Filed 5/20/15
                           CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA



BERTHE FELICITE KABRAN,                           D064133
as Successor in Interest, etc.,

        Plaintiff and Respondent.
                                                  (Super. Ct. No. 37-2010-00083678-
        v.                                                             CU-PO-CTL)

SHARP MEMORIAL HOSPITAL,

        Defendant and Appellant,


        APPEAL from an order of the Superior Court of San Diego County, John S.

Meyer, Judge. Affirmed.

        Berman & Riedel and William Michael Berman; Kenneth M. Sigelman &

Associates and Kenneth M. Sigelman, Penelope A. Phillips; Jon R. Williams for Plaintiff

and Respondent.

        Lotz, Doggett & Rawers and Jeffrey S. Doggett, Evan J. Topol for Defendant and

Appellant.

        Defendant and appellant Sharp Memorial Hospital dba Sharp Rehabilitation

Center (Sharp) appeals from an order granting plaintiff and respondent's Berthe Felicite

Kabran's motion for new trial following a special verdict on a cause of action for medical
malpractice in which the jury found Sharp was negligent in the care and treatment of

plaintiff's predecessor, Dr. Eke Wokocha, but that the negligence was not a substantial

factor in causing harm.1 Sharp contends the trial court acted in excess of its jurisdiction

by granting a new trial because the motion was untimely, rendering the order void. It

further contends the court abused its discretion because the evidence proffered by

plaintiff in support of the new trial motion was cumulative and consistent with defense

expert trial testimony, and thus would not change the outcome of the trial. We conclude

that no jurisdictional defect appears in the court's new trial order and, as a result, Sharp

may not raise its appellate contentions as to the motion's timeliness for the first time on

appeal. We further conclude the trial court did not manifestly abuse its discretion in

assessing the new evidence—results of an autopsy conducted on Dr. Wokocha—and

ruling on this record that plaintiff should be granted a new trial. Accordingly, we affirm

the order.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In 2008, Dr. Wokocha began developing weakness in his upper extremities. By

early 2009, he was experiencing progressive numbness, tingling, and weakness in his

limbs, requiring him to use a wheelchair and walker. Medical resonance imaging (MRI)

conducted in late 2008 showed two distinct problems in the same location of his cervical

spine: narrowing of the spinal canal (cervical stenosis) as well as a mass, later determined


1      Wokocha, a clinical psychologist, died after the jury returned its verdict, and the
court substituted Kabran as his successor in interest. We refer to plaintiff at times as Dr.
Wokocha as do the parties on appeal.

                                              2
to be a low-grade astrocytoma or tumor, on the back side of his spinal cord. Dr.

Wokocha underwent spinal decompression surgery on January 7, 2009, and five days

later was transferred to Sharp's rehabilitation center. After the evening of January 16,

2009, while at Sharp, he experienced a rapid decline in his condition resulting in

complete quadriplegia.

       Dr. Wokocha sued Sharp and others for negligence, and trial commenced in

October 2012. The case was tried in part on the theory that while at Sharp Dr. Wokocha

was mishandled by an occupational therapist during an attempted transfer from his bed to

a shower commode chair, resulting in spinal shock and active bleeding (a hematoma),

which caused his rapid deterioration to quadriplegia.2 The parties presented conflicting

expert testimony on the issues of negligence and causation, including based on the

appearance of various MRIs taken of Dr. Wokocha's spine in January and February 2009,

July 2011, and August 2012. The jury returned a special verdict finding Sharp was

negligent in its care and treatment of Dr. Wokocha, but that the negligence was not a

substantial factor in causing him harm.

       On March 1, 2013, Kabran timely filed and served her notice of intention to move

for a new trial on grounds, among others, of newly discovered evidence. Several days

later, pursuant to the parties' stipulation, the court granted her an extension of time until

Monday, April 1, 2013, which happened to be a court holiday, to file and serve her

motion and supporting affidavits. On April 2, 2013, Kabran personally served her notice


2      Trial proceeded only against Sharp and John Jahan, M.D., one of Dr. Wokocha's
treating physicians.
                                               3
of motion and motion for new trial, along with two supporting declarations. She

attempted to file the papers in the superior court that day, but ultimately, because the

requisite filing fee was not paid, the court clerk cancelled the file stamp and did not

process the motion.3 On April 3, 2013, Kabran successfully applied ex parte for an order

setting the new trial motion for hearing on April 12, 2013. The court ordered Sharp's

opposition papers to be filed and served by noon on April 10, 2013. Kabran's new trial

motion was eventually filed with the court on April 5, 2013, and her supporting

declarations were filed on April 9, 2013.

       Kabran's new trial motion asserted newly discovered evidence, namely, the results

of an autopsy assertedly showing that the damage to Dr. Wokocha's spine was not the

result of his tumor, and that "the [defense] witnesses who testified that the markedly

abnormal area on MRI consisted entirely of a malignant astrocytoma, and/or that it was

unrelated to trauma, were wrong." In support of the motion, Kabran submitted a

declaration from Guerard Grice, M.D., who with another doctor had performed an

autopsy, removed Dr. Wokocha's brain and spinal cord, and examined slides of tissue

blocks taken from the cervical spinal cord. Kabran also submitted a declaration from her

trial expert Jeffrey Gross, M.D., a neurological surgeon. Kabran argued that the tissue

obtained from the autopsy from the "obliterated" portion of Dr. Wokocha's cervical spinal



3      We grant plaintiff's request to judicially notice the San Diego Superior Court's
April 4, 2013 notice to filing party (Evid. Code, §§ 452, subd. (d) [allowing judicial
notice of court records], 459, subd. (a)) as well as the fact that March 31, 2013, was Cesar
Chavez day. (Evid. Code, § 451, subd. (f) [judicial notice of facts of generalized
knowledge].)
                                              4
cord, which was "in sufficient quantity to view grossly and microscopically so as to

arrive at a definitive diagnosis," required a new trial. Sharp opposed the motion on the

merits without raising any issue about its timeliness.4

       After hearing arguments on the matter, the trial court granted the motion. It ruled

there was a probability Dr. Grice's opinion would render a different result in a new trial,

and the new evidence could not with reasonable diligence have been discovered and

produced at trial.

