Filed 9/9/16 Universal Interactive LLC v. Anton CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

UNIVERSAL INTERACTIVE LLC et al.,

 Plaintiffs and Appellants,

v.

CHARLES ANTON III,

 Defendant and Respondent.

 G051512

 (Super. Ct. No. 30-2010-00362995)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, 

Ronald L. Bauer and Robert J. Moss, Judges. Affirmed. Motion to augment record. 

Granted.

Winthrop Law Group and Reid A. Winthrop for Plaintiffs and Appellants.

Sterling Scott Winchell and Sterling Scott Winchell for Defendant and 

Respondent.

* * *
2

INTRODUCTION

Plaintiffs Joel Barry Shamitoff, Universal Interactive LLC (Universal), and 

Universal Interactive Licensing, LLC (Universal Licensing), appeal from a nonsuit order 

made at the beginning of trial.

1

 Shamitoff, Universal, and Universal Licensing are 

referred to collectively as Plaintiffs. They contend the trial court erred by denying their 

request for a trial continuance, by granting a nonsuit before opening statements, and by 

denying their motion for a new trial. 

Applying the deferential abuse of discretion standard, we conclude the trial 

court did not err by denying Plaintiffs’ motion, made on the first day of trial, to continue 

the trial. Although the court erred by granting nonsuit before opening statements, the 

error was harmless because Plaintiffs’ counsel acknowledged he had no witnesses or 

evidence to present. Plaintiffs did not present evidence of circumstances that would 

constitute an irregularity in proceedings or abuse of discretion by the trial court justifying

a new trial. We therefore affirm.

BACKGROUND

I. Complaint; Oral Settlement

Plaintiffs’ complaint, which was filed in April 2010, asserted causes of 

action for indemnity, contribution, breach of contract, declaratory relief, breach of 

 

 

1

 The nonsuit was made by unsigned minute order. To be appealable, an order or 

judgment of nonsuit must be in writing, signed by the court, and entered in the action. 

(Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 763; Santa Barbara 

Pistachio Ranch v. Chowchilla Water Dist. (2001) 88 Cal.App.4th 439, 448, fn. 1; 

Galanek v. Wismar (1999) 68 Cal.App.4th 1417, 1420, fn. 1; see Code Civ. Proc., 

§§ 581c, subds. (a) & (c), 581d.) For that reason, we invited the parties to submit letter 

briefs addressing whether this appeal should be dismissed for lack of appellate 

jurisdiction. In response, Plaintiffs obtained and submitted to this court an order of 

nonsuit signed by the trial court on July 6, 2016 and made retroactive to the date of the 

minute order. On our own motion, we augment the record with the signed order of 

nonsuit. (Cal. Rules of Court, rule 8.155(a)(1)(A).) We are satisfied that we have 

jurisdiction over this appeal. 
3

contract, and promissory fraud. The causes of action were based on or arose out of a 

management and consulting agreement entered into in 2007 between Universal and 

defendant Charles Anton III. 

A jury trial was set for December 2, 2011. A month before trial, the trial 

date was vacated by the court upon ex parte application of Plaintiffs. The trial was reset 

for December 17, 2012. The parties prepared for trial and submitted exhibit lists, witness 

lists, and other pretrial documents. 

On the day set for trial, the parties commenced settlement negotiations. On 

December 19, 2012, Plaintiffs’ counsel filed a notice of settlement. The next day, 

Plaintiffs’ counsel and Anton, who represented himself, appeared in court before 

Judge Ronald L. Bauer to announce the settlement and place its basic terms on the record. 

Neither Shamitoff nor a personal representative of Universal or Universal Licensing was 

present. Plaintiffs’ counsel stated he would draft the written agreement.

The parties did not reach agreement on the terms of a written settlement 

agreement. In December 2013, Plaintiffs brought a motion under Code of Civil 

Procedure section 664.6 to enter judgment against Anton and enforce the oral settlement. 

Anton, who still represented himself, opposed the motion. 

The trial court (Judge Bauer) heard the motion on April 28, 2014 and 

denied it.

2

 The court ruled that the oral settlement agreement was not enforceable under 

Code of Civil Procedure section 664.6 because Shamitoff was not present in court when 

the terms of that agreement were placed on the record. The court acknowledged it 

“should have been more demanding that Mr. Shamitoff show up in court.” The court set 

a trial date of June 30, 2014. 

