Oliva v. Los Cerritos Center CA2/2

Opinion

Filed 8/28/26 Oliva v. Los Cerritos Center CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

AMELIA YOLANDA NUEVA B333407 OLIVA, (Los Angeles County

Plaintiff and Appellant, Super. Ct. No.

BC706577)

v.

LOS CERRITOS CENTER et al.,

Defendants and Respondents.

APPEALS from a judgment and a postjudgment order of the Superior Court of Los Angeles County, Ernest M. Hiroshige, Judge. Judgment and postjudgment order affirmed.

Sanamyan Law and Zhanna Sanamyan for Plaintiff and Appellant.

Garrell Cohon Kennedy, Peter E. Garrell, John M. Kennedy and Samantha L. Weinstein for Defendants and Respondents.

________________________________________

Appellant Amelia Yolanda Nueva Oliva slipped and fell in Los Cerritos Center (LCC). A unanimous jury rejected her claims against LCC’s owner, management company, and cleaning company, finding they were not negligent.1 The trial court did not abuse its discretion by denying Oliva’s pretrial motions to exclude witnesses, or by allowing use of a visual summary at closing argument, or by denying Oliva’s motion for a new trial. We affirm.

FACTS

On June 3, 2016, Oliva slipped on the tile floor at LCC, falling onto her knees, elbows and hands. She did not see anything on the floor but noticed a wet, sticky substance on her shorts and leg after falling. Oliva declined security guards’ offer to send her to a hospital. A janitor came and cleaned the area. Oliva went home. She later had treatment for back pain. Back surgery did not fully alleviate her discomfort. Her life was affected and she was unable to work.

ICC vice president Wayne Rodriguez described safety measures at LCC. He designed and installed a “Deggy” tracking system based on LCC spill logs and input from an onsite manager. The goal of the system is to prevent slip and fall accidents. At each Deggy checkpoint, ICC porters touched an electronic wand to a button to record their presence. ICC trains porters in cleaning and inspection protocols, then follows up with unannounced visits to ensure compliance. Porters are trained to look for spills and debris.

1 Respondents are Macerich Cerritos, LLC; Macerich Management Company; and Interstate Cleaning Corporation (ICC).

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Reports detailed porters’ check-ins at Deggy buttons. The June 3, 2016 report showed that porters crossed the area of Oliva’s fall 78 times, or every 8.6 minutes during business hours.2 They canvassed the incident site at 1:51, 1:56, 2:03 and 2:06 p.m. Oliva fell at 2:09 p.m. The area is not considered high risk for falls because it is in front of retail shops, not a food court.

Apart from the Deggy tracking system, LCC has a closedcircuit taping system (CCTV). CCTV tapes from the 30-minute period before Oliva’s fall showed porter Bernardo Moctezuma checking the floor in accordance with his training. He testified, “[M]y main function was to make sure that there weren’t [sic] anything on the ground that could cause a slip to the customers.”

CCTV tapes showed Moctezuma with a broom and dustpan, scraping something from the floor at 1:50 p.m. in the area where Oliva fell. Porter Maria Rojo was seen on CCTV with cleaning equipment, checking the floor, just before the incident. The porters’ appearances on CCTV correlated with their Deggy check- ins. CCTV images showed someone walking and eating yogurt at 2:07 p.m. Oliva and her mother, traveling in the opposite direction, passed the yogurt eater at 2:08. Oliva was seen falling at 2:09.

Oliva’s forensic expert opined that LCC’s floors are slippery when wet. She did “minimal work” to test floors and investigate camera locations, which she conveyed to another expert, Brad Avrit. Avrit opined that the floors in LLC were a slipping hazard and the mall’s fall prevention system was inadequate. Defense counsel pointed out that in deposition, Avrit testified, “ ‘Typically

2 Rodriguez showed the jury a chart of all check-ins.

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in a mall like that, [floor inspections] every 20 or 30 minutes would be reasonable if it’s done.’ ”

Avrit testified that LCC needed slip-resistant floor coatings but could not name a mall that has such a coating. He did not visit LCC himself to walk the porters’ route or count the porters’ visits. Avrit agreed there was no reason to doubt porters’ check- ins at Deggy buttons at the times listed in the Deggy report.

