What is a Motion for Nonsuit?

The function of a motion for nonsuit is to challenge the sufficiency of plaintiff’s evidence during trial. (In re Estate of Daly (1911) 15 Cal.App. 329, 330-331 (Daly).)

“A motion for a nonsuit presents a question of law for determination by the court. The motion is tantamount to a demurrer to the evidence, or an objection that, admitting all the proved material facts to be true, said facts do not in legal effect operate in favor of plaintiff, or, in other words, do not entitle him to the relief asked for by him.” (In re Estate of Daly (1911) 15 Cal.App. 329, 330-331 (Daly).)

Legal Standard

A motion for nonsuit may be brought “[o]nly 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.” (Code of Civ. Proc., § 581c(a).)

Although the nonsuit motion may be made orally in open court, “[i]t is a fundamental rule that the motion should state the precise grounds on which it is made, with the defects in the plaintiff's case clearly and particularly indicated.” (John Norton Farms v. Todagco (1981) 124 Cal.App.3d 149, 161.) The ground replied upon for a nonsuit should be stated to the trial court (Sebring v. Harris (1912) 20 Cal.App. 56, 58), and the court cannot go beyond the limits of the motion in rendering its decision. (Bush v. Weed Lumber Co. (1921) 55 Cal.App. 588, 590 (Bush).) It is the duty of the court to let the case go to the jury if there is any doubt. (Id.)

“[T]he evidence, on a motion for a nonsuit on the close of plaintiff's case, must be accorded the benefit of its full probative force, and this is true whether the evidence has been erroneously admitted or not. It is also true that on such motion the evidence must be taken most strongly against the defendant, and if the plaintiff has introduced proof sufficient to make out a prima facie case under the allegations of his complaint, the motion, if made on the close of his case, should be denied.” (In re Estate of Daly (1911) 15 Cal.App. 329, 330-331 (Daly).)

In other words, “[a] trial court may grant a nonsuit only when, disregarding conflicting evidence, viewing the record in the light most favorable to the plaintiff and indulging in every legitimate inference which may be drawn from the evidence, it determines there is no substantial evidence to support a judgment in the plaintiff's favor.” (Dina v. People ex rel. Dept. of Transportation (2007) 151 Cal.App.4th 1047.)

Because a nonsuit deprives plaintiff of the right to have his or her case determined by a jury, it is proper only where judgment is required as a matter of law, despite resolving all presumptions, inferences and doubts in plaintiff’s favor. (Galanek v. Wismar (1999) 68 Cal.App.4th 1417, 1424.) If the defendant makes a prima facie showing, the plaintiff may avoid judgment by requesting leave to reopen the case-in-chief and making an offer of proof as to how the defect(s) can be cured. (R&B Auto Ctr., Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 340.)

Useful Rulings on Motion for Nonsuit

Recent Rulings on Motion for Nonsuit

MARIA ESTRADA V. PACIFIC CHRISTIAN CENTER

Kaplan (1965) 238 Cal.App.2d 581, wherein the court granted a boat operator’s motion for nonsuit finding that no duty was owed a passenger who sustained injuries as a result of failing from atop the roof of the main cabin of the boar where there was a 2 inch railing around the roof of the cabin, which obviously was not designed or adequate to make it safe for persons to walk or stand on the roof or prevent them from failing overboard. (See also Obrien v. Fong Wan (1960) 185 Cal.

  • Hearing

    Sep 08, 2020

SANCHEZ VS. CUOC LP

In Nelson, leave to amend was properly denied when the plaintiff sought to amend his complaint in response to a defense motion for nonsuit after the plaintiff’s opening statement at trial. (Id., at pp. 136-137.) No similar prejudice will result here, where it appears the parties have conducted hardly any formal discovery at all, and ample time remains to prepare a case for trial. Finally, CUOC argues that Plaintiff’s PAGA claim fails as a matter of law with regard to the new defendants.