 

 

2

 Plaintiffs filed a motion to augment the record with a transcript of the hearing on 

April 28, 2014. Anton filed opposition to that motion. We exercise our discretion to 

grant the motion to augment. (See Cal. Rules of Court, rule 8.155(a)(1)(B).)
4

II. First Request for Trial Continuance

On June 9, 2014, Plaintiffs’ counsel brought an ex parte application to 

continue the trial. The good cause identified in support of the application was Shamitoff 

had a life-threatening medical condition and his treating physician, Dr. Richard J. 

Kempert, had restricted Shamitoff’s activities for the next 120 to 150 days. Dr. Kempert 

stated in a declaration that Shamitoff suffers from “a very significant prolapsed mitral 

valve condition and an associated panic attack disorder.” Dr. Kempert recommended that 

Shamitoff “not engage in any stressful activities for the next 120-150 days” so that 

Dr. Kempert would “have the opportunity to fairly evaluate the effectiveness of the 

treatment regimen in dealing with routine, non-stressful activities.” The trial court 

(Judge Bauer) granted the application and continued trial to December 15, 2014. 

In October 2014, Anton, now represented by counsel, filed a motion to 

consolidate the case with a case entitled Gorr v. Universal Interactive. On November 10, 

2014, the trial court denied Anton’s motion to consolidate. The minute order denying the 

motion stated, “Jury Trial currently set for 12/15/2014 to remain on calendar.”

III. Second Request for Trial Continuance

On the day set for trial, Plaintiffs, represented by new counsel, brought 

another ex parte application to continue trial. The application raised several grounds for 

a continuance, two of which—Shamitoff’s health status and a claimed business 

emergency on the part of Universal and Universal Licensing—are relevant here. 

In support of the ex parte application, Plaintiffs submitted a declaration 

each from Shamitoff, Dr. Kempert, and Michael D. Moran, M.D., who is a cardiovascular 

specialist. 

Shamitoff Declaration: Shamitoff declared the litigation was causing him 

anxiety and distress. He described the business emergency as follows: “We have 

recently been informed that our manufacturer in China needs to move forward, complete 

the testing, do the initial test runs on creational elements of the project and then finally 
5

start until commercial production [sic]. If this production does not happen in the 

relatively near foreseeable future th[e]n we run the risk that vital components and 

elements of this project which include discarding our production molds and templates 

could occur whether we like it [or] not. So I must travel to China ASAP to be involve[d] 

in the next step and to further finalize the plans to move forward. I and most likely 

possible others must travel to China for this purpose. Failure to go would result in 

catastrophic losses of investment and profitable operation.”

Dr. Kempert Declaration: Dr. Kempert repeated his opinion expressed in 

his earlier declaration that Shamitoff suffers from “a very significant prolapsed mitral 

valve condition and an associated panic attack disorder.” Shamitoff’s condition was 

“life-threatening” and required “constant monitoring and treatment.” Dr. Kempert had 

examined Shamitoff on December 5, 2014 and, based on that examination, was of the 

opinion that Shamitoff could not at the present “safely participate in any legal 

proceedings as I believe that they will create too much stress and could lead to very 

serious, potentially catastrophic consequences.” Dr. Kempert stated that Shamitoff 

should not participate in any stressful activity for 120 days, during which period 

Dr. Kempert could evaluate the effectiveness of a treatment regimen to include new 

medications. He believed Shamitoff might be able to deal with stressful events “after the 

125 to 155 days from the time Mr. Shamitoff starts this new treatment regime.” As for 

Shamitoff travelling to China, Dr. Kempert stated, “[o]nce I see the medications appear to 

be working for Mr. Shamitoff’s benefit, I see no reason why a trip to China to work on 

his project would be prohibited as I believe it would be something Mr. Shamitoff would 

find beneficial and therefore reduce stress, not increase it.”

Dr. Moran Declaration: Dr. Moran declared that he had examined 

Shamitoff and his mitral valve prolapse “is indeed serious and leaking severely.” 

Dr. Moran stated that surgery was the only “ultimate cure” for this condition and the 

“urgency” for surgery depended on the symptoms. He concluded: “So long as 
6

medication proves successful to alleviate and stabilize Mr. Shamitoff’s condition, surgery 

may be deferred for some months. It is my opinion that physiological symptoms do not 

presently indicate an urgency for immediate or imminent surgery.”

The ex parte application for a trial continuance was not served on Anton’s 

counsel until all counsel appeared in court on December 15, 2014 for trial. Plaintiffs’

new counsel, William Stocker, explained the reason for the delay was, “I had 

considerable difficulty with the client and the substitution process and the doctor’s 

declarations getting those things edited and approved.” The court took other matters to 

allow Anton’s counsel to review the ex parte papers. 