Defense expert Tris Morris testified that LCC’s floors meet industry standards and explained that tile floors cannot be properly sealed. Epoxy is used for industrial sites and is extremely difficult to clean; acrylic does not bond to smooth tile and wears off quickly. He testified that shopping malls never have slip-resistant coatings in their main public areas. Morris stated that Oliva fell in a low-risk area with few food vendors, though a Yogurtland shop was nearby. Respondents’ biometric expert testified that LLC’s flooring was not inherently dangerous, and Oliva’s fall on spilled yogurt or ice cream was not foreseeable due to her distance from food vendors.

PROCEDURAL HISTORY

Oliva’s 2018 complaint asserted causes of action for premises liability and negligence. She alleged that respondents breached their duty of care by failing to supervise, maintain, clean and monitor floors at LCC, creating a hazardous condition they knew or should have known of but failed to correct. Oliva was injured when she slipped on a substance and fell.

In August 2023, a jury unanimously found respondents were not negligent in their use, maintenance or operation of the property. The court entered judgment for respondents. Oliva moved for a new trial or JNOV on the grounds of irregularity in

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the proceedings; newly discovered evidence; insufficient evidence; and legal errors at trial. The court denied the motion.

DISCUSSION

1. Evidentiary Rulings We review motion in limine rulings for abuse of discretion.

(Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1493.) We cannot interfere with the court’s determination unless it “ ‘was beyond the bounds of reason and resulted in a manifest miscarriage of justice.’ ” (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 295–296.) Review is de novo if the ruling “ ‘rests on a matter of statutory interpretation.’ ” (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950; Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 494– 495.)

a. Testimony of Defense Expert Tris Morris Oliva asserts that the court should have excluded Morris’s testimony because respondents failed to timely designate him as a witness. It is undisputed that respondents named Morris as an expert witness a year before trial began.

Oliva served demands to designate expert witnesses on August 20, 2019; June 22 and September 21, 2021; and January 5, 2022. In response to her final demand, respondents served a list of experts on February 1, 2022, that did not include Morris. On July 19, 2022, respondents sent Oliva a designation that listed Morris. Oliva twice gave notice of Morris’s deposition in January 2023 but ultimately did not depose him.

Oliva asked respondents to “exclude your improperly designated expert Tris Morris from testifying at trial.” Defense counsel declined to exclude Morris. Oliva filed a motion in limine (MIL) stating she “will be unduly prejudiced” and “unfairly

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surprised at trial” by respondents’ failure to designate Morris as an expert in 2019, when the matter was originally set for trial.

Respondents replied that Morris was properly identified.

When trial was postponed nine times, discovery was extended by stipulation or court order. Oliva took advantage of the discovery extensions by demanding exchanges of experts, then she scheduled depositions for respondents’ experts—including Morris—a week before a February 2023 trial date.3 Oliva did not object when respondents designated Morris in July 2022.

Parties may demand a simultaneous exchange of expert witness information. (Code Civ. Proc., § 2034.210.)4 Demand must be made no later than 10 days after “the initial trial date has been set, or 70 days before that trial date, whichever is closer to the trial date.” (§ 2034.220.) The list may be supplemented within 20 days after the exchange. (§ 2034.280, subd. (a).) The court must exclude testimony “offered by any party who has unreasonably failed” to list a witness as an expert. (§ 2034.300; Hirano v. Hirano (2007) 158 Cal.App.4th 1, 6 (Hirano).)

Oliva insists that respondents “should have served their designation with Tris Morris [by] September 27, 2019,” before the original 2019 trial date. Inconsistently, Oliva demanded expert witness exchanges in 2021 and 2022, and scheduled depositions in 2023, thereby acknowledging that discovery did not end in 2019.

