When the former employee’s lawyer rests at a jury trial, the employer can ask the judge to end some or all of the case right there. That request is a motion for nonsuit under Code of Civil Procedure section 581c. It’s granted only when the employee’s evidence, taken as true, couldn’t support a verdict on a claim. When it works, it removes claims, and sometimes whole defendants, before the jury deliberates. Whether it works usually depends on choices made long before trial.
When can an employer move for nonsuit?
At two points, and only in a jury trial. Code of Civil Procedure section 581c(a) says the motion may be made “Only after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury.” The same subdivision lets the defendant move “without waiving his or her right to offer evidence in the event the motion is not granted.”
A nonsuit after opening statement is rare. Courts are reluctant to end a case on what a lawyer promised to prove. The motion that matters in practice is the one made when the employee rests.
What standard does the judge apply?
A demanding one, and it favors the employee. The California Supreme Court put it this way in Nally v. Grace Community Church (1988) 47 Cal.3d 278: “A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor.”
The judge doesn’t weigh credibility or decide whose witnesses are more believable. The question is whether any element of a claim has no evidence behind it at all. Employment claims have elements that are easy to overlook in a trial plan built around the story: a protected activity the decision-maker actually knew about, an adverse action, a causal link, damages, and, for punitive damages, conduct by an officer, director, or managing agent.
Can the court grant nonsuit on just part of the case?
Yes, and partial nonsuits are the more common win. Section 581c(b) says that if the evidence supports the motion “as to some but not all of the issues involved in the action, the court shall grant the motion as to those issues and the action shall proceed as to the issues remaining.”
That makes nonsuit a tool for trimming a complaint. A FEHA retaliation claim may go to the jury while a companion claim for intentional infliction of emotional distress, a claim against an individual supervisor, or a punitive damages request falls out. Fewer claims mean a shorter verdict form, narrower jury instructions, and less room for a compromise verdict.
Under subdivision (c), a granted nonsuit “operates as an adjudication upon the merits” unless the court’s order says otherwise. The employee can’t refile the dismissed claim.
What if the case is tried to a judge, not a jury?
A different statute applies. In a bench trial, including the equitable phase of a wage case or a PAGA claim tried to the court, the motion is a motion for judgment under Code of Civil Procedure section 631.8. The difference is significant: there, “The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party.” The judge can decide credibility, so the motion is easier to win than a nonsuit, and a judgment granted under section 631.8 requires a statement of decision.
| Motion | Statute | When | What the judge does |
|---|---|---|---|
| Nonsuit | CCP § 581c | Jury trial, after opening statement or after the employee’s evidence | Asks whether the evidence, taken as true, could support a verdict |
| Directed verdict | CCP § 630 | Jury trial, after all parties’ evidence | Same legal-sufficiency question, on the full record |
| Motion for judgment | CCP § 631.8 | Bench trial, after the other side’s evidence | Weighs the evidence as the fact finder |
How is a nonsuit set up before trial?
By knowing, element by element, what the employee has to prove and what evidence exists for each one. Start in deposition, by pinning down the employee’s theory. If the employee testified that no one told the decision-maker about the complaint, that admission is what a nonsuit on causation is built on.
The summary judgment record helps too, even if that motion was denied. The firm’s post on summary judgment in FEHA discrimination cases covers how those motions frame the elements, and the same gaps often carry into trial. It also pays to draft the nonsuit motion before trial, then revise it as the employee’s case comes in. Judges give more attention to a short, element-by-element written motion than to an oral argument made on the spot.
Watch the punitive damages proof in particular. Punitive damages against a company require proof tied to an officer, director, or managing agent, and that link is often thin in the employee’s case. The firm’s post on punitive damages and managing agents explains the requirement.
A denied nonsuit isn’t wasted. It preserves the sufficiency argument, and the same points carry into a directed verdict motion at the close of evidence and a motion for judgment notwithstanding the verdict after trial.
What should an employer heading to trial do now?
Trial preparation is where a nonsuit motion is won, so the work starts weeks before the jury is sworn.
- Confirm that every relevant record is still under the litigation hold, including the personnel file, the decision documents, and the emails and texts of each decision-maker.
- Calendar the trial-readiness deadlines (exhibit lists, witness lists, motions in limine, and jury instructions), and confirm whether the EPLI carrier needs a trial report.
- Identify every decision-maker and the date each one learned of any complaint or protected activity, since that timeline is usually the core of a causation argument.
- Build an element chart for each claim, listing the testimony and exhibits the employee will rely on and the gaps.
- Talk to trial counsel about which claims are realistic nonsuit targets, and about any settlement discussions before trial begins.
Planning a trial defense is part of what the firm’s page on employment litigation defense for California employers describes.
Nonsuit questions employers ask
Does moving for nonsuit risk anything with the jury?
Not directly. The motion is argued outside the jury’s presence, and under section 581c(a) the employer doesn’t waive its right to put on its own evidence if the motion is denied. The practical cost is credibility with the judge. A motion aimed at every claim, including ones with obvious evidentiary support, can make the strong points look like part of a routine filing. A focused motion on two or three real gaps usually gets a closer look.
Can the employee fix the gap after the motion is made?
Sometimes. Courts often let a plaintiff reopen the case to fill a missing piece of proof before ruling, especially where the gap is technical, such as a document that wasn’t formally admitted. That’s one reason to raise a nonsuit when the gap is substantive, such as no evidence that the decision-maker knew of the complaint, and not when it’s a foundation problem the other side can cure in ten minutes.
Is a nonsuit the same as summary judgment?
No. Summary judgment is decided on paper before trial, on declarations and deposition excerpts. A nonsuit is decided on the evidence actually presented to the jury. The legal question is similar, whether the evidence could support a verdict, but the record is different. A claim that survived summary judgment on a disputed declaration can still fail at trial if the witness doesn’t testify the way the declaration read.
If your employment case is headed to a jury
If your company is preparing for trial on a discrimination, retaliation, or wrongful termination claim, the gaps in the employee’s proof on each element usually decide what a nonsuit motion can accomplish. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving wrongful termination and retaliation at trial. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Code of Civil Procedure sections 581c, 630, and 631.8. The standard is from Nally v. Grace Community Church (1988) 47 Cal.3d 278.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.