In the published portion of this opinion, we hold that a motion for nonsuit, pursuant to Code of Civil Procedure section 581c, subdivision (a), does lie in a trial by the court. We publish on this issue because the disagreement of our concurring colleague demonstrates that there is a conflict of authority.
More specifically, the court holds that nonsuit is available in a bench trial immediately after the close of plaintiff’s opening statement. The court’s exercise in statutory interpretation of Section 581c is detailed. It examines not only Section 581c, but also Code of Civil Procedure section 631.8, which allows motions for judgment in bench trials after presentation of the evidence, and applies the “last antecedent rule.” The court distinguishes a line of cases finding that Section 631.8 made nonsuit in a bench trial unavailable because those cases considered a motion for nonsuit after the close of evidence rather than after opening statement. It cites numerous cases agreeing with it that nonsuit remains available in a court trial after opening statement even after the enactment of Section 631.8.
The court’s effort seems wasted, for it concludes in the unpublished portion of its opinion that the trial court improperly granted the nonsuit motion. The majority is taken to task by the concurring and dissenting opinion, in which Justice Cornell insists that the holding on availability of nonsuit in court trials is both wrongly decided and dictum. The majority agrees it could decide the case without tackling the availability of nonsuit, but justifies its holding in part because two oft-used secondary authorities opine on the issue, and their position should be either confirmed or countered by the court.