“[A] continuance or postponement of the [initial] trial date does not operate to reopen discovery proceedings.” (§ 2024.020,

3 Trial finally began in July 2023.

4 Undesignated statutory references are to the Code of Civil Procedure.

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subd. (b); Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 250.) However, parties may “enter into an agreement to extend the time for the completion of discovery proceedings . . . or to reopen discovery after a new date for trial of the action has been set. This agreement may be informal, but it shall be confirmed in a writing that specifies the extended date.” (§ 2024.060.) After stipulating to extend discovery, Oliva cannot claim that respondents had to designate experts in 2019.

The court initially granted Oliva’s MIL. Six days later, respondents urged the court to change its ruling because it was based on an issue that the parties did not raise or brief, calling their request a “timely and proper motion for reconsideration.” Respondents argued that the parties stipulated to reschedule trial from March 4 to September 22, 2022, and reset discovery to the new trial date. Though Oliva did not demand an exchange after trial was rescheduled, respondents disclosed Morris voluntarily.

Oliva countered that she would be prejudiced if Morris testified because Avrit was unavailable to rebut Morris’s testimony. Oliva also argued that no new facts or law justified reconsideration of the prior ruling under section 1008.

A court may reconsider a prior ruling “on its own motion.”

(Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107 [the court has “ ‘inherent constitutional power sua sponte to reconsider, correct and change its own interim decisions’ ”].) “But a party may not file a written motion to reconsider that has procedural significance if it does not satisfy the requirements of section . . . 1008.” (Id. at p. 1108.) Unless statutory requirements for reconsideration are met, “any action to reconsider a prior interim order must formally begin with the court on its own motion.”

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(Ibid.) In this instance, the court did not revisit its ruling on Oliva’s MIL on its own motion. Instead, it reacted to respondents’ written motion for reconsideration.

We conclude as a matter of law that there was a new “circumstance” justifying reconsideration. (§ 1008.) The court conceded that its ruling on the MIL took counsel “by surprise” because “neither side focused on [the] issue that the court decided the motion on.” By deciding the MIL on an unbriefed issue, the court deprived the parties of an opportunity to be fully heard. (Titmas v. Superior Court (2001) 87 Cal.App.4th 738, 742 [litigants have the right to a full and fair hearing in “critical pretrial matters”].) Parties are entitled to address new issues that arise “so that the ensuing order does not issue like a ‘bolt from the blue out of the trial judge’s chambers.’ ” (Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1286.) A motion for reconsideration is the appropriate response to the denial of that opportunity. (Id. at pp. 1286–1287.)

On reconsideration, the court allowed Morris to testify, stating, “[A]ll deadlines for discovery were extended to the new trial date. That means discovery was opened.” The court determined that when the parties stipulated to extend discovery, Oliva had to demand a new exchange of experts and was not prejudiced when respondents voluntarily disclosed Morris without a demand. She chose not to question Morris after scheduling his deposition.

Oliva argues that respondents could not add Morris after the final expert witness exchange in February 2022 because discovery statutes require a “simultaneous” exchange and augmentation within 20 days. (§§ 2034.210, 2034.220.) Respondents cite Hirano, supra, 158 Cal.App.4th 1 for the

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proposition that Oliva had to file a new demand for exchange of witnesses. In Hirano, however, “discovery was automatically reopened” when “the prior judgment was reversed, the matter remanded and new initial trial date set.” (Id. at p. 8.)

Unlike Hirano, this case does not involve a reversal or a new trial. Instead, trial was delayed, and “continuance or postponement of the [initial] trial date does not operate to reopen discovery proceedings” (§ 2024.020, subd. (b)), unless the parties stipulate to extend discovery (§ 2024.060), as they did here. Oliva cites Fairfax v. Lords (2006) 138 Cal.App.4th 1019, in which the defendant designated no experts but “ ‘reserve[d] the right to designate experts in rebuttal to [plaintiff’s] designations.’ ” (Id. at p. 1022.) Respondents did not avoid designating experts, unlike Fairfax; instead, the parties agreed to extend discovery and made multiple demands to exchange expert information.

