Two Recent Appeals Rejected for Easily-Avoided Procedural Errors

Nonsuit of Punitive Damages Reversed on Appeal

Tim Kowal February 10, 2022

A nonsuit is one of the few exceptions to the ordinary presumptions to affirm on appeal. And so it bore out in *Newnes v. F&M Trust Co. of Long Beach* (D2d1 Jan. 11, 2022 no. B303725) 2022 WL 98179 (nonpub. opn.). Newnes’ claim for punitive damages was dismissed on nonsuit after opening argument at trial — before even an opportunity to present evidence.

This was reversible error, the Court of Appeal held. On a motion for nonsuit, the court “must accept all facts asserted in the opening statement as true and must indulge every legitimate inference which may be drawn from those facts.” (Abeyta v. Superior Court (1993) 17 Cal.App.4th 1037, 1041.) More than that, the appellate court will not affirm the judgment of nonsuit “ ‘unless interpreting the evidence most favorably to [the] plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.’ ” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839.)

In short, if reasonable minds can disagree, nonsuit should not be granted. (Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48, 60-61.)

So it is ironic that there was a dissent. Presiding Justice Rothschild stated she did not believe any reasonable jury could have found punitive damages on the plaintiff’s proposed evidence.

If reasonable appellate justices can disagree, as they clearly did here, then how can the dissent argue no reasonable jury can disagree?

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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"A judge is a law student who grades his own papers."

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— James Madison, Federalist 62

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

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— Sir Thomas More in Robert Bolt's A Man for All Seasons

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— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

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— Rubin v. Green (1993) 4 Cal.4th 1187

Nonsuit of Punitive Damages Reversed on Appeal

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"A judge is a law student who grades his own papers." — H.L. Mencken

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)