Nonsuit of Punitive Damages Reversed on Appeal

Timothy Kowal, Esq.
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 helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.

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