Hoffman-Haag

In this case appellants Barbara Hoffman-Haag and John Haag argue that neither a motion for new trial under Code of Civil Procedure section 657 nor a motion to vacate under section 663 may be based on a previously unasserted rule of law. In the particular circumstances presented here we reject their contention and affirm the judgment.

Factual and Procedural Summary

The facts which give rise to the Haags’ appeal are tragic. According to the stipulation of facts the parties submitted to the trial court, on February 10, 1989, the Haags left their infant daughter Gwenevier in the care of defendant Maria Dagraca. At that time the Haags were paying Dagraca $70 a week for Gwenevier’s care. In addition to Gwenevier, Dagraca was responsible for the care of her own four children and one additional unrelated child for which she was receiving an additional $75 a week.

While in Dagraca’s care on February 10, Gwenevier fell down a set of stairs and was severely injured. On February 11, 1989, Gwenevier died as a result of those injuries.

The Haags brought an action against Dagraca and her husband John Dagraca. The Dagracas’ homeowners’ insurer, defendant Transamerica Insurance…