       Sharp filed this appeal.

                                       DISCUSSION

                             I. Timeliness of New Trial Motion

       Sharp has advanced several theories to contend that plaintiff's motion for new trial

was untimely such that the trial court had no jurisdiction to consider it. It initially argued

plaintiff's new trial motion and supporting affidavits were filed two days beyond the

statutory time limit for filing the motion. Plaintiff responded by pointing out there was

an intervening holiday so that the last day to file the motion and affidavits was April 2,

2013. Sharp has conceded that narrow point.




4       Sharp objected to Dr. Grice's and Dr. Gross's conclusions as to causation on
various grounds. In part, it argued Dr. Grice's conclusions lacked foundation and/or had
an insufficient basis, and, as to his conclusion concerning the cause of the complete
obliteration of Dr. Wokocha's mid-cervical spinal cord, was irrelevant. The court
overruled Sharp's objections, stating, "The fact that plaintiff's newly discovered evidence
may be challenged is not relevant to this motion." Sharp does not challenge on appeal the
court's evidentiary ruling.
                                              5
       Sharp now contends the new trial motion was untimely because plaintiff did not

pay the required filing fee until April 5, 2013, after the prescribed time limit for filing the

motion. Responding to plaintiff's argument that Sharp forfeited timeliness contentions by

failing to raise them in the trial court, Sharp argues the statutory time periods, including

the periods in which to file opposing papers or affidavits in support of a new trial motion,

are jurisdictional, and as a result it cannot have waived any objection to the untimely

filing in the trial court.

       As an additional ground to reverse the order granting a new trial, Sharp asserts in

its opening and reply briefs that the trial court erred by shortening time for it to respond

to the motion in violation of Code of Civil Procedure5 section 659a, depriving it of the

mandatory 10 days within which to either prepare counteraffidavits or obtain an

extension of time to file them. Because the record does not contain a reporter's transcript

of the April 3, 2013 ex parte hearing on the matter, Sharp has moved to produce

additional "evidence" by way of its counsel's declaration as to what he said at that ex

parte hearing.6



5      Statutory references are to the Code of Civil Procedure unless otherwise specified.

6      Plaintiff's counsel responds to that motion by submitting his own declaration
recounting what occurred at the hearing, contradicting Sharp's counsel's declaration. We
deny Sharp's motion to produce new evidence under section 909, as the circumstances do
not warrant our acting as a fact finder on matters occurring before the trial court.
Generally speaking, we review the record as it was before the trial court. (In re Zeth S.
(2003) 31 Cal.4th 396, 405.) "[T]he 'circumstances under which an appellate court can
receive new evidence after judgment, or order the trial court to do so, are very rare. For
this court to take new evidence pursuant to statute (§ 909) . . . , the evidence normally
must enable the Court of Appeal to affirm the [order], not lead to a reversal.' " (J.J. v.
                                               6
A. Applicable Law

       Section 659, governing new trial motions, provides in part: "(a) The party

intending to move for a new trial shall file with the clerk and serve upon each adverse

party a notice of his or her intention to move for a new trial, designating the grounds

upon which the motion will be made and whether the same will be made upon affidavits

or the minutes of the court, or both, either: [¶] (1) After the decision is rendered and

before the entry of judgment. [¶] (2) Within 15 days of the date of mailing notice of

entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him

or her by any party of written notice of entry of judgment . . . ."

       "[C]ompliance with the 15-day requirement of section 659 is jurisdictional," and

absent compliance a trial court is "without power to entertain the motion." (Tri-County

Elevator Co. v. Superior Court (1982) 135 Cal.App.3d 271, 277.) When a notice of

intention to move for new trial is timely filed, it "shall be deemed to be a motion for a

new trial on all the grounds stated in the notice." (§ 659, subd. (b).) Thus, " 'when the

adverse party has been given due notice that . . . a motion (for a new trial) will be made

and is fully apprised of the grounds to be urged the jurisdiction of the court is complete.' "

County of San Diego (2014) 223 Cal.App.4th 1214, 1227, fn. 4, quoting Philippine
Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058,
1090; see also Monsan Homes, Inc. v. Pogrebneak (1989) 210 Cal.App.3d 826, 830
["The power to invoke [section 909] should be exercised sparingly, ordinarily only in
order to affirm the lower court decision and terminate the litigation, and in very rare cases
where the record or new evidence compels a reversal with directions to enter judgment
for the appellant"].) Whatever arguments counsel made before the court at the April 3,
2013 ex parte hearing are not evidence, much less new evidence. (In re Zeth S., at p. 414,
fn. 6 [it is axiomatic that unsworn statements of counsel are not evidence].) And in any
event, even if we considered counsel's declarations submitted on appeal, their dispute
over what they argued at the hearing fails to meet these stringent standards.
                                              7
(Nichols v. Hast (1965) 62 Cal.2d 598, 600.) "The purpose of notice under section 659 is

to give the adverse party a reasonable opportunity to oppose a motion for a new trial on

its merits." (Ibid.)

       Section 659a sets out time limits for filing accompanying affidavits and briefs

supporting and opposing the notice of intention to move for new trial.7 It has been long

held that the time limits for filing affidavits and counteraffidavits for new trial motions,

though "strict" (Clemens v. Regents of University of California (1970) 8 Cal.App.3d 1,

21), are not jurisdictional. (Fredrics v. Paige (1994) 29 Cal.App.4th 1642, 1648; Wiley v.