When the matter reopened, Anton’s counsel announced he opposed the 

request for a continuance. Counsel also stated that the declarations from Dr. Kempert 

and Dr. Moran were not included in the papers he had received. The declarations also 

had not been presented physically to the court, which read electronically filed 

declarations. When asked by the court whether he was ready to proceed with trial, 

Anton’s counsel replied: “Not really. We haven’t had an issues conference. We haven’t 

done anything. Mr. Stocker hasn’t even subbed into the case. [¶] There’s no way to 

communicate with the party himself. There’s one individual and two entities.” Anton’s 

counsel confirmed, however, that Anton opposed the request for a trial continuance. 

Plaintiffs’ counsel argued that the success of Shamitoff’s manufacturing 

project could affect the settlement of “this and other cases.” Counsel argued: “So there 

is, of course, the fact that if Mr. Shamitoff is not able to attend to that manufacture in 

China, this entire project and a tremendous investment will be lost.” Plaintiffs’ counsel 

argued he needed to add a couple of parties to the lawsuit and wanted to amend and

stated: “[T]here’s a number of things that, as I see it, . . . have to be done to make this 

case triable. There has been no discovery. And, clearly, if we were to exchange 

interrogatories, requests for admissions and whatnot, the resolution of this case might 
7

become obvious. [¶] And there’s no way that I could try the case unprepared today, and 

there’s no way that Mr. Shamitoff can come to court today.”

This exchange then took place:

“The Court: And the final point that I think has been emphasized in the 

papers is Mr. Shamitoff wants to go to China.

“Mr. Stocker: Yes, he does.

“The Court: “Yes, and it strikes this uneducated person that he is telling us 

what’s important to him, and what’s important to his health. The trip to China is what he 

wants to do. I can’t believe that a trip to China to negotiate what he describes as the heart 

and soul of his life in this snapables activities, that is critical to all of these lawsuits, 

wouldn’t cause him great stress and anxiety. [¶] And yet, he tells us that coming to court 

will cause him great stress and anxiety. In fact, I know that to be true. Everyone gets 

stressed out by coming to court. That’s not unusual, but this man wants to fly to China, 

instead of coming to court.

“Mr. Stocker: Well, he wants to. But Mr. Shamitoff is a high functioning 

autistic person, highly introverted, highly brilliant, with a heart condition, who has been 

sued and been betrayed by a number of lawyers a whole bunch of times. And he is . . . 

really crazy about the litigation.” 

Stating “we need to proceed,” the trial court denied the request for a 

continuance. The court remarked that “Mr. Shamitoff has run through many, many 

lawyers” and “[t]he pattern in this case has been Mr. Shamitoff, time and time again, has 

shed his lawyers and shed his obligation to come to court for trial.” That same morning, 

the matter was assigned to Judge Robert J. Moss for trial. 

IV. Nonsuit

The trial court (Judge Moss) met with counsel briefly in chambers before 

calling the matter for trial. The court, addressing Plaintiffs’ counsel, stated: “[I]t’s my 

understanding that because of . . . the reasons set forth in your motion to continue, you 
8

are unable to proceed with trial. You don’t have any witness[es] or other evidence to 

offer; is that true?” In response, Plaintiffs’ counsel stated, “[t]hat is correct.” The court 

asked Anton’s counsel if he wished to make a motion. Anton’s counsel moved for a 

nonsuit. 

The court stated: “The motion for non-suit is granted. I mean, you could 

make the opening statement and he could make his motion after that, but you wouldn’t 

have any witnesses to proceed with or any other evidence to introduce, so I think instead 

of going through that exercise, I’ll just grant the motion for non-suit and let the chips fall 

where they will.” Plaintiffs’ counsel stated: “I have no objection to skipping the 

exercise, Your Honor.” An unsigned minute order was entered granting Anton’s motion 

for a nonsuit. A signed order of nonsuit was entered on July 6, 2016 and was retroactive 

to the date of the minute order.

V. Motion for a New Trial

On February 3, 2015, Plaintiffs filed a notice of appeal from a “[j]udgment 

after court trial” on “12/15/2014.” One week later, Plaintiffs filed a notice of intention to 

move for a new trial pursuant to Code of Civil Procedure section 657. Plaintiffs filed the 

motion papers in March 2015. 