The court did not abuse its discretion by allowing Morris’s testimony. Respondents did not “unreasonably” fail to comply with statutory requirements. (§ 2034.300.) The goal of witness exchanges “is to avoid surprise at trial.” (McDonald v. Zargaryan (2025) 117 Cal.App.5th 344, 349 [plaintiff impermissibly added a new expert three days before trial].) Morris was disclosed a year before trial and Oliva twice gave notice of his deposition. Her “surprise” is disingenuous. Instead of objecting to Morris in July 2022 (to encourage a new demand for an exchange of experts or allow respondents to obtain leave from the court to add an expert) Oliva remained quiet until July 2023 and is now using a procedural misstep as grounds for appeal after losing.

Even if improperly admitted, it is unlikely Morris’s testimony altered the outcome. “An erroneous evidentiary ruling requires reversal only if there is a reasonable probability that a

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result more favorable to the appealing party would have been reached in the absence of the error.” (Geragos v. Abelyan (2023) 88 Cal.App.5th 1005, 1021.) Overwhelming evidence supports the verdict. CCTV evidence showed porters on their rounds examining and cleaning floors just before Oliva’s fall. The videos were corroborated by a Deggy report of porter check-ins and Moctezuma’s testimony. The verdict hinged on whether respondents took adequate measures to clean LCC’s floors to prevent falls; the jury found that they did. We see no miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, § 353.)

b. Testimony of Bernardo Moctezuma Oliva argues that the court erroneously allowed testimony from “surprise witness” Moctezuma. Her MIL claimed he was “not identified during discovery” and his testimony would cause unfair surprise and prejudice. The court ruled that respondents identified Moctezuma. He appeared in CCTV video, and respondents’ motion for summary judgment identified Moctezuma “by name” as a worker who inspected the area where the incident occurred “shortly before the incident and will testify it was clean when he inspected it.” The court concluded that Oliva “was given actual notice of this witness” but never pursued more information or a deposition.

The record supports the court’s ruling. In October 2018, ICC produced a janitorial inspection log and incident report identifying its employees, including Moctezuma; it also produced CCTV video showing Moctezuma in the area. ICC disclosed that Moctezuma and Maria Rojo were on duty at LCC on the day of Oliva’s fall. In February 2022, ICC produced a list of employees working on June 3, 2016. In May 2022, Wayne Rodriguez’s declaration in support of summary

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judgment detailed Moctezuma’s and Rojo’s minute-by-minute movements on CCTV footage and the Deggy system before Oliva’s fall. In a deposition a year before trial, Rodriguez identified Moctezuma as an employee in the area minutes before Oliva’s fall. Oliva did not depose Moctezuma despite respondents’ pretrial disclosures.

This is not analogous to Thoren v. Johnson & Washer (1972) 29 Cal.App.3d 270, 273–274, in which counsel identified a witness for the first time during opening statement at trial, causing unfair surprise. Oliva’s trial preparation was not “ ‘seriously impeded’ ” by respondents’ failure to list Moctezuma in early answers to interrogatories nor was she “lulled into a false sense of security.” (Crumpton v. Dickstein (1978) 82 Cal.App.3d 166, 171–172.) Given respondents’ reliance on Moctezuma’s movements on summary judgment, Oliva could fully expect him to testify at trial. The court did not abuse its discretion by allowing his testimony.

c. Power Point Presentation Respondents demonstrated the movements of ICC’s porters at closing argument. The court overruled Oliva’s objection that the visual presentation lacked foundation and was speculative. It found the presentation was based on testimony about Deggy check-ins before Oliva’s fall, which went to whether LCC floors were frequently inspected and whether respondents knew of a dangerous condition. We review rulings on visual aids for abuse of discretion. (People v. Medina (1990) 51 Cal.3d 870, 898–899.)

“[C]harts, diagrams, lists, and comparisons based on the evidence may be effectively and fairly used in argument to help the jury analyze the case” so long as it has something to do with the case or the evidence before the jury. (People v. Centeno (2014)

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60 Cal.4th 659, 671.) The jury was instructed that visual aids are not evidence or proof but could be considered in connection with testimony.5 We must presume the jury followed the instruction. (People v. Sanchez (2001) 26 Cal.4th 834, 852; People v. Avila (2006) 38 Cal.4th 491, 574.)