Southern Pacific Transportation Co. (1990) 220 Cal.App.3d 177, 188; Clemens, at p. 21;

Boynton v. McKales (1956) 139 Cal.App.2d 777, 782; see Smith v. Whittier (1892) 95

Cal. 279, 295, called into doubt on other grounds by intervening statute in Caira v. Offner

(2005) 126 Cal.App.4th 12, 35; Spottiswood v. Weir (1889) 80 Cal. 448, 451 [no error in

allowing filing of counteraffidavits after time fixed by the code]; 8 Witkin, Cal.

Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 65, p. 650 ["Affidavits or

declarations [in connection with a new trial motion] filed too late may be disregarded.

[Citations.] On the other hand, the time limits are not jurisdictional. The court may still

consider an affidavit or declaration even if it is filed after the deadline"]; but see Erikson


7       Section 659a provides: "Within 10 days of filing the notice, the moving party
shall serve upon all other parties and file any brief and accompanying documents,
including affidavits in support of the motion. The other parties shall have 10 days after
that service within which to serve upon the moving party and file any opposing briefs and
accompanying documents, including counteraffidavits. The moving party shall have five
days after that service to file any reply brief and accompanying documents. These
deadlines may, for good cause shown by affidavit or by written stipulation of the parties,
be extended by any judge for an additional period not to exceed 10 days."
                                               8
v. Weiner (1996) 48 Cal.App.4th 1663, 1671-1672 (Erikson) [aggregate 30-day time

period of section 659a for filing affidavits is mandatory and jurisdictional].) Thus, the

court may, but need not, reject affidavits filed after those time limits.

       "The power of a trial court to rule on a motion for a new trial expires 60 days after

(1) the clerk mails the notice of entry of judgment, or (2) a party serves written notice of

entry of judgment on the party moving for a new trial, whichever is earlier, or if no such

notice is given, then 60 days after filing of the first notice of intent to move for a new

trial. (§ 660.) If the motion for a new trial is not ruled upon within the 60-day time

period, then 'the effect shall be a denial of the motion without further order of the court.'

(§ 660.) The 60-day time limit provided in section 660 is jurisdictional. Consequently,

an order granting a motion for a new trial beyond the relevant 60-day time period is void

for lack of jurisdiction." (Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th

493, 500; see Mercer v. Perez (1968) 68 Cal.2d 104, 123; Siegal v. Superior Court (1968)

68 Cal.2d 97, 101.)




B. There is No Jurisdictional Defect in the Court's Order

       In this case, there is no dispute Kabran timely filed her notice of intention to move

for new trial on March 1, 2013, and that the notice of intention set forth the grounds for a




                                               9
new trial—newly discovered evidence—raised both below and now on appeal.8 Upon

this filing, the trial court's "jurisdiction [was] complete," and Sharp was provided a

reasonable opportunity to defend the motion, "for plaintiff['s] notice clearly stated that the

motion would be made on the ground [of newly discovered evidence]." (Nichols v. Hast,

supra, 62 Cal.2d at p. 600.) The trial court thereafter set dates for Sharp's opposition, and

Sharp opposed the motion on the merits without raising any issue as to its ability to

respond within the time limits ordered by the court or the timeliness of the motion in

general. The trial court did not address timeliness in its ruling, which was issued within

the 60-day jurisdictional time-frame. (§ 660.)

       We need not address Kabran's argument that her accompanying papers were in

fact timely filed on April 2, 2013, notwithstanding the clerk's cancellation of the file-

stamp. Even assuming arguendo she failed to meet section 659a's filing deadline for

supporting affidavits, the trial court did not lose fundamental jurisdiction to act on

plaintiff's motion by virtue of that circumstance, and the late filing did not render the

court's order, or its acceptance of the late-filed papers, void. Sharp's arguments to the

contrary rely on cases addressing the untimely filing of a notice of intention to move for a

new trial. (See Kientz v. Harris (1953) 117 Cal.App.2d 787 [plaintiff's notice of intention

to file a motion for new trial was untimely filed after court rejected it for the absence of a

filing fee, requiring appellate court to dismiss appeal as untimely filed]; Davis v. Hurgren

(1899) 125 Cal. 48 [affirming denial of motion for new trial where appellants' notice of


8     Though it is not included in the record, Sharp asserts its notice of entry of
judgment was served on February 14, 2013.
                                              10
intention was filed late due to absence of filing fee]; Douglas v. Janis (1974) 43

Cal.App.3d 931, 936 [where notice of intention to move for new trial was not timely filed

within 15 days from plaintiff's notice of entry of judgment, the trial court acted outside of

its jurisdiction in granting the motion and the order was void]; Ehrler v. Ehrler (1981)

126 Cal.App.3d 147, 152-153 [order on new trial void where plaintiff's first notice of

intention to move for new trial was filed prematurely, and second notice of intention was

filed three days after the 15-day period from the mailing of the notice of entry of

judgment; the trial court's act in hearing the motion and the parties' participation in the

hearing did not confer jurisdiction on the court].) These cases are inapposite because

there is no dispute Kabran's notice of intention to move for new trial in this case was filed

within the 15-day jurisdictional deadline.

       Sharp asserts that the jurisdictional rule for the notice of intention to move for a

new trial "applies to the motion itself and supporting affidavits." But its authority cited

for this proposition, Douglas v. Janis, supra, 43 Cal.App.3d at p. 936, did not involve any

issue concerning the filing of the supporting motion and affidavits; it says nothing about

the timeliness of such papers. Sharp also relies on Erikson, supra, 48 Cal.App.4th 1663

for the proposition that the 30-day outside time limit for filing affidavits in support of a

new trial motion are jurisdictional, and that the court had no power to consider plaintiff's

supporting affidavits.

