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

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.

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Attorney answers 3


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.

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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.


I agree with my colleagues.

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