A nonsuit motion in California is the topic of this blog post. Code of Civil Procedure section 581c is the statutory authority for motions for nonsuit in California.
A motion for nonsuit can be helpful in the right situations as it allows a defendant to challenge the sufficiency of the evidence offered by a plaintiff at an early stage of the trial while still preserving the right to present their defense if the motion is denied. It should be noted that a defendant may not move for nonsuit until after plaintiff has completed their opening statement, or has presented their evidence in a jury trial.
Several California Court of Appeal decisions have held that a motion for nonsuit functions as a demurrer to the evidence offered by plaintiff.
Code of Civil Procedure § 581c states that,
“(a) Only after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit.
(b) If it appears that the evidence presented, or to be presented, supports the granting of the motion as to some but not all of the issues involved in the action, the court shall grant the motion as to those issues and the action shall proceed as to the issues remaining. Despite the granting of the motion, no final judgment shall be entered prior to the termination of the action, but the final judgment in the action shall, in addition to any matters determined in the trial, award judgment as determined by the motion herein provided for.
(c) If the motion is granted, unless the court in its order for judgment otherwise specifies, the judgment of nonsuit operates as an adjudication upon the merits.
(d) In actions which arise out of an injury to the person or to property, when a motion for judgment of nonsuit was granted on the basis that the defendant was without fault, no other defendant during trial, over plaintiff’s objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion.”
The trial judge has very limited discretion in ruling on a motion for nonsuit as the court must rule solely on the basis of the evidence offered by plaintiff. And in ruling on a motion for nonsuit after the opening statement, the court can only consider only the matters stated by plaintiff in the opening statement and any reasonable inferences that may be drawn. It should be stressed that the California Supreme Court ruled over 100 years ago that granting nonsuit after an opening statement is disfavored and should be avoided unless the evidence clearly shows that no case can be made out.
The discretion is very similar in ruling on a motion for nonsuit after plaintiff has presented their case, in that case only the evidence submitted by plaintiff and any reasonable inferences that may be drawn can be considered.
Most motions for nonsuit are made orally and without any prior notice being provided to plaintiff. Although supporting papers are not generally required, a motion for nonsuit is often based on points and authorities. And a nonsuit motion after plaintiff has presented their case may be based on exhibits received in evidence and transcripts of testimony.
Parties considering moving for nonsuit should check the local rules and also contact the clerk of the department where the trial will be held to determine if there are any specific requirements that must be followed.
Any motion for nonsuit should state the precise grounds on which the motion is made, and should clearly indicate the defects in the plaintiff’s case clearly and with particularity.
As should be obvious by now, the requirements for a motion for nonsuit are quite restrictive.
However a motion for nonsuit does have one huge advantage in that it operates as an adjudication upon the merits “unless the court in its order for judgment otherwise specifies.” See Code of Civil Procedure § 581c. Another bonus is that a defendant who prevails on a motion for nonsuit is entitled to recover their costs. See Code of Civil Procedure § 1033.
A key point to remember is that anyone considering a motion for nonsuit after plaintiff’s opening statement should consider the fact that, if the defects identified are easily correctable, plaintiff will not only be alerted, they will simply oppose the motion and stress that motions for nonsuit are disfavored which they clearly are.
Attorneys or parties in California who would like to view a portion of a sample motion for nonsuit containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, a sample declaration and proposed order can see below.
Attorneys or parties in California who would like to view over 245 sample legal documents for sale by the author of this blog post can visit the following link: http://www.scribd.com/LegalDocsPro
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 245 sample legal documents for California and Federal litigation.
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Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.