       In Erikson, the defendant, a medical doctor, moved for a new trial based in part on

grounds of juror misconduct. (Erikson, supra, 48 Cal.App.4th at p. 1667.) The

defendant thereafter obtained a 20-day extension of time in which to file his supporting

                                              11
affidavits. On the last day of the extension, he filed an affidavit of one juror, and 15 days

later, he filed two additional affidavits, one from a juror named Gonzales, which the trial

court ultimately accepted into evidence. (Id. at pp. 1667, 1669.) Nevertheless, the trial

court denied the new trial motion. (Id. at p. 1669.)

       The Third District Court of Appeal affirmed the order, declining to consider the

late-filed affidavits. (Erikson, supra, 48 Cal.App.4th at p. 1666.) On appeal, the plaintiff

argued the time limits for filing affidavits was mandatory and that the Gonzales affidavit

could not be considered. (Id. at p. 1670.) At the outset of its discussion of that issue, the

Erikson court characterized plaintiff's claim as arguing "the aggregate 30-day time period

provided in section 659a for filing affidavits in support of a new trial motion is

mandatory (also called jurisdictional)." (Id. at p. 1671, italics added.) Focusing on the

statute's use of the word "shall," the court held the period was mandatory and

jurisdictional, reasoning also that section 659a specified a "consequence" for exceeding

the time limit, namely the ability to obtain an additional extension of time by the court.

(Id. at p. 1672.) It further reasoned that the time period was jurisdictional because any

extension beyond the aggregate 30-day period of time would encroach upon the interests

of the opposing party's allotted time to file counteraffidavits or the period for the court to

deliberate on the motion. (Id. at pp. 1672-1673.) Erikson distinguished several cases

stating that the time limits for filing affidavits are not jurisdictional. (Id. at p. 1673.)

       We are not persuaded by Erikson's analysis and reasoning. Generally,

"requirements relating to the time within which an act must be done are directory rather

than mandatory or jurisdictional, unless a contrary [legislative] intent is clearly

                                               12
expressed." (Edwards v. Steele (1979) 25 Cal.3d 406, 410; see People v. Allen (2007) 42

Cal.4th 91, 102; Brewer Corporation v. Point Center Financial, Inc. (2014) 223

Cal.App.4th 831, 854.) Section 659a contains no clear legislative intent that its

requirements are jurisdictional. The fact the deadlines are expressed in mandatory terms

(i.e., "Within 10 days of filing the notice, the moving party shall serve . . .", italics added)

is not determinative. "[I]t should not be assumed that every statute that uses [the term

"shall"] is mandatory." (People v. Lara (2010) 48 Cal.4th 216, 227; People v. Allen,

supra, 42 Cal.4th at p. 102 ["Neither the word 'may,' nor the word 'shall,' is dispositive"].)

And, the new trial statutes contain other "mandatory" requirements that if unmet, do not

result in a void order or an order in excess of the trial court's jurisdiction. (See Nichols v.

Hast, supra, 62 Cal.2d at pp. 600-601 [trial court is not deprived of jurisdiction where a

party fails to comply with section 659's requirement that a notice of intention to move for

a new trial "shall" state whether the motion will be made upon affidavits or the minutes

of the court].) Thus, Erikson's focus on the use of "mandatory" language (Erikson, supra,

48 Cal.App.4th at p. 1672) does not compel its conclusion that the time limitations are

jurisdictional.

       Nor are we persuaded by Erikson's interpretation of the statute and its purported

consequences. According to the Erikson court, the prescribed "remedy" for

noncompliance with the 10-day filing deadline is that the trial court may extend the time

to file for an "additional period of not exceeding 20 days," and it reasoned that the court

therefore "has no discretion to admit affidavits submitted thereafter." (Erickson, supra,

48 Cal.App.4th at p. 1672.) We do not read section 659a as either prescribing a remedy,

                                              13
or specifying a consequence or penalty for a party's failure to meet the 10-day deadline

specified therein (or the 30-day aggregate extended period) for filing affidavits. The

statute merely gives the party the option to obtain an extension of that time. "The

Legislature's failure to include a penalty or consequence for noncompliance with the

statutory procedure . . . indicates that the requirement is directory rather than mandatory."

(People v. Lara, supra, 48 Cal.4th at p. 217.)

        We believe the Erikson court also confused the mandatory vs. directory dichotomy

by equating a violation of a "mandatory" requirement with a lack of fundamental

jurisdiction. " 'A typical misuse of the term "jurisdictional" is to treat it as synonymous

with "mandatory." There are many time provisions, e.g., in procedural rules, which are

not directory but mandatory; these are binding, and parties must comply with them to

avoid default or other penalty. But failure to comply does not render the proceeding void

. . . .' " (Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 274.) "A lack

of jurisdiction in its fundamental or strict sense results in ' "an entire absence of power to

hear or determine the case, an absence of authority over the subject matter or the parties."

[Citation.] On the other hand, a court may have jurisdiction in the strict sense but

nevertheless lack " 'jurisdiction' (or power) to act except in a particular manner, or to give

certain kinds of relief, or to act without the occurrence of certain procedural

prerequisites." [Citation.] When a court fails to conduct itself in the manner prescribed,

it is said to have acted in excess of jurisdiction.' " (People v. Lara, supra, 48 Cal.4th at p.

224.)



                                              14
       The Erikson court incorrectly concluded that the defendant's failure to meet the

section 659a deadline deprived the trial court of any ability to accept the evidence. We

disagree with that conclusion. Rather, in light of the general rule and the absence of clear

legislative intent to the contrary, we conclude the period in which to file opposing papers,

whether it be 10 or 30 days, is not jurisdictional in the fundamental sense, but is only

jurisdictional in the sense that it deprives the court of power to act except in a particular

manner, or to act without the occurrence of certain procedural prerequisites.