  • Hearing

    Aug 21, 2020

ANA FLORES VS CEDRIC WHITE ET AL

Defendant asserts that “during trial, Defendant made several motions to establish the meritless nature of this case” by its filing of the Motion for Nonsuit and Judgment Notwithstanding the Verdict “on the basis that the Plaintiff had not provided sufficient facts to seek punitive damages against White.” (Id. at pp. 5:28-6:3.)

  • Hearing

    Aug 17, 2020

  • Type

    Employment

  • Sub Type

    Wrongful Term

ANA FLORES VS CEDRIC WHITE ET AL

Defendant asserts that “during trial, Defendant made several motions to establish the meritless nature of this case” by its filing of the Motion for Nonsuit and Judgment Notwithstanding the Verdict “on the basis that the Plaintiff had not provided sufficient facts to seek punitive damages against White.” (Id. at pp. 5:28-6:3.)

  • Hearing

    Aug 17, 2020

  • Type

    Employment

  • Sub Type

    Wrongful Term

LVNV FUNDING LLC VS AUDREY G. FRIEDMAN

SC124960 Hearing Date July 30, 2020 Cross-Defendant Jonah Friedman’s Motion for Nonsuit A defendant is entitled to a nonsuit if the trial court determines, as a matter of law, the evidence presented by a plaintiff is insufficient to permit a jury or court to find in his or her favor. Cal. Code of Civ. Proc. §581c. Cross-defendant Jonah Friedman moves for a nonsuit as to cross-complainant Audrey Friedman’s causes of action.

  • Hearing

    Jul 30, 2020

  • Type

    Collections

  • Sub Type

    Collections

KEITH CARTER, ET AL. VS VARDAN TOKMAJYAN, ET AL.

Olsher was decided on a motion for nonsuit and Vasquez v. Residential Investments Inc was decided on summary judgment. Defendant also cites to Melton v. Boustred (2010 183 Cal.App.4th 521, 531 for the same proposition. Although Melton was decided on demurrer, it is inapposite. In Melton, the Court of Appeal concluded that no legal duty arose where there was no misfeasance or special relationship.

  • Hearing

    Jul 29, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    other

CYNTHIA SEWAK V. EDWARD STAHL, ET AL.

And to the extent he proceeds, despite his attempts at framing, under a standard tantamount to a motion for nonsuit, he fails to carry his initial burden; such points are misdirected given the standard for summary judgment and his initial burden as the moving party. Sewak has no obligation to put on evidence until Stahl carries his initial burden. (See generally Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

  • Hearing

    Jul 23, 2020

MASON MCCONN VS UPS CARTAGE SERVICES INC ET AL

While reasonable minds may differ as to the ultimate strength of Plaintiff’s case, Plaintiff produced evidence at trial sufficient to withstand a motion for nonsuit, necessarily producing evidence that could support a jury verdict in Plaintiff’s favor.

  • Hearing

    Jul 22, 2020

  • Type

    Employment

  • Sub Type

    Wrongful Term

MASON MCCONN VS UPS CARTAGE SERVICES INC ET AL

While reasonable minds may differ as to the ultimate strength of Plaintiff’s case, Plaintiff produced evidence at trial sufficient to withstand a motion for nonsuit, necessarily producing evidence that could support a jury verdict in Plaintiff’s favor.

  • Hearing

    Jul 22, 2020

  • Type

    Employment

  • Sub Type

    Wrongful Term

ANNA AVENUE ASSOCIATES LLC VS. SANDAG

Given the summary nature of this procedure, the Court evaluates the evidence as would be done on a motion for nonsuit, accepting it as true and viewing it in a light favorable to the opposing party. Id. SANDAG previously deposited $39,900 as fair market value compensation. Plaintiffs withdrew this deposit and will not permitted to submit evidence to contest this amount. _____ 3.

