Legal Memorandum: Appealing the Grant of Nonsuit

Issue: Standard of Review When a Plaintiff Appeals the Granting of Nonsuit.

Area of Law: Litigation & Procedure
Keywords: Grant of Nonsuit; Appeal
Jurisdiction: California
Cited Cases: 200 Cal. App. 3d 804; 36 Cal. App. 3d 654; 8 Cal. 4; 214 Cal. App. 2d 697
Cited Statutes: None
Date: 05/01/2007

This Court has stated the well-settled standard of review when the plaintiff appeals the grant of nonsuit.  In re Everette M. (5 Dist. 1990) 219 Cal. App. 3d 1567, 1575.  On the appeal of a grant of nonsuit, the appellate court does not review for substantial evidence, but “must disregard the potentially conflicting evidence and accept the evidence in the light most favorable to appellant.”

[The appellate court is] guided by the traditional rule that a trial court may only grant a defendant’s motion for nonsuit only if plaintiffs’ evidence would not support a jury verdict in plaintiff’s favor . . . [The court] disregard[s] “conflicting evidence,” and inquire[s] whether the evidence, if “viewed favorably to plaintiffs’ cause, was sufficient to support a jury verdict in their favor.


Ewing v. Cloverleaf Bowl (1978) 20 Cal. 3d 389, 395, superseded by statute on other grounds as stated in Hepe v. Paknad (6 Dist. 1988) 199 Cal. App. 3d 412.  Evidence favorable to the plaintiff must be accepted as true, and every inference must be indulged in the plaintiff’s favor.  Lombardo v. Huysentruyt (1 Dist. 2001) 91 Cal. App. 4th 656, 664.  On such an appeal, the court may not consider the credibility of witnesses or, indeed, any testimony or other evidence adduced at trial that was not before the trial court at the time of the nonsuit proceedings.  Id. at 664.  Accord Campbell v. Gen. Motors Corp. (1982) 32 Cal. 3d 112, 117 (observing generally that “[b]ecause […]

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