A Code of Civil Procedure section 581(c) motion for nonsuit
is the topic of this blog post. 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.
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. Thus a written motion may be more
effective. 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.
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
sample 13 page 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 use the link shown below.
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DISCLAIMER:
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.
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