Accordingly, the court's acceptance of such evidence was in excess of its jurisdiction, but

nevertheless within its fundamental jurisdiction. (People v. Lara, supra, 48 Cal.App.4th

at p. 224.) Our conclusion is consistent with the weight of authority cited above (see part

I (A), ante), holding that the section 659a deadlines are not jurisdictional.




C. Sharp May Not Raise its Timeliness Challenges

       The foregoing analysis compels us to conclude that Sharp may not raise for the

first time on appeal its arguments as to timeliness. The distinction between an act that is

beyond a court's jurisdiction in the fundamental sense and an act that is in excess of

jurisdiction is important. " '[A] claim based on a lack of [ ] fundamental jurisdiction[ ]

may be raised for the first time on appeal. [Citation.] "In contrast, an act in excess of

jurisdiction is valid until set aside, and parties may be precluded from setting it aside by

such things as waiver, estoppel, or the passage of time." ' " (People v. Lara, supra, 48

Cal.4th at p. 225.) "[A] claim that a trial court acted in excess of its jurisdiction, as

                                              15
opposed to lacking fundamental jurisdiction to act, is subject to forfeiture by failing to

preserve it in the trial court." (People v. Taylor (2009) 174 Cal.App.4th 920, 937-938.)

       Because Sharp did not challenge below either the timeliness of plaintiff's filed

supporting papers and affidavits, or the period of time in which it was to file its

opposition to plaintiff's motion, but rather opposed the motion on the merits, it may not

for the first time on appeal challenge the court's power to consider plaintiff's new trial

motion. We therefore turn to Sharp's claims as to the correctness of the trial court's new

trial order.

                                    II. New Trial Order

A. Legal Principles and Standard of Review

       "To entitle a party to have a new trial on [the ground of newly discovered

evidence], 'it must appear . . . "1. That the evidence, and not merely its materiality, be

newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as

to render a different result probable on retrial of the cause; 4. That the party could not

with reasonable diligence have discovered and produced it at the trial; and 5. That these

facts be shown by the best evidence of which the case admits." ' " (People v. Williams

(1962) 57 Cal.2d 263, 270; see Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th

1152, 1161; Easom v. General Mortg. Co. (1929) 101 Cal.App. 186, 194.)

       "[T]he rule . . . that a new trial should not be granted where the evidence is merely

cumulative, must be regarded (in this state) not as an independent rule, additional to those

established by the provisions of section 657 of the code, but as a mere application of

those rules, or, as it has been expressed, as 'a corollary of the requirement that the newly

                                             16
discovered evidence must be such as to render a different result probable on a retrial of

the case.' [Citation.] For . . . 'it is evident that new evidence, although cumulative, might

be of so overwhelming a character as to render a different result certain' (or probable);

and in such case under the express provisions of the code a new trial should be granted.

The rule should therefore be construed as simply holding that cumulative evidence is

insufficient 'unless it is clear such evidence would change the result.' [Citation.] Hence,

'a new trial should not be refused merely because the evidence is cumulative in a case

where the cumulation is sufficiently strong to render a different result probable.' "

(Oberlander v. Fixen & Co. (1900) 129 Cal. 690, 691-692.) Accordingly, "[e]ven where

[evidence is cumulative], the court is not thereby precluded granting a new trial . . . . The

question before the trial court, even where the newly discovered evidence is simply

cumulative, is whether if such evidence had been presented on the trial of the cause it

would probably have produced a different result. The determination of that question is

peculiarly within the province of the trial court. It is a matter addressed wholly to its

discretion and as a general proposition whether its ruling is favorable or unfavorable on a

motion for new trial based on newly discovered evidence which appears to be merely

cumulative, that discretion will not be reviewed except for manifest abuse." (Cahill v.

E.B. & A.L. Stone Company (1914) 167 Cal. 126, 135; see also Brannock v. Bromley

(1939) 30 Cal.App.2d 516, 519-520; People v. Lakenan (1923) 61 Cal.App. 368, 373.)

       Under the applicable abuse of discretion standard, the court's order granting a new

trial must be sustained on appeal unless the opposing party demonstrates that no

reasonable finder of fact could have found for the moving party on the theory relied upon

                                             17
by the trial court. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412; People v.

Williams, supra, 57 Cal.2d at p. 270; Slemons v. Paterson (1939) 14 Cal.2d 612, 615-

616.)9 "So long as a reasonable or even fairly debatable justification under the law is

shown for the order granting the new trial, the order will not be set aside." (Jimenez v.

Sears, Robuck & Co. (1971) 4 Cal.3d 379, 387; Candido v. Huitt (1984) 151 Cal.App.3d

918, 922-923.)

B. New Trial Evidence

       Dr. Grice's new trial declaration recounted his autopsy findings from having

examined slides of tissue blocks taken from Dr. Wokocha's cervical spinal cord.

According to Dr. Grice, plaintiff's mid-cervical spinal cord was "markedly abnormal"

with no remaining normal spinal cord at the abnormal area; the normal cord tissue had

been replaced by "a disorganized neural proliferation accompanied by fibrosis—

consistent with 'traumatic' neuroma." He stated that a traumatic neuroma "occurs in the


9       We observe that Sharp relies on the principle that motions for new trial on grounds
of newly discovered evidence "are looked upon with disfavor . . . ." (People v. Williams,
supra, 57 Cal.2d at p. 270; Shivers v. Palmer (1943) 59 Cal.App.2d 572, 576.) But
"[d]istrust or disfavor of the motion does not mean 'that when the trial court has exercised
its discretion and granted a new trial that such action is looked upon with either distrust
or disfavor. In fact, it has been said that one of the most prolific causes of miscarriages
of justice is the reluctance of trial judges to exercise the discretion with which they are
clothed to grant a new trial when the circumstances show that justice would be thereby
served. This by reason of the curtailed power of appellate courts to disturb the discretion
of the trial court once it is exercised in such matters. It is recognized that despite the
exercise of diligent effort, cases will sometimes occur where, after trial, new evidence
most material to the issues and which would probably have produced a different result is
discovered. It is for such cases that the remedy of a motion for a new trial on the ground
of newly discovered evidence has been given.' " (People v. Love (1959) 51 Cal.2d 751,
758; see also People v. Minnick (1989) 214 Cal.App.3d 1478, 1481.)

