Can a trial court entertain a motion for non suit in bench trial in California?

Asked over 1 year ago - Los Angeles, CA

Defendant made a motion for non-suit in a bench trial in superior court of California. The court granted the motion. However, the court order does not state whether the motion for non-suit was granted with or without prejudice. Can the action be re-filed, or can the the plaintiff make a motion for a new trial. As I understand California Appellate Courts have held that a motion for non suit in a bench trial is no longer recognized.

Attorney answers (3)

  1. Michael Raymond Daymude

    Contributor Level 20

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    Lawyers agree

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    Answered . The motion was granted with prejudice. Plaintiff failed to prove its case. Plaintiff cannot re-file. If timely, the plaintiff may make a motion for new trial upon the grounds specified in C.C.P. section 657.

    You are technically correct that most authorities opine that a motion for non-suit is unavailable in a court trial. The correct procedure would be a motion for judgment.

    However, IMO, if the ruling was correct the court will disregard its name – especially if the incorrect name was not called to the court’s attention prior to the ruling. Technical defects are nearly always ignored unless prejudice results.

    I am licensed in California only and my answers on Avvo assume California law. Answers provided by me are for... more
  2. Nicholas Basil Spirtos

    Contributor Level 20

    5

    Lawyers agree

    Answered . The court can entertain such a motion. Even if it was called a motion for non-suit, the court has the discretion to consider as a different type of motion that would have the same effect.

  3. Alexi Ozols

    Pro

    Contributor Level 8

    3

    Lawyers agree

    Answered . I agree with my colleagues.

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