Respondents’ visual aid summarized testimony from Wayne Rodriguez regarding porters’ movements before the incident. Because the jurors themselves could have mapped porters’ movements there was no error in allowing a diagram of the testimony.

2. Motion for New Trial After reviewing the evidence, the trial court denied Oliva’s request for a new trial. We must defer to the ruling, which we review for abuse of discretion. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160.) Factual findings are reviewed for substantial evidence. (Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 514, fn. 7.)

a. “Secret” Hallways

New trial may be granted when there is newly discovered evidence the moving party could not, “with reasonable diligence, have discovered” before trial. (§ 657, subd. 4.) Oliva’s expert,

5 “During the trial, materials have been shown to you to help explain testimony or other evidence in the case. Some of these materials have been admitted into evidence, and you will be able to review them during your deliberations. [¶] Other materials have also been shown to you during the trial, but they have not been admitted into evidence. You will not be able to review them during your deliberations because they are not themselves evidence or proof of any facts. You may, however, consider the testimony given in connection with those materials.” (2 CACI No. 5020.)

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Brad Avrit, declared he recently discovered that ICC’s porters sometimes “walk[ed] through essentially secret corridors not accessible or traversable by patrons of the mall.” Oliva argues that the discovery of “secret” hallways near Deggy check-in buttons warrants a new trial.

The trial court found the Deggy buttons and hallways were disclosed to Oliva and are not “new evidence.” The court’s determination is supported by the record. Respondents produced a map in 2018 showing Deggy button locations and a hallway leading to a Deggy button that Oliva now describes as “secret.” Her experts could have inspected each Deggy post and seen the hallways. In fact, Avrit testified at trial that a Deggy button near the site of the fall was “down . . . near the end of the hallway.” Rodriguez testified about a hallway along the route. Evidence in existence at the time of trial is not “newly discovered.” (Cansdale v. Board of Admin. Pub. Emp. Retirement System (1976) 59 Cal.App.3d 656, 667.)

Avrit’s declaration about secret hallways carries no weight.

He admittedly never inspected LCC’s premises before trial. (In re H.S. (2010) 188 Cal.App.4th 103, 105–106, 109 [expert’s belated opinion based on previously available evidence does not justify a new trial].) There is no satisfactory reason for the experts’ failure to be reasonably diligent. As the trial court stated, “[Y]our experts were given the Deggy map and could have gone to the location and traced the exact path of each of the inspectors,” including “the private areas.” Oliva’s failure to examine the premises is not grounds for a new trial.

b. PowerPoint Presentation A new trial may be granted if there was irregularity at trial by the court, jury or a party. (§ 657, subd. 1.) The misconduct

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must be prejudicial. (Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 148–149.) Oliva cites respondents’ PowerPoint presentation in closing argument as a basis for new trial. As discussed above, the summary was a proper visual aid to demonstrate porters’ routes described in Rodriguez’s testimony. If Oliva’s attorney believed the visual aid misrepresented the testimony, he could highlight any mistakes in closing argument.

c. Use of the Word “Inspections”

Oliva complains that defense counsel invited the jury to speculate that ICC porters conducted “inspections.” The court rejected Oliva’s argument, saying the jury viewed “film which shows Moctezuma and Roj[o], two of the porters actually inspecting the area in the vicinity” of Oliva’s fall. With evidence of Deggy check-ins and CCTV footage, the court said it “was up to the jury to decide whether there [were] enough inspections such that they did everything reasonable that they should have done to prevent the slip-and-fall in our case.”

Oliva was not prejudiced by the word “inspections.” CCTV evidence at trial showed porters examining the floor. Rodriguez testified that porters are trained to look continuously for spills and debris, and Moctezuma testified that his job was to examine and clean the floor to ensure nothing might cause a fall. If the jury credited the testimony, it could reasonably determine that the porters adequately inspected the floor where Oliva fell. Oliva’s position at trial was that a Deggy check-in is not proof of inspection, but the jury rejected her position. We cannot usurp the jury’s function by reweighing the evidence.

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DISPOSITION

The judgment and the postjudgment order denying a new trial are affirmed. Respondents are entitled to their costs on appeal.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

CHAVEZ, J.

GOORVITCH, J.