                                            18
setting of trauma (e.g. blunt force injury)" and was not a neoplasm.10 Dr. Grice stated:

"There was no evidence whatsoever of a neoplasm (including an astrocytoma) in any part

of the obliterated mid-cervical spinal cord segment. However, peripeheral to this mid-

cervical area, where the spinal cord displayed its normal microscopic architecture, there

was evidence of an infiltrating astrocytoma, not forming a tumorous mass per se, but

composed of individual neoplastic astrocytes infiltrating the normal cord parencyma." It

was Dr. Grice's opinion that the obliteration of plaintiff's spinal cord was "not likely due

primarily to the presence of an astrocytic tumor," but rather "to a reasonable medical

probability, that the completely obliterated mid-cervical spinal cord was replaced by a

traumatic neuroma—in this instance caused by trauma."

       In his supporting new trial declaration, Dr. Gross averred that all of the defense

causation experts testified that plaintiff's neurological deterioration was caused by growth

of the cervical spinal cord tumor. Dr. Gross recounted his opinions at trial, stating: "I

testified in deposition and at trial that the acute neurologic deterioration that Dr.

Wokocha suffered late on January 16, 2009, and early on January 17, 2009, was caused

by an acute traumatic injury to Dr. Wokocha's cervical spinal cord on the morning of

January 16, 2009, and that the trauma responsible for this injury was to a reasonable

medical probability a whiplash-type (acceleration-deceleration) injury that occurred when

Dr. Wokocha was returned to the bed following an attempted transfer to a shower

commode chair . . . . The acceleration-deceleration injury resulted in the development of


10    Plaintiff's trial expert neuropathologist, Dr. Saleir Gultekin, testified that a
"neoplastic process" would mean some sort of cancer.
                                              19
an epidural hematoma which, by the early morning of January 16, 2009, had rendered Dr.

Wokocha a near-total quadriplegic by compressing his spinal cord. It was my opinion to

a reasonable medical probability that the acute neurological deterioration that occurred

late on January 16, 2009, and early on January 17, 2009, was not related to the

astrocytoma. It was also my opinion to a reasonable medical probability that, had the

acute injury . . . caused by the transfer incident not occurred, Dr. Wokocha to a

reasonable medical probability, would not have deteriorated to near-total quadriplegia,

would have successfully completed his course of rehabilitation, and would have been

able to return to a largely independent life that included resuming work as a clinical

psychologist." Dr. Gross stated that Dr. Grice's description correlated with what he saw

on MRI studies, and that because plaintiff did not have treatment of any kind for the

astrocytoma, the absence of tumor cells from the obliterated area of his spinal cord

"elevates from a reasonable medical probability to a medical certainty my degree of

confidence that Dr. Wokocha's neurological deterioration to near total quadriplegia on

late January 16, 2009, and early January 17, 2009[,] was not in any way related to his

astrocytoma, and was caused by trauma related to the transfer incident." Dr. Gross

averred, "We now know with complete medical certainty that the tumor was not a

causative factor . . . ."

       In opposition, Sharp argued the autopsy findings were consistent with its defense

experts' trial opinions, and thus the new evidence was merely cumulative. It argued the

evidence could have been discovered with reasonable diligence before trial by

performing a further biopsy of Dr. Wokocha's spinal cord. It maintained none of the

                                            20
evidence would change the result of the trial, in which the jury rejected plaintiff's

causation theory. Sharp presented a declaration from its trial expert Douglas Miller,

M.D., a neuropathologist, who averred, in part, that nothing in the autopsy slides would

change his trial opinion that, "with a reasonable degree of medical probability, Dr.

Wokocha's demise was due to the presence of a cervical cord astrocytoma, and not due to

spinal cord necrosis from pressure from an epidural hematoma which was supposed to

have resulted from an alleged drop incident."

C. Analysis

       Sharp contends the trial court abused its discretion in granting a new trial because

plaintiff's assertedly new evidence was merely cumulative of the trial evidence.

Specifically, Sharp points out that both Dr. Grice and Dr. Gross in their declarations

conclude that there was abnormal fibrous tissue in plaintiff's mid-cervical spine replacing

the spinal cord that was consistent with trauma. It argues, "[Dr. Grice's and Dr. Gross's]

opinions . . . as is evident by Dr. Gross' declaration alone, are entirely consistent and

'substantially the same' as the testimony offered by plaintiff's experts at trial." (Some

capitalization omitted.) Sharp compares the circumstances to Evans v. Celotex

Corporation (1987) 194 Cal.App.3d 741 and Smith v. Exxon Mobile Oil Corporation

(2007) 153 Cal.App.4th 1407, in which courts addressed a party's ability to bring a new

lawsuit against the same defendant based on assertedly new facts or evidence. But these

cases involved not motions for new trial on a claim of newly discovered evidence, but

application of the doctrine of collateral estoppel, in which the court looks merely to

whether identical issues were decided in successive actions (Vandenberg v. Superior

                                              21
Court (1999) 21 Cal.4th 815, 828), not whether a different result in the same trial would

be reached upon new and different evidence. (Mills v. U.S. Bank (2008) 166 Cal.App.4th

