Judge: Cary Nishimoto, Case: BC616313, Date: 2023-01-13 Tentative Ruling

Case Number: BC616313    Hearing Date: January 13, 2023    Dept: SWE

ONESIMO BENITEZ HERNANDEZ AND MARICELA BENITEZ vs KROGER CO. ETC. ET AL. BC616313. HEARING DATE 1.13.2023, DEPT SWE. Motion Of Plaintiff For New Trial, DENIED. There is no showing of an error in law to justify a motion for new trial. Ramirez v USAA Casualty Insurance Co. (1991) 234 Cal.App.3d 391, 397.There is no admissible evidence of an enforceable stipulation. In the case of In re Marriage of Kerry, the court declined to enforce the stipulation “where there is fraud, mistake of fact, or other special circumstances rendering it unjust to an force the stipulation.”(1984) 158 Cal.App.3d 456, 465.  In Benavides v Workers’ Comp. Appeals Bd (2014) 227 Cal.App.4^th 1496, 1501 there was determined to be an error in the stipulation and the court declined to enforce the stipulation. In the instant case, defendants’ counsel made a mistake based on the client’s belief that this was a premises liability action and not a motor vehicle case. The calendar court ruling permitted defense attorney to withdraw the stipulation based on CCP §496b, and that ruling became the law of the case. Plaintiff could have challenged that ruling but did not do so. In fact, over the balance of the active litigation, plaintiff refused to change the focus from Alpha Beta to Ralph’s Grocery despite 3 years of opportunities to do so. Plaintiff’s attorney’s failure to act was a tactical and strategic decision based on the defendant’s answer to interrogatories identifying Alpha Beta as the driver’s employer. The stipulation was found to be a product of mistake of which plaintiff was aware since 2019. During trial plaintiff sought to make the stipulation a contract issue, which it was not. The driver in question testified at trial that he was at all times relevant an employee of Ralph’s. Discovery of the mistake, early-on in the litigation, gave plaintiff the opportunity to seek court ordered sanctions which plaintiff never followed up on. Doing so at trial was untimely. Equitable estoppel would not apply in a case where there was no concealment of facts but rather a mistake by one party which gave 3 years notice of the mistake.