The opinion
CORNELL, J., Concurring and Dissenting.
I concur in the decision of the majority that the judgment must be reversed. Janice Lingenfelter stated facts in her opening statement that could expose the County of Fresno and its Human Services System (collectively, the County) to a judgment for intentional infliction of emotional distress. The trial court therefore erred in granting judgment for the County.
I am writing separately, however, to state my disagreement with (1) the decision of the majority to discuss the propriety of a motion for nonsuit in a court trial, and (2) the analysis of the issue by the majority.
“Appellate courts generally will not address issues whose resolution is unnecessary to disposition of the appeal. [Citations.]” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) ¶ 8:202, p. 8-126.) The majority, in what can be described only as obiter dicta, offers an analysis of an issue that was unnecessary to resolve the dispute presented to us. Since dicta is not binding authority (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598 [ 30 Cal.Rptr.3d 320 ]), this discussion should have been omitted from the majority opinion.
I also believe the majority reaches the wrong conclusion.
The majority recognizes that Code of Civil Procedure section 631.8, 1 the statutory basis for a motion for judgment, was added to the code in 1961 (Stats. 1961, ch. 692, § 2, p. 1927) as a result of the enactment of Senate Bill No. 570 (1961 Reg. Sess.) (hereafter Sen. Bill No. 570). Section 631.8, which is limited to court trials, permits a defendant to move for judgment only after *211 the plaintiff has presented his or her evidence. The trial court is permitted to “weigh the evidence” in deciding the merits of the motion. (Id., subd. (a).)
Senate Bill No. 570 (1961 Reg. Sess.) not only added section 631.8 to the code, however, it also amended section 581c, the statutory basis for a motion for nonsuit. A motion for nonsuit, similar to a demurrer, requires the trial court to accept as true plaintiff’s evidence when considering the motion. Prior to the 1961 amendment, section 581c permitted a defendant to make a motion for nonsuit in either a court or jury trial after plaintiff had made his or her opening statement, or after the plaintiff had completed his or her presentation of evidence.
Senate Bill No. 570 added the words “in a trial by jury” to the first paragraph of section 581c (Stats. 1961, ch. 692, § 1, p. 1926) (now § 581c, subd. (a)). 2 This section now reads, in pertinent part: “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 defendant . . . may move for a judgment of nonsuit.” (§ 581c, subd. (a).)
The phrase “in a trial by jury” obviously limits the availability of a motion for nonsuit in a court trial. The issue is whether the Legislature intended the limitation to apply only to a motion for nonsuit made after the presentation of the plaintiff’s evidence, or also intended the limitation to apply to a motion for nonsuit made after the plaintiff’s opening statement.
The majority concludes that the limitation inserted by the Legislature applies only to motions for nonsuit made after the presentation of the plaintiff’s evidence, that is, a defendant in a court trial may make a motion for nonsuit after the plaintiff’s opening statement, but not after the plaintiff has presented his or her evidence. The majority opinion acknowledges there is a split of authority among the Courts of Appeal on the issue and identifies the various cases that discuss the issue on both sides.
The analysis of the majority would be more persuasive if the statute originally had been drafted as it now reads. Section 581c, however, should be analyzed in the context of the entirety of Senate Bill No. 570. When one considers the 1961 amendment in context, the error in the analysis of the majority is apparent.
*212 Senate Bill No. 570 (1961 Reg. Sess.) accomplished two tasks: (1) it limited motions for nonsuit to jury trials, and (2) it created a new motion for judgment in court trials. The most compelling conclusion to be drawn from these two actions is that the Legislature intended to create two separate procedures. One procedure is applicable to court trials, where the trial court, as the finder of fact, weighs the evidence (the motion for judgment, § 631.8). The other procedure is applicable to jury trials, where the trial court, who is not the finder of fact, accepts the plaintiff’s evidence as true and preserves for the jury the duty to weigh the evidence (the motion for nonsuit, § 581c). I believe, therefore, that Estate of Pack (1965) 233 Cal.App.2d 74, 77 [ 43 Cal.Rptr. 361 ] was correct, and indeed meant what it said: The Legislature through Senate Bill No. 570 intended to abolish motions for nonsuit in court trials.
The adverse practical ramifications of the holding of the majority are even more compelling. That holding requires every petitioner and plaintiff to give a substantive opening statement in every court trial. An inadequate opening statement will result in a dismissal before the presentation of any evidence. Surely, that is not what the Legislature intended.
That holding will cause a dramatic change in how court trials are conducted. Now, judges determine what they want to hear in an opening statement, if anything. The parties frequently proceed directly to the evidence and waive opening statements. Trial briefs or a listing of disputed issues frequently replace opening statements. No more.
A stark example of the consequences of the holding is in family law. It would be difficult to find one judicial officer in this state who believes that a substantive opening statement is required in family law trials. Even one of the publishers cited by the majority to support its analysis indicates that “an opening statement is seldom needed, as the court is the trier of fact (no jury) and has already been made aware of these matters in pretrial chambers discussions.” (Hogoboom and King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 13:150, p. 13-40.) But, Family Code section 210 makes section 581c, subdivision (a) applicable to family law proceedings unless a statute or court rule states otherwise. None does. The opportunity for mischief, sharp practice and outright abuse is readily apparent. The disruption to an area of law where at least 60 percent of the litigants appear without an attorney is manifest. The goal of giving a litigant his or her day in court would be defeated. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1367 .)
*213 Clearly, the Legislature needs to act to make its interpretation known. Conditions imposed by courts to soften the drastic consequences of failed attempts at an opening statement are not satisfactory. (See Panico v. Truck Ins. Exchange (2001) 90 Cal.App.4th 1294, 1299 [ 109 Cal.Rptr.2d 638 ]; John Norton Farms, Inc. v. Todagco (1981) 124 Cal.App.3d 149, 161 [ 177 Cal.Rptr. 215 ].) They certainly did not work here.
Appellant’s petition for review by the Supreme Court was denied November 28, 2007, S156725. Kennard, J., and Chin, J., were of the opinion that the petition should be granted.
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
Senate Bill No. 570 also made other nonsubstantive changes to section 581c.