2015-00183612-CU-PA

Valerie Kelly vs. Rocky Lowell

Nature of Proceeding: Motion for Relief Pursuant to C.C.P. 473

Filed By: Munter, Gavan R.

Defendant Rocky Lowell’s motion for relief from stipulation (CCP §473(b)) is ruled upon as follows.

This is a personal injury action. On December 22, 2017, the parties stipulated to continue the February 5, 2018 trial date. The parties also stipulated that all non-expert discovery “shall cut-off and track from the original trial date of February 5, 2018.” On January 18, 2018, the Presiding Judge granted the motion to continue trial, based in part, on the parties’ stipulation. The Order continuing trial followed the stipulation and stated that all non-expert discovery shall track the original trial date. The trial date has been vacated.

Defendant now moves for relief from the stipulation allowing Defendant to complete the subpoena process for five of Plaintiff’s medical providers. Defendant moves for relief pursuant to CCP §473(b) based on mistake, inadvertence, and excusable neglect of counsel.

CCP §473(b) provides, in part, “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

The motion is DENIED. The Court is not convinced that CCP §473(b) relief is available to relieve a party from a stipulation. Here, the stipulation entered between the parties is not “a judgment, dismissal, order, or other proceeding taken against” Defendant. The cases upon which Defendant relies are inapposite.

In Troxell v. Troxell (1965) 237 Cal.App.2d 147, the defendant appealed a trial court’s order denying her motion to set aside the interlocutory judgment of divorce. During trial, the parties entered into an agreement and stipulated with respect to the disposition of property. The trial court then signed an interlocutory judgment of

divorce. Defendant moved to set aside the interlocutory judgment on the grounds that she did not understand what had taken place at the trial in relation to the property settlement agreement. Here, Defendant is not moving to set aside an interlocutory judgment, but rather his own stipulation.

In Gonzales v. Pacific Greyhound Lines (1950) 34 Cal. 2d 749, the plaintiff minor challenged a judgment entered in favor of defendants, bus corporation and others, in the minor’s action for the wrongful death of his alleged father. The action was tried twice. In the first trial, the defendants stipulated as to liability for the accident. In the second trial, the trial court refused plaintiff’s offer of defendants’ stipulation as to liability in the first trial. The defendants did not move for relief from the stipulation, instead arguing that there was a change of position. The jury returned a verdict in defendants’ favor. Plaintiff appealed. The court held that the trial judge committed error in denying the reception of evidence and the controlling effect of the stipulation on the issue of liability. In so ruling, the court explained “[it is the general rule that where a stipulation is distinctly and formally made for the express purpose of relieving the opposing party from proving some fact, and no provision is made by its terms indicating a limitation of scope or the duration of its effect, that admission can be introduced in evidence and is available upon a subsequent trial of the same action, unless the court permits its withdrawal upon proper application therefor.” (Id. at 755 [emphasis added].) The court also acknowledged that “[r]elief from a stipulation may be granted in the sound discretion of the trial court in cases where the facts stipulated have changed, there is fraud, mistake of fact, or other special circumstance rendering it unjust to enforce the stipulation.” (Id. [emphasis added].) Here, the stipulation did not relieve any party from proving a fact, nor is Defendant challenging a judgment entered against him.

Having no legal authority supporting Defendant’s position that CCP §473(b) relief is available, the motion is DENIED.

In reply, Defendant claims that “the motion seeks appropriate relief by requesting the court set aside the stipulation entered into by the parties and/or reopen discovery for the limited purpose of obtaining the records in question.” (Reply, 1:25-27.) However, Defendant’s notice of motion and motion do not seek to re-open discovery. In any event, Defendant has not evaluated the factors for the Court to consider to re-open discovery. (CCP §2024.050(b).)