cat "met the applicable standard of care and that no act or omission by [d]efendant proximately caused [p]laintiff's injury ...." The court also explained the reasons for its determination that Kim's evidence-her own declaration as a lay witness and attached exhibits-did not raise any triable issue of material fact. We consider the scope and detail of the trial court's explanation of its ruling to satisfy the statutory requirement.
Even if we were to conclude that the trial court did not meet its statutory duty to specify the reasons for its determination, reversal would not be warranted. "[W]e review [the trial court's] ruling, not its rationale." (Ram's Gate Winery, LLC v. Roche (2015) 235 Cal.App.4th 1071, 1079.) Irrespective of the trial court's stated reasons, we must affirm if "the record establishes the [defendant's] entitlement to summary judgment in their favor." (Ruoff v. Harbor Creek Community Assn. (1992) 10 Cal.App.4th 1624, 1627; cf. § 437c, subd. (m)(2).)
2. Veterinary Malpractice and Gross Negligence
Kim alleged in her veterinary malpractice cause of action that SAGE breached the standard of care in the treatment of her cat. Relying on the same facts in the gross negligence cause of action, Kim further alleged that SAGE's "conduct . . . was so extreme in nature that [it] rises to the level of either want of scant care or an extreme departure from the ordinary standard of conduct."
Because "[v]eterinarians, like medical doctors, are licensed health care providers," the same standard of care that applies to medical malpractice cases also applies to veterinary malpractice cases. (Williamson v. Prida (1999) 75 Cal.App.4th 1417, 1425.) Accordingly, as in a medical malpractice action, Kim was obliged to prove" '" '(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.'" '" (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310.)
"In order to establish what that degree of skill, knowledge and care is, there must be expert testimony explaining how the average veterinarian of ordinary skill and knowledge from the relevant community would have treated the case under similar circumstances." (Quigley v. McClellan (2013) 214 Cal.App.4th 1276, 1285.) When a defendant in a medical malpractice case supports a motion for summary judgment with an expert declaration that is neither conclusory nor speculative, and that properly explains the basis for the opinion, a plaintiff can raise a triable issue of material fact only by submitting an opposing expert declaration. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985; see also Kelley v. Trunk (1998) 66 Cal.App.4th 519, 522.)
To meet its initial burden of production of evidence, SAGE provided the declaration of Stephen Ettinger, a veterinarian licensed to practice in California. Based on his review of the veterinary records, Ettinger opined, "to a reasonable degree of veterinary probability, that no act or omission by [SAGE] was a substantial factor in causing death" and that the cat had "reached a terminal state by the time [it] was seen at SAGE." As to Kim's allegation that SAGE's failure to provide critical emergency care amounted to a breach of duty that contributed to the cat's death, Ettinger relied on the records from SAGE and previous providers documenting that Kim's cat had become "vicious" in its "poor condition," making examination and catheterization difficult without sedation, which in turn would have been "dangerous" in the cat's state. Accordingly, SAGE could not examine the cat on December 9 but instead needed to hospitalize the cat to rehydrate and monitor it in preparation for surgery to repair its fractured femur the next day. Ettinger concluded that "[t]he care given to [Kim's] cat by SAGE met the standard of care."
Kim argues that Ettinger failed to establish either his expertise or his personal knowledge. "In order to testify as an expert in a medical malpractice case, a person must have enough knowledge, learning and skill with the relevant subject to speak with authority, and he or she must be familiar with the standard of care to which the defendant was held." (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) Ettinger states in his declaration that he graduated from the Cornell University College of Veterinary Medicine in 1964. In the 1970's, he helped establish both the American College of Veterinary Internal Medicine and the Berkeley Veterinary Medical Group. He published the "Textbook of Veterinary Internal Medicine," which he refers to as the "gold standard" in veterinary internal medicine texts, and he worked in both academia and in private practice, including a teaching position at the University of California, Davis School of Veterinary Medicine for eight years. He also served as chief medical officer of PetDRx, a national veterinary practice group, from 2007-2010, and states that he is "one of the profession's pioneers in veterinary cardiology." Given the length and broad scope of Ettinger's experience, we conclude his declaration sufficiently established his expertise as a veterinarian who is qualified to opine about the appropriate standard of care.
In addition to stating that he has "personal knowledge of the facts set forth herein," Ettinger states in his declaration that his opinions are based on his review of SAGE records of its treatment of Kim's cat, in addition to the cat's records from South Bay Animal Hospital, VCA, Santa Clara Pet Hospital, and Necropsy Services Group. Medical records such as these, as long as they are authenticated, are "the type of records on which medical experts may and do rely in order to give expert testimony in a medical malpractice case." (Wicks v. Antelope Valley Healthcare District (2020) 49 Cal.App.5th 866, 876.) Sage's custodian of records authenticated its medical records-including the prior treatment history and subsequent necropsy report obtained from VCA and Necropsy Services Group, respectively-as records maintained in the ordinary course of business. Ettinger therefore had a proper basis for forming and expressing his medical opinion as to whether SAGE breached the standard of care. (See Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 969 [experts' review of medical records and other materials and brief summary of patient's treatment was sufficient to meet initial burden as to whether the applicable standard of care was met].) His expert declaration sufficed to meet SAGE's initial burden of production and shifted the burden of production to Kim.
