Meder

Defendant, Safeway Stores, Inc. (Safeway), appeals from a judgment entered after a jury found it liable to plaintiff, Louis W. Meder, in the sum of $40,000 for malicious prosecution. Plaintiffs, Louis W. Meder and Pauline Meder (Mrs. Meder), appeal from the judgment awarding costs to Safeway incurred in obtaining a partial pretrial judgment on the pleadings against plaintiff, Pauline Meder.

Defendant contends on appeal that its stipulation in chambers to a jury of six failed the requirement of article I, section 16, of the California Constitution that such an agreement be made in open court. We conclude that defendant is estopped to raise this issue. Defendant also contends that there was an independent law enforcement investigation of the facts precluding liability. We disagree.

*500 Plaintiffs contend that the defendant’s cost bill was not timely filed following a partial pretrial judgment on the pleadings. We disagree.

As originally filed in June 1974, the complaint alleged three causes of action and included Louis Meder, Pauline Meder, Security Patrol Cart Return, a copartnership, and Dale R. Kenyon as plaintiffs. 1 On August 2, 1976, Safeway obtained a summary…