A Lesser Known Motion

Biron v. City of Redding, No. C071094 (D3 Apr. 30, 2014)

I once represented a plaintiff in a case with alter ego issues. At the close of our evidence, defendants filed a motion for nonsuit on alter ego, which the court denied. Had there been a seasoned state court procedure geek amongst the fine lawyers representing defendants, they would instead have done what the defendants did here: File a motion for judgment under Code of Civil Procedure § 631.8(b). 

Why? Because alter ego is an equitable issue where the judge is the trier of fact, even if the underlying claim is a legal one that goes to the jury. A motion for judgment is filed at the same time as a nonsuit motion—the close of plaintiff’s case—but it can be employed only in a bench trial. Unlike a nonsuit motion, which just asks if the plaintiff came forward enough evidence to get to the jury, on a motion for judgment the court can weigh plaintiff’s evidence after he rests and find it insufficient to meet the overall burden of proof. That weighing is permitted because, at the end of the day, the court will be the trier of fact. Why waste time for a defense case if plaintiff’s case is unconvincing? (The Federal rules contain a similar procedure in Rule 52(c). See Ritchie v. United States, 451 F.3d 1019, 1022 (9th Cir. 2006).)

Would it have made a difference? Probably not. But our case in chief was mostly focused on the underlying merits and the worst of the alter ego evidence came out during the cross of witnesses that defendants called in their own case. (Among other things, seems there was some confusion about who was the actual CFO of the principal defendant, with two separate defense witnesses claiming the role.) Based in large part on that evidence, we won a bench verdict on alter ego, which was affirmed on appeal.