Kim points to Necropsy Services Group's misidentification of the cat's gender in the necropsy report and a date discrepancy in the necropsy invoice as evidence that the necropsy report was fraudulent. But we are obliged to reject her suggestion that these discrepancies foreclose Ettinger's reliance on the necropsy report (among other records) in forming his opinion. Even if Kim had objected in the trial court to the admissibility of the necropsy report itself, "not only can an expert 'rely on hearsay in forming an opinion,' he 'may tell the jury in general terms that he did so.'" (People v. Veamatahau (2020) 9 Cal.5th 16, 26.) Notwithstanding the misgendering, Ettinger could legitimately rely on other identifying characteristics in the necropsy report-the cat's black and white "[t]uxedo" coloring; its chronic femoral fracture, corresponding to prior treatment records; the date, time, and location of death-to conclude the authenticated record was what it purported to be.
In opposition, Kim submitted no expert declaration, but on appeal argues that she provided veterinarian reports, lab reports by independent parties, and evidence of tests showing her cat was "normal" to establish a triable issue of material fact. We understand Kim's contention that her cat was "normal" to mean she believes the cat did not have cancer, but her records do not support this interpretation. She herself acknowledges that when she brought her cat to Sage for treatment in December 2018, her cat had a "broken femur . . ., high pain, anorexia, cystitis, pancreatitis, [and] increased respiratory effort." She relies upon a Santa Clara Pet Hospital physical exam report dated the day before her first attempted visit to Sage describing the cat as "Quiet, Alert, Normal." But the same record also indicated "suspect[ed] mild jaundice," "anorexia," "decreased caloric intake for longer than 7 days," "femoral fracture-chronic," and "h/x of cystitis." Absent a contrary qualified veterinary opinion, we are unable to construe these indications as materially undermining Ettinger's opinion that Kim's cat was then at a terminal stage. To the extent Kim relies on a post-mortem radiographic interpretation of October 2018 X-ray images that omits mention of cancer, the radiologist noted the question presented as whether "the femoral fracture was acute" at the time of imaging or was "a chronic incidental finding[.]" Even assuming the radiologist was nonetheless reviewing the images for signs of cancer, it is not obvious that the radiologist was able to rule out such a diagnosis: the radiologist noted evidence of "nodular opacity" in views of the lungs which presented the possibility of "a true lung nodule," though identification could not be "definitively" made from the images. Absent a qualified medical expert, we are unable to conclude that this evidence raised a triable issue of material fact. These items are not the equivalent of an expert medical declaration and do not enable Kim to meet her evidentiary burden in opposing the motion for summary judgment.
The requirement of expert evidence in medical malpractice cases is subject to a" 'common knowledge'" exception, but this "exception is principally limited to situations in which the plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson 'is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised.'" (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001, fn. omitted.) "The classic example, of course, is the X-ray revealing a scalpel left in the patient's body following surgery." (Ibid.)
This is not such a situation. The expert evidence reflects that Kim's cat died of advanced metastatic cancer. Whether this is true, or whether some other medical cause- naturally occurring or the result of malpractice-was a substantial factor in that death is not within the common knowledge of a layperson. Consequently, to raise a triable issue of material fact regarding the standard of care and its breach, Kim was obliged to submit expert testimony to counter SAGE's evidence. Because she did not or could not do so, the trial court appropriately ruled in favor of SAGE.
3. Violation of Business &Professions Code Section 17200, et seq.
Business &Professions Code section 17200, et seq. provides that "unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising ...." "In contrast to its limited remedies, the unfair competition law's scope is broad." (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.)" 'Because Business and Professions Code section 17200 is written in the disjunctive, it establishes three varieties of unfair competition-acts or practices which are unlawful, or unfair, or fraudulent. "In other words, a practice is prohibited as 'unfair' or 'deceptive' even if not 'unlawful' and vice versa." '" (Ibid.)
An action for relief pursuant to section 17200, et seq. may be brought by the Attorney General, a district attorney, a county counsel, a city attorney, or a private individual, but there are standing requirements for private individuals. (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 318.) Only a person "who has suffered injury in fact and has lost money or property as a result of the unfair competition" has standing to bring an action for relief under section 17200 et seq. (Bus. &Prof. Code, § 17204.)
Kim alleges in her unfair competition cause of action that SAGE engaged in a fraudulent business practice by "intentionally misrepresent[ing] the SAGE 24/7 Critical Care Unit as critical care emergency specialist care that has a worker that stays there consistently to timely treat an emergency while in SAGE['s] control/charge." Kim alleges that SAGE does not have a worker that stays there to manage the area.
As we discussed in connection with the veterinarian malpractice and gross negligence causes of action, SAGE has provided evidence sufficient to meet its initial burden of production regarding the applicable standard of care and the lack of any breach of that standard. The evidence presented also enables SAGE to meet its initial burden on the unfair competition cause of action because it demonstrates that Kim's loss of her cat and her associated damages were the result of the cat's terminal illness rather than SAGE's actions. Because Kim has not submitted a contrary expert declaration, we conclude she has not raised a triable issue of material fact as to whether she has standing to pursue her claims-that she suffered an injury as a result of the unfair competition.
