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notice to quit, which marked the formal initiation of the unlawful detainer process. But that
reading of Winslett’s claim for violation of the Just Cause Ordinance seems to us a stretch.
Whatever she may have meant in referring to “misleading notices,” we do not understand it
as shorthand to reallege what she deliberately skipped over by omitting paragraph 15.
Ultimately, Sagi’s position on the tenth cause of action rests on the argument that, in
a brief filed in support of a discovery motion, Winslett admitted that this claim is based on
the filing of an unlawful detainer action. Winslett does not deny that, in substance, her
lawyers said as much in the offending brief, but she characterizes the language they used to
describe the tenth cause of action there as an “unintentionally broad misstatement” that has
no legal effect. This issue, in our view, is nothing but a distraction. We are not impressed
by Sagi’s attempt to draw Winslett into a debate over what was or was not meant by
statements in a collateral discovery motion that is not under review in this appeal. The basis
for invoking rules barring a party from taking inconsistent positions in litigation is wholly
lacking. The doctrine of judicial estoppel cannot be invoked where the position first
assumed was taken as a result of ignorance or mistake (Jackson v. County of Los Angeles
(1997) 60 Cal.App.4th 171, 182), and the related doctrine of equitable estoppel only applies
to the intentional assertion of an inconsistent position. (Ibid.) Sagi makes no attempt to
argue that either species of estoppel applies.
In the sole case on which Sagi relies, Brown v. Boren (1999) 74 Cal.App.4th 1303,
the appellant tried and lost fraud and breach of fiduciary duty claims in a bench trial, and
then sought to base her appeal on a contract theory, representing to the appellate court that
she tried the case on contract as well as tort theories. (Id. at pp. 1308-1310, 1313, 1316-
1317.) Finding that representation not borne out by the record, the appellate court refused
to allow the change of position. (Id. at pp. 1316-1317, 1320.) This is plainly a different
situation from what we have here. It is one thing for a party to shift positions on appeal
when the change is to the basis of the ruling under review, thereby depriving the trial court
of the opportunity to correct error in the first instance. It is quite another when the change
relates to some collateral ruling not under review. In that circumstance—which is this