  • Hearing

    Jul 06, 2020

  • Type

    Real Property

  • Sub Type

    Breach

PICO RIVERA FIRST MORTGAGE INVESTORS LP V. HENRY AGUILA

The cross-complainant’s burden is similar to the standard used in determining a motion for nonsuit, directed verdict, or summary judgment. Slausen Partnership v. Ochoa, 112 Cal.App.4th 1005, 1020 (2003). The court’s determination of the motion cannot involve a weighing of the evidence. Zamos v. Strous, 32 Cal.4th 958, 965 (2004). Rather, the cross-complainant must make a prima facie showing of facts that would, if proved at trial, support a judgment in cross-complainant’s favor. Wilcox v.

  • Hearing

    Jun 08, 2020

HARRY TRAN VS ST. GEORGE & ASSOCIATES

While none of the roommates testified at trial, this was because defendant was successful in its motion for nonsuit. With regard to Mr. Miller’s deposition, Mr. Miller was designated by plaintiff to testify regarding defendant’s obligations under Civil Code Section 1950.5 as it applies to lease deposits. (Hemphill Dec., ¶8, Ex. D.) Mr. Miller’s deposition totaled approximately eight hours and cost $9,767.00, including $3,700.00 for Mr.

  • Hearing

    May 28, 2020

PARAMOUNT PICTURES CORPORATION VS COUNTY OF LOS ANGELES

The appellate court characterized the “unusual and unorthodox procedure” as, in effect, a motion for nonsuit, or demurrer to the evidence. (Id. at p. 369); see also Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 748-749 [trial court granted nonsuit on its own motion after studying the law and inviting stipulations concerning the contractual relationship between the parties].)

  • Hearing

    May 04, 2020

DARYOUSH RAZIPOUR VS TAROUB ALSALEH, ET AL.

The Court of Appeals found that because the admissions prevented the plaintiff from showing the existence of a duty, the trial court properly granted the defendants' motion for nonsuit. (Ibid.) As Mikialian makes clear, the D'Amico rule applies when a party has made admissions undermining a fundamental element of his or her case, such as the existence of a duty.

  • Hearing

    Mar 06, 2020

  • Type

    Employment

  • Sub Type

    Other Employment

  • Judge Elaine Lu
  • County

    Los Angeles County, CA

STARZ ACQUISITION, LLC, ET AL. VS ALLIED WORLD ASSURANCE COMPANY (U.S.) INC., ET AL.

In a motion for nonsuit, the insurer argued that the plaintiffs were seeking an impermissible double recovery and that the collateral source rule[2] did not apply. The trial court granted the motion finding, inter alia, that an exception to the collateral source rule applied because the insurer was a joint tortfeasor. The Kardly court disagreed.

  • Hearing

    Feb 07, 2020

  • Type

    Insurance

  • Sub Type

    Intellectual Property

MARIA ELENA’S RESTAURANT, INC. V. PATRICIA A. BOYES, ESQ., ET AL.

The plaintiff’s burden in this step “is subject to a standard similar to that used in deciding a motion for nonsuit, directed verdict, or summary judgment.” (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570.) It requires the plaintiff to show that the complaint is both legally sufficient and supported by sufficient prima facie evidence to sustain a favorable judgment. (Premier Med. Mgmt. Systems, Inc. v. Cal. Ins. Guar. Ass’n (2006) 136 Cal.App.4th 464, 476.)

  • Hearing

    Jan 30, 2020

  • Judge

    Presiding

  • County

    Santa Clara County, CA

ARKIUS INC VS HYUNDAE HEALTH CENTER INC ET AL

On July 14, 2010, a bench trial before Judge Sinanian proceeded on the issue of Arkius’s license status.[2] After the bench trial concluded on July 15, 2010, the court granted Yeh’s Motion for Nonsuit. Arkius appealed (“First Appeal”). On September 27, 2011, the court of appeal reversed the trial court decision and awarded Arkius its costs on appeal.

  • Hearing

    Jan 10, 2020

ITUTORGROUP, INC. V. MING YANG, ET AL.