4. Wrongful Destruction
Kim alleges in her wrongful destruction cause of action that SAGE paid $1000 for a "fraudulent autopsy report" without "[Kim's] authorization to get the autopsy report." Kim alleges "[t]here was no reason to get the autopsy report" because a different report from Santa Clara Pet Hospital indicated that Kim's cat needed treatment for anorexia. Kim alleges harm from SAGE's conduct in that she "was expecting to stay with [her cat] prior to the Napa memorial. SAGE took away [Kim's] opportunity to share time with [her] pet." She alleges further that seeing the autopsy report caused her to feel nausea.
SAGE correctly argues that there is no such claim as one for "wrongful destruction" under California law. SAGE cites to Stolz v. Wong Communications Limited Partnership (1994) 25 Cal.App.4th 1811, 1817 (Stolz), which recites the rule that "[a] summary judgment motion necessarily includes a test of the pleadings and can become a motion for judgment on the pleadings." As is pertinent here, a defendant may move for judgment on the pleadings on the ground that "[t]he complaint does not state facts sufficient to constitute a cause of action against that defendant." (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).)
On appeal, Kim appears to acknowledge the fact that there is no such cause of action as one for "wrongful destruction," and she requests leave to amend to state a cause of action for "trespass to chattel." (Emphasis omitted.) "Where a motion for summary judgment is in effect a motion for judgment on the pleadings, the court may grant a plaintiff leave to amend the complaint." (Stolz, supra, 25 Cal.App.4th at p. 1817.) There is no basis to allow such an amendment here, however, because it would be futile. (See Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 ["The plaintiff has the burden of proving that an amendment would cure the defect."].)
"Trespass to chattel, although seldom employed as a tort theory in California . . ., lies where an intentional interference with the possession of personal property has proximately caused injury." (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566, fn. omitted.) Trespass to chattel can be alleged to recover for damages, including emotional distress damages, for injury to a pet cat because "[p]ets are considered property of their owners." (Kimes v. Grosser (2011) 195 Cal.App.4th 1556, 1559; see also Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1272-1273; Levy v. Only Cremations for Pets, Inc. (2020) 57 Cal.App.5th 203, 216 [emotional distress damages are available in a trespass to chattel action].)
SAGE provides the declaration of Susan Ruland, SAGE's director of hospital operations, in which she states that she spoke with Kim and received verbal confirmation that a necropsy could be ordered. Ruland also states that she informed Kim on at least three occasions that Kim's cat was with Necropsy Services Group for the completion of a necropsy report. Ruland provided Kim with the necropsy report on December 28, 2018, and on January 10, 2019. Although Kim objects that Ruland's declaration in this regard is inadmissible hearsay, we consider Ruland's declaration properly before the court and sufficient to shift the burden of production on this point to Kim: Ruland had personal knowledge of her communications with Kim and was therefore competent to relate that Kim assented to the necropsy (see Code Civ. Proc., § 437c, subd. (d)), and Kim's assent itself was an "operative fact" of independent legal significance not made inadmissible by the hearsay bar (1 Witkin, Cal. Evidence (6th ed. 2023) Hearsay § 36 [noting" 'well-established exception or departure from the hearsay rule'" where" 'the very fact in controversy is whether certain things were said or done . . ., and in these cases the words or acts are admissible not as hearsay but as original evidence' "].)
Although Kim states in her declaration in opposition to the motion for summary judgment that "[t]here was no reason to get the autopsy report" and that "there was no corporate policy to get [an] autopsy," nowhere does she dispute that she in fact authorized Sage to order the necropsy. (Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 733 ["opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation"].) Kim therefore raises no triable issue as to her consent to the necropsy and does not explain how this defect could be cured by amendment.
C. Motion for New Trial
"Because resolution of a summary judgment motion involves the trial of an issue of law, a decision granting a motion for summary judgment may be challenged by a motion for new trial." (Scott v. Farrar (1983) 139 Cal.App.3d 462, 467.) Kim asserts in her notice of motion for a new trial that "there was an error of law in the trial" and her memorandum of points and authorities in support of the motion essentially repeats her arguments from her opposition to the motion for summary judgment. We accordingly understand Kim's motion for a new trial as a plea for reconsideration of summary judgment, on the same grounds she had previously proffered in opposing SAGE's motion. But it is not sufficient for Kim to simply disagree with the trial court's ruling without making an affirmative showing of error. When a party moves for a new trial on the ground that the trial court made an" '[e]rror in law,'" "the trial court ha[s] no discretion to grant a new trial unless its original ruling, as a matter of law, was erroneous." (Ramirez v. USAA Casualty Ins. Co. (1991) 234 Cal.App.3d 391, 397.) As the trial court's ruling was not erroneous as a matter of law, we discern no abuse of discretion in the trial court's denial of the new trial motion.
III. DISPOSITION
The trial court's orders are affirmed. Costs on appeal are awarded to SAGE.
WE CONCUR: GREENWOOD, P.J., GROVER, J.