A. Oliva

Topic: Personal Injury/Premises Liability

Case Name: Amelia Yolanda Nueva Oliva v. Los Cerritos Center, a business entity, form unknown; Macerich Management Company, a California corporation; Interstate Cleaning Corporation, a Missouri corporation; and DOES 1 through 50, inclusive; Los Angeles County Superior Court Case No. BC706577

Date Filed: May 17, 2018

Result: Defense Verdict

Length of Trial: 19 Days

Length of Deliberations: 1 hour; 12 minutes

History: Summary Judgment by Defendants denied January 18, 2023 by Hon. Rolf M. Treu

Plaintiff: Amelia Yolanda Nueva Oliva

Defendants: Interstate Cleaning Corporation, Macerich Cerritos, LLC, erroneously sued as Los Cerritos Center, and Macerich Management Company

Counsel for Plaintiff: Michael J. Libman, Esq., Zhanna Sanamyan, Esq., Law Offices of Michael J. Libman, APC and Gary Berkovich, Esq. Law Offices of Gary Berkovich, APC

Counsel for Defendants: Peter E. Garrell, Esq. and John M. Kennedy, Esq. of GARRELL COHON KENNEDY LLP

Judge: Hon. Ernest M. Hiroshige

Court: Superior Court of the State of California County of Los Angeles

Department: Metro 29

Facts: Plaintiff alleges that on June 3, 2016, (at about 2:00 p.m. per the incident report), she was walking in the Los Cerritos Center when she stepped on spilled yogurt on the floor causing her to slip and fall. She alleged past and future medical expenses, loss of earnings and general pain and suffering.

Injuries: Plaintiff claimed damages including a herniated disc at L5-S1 which was not resolved through chiropractic care resulting in an October 7, 2016 hemilaminectomy. Plaintiff further claimed she would need a fusion at L5-S1 in the future. Plaintiff did not work since the date of the incident.

Plaintiff’s Contentions: Plaintiff claims to have slipped and fallen on spilled yogurt on the floor of the Los Cerritos Mall common area. Plaintiff claimed that Defendants were intentionally hiding video that would have shown the fall, how long the yogurt was on the ground, whether the area had been inspected and due to the number of food vendors and restaurants in the area the area was a food-court and should have had a full-time porter stationed in the area. Plaintiff also contended that Defendants’ employee tracking system was not an inspection record but only a record or where employees where and there should have been video of the porters actually doing their jobs. Plaintiff’s experts further claimed the floor had an unsafe coefficient of friction when wet, that Defendants should have applied a non-slip coating to the floor surface; that Defendants’ policies and procedures fell below the standard of care. Plaintiff claimed to have not worked since the date of the incident, that she was too depressed to go back to work and due to her limited skills and not knowing English was unable to obtain non-manual employment.

Defendants’ Contentions: Defendants claimed there was no admissible evidence that Defendants’ conduct breached the duty of care. The Deggy system was a state-of-the-art employee tracking/inspection/monitoring system. The Deggy Report for the say in question confirmed the area had been examined and inspected 78 times on the date of the incident during mall hours of 10 a.m. to 9 p.m. which was an average of 7 canvasses an hour or every 8.6 minutes and there were 11 canvasses during the 49 minutes before the incident. The incident was captured on video, there was no requirement to constantly video porters doing their jobs and in fact there was plenty of video showing just that. Further, the area was not a food court and the inspections exceeded the standard of care. Plaintiff had no admissible evidence that Defendants had actual or constructive notice of the alleged substance on the floor at any time and the nature and extent of Plaintiff’s claimed injuries were not a result of the fall. Defendants’ experts testified the flooring was appropriate for its intended purpose and the inspections complied with or exceeded industry standards. In fact, Plaintiff’s expert Brad Avrit agreed that inspections every 20-30 minutes was standard for a mall common area but claimed he did not have enough data to determine if that standard was appropriate for this mall. Defendants’ agreed Plaintiff’s 2016 hemilaminectomy was a result of the slip and fall and stipulated to $72,500 in past medical specials including the surgery but disputed the need for future surgery in part because until 13 days prior to trial Plaintiff had not seen a doctor for her back in 7 years, the $250,000 cost for the future fusion surgery was multiples of the true cost of $35,000, that she did not need the surgery and she had been released to return to work (and never sought employment or tried to mitigate her loss of earning damages) and she had in fact denied subsequent back pain to her primary care physician on three occasions from 2018 to 2020.

Claimed Past Medical Specials: Plaintiff claimed $92,500.00 in past medicals inclusive of a hemilaminectomy. The Parties stipulated to $72,500.00 in past medical specials at trial.

Claimed Future Medical Specials: $250,000.00 for future fusion surgery.

Claimed Loss of Income: $160,160.00

Claimed Loss of Future Income: None.

Experts:

Plaintiff’s Experts:

Derek P. Carmona, D.C., Long Beach Premier Chiropractic – Chiropractic

Arash Yaghoobian, M.D., Long Beach Premier Pain Management Center – Orthopedic Surgeon

Brad P. Avrit, P.E., Aperture Consulting – Liability/Policies and Procedures

Eris J. Barillas, C.X.L.T., C.P.S.I., Aperture Consulting - Liability

Defendants’ Experts:

Scott K. Forman, M.D., California Orthopedic Specialists - Medical

Mark Blanchette, PhD, Paragon Forensics - Liability

Tris Morris – Policies and Procedures

Settlement:

Plaintiff served a 998 for $399,000.00 on April 3, 2020. Defendants objected as Plaintiff’s deposition had been previously noticed on several occasions but Plaintiff refused to appear, discovery was continuing and an IME had not yet been conducted.

Defendants’ served a 998 for $300,001.00 on March 10, 2023

Immediately before trial Plaintiff demanded $899,000.00. Defendants countered with $450,000.00 and then $600,000.00. Plaintiff rejected. Thereafter Defendants offered a high-low of $250,000/$750,000. Plaintiff countered with a high-low of $1,000,000/$3,000.000. Defendants did not respond. Plaintiff asked the jury to award $4,789,460.00.

Status: Defendants have filed their Memorandum of costs for $152,653.69.

Status: Plaintiff has filed a Notice of Appeal from the jury verdict in favor of Defendants