Libman v. S. Wine & Spirits of Am., Inc.
| Decision Date | 17 December 2019 |
| Docket Number | B287345,B288805 |
| Court | California Court of Appeals Court of Appeals |
| Parties | BETTY LIBMAN, Plaintiff and Appellant, v. SOUTHERN WINE & SPIRITS OF AMERICA, INC., et al., Defendants and Respondents. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC566717)
APPEALS from a judgment and postjudgment orders of the Superior Court of Los Angeles County, Graciela Freixes, Judge. Affirmed.
Law Offices of Michael J. Libman and Michael J. Libman fir Plaintiff and Appellant Betty Libman.
Kuluva, Armijo & Garcia and Christina Y. Morovati for Defendants and Respondents Southern Wine & Spirits of America, Inc. and Peter Basmajian.
Schumann | Rosenberg, Kim Schumann, Jeffrey P. Cunningham and Marlys K. Braun for Defendant and Respondent Ralphs Grocery Store.
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Betty Libman appeals from a judgment awarding her $10,000 for injuries sustained in a fall after Peter Basmajian, an employee of Southern Wine and Spirits of Southern California, Inc. (SWS), collided with her in a Ralphs supermarket while he was completing a liquor display in the store. Libman contends the trial court improperly denied as untimely her peremptory challenge pursuant to Code of Civil Procedure section 170.6;1 abused its discretion in denying a 48-hour stay of the trial to permit her to seek extraordinary writ relief from that ruling; erred in granting the motion for nonsuit filed by Ralphs Grocery Company; and committed prejudicial error by excluding evidence that Ralphs had destroyed a videotaped recording of the incident, limiting the testimony of Libman's medical expert concerning the reasonable cost of future surgery to Medicare rates and failing to include in the special verdict form a statement that Basmajian's negligence in failing to look before he backed into Libman was conceded. Libman also appeals from postjudgment orders awarding post-section 998 settlement offer costs of $54,365.81 to Ralphs and $101,580.68 to SWS and pre-settlement offer costs of only $803 to Libman. We affirm the judgment and the postjudgment orders.
Betty Libman, then 68 years old, went shopping at Ralphs near her home in Encino on Monday morning, December 31, 2012. While she was slowly walking toward a check stand, Basmajian backed into her as he was photographing an in-store liquor display he had just built. Libman was knocked to the ground. A glass pickle jar she was holding broke, cutting her right hand.
Libman was helped to a chair; and an incident report was completed by the store safety coordinator, Darlene Crystal. Libman's son Michael J. Libman, whose law office was near the store, was called. He came to the store, helped his mother to his car and took her home. Later that day Libman's husband drove her to an urgent care facility.
On December 14, 2014 Libman, represented by her son, filed a complaint for premises liability against Ralphs and SWS; negligence against Ralphs, SWS and Basmajian; negligent hiring, supervision and retention against SWS; and negligence under a theory of respondeat superior against Ralphs and SWS. Libman alleged she had been seriously injured by the fall. All parties answered the complaint. On March 7, 2017 the case was assigned for trial to Judge Graciela Freixes.
At the time of Libman's fall Ralphs had surveillance cameras throughout its Encino store. The incident was recorded by one of the cameras. Two copies of the recording were made: One was sent to Ralphs's risk management department; the second was kept at the store. However, according to Ralphs, theDVR from which the DVDs were made had malfunctioned; and an incorrect time period was captured. When the DVR was repaired or replaced, the original images were lost. As a result, although Libman's son had immediately requested that Ralphs preserve all video/audio-surveillance and still photographs depicting the incident, no security footage was available at the time of trial.
On March 10, 2017 Judge Freixes heard argument on a variety of motions in limine. Ralphs's motion in limine no. 1 asked the court to preclude Libman from referring to the surveillance cameras at the Encino store or arguing Ralphs had willfully suppressed the recording of the incident, justifying use of CACI No. 204, which permits an inference the evidence would have been unfavorable to Ralphs.2 Ralphs argued all defendants had stipulated Basmajian was negligent in backing into Libman without looking over his shoulder and no evidence would be presented that Libman did not fall in the way she would describe (that is, there would be no defense expert witness regarding the mechanics of her fall). "The only thing we disagree with is causation of medical damages," Ralphs's counsel argued. Reversing its tentative ruling, the court rejected Libman's argument the recording, had it been preserved, would have assisted the jury in its evaluation of the issue of causation and granted the motion in limine pursuant to Evidence Code section 352, finding evidence of the loss of the recording would be unduly prejudicial.
During the hearing on March 10, 2017 the court also considered SWS and Ralphs's motion in limine to limit testimony on the cost of future medical treatment that Libman may need to rates that would be paid on her behalf by Medicare. Libman filed no written opposition to the motion. The court granted the motion, basing its ruling on the decision by Division One of this court in Markow v. Rosner (2016) 3 Cal.App.5th 1027 (Markow), which, citing Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 556 (Howell), held, (Markow, at pp. 1050-1051.)
Prospective jurors were sworn, and jury selection began on March 14, 2017. That afternoon counsel for SWS and Basmajian advised the court she had a family emergency and requested a continuance of the trial. The court declared a mistrial and scheduled a new trial setting conference for March 28, 2017 in the parties' original courtroom (Department 91).
On March 28, 2017 the trial date was continued to May 15, 2017. That date was thereafter continued several more times, ultimately to May 31, 2017 when all parties answered they were ready for trial. On that date Department One again assigned the case to Judge Freixes. Libman, through her counsel, filed asection 170.6 challenge;3 defense counsel immediately objected the challenge was untimely. The parties were ordered to file briefs on the issue.
On Monday, June 5, 2017 Judge Debre Weintraub in Department One denied the section 170.6 challenge, ruling, The court also denied Libman's request for a 48-hour stay of the trial to allow her to seek extraordinary writ relief in this court, finding that "[s]taying the case will have an adverse impact on the workings of the LASC, given the limited judicial resources of the LASC, by keeping a trial courtroom open during this period of time." The court directed the parties to appear before Judge Freixes at 1:30 p.m.
Counsel met with Judge Freixes that afternoon to discuss the case and motions in limine. The following day a panel of prospective jurors were sworn in and voir dire began. On June 7, 2017 Libman's counsel informed the court he was having physical and vision difficulties as the result of a head injury he had suffered three weeks earlier, and trial was recessed to June 8, 2017. On June 8, 2017 Libman's counsel brought a letter from his doctor stating counsel needed to avoid physical or mental distress for the next seven days. The court released the jury and continued the trial to Monday, June 12, 2017.
On June 12, 2017 Libman's counsel advised the court he was ready to proceed with trial. A new panel of prospective jurors was sworn; voir dire began; and a jury was selected.
The jury trial took place between June 13 and June 20, 2017. Libman, who was born in Ukraine, testified that, as she was slowly walking to find an open cashier, Libman explained she remained on the floor for approximately one minute feeling terrible pain on her right side. Crystal, the Encino store's safety coordinator, helped her up; cleaned her hand; and filled out an incident report. Libman's son came to the store and drove her home.
Libman explained that at the time of the incident she was self-employed as an aesthetician, providing clients facials, makeup, lashes, eyebrows and waxing in a space she rented. She made $2,000 to $3,000 per month. She continued seeing clients after the fall, although it was painful for her to stand while working. Because of the pain, Libman reduced her work schedule to half-time in 2014 and retired completely in 2015. She estimated she lost approximately $22,000 in...
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