871, 896 [former judgment is collateral estoppel on issues that are raised even though

some factual matters that could have been presented were not].) These authorities are

inapposite.11

       Sharp further maintains that Kabran admitted below the cumulative nature of the

new evidence when she argued it showed his trial expert, Dr. Gross, "had it right" and the

cumulative aspect of the evidence is evident from the court's ruling that the autopsy

findings were supportive of plaintiff's position on causation. But as we have explained,



11     In Evans v. Celotex Corp., supra, 194 Cal.App.3d 741, a deceased man's family
sought to sue a defendant for wrongful death after the defendant had successfully
defended a suit brought by the man during his lifetime. In part, the family argued
collateral estoppel could not be applied where "new facts have occurred since the
judgment" and an autopsy permitted a "better diagnostic evaluation" showing asbestosis
was the proximate cause of his death. (Id. at p. 747.) The court concluded that the
additional evidence did not change the legal relationship of the deceased and the
defendant and there were no new events for conditions that "caused a different legal
doctrine to be applied" so as to prevent application of collateral estoppel. (Id. at p. 748.)
"An exception to collateral estoppel cannot be grounded on the alleged discovery of more
persuasive evidence. Otherwise, there would be no end to litigation." (Ibid.) Smith
relied on an equitable component to collateral estoppel in which a prior trial does not
provide "a full and fair opportunity to present a defense." (Smith v. ExxonMobil Corp.,
supra, 153 Cal.App.4th at p. 1420.) "[E]ven where the technical requirements [of
collateral estoppel] are all met, the doctrine is to be applied 'only where such application
comports with fairness and sound public policy.' " (Id. at p. 1414.) In Smith, plaintiffs
sought to use collateral estoppel offensively to preclude a defendant from raising
defenses to liability in a new lawsuit. Its defense was supported by testimony of a
defense expert who was unable to testify in the prior trial due to the sudden death of his
daughter while trial was in progress. In those "unusual and compelling circumstances,"
in which the prior trial did not provide a full and fair opportunity to present a defense, the
appellate court concluded it would be unfair to apply collateral estoppel. (Id. at p. 1420.)

                                             22
the fact the evidence is cumulative does not require denial of the new trial motion; it is

for the trial court to assess the evidence to determine whether the cumulation is

sufficiently strong as to render a different result probable. (Oberlander v. Fixen & Co.,

supra, 129 Cal. at pp. 691-692; Cahill v. E.B. & A.L. Stone Company, supra, 167 Cal. at

p. 135; Brannock v. Bromley, supra, 30 Cal.App.2d at pp. 519-520.)

         Sharp additionally argues that the proffered new evidence does not contradict the

testimony of defense experts as plaintiff urged below. It argues its experts at trial agreed

that the abnormal area of Dr. Wokocha's spine consisted of both tumor and cysts; that

there was a "cystic aspect of the 'tumor' " and tumor cells were integrated along the cyst

walls.

         As Kabran points out, the trial evidence demonstrates that while an intraoperative

biopsy was performed on the mass in Dr. Wokocha's spinal cord during the January 7,

2009 decompression surgery, only "minute" fragments of tissue were obtained, and a

definitive diagnosis of the mass was difficult. Plaintiff's expert neuropathologist, Dr.

Gultekin, evaluated the material obtained during that biopsy. He explained that in his

experience with spinal cord tumors, such a "very, very small amount of tissue" was

typically all that could be obtained; and that in Dr. Wokocha's case, the pathologist to

whom the sample was sent during surgery could not reach a certain diagnosis so she sent

the slides to a world renowned expert at the Mayo Clinic, who described it as a

"frustratingly difficult diagnostic problem." Dr. Gultekin had chosen a representative

photograph of a slide from that biopsy and stated that overall it "doesn't seem to be a

diagnostically useful specimen" and "not really very informative per se." He denied

                                              23
seeing anything on any portion of the slides he reviewed that permitted him to identify a

tumor cell, and he testified that if he were to give a diagnosis as a neuropathologist

clinician, he could not find definitive evidence of tumor present. His overall conclusion

based on the slides and other materials he had reviewed was that the lesion in plaintiff's

spine "may not actually be a tumor. I don't see any good evidence that this is an

astrocytoma in any of these elements that we have described." Though Dr. Gultekin

recognized a possibility of an astrocytoma, he testified it would have to be "low grade at

best . . . "

        Dr. Gross, plaintiff's causation expert, testified at trial that he did not disagree that

plaintiff's biopsy showed a low grade astrocytoma. However, according to Dr. Gross,

plaintiff's February 2009 MRI showed a fluid filled cyst, also called a syrinx or cystic

myelomalacia, in the middle of plaintiff's spinal cord, which was the result of trauma to

the cord, namely, compressive pressure from a hematoma that occurred on January 16,

2009. Though he agreed astrocytomas could cause a syrinx, Dr. Gross testified the cyst

or syrinx was not tumor-related, nor was it related to plaintiff's earlier January 7, 2009

surgery at Scripps. Dr. Wokocha's August 2012 MRI did not change Dr. Gross's

conclusion that there was no relationship between the tumor and the cyst; there was no

significant progression of the astrocytoma from October 2008 to August 2012. Dr.

Gultekin similarly testified the syrinx shown in Dr. Wokocha's February 2009 MRI could

form "from trauma, from tumor, or from a hematoma," and that trauma could result from

surgery or the chronic stenosis (narrowing).



                                               24
       The defense experts' conclusions were decidedly conflicting. Sharp's

neurosurgery expert, Dr. Duncan McBride, ultimately testified that a February 19, 2009

image of Dr. Wokocha's spinal cord was inconsistent with a traumatically caused syrinx

and by July 2009 showed "complete utter invasion and overgrowth of tumor with the

spinal cord just destroyed in there." He testified that Dr. Wokocha's August 2012 film

showed a large tumor, not any cystic change due to prior trauma. He opined that had

nothing else happened to Dr. Wokocha, he would have been a quadriplegic simply due to

the growth or expansion of the tumor. David Allen Reardon, Sharp's neurooncologist,

testified that Dr. Wokocha had a large lesion with an area of enhancement on his cervical

spinal cord, characteristic of an aggressive tumor.

       Sharp's causation expert, neuropathologist Douglas Miller, testified he had "zero

doubt" that the January 7, 2009 biopsy showed astrocytoma, and that without treatment

for that tumor, Dr. Wokocha would be a complete quadriplegic even without any

intervening event or development of a hematoma. He reviewed Dr. Wokocha's February

2009 MRI and testified that the abnormal area was "absolutely not" a syrinx or

myelomalacia. He testified he had no doubt based on all of the MRIs that plaintiff had a

low grade and expanding astrocytoma. Thus, as Sharp itself points out, its experts

reached ultimate opinions, contradicting plaintiff's experts, that the tumor was the cause

of plaintiff's quadriplegia.

       Dr. Wokocha's autopsy enabled a neuropathologist to examine tissue blocks of the

obliterated portion of his spinal cord, which was now removed and fixed in a

preservative, and resulted in a materially different type of sample allowing Dr. Grice to

                                            25
specify what had replaced the normal spinal cord tissue, and Dr. Gross to testify to a

medical certainty about the cause of Dr. Wokocha's total quadriplegia. Indeed, Sharp's

own expert, Dr. Miller, generally confirmed the importance of autopsy findings when he

stated: "[O]bviously if Dr. Wokocha were to expire and have an autopsy, and I was

given the opportunity to look at what was in his cervical cord under the microscope, if I

can't find any tumor there, I would change my opinion, but short of that, I don't see any

other means of providing evidence that I'm wrong . . . ." Sharp argues that biopsy slides

already existed and were reviewed by experts, but it is apparent from plaintiff's expert

neuropathologist's testimony that the samples were so minute as to render diagnosis

difficult.12 Where it is doubtful that evidence is cumulative, it becomes a matter of

discretion, and unless there is a manifest abuse of it, the reviewing court will not

interfere. (Brannock v. Bromley, supra, 30 Cal.App.2d at p. 521.) And, we give great

weight to the court's conclusion that the new evidence made it reasonably probable that

plaintiff would have obtained a more favorable result. (Santillan v. Roman Catholic

Bishop of Fresno (2012) 202 Cal.App.4th 708, 728.) "The trial court determines what

evidence to believe, and the evidence submitted by the prevailing party, along with its

reasonable inferences, is deemed established." (Ibid.)




12      Sharp maintains in passing that because this biopsy had been performed, it can be
argued that the information stemming from plaintiff's autopsy was "available at the time
of trial" and that experts were permitted to offer opinions and theories on the make-up of
the abnormal spinal tissue from the original biopsy. But the trial judge reasonably
concluded that a biopsy performed as a result of an autopsy would be materially different
from the minute amounts of tissue taken in January 2009.
                                             26
       Given the limited scope of our review on the trial court's grant of a new trial

(Candido v. Huitt, supra, 151 Cal.App.3d at p. 923), we affirm. We cannot say under all

of the circumstances, given the vastly conflicting medical expert opinions presented at

trial, that the trial court, who listened to all of the trial evidence, manifestly or

unmistakably abused its wide discretion as to compel us to reverse its decision.

       Finally, Sharp contends the new evidence does not make a different judgment

probable on retrial because it does not advance plaintiff's trial theory that the alleged drop

incident caused a hematoma that compressed plaintiff's spine and caused plaintiff's

injury, and thus does not link the incident to plaintiff's injury. It recounts the expert

testimony relating to the age of a hematoma removed from plaintiff's spine on January

17, 2009, the day after the alleged drop incident, and argues that four defense experts

agreed it was an old hematoma that predated the alleged drop incident. It argues the

weight of the evidence was that the hematoma was not what compressed plaintiff's

cervical spine, and points to plaintiff's own neurooncology expert who could not link the

hematoma to plaintiff's traumatic injury.13 The point of plaintiff's motion for new trial



13      This theory was not presented in Sharp's opposition to the new trial motion, but
was argued by counsel during oral argument. He argued that plaintiff's theory was that
the blunt force trauma was the development of the hematoma, but the evidence showed
the hematoma developed at Scripps Clinic, not Sharp. Counsel argued "the jury can
decide causation on that fact alone" and thus did not need to decide what was inside the
lesion on plaintiff's spine. The court responded to this argument in part by saying, ". . . I
sat through the trial. [The jury] probably found that something happened that shouldn't
have. . . . He was dropped. Something happened. They didn't use the right commode.
Anyway, something happened. [¶] And then the question was what caused him to
become a flaccid quad. And that's where it got very heated, very complicated. There
were many, many witnesses. And there was evidence he didn't have an astrocytoma;
                                               27
was not to present evidence in strict keeping with its theory at trial, but to present new

evidence that would cause a jury to reach a different conclusion as to causation. New

evidence that a neuroma caused by trauma replaced plaintiff's normal spinal cord does

not prevent a jury from reaching a conclusion that a drop caused plaintiff's quadriplegia

notwithstanding the evidence of hematoma, which was highly contested at trial.




                                      DISPOSITION

       The order is affirmed.


                                                                             O'ROURKE, J.



WE CONCUR:


HUFFMAN, Acting P. J.


HALLER, J.




there's evidence that he did. There's evidence that he should be dead by now; there's
evidence that he's going to live another 50 years. I mean it was very, very—there was no
real agreement on anything. And then we get to the slides, and that was even more
complicated with MRIs and stains. I mean it was beyond the capability of most people—
nonmedical people to comprehend, I think."
                                             28