The plaintiff’s burden in this step “is subject to a standard similar to that used in deciding a motion for nonsuit, directed verdict, or summary judgment.” (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570.) It requires the plaintiff to show that the complaint is both legally sufficient and supported by sufficient prima facie evidence to sustain a favorable judgment. (Premier Med. Mgmt. Systems, Inc. v. Cal. Ins. Guar. Ass’n (2006) 136 Cal.App.4th 464, 476.)

  • Hearing

    Jan 09, 2020

COUNTY OF LOS ANGELES VS 8400 S VERMONT AVENUE LP ET AL

The deprivation of this right militates strong procedural safeguards similar to those applied in the context of a motion for nonsuit or motion for summary judgment. (Weiss, supra, 20 Cal.App.5th at 1172 (finding motion for summary judgment a more appropriate analogy to the procedures afforded by section 1260.040).) Weiss strengthens this conclusion.

  • Hearing

    Jan 03, 2020

DARRELL ARCHER VS. TIMOTHY KASSOUNI

On August 13, 2019, the Court granted Defendants' Motion for Nonsuit, rendering Nancy Sheehan's testimony unnecessary. (Id.) The fact that she never appeared in court is of no consequence, because section 998 clearly gives the court discretion to award reasonable expert fees incurred in the preparation for trial, not just during trial. Under the circumstances, the fees are reasonable and should be recoverable. Accordingly, the motion to tax this item is DENIED.

  • Hearing

    Nov 08, 2019

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

HOFFMAN VS CITY OF RIVERSIDE

In Orpheum the trial court’s granting of the defendant’s motion for nonsuit was affirmed when, viewing all of the evidence in plaintiffs’ favor, they had failed to show that any acts of the public entity were not authorized or necessary for the construction of the public improvement, or were not done in a reasonable manner. The demurrer is sustained based on CC §3482.

  • Hearing

    Oct 09, 2019

BRIAN R. SILVER V. STEVEN G. HASTY, ET AL.

Following Silver’s opening statement at trial, the Court granted Hasty’s motion for nonsuit as to the third claim. After Silver rested his case, the Court granted Hasty’s motion for nonsuit as to the fourth and fifth claims. The Court, however, later permitted the fourth cause of action to proceed to the jury as to the damages claim. On October 3, 2017, the Court ruled in favor of Hasty as to the civil harassment claim.

  • Hearing

    Oct 08, 2019

  • Judge

    Monique Langhorne

  • County

    Napa County, CA

900 WILSHIRE BOULEVARD, LLC VS RAMIN FARZAM

Id. at 1279-80 (noting that a motion for nonsuit is subject to the same standard as a directed verdict); Eng v. Brown, 21 Cal.App.5th 675, 698 (2018) (motion in limine seeking a finding that three persons formed a partnership “was more akin to a partial directed verdict on the issue of partnership formation”).

  • Hearing

    Oct 02, 2019

SAURMAN V. GNIROB CAPITAL CORPORATION, ET AL.

On the Court’s own motion, the Court takes judicial notice of the following documents filed in the Related Case: motion for leave to amend (Register of Actions [“ROA”] 83), May 5, 2017 Minute Order (ROA 91), July 23, 2018 Minute Order (ROA 322), Order granting motion for nonsuit of defendant David Bonadonna (ROA 395), the jury instructions given (ROA 373), and the special verdict form signed by the presiding juror (ROA 386).

  • Hearing

    Sep 20, 2019

STARZ ACQUISITION, LLC, ET AL. VS ALLIED WORLD ASSURANCE COMPANY (U.S.) INC., ET AL.

The trial court granted the insurer’s motion for nonsuit finding, inter alia, that an exception to the collateral source rule applied because the insurer was a joint tortfeasor. The Kardly court disagreed. Analogizing the case to Davis, the Kardly court reasoned the negligent driver “bears no potential liability for [the insured’s] fraud and for its breach of its fiduciary duty to act in good faith and deal fairly with the [plaintiffs], its insureds.

  • Hearing

    Sep 06, 2019

  • Type

    Insurance

  • Sub Type

    Intellectual Property

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