With the motion for a new trial, Plaintiffs submitted a declaration from 

Stocker, who stated he was 72 years old, suffered from hypertension, agitation, and 

stress, and a week before trial had been given a medication to prevent stroke. That 

medication, and a mood-moderating medication he was already taking, produced the side 

effects of drowsiness, dizziness, and disorientation. Stocker declared that when 

Judge Bauer called the case for trial on December 15, denied the request for a 

continuance, and transferred the case to Judge Moss, Stocker was “surprised, disoriented 

and confused” and realized he was not himself. Stocker did not adequately respond to the 

motion for a nonsuit. He stated in his declaration: “In retrospect, it is now clear to me 

that dullness imposed by the combined effects of the two medications caused me to fail to 
9

be responsive to the situation, by alerting the court to my situation and failing to urge the 

court to trail the case for several days or even a week, so that I could assemble secondary 

witnesses and prepare. Further, due to my disorientation from the medications, I failed to 

effectively advise the court that there would be no prejudice whatsoever to the 

Defendant[] by delaying the non-suit at least until Plaintiff[s] presented [their] case in 

chief. Such failure to think on my feet as usual, was the result of my unanticipated 

impairment, which failure deprived Plaintiff[s] of adequate, effective counsel at this key 

juncture of the case.”

The trial court denied the motion for a new trial. 

DISCUSSION

I.

The Trial Court Did Not Err by Denying Plaintiffs’ 

Request for a Trial Continuance.

“Trial continuances are disfavored and may be granted only on an 

affirmative showing of good cause.” (Thurman v. Bayshore Transit Management, Inc. 

(2012) 203 Cal.App.4th 1112, 1127; Cal. Rules of Court, rule 3.1332(c).) Denial of a 

request for a trial continuance is reviewed under the abuse of discretion standard. 

(Thurman v. Bayshore Transit Management, Inc., supra, at p. 1127; Cooksey v. Alexakis 

(2004) 123 Cal.App.4th 246, 250-251.)

“The decision to grant or deny a continuance is committed to the sound 

discretion of the trial court. [Citation.] The trial court’s exercise of that discretion will 

be upheld if it is based on a reasoned judgment and complies with legal principles and 

policies appropriate to the case before the court. [Citation.] A reviewing court may not 

disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof 

appearing in the record.” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984.)
10

A request for a trial continuance must be made “as soon as reasonably 

practical once the necessity for the continuance is discovered.” (Cal. Rules of Court, 

rule 3.1332(b).) Each request for a continuance must be considered on “its own merits”

based on circumstances indicating “good cause.” (Id., rule .1332(c).) As relevant here, 

circumstances indicating good cause include “(2) [t]he unavailability of a party because 

of death, illness, or other excusable circumstances” and “(3) [t]he unavailability of trial 

counsel because of death, illness, or other excusable circumstances.” (Id., 

rule 3.1332(c)(2) & (3).) 

Plaintiffs argue they established good cause for a continuance based on the 

unavailability of a party—Shamitoff—and the unavailability of trial counsel. We note 

that the failure by Plaintiffs’ counsel to serve opposing counsel with the ex parte motion 

papers, and to present them to the trial judge, would justify the trial court’s decision. 

The trial court did not err in finding that Plaintiffs failed to make an 

affirmative showing of good cause. A primary reason given for seeking a trial 

continuance was that Shamitoff was unavailable due to illness or other excusable neglect. 

To show illness, Plaintiffs submitted declarations from Shamitoff, Dr. Kempert, and 

Dr. Moran. The gist of these declarations was that Shamitoff had a heart valve condition 

which was “life-threatening” and required “constant monitoring and treatment” and 

suffered an associated panic attack disorder. This was the same reason given six months 

earlier for the first request for a trial continuance. Back then, in June 2014, Dr. Kempert 

also recommended that Shamitoff not engage in stressful activity for 120 to 150 days. 

Yet, in his declaration submitted in support of the second request for a trial continuance, 

Shamitoff stated he needed to travel to China “ASAP” to deal with manufacturing issues 

and that “[f]ailure to go would result in catastrophic losses of investment and profitable 

operation.”

The trial judge is the judge of the credibility of declarations. (Whyte v. 

Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1450.) The trial judge here could draw 
11

the conclusion that Shamitoff’s health conditions were created or exaggerated as 

necessary to avoid trial, or that those conditions were never going to improve to the point 

at which Shamitoff could testify and participate at trial. The trial judge made the 

comment that Shamitoff “is telling us what’s important to him, and what’s important to 

his health. The trip to China is what he wants to do.” If Shamitoff was well enough to 

travel to China to deal with business issues, he was well enough to come to court for trial.

Plaintiffs argue Judge Bauer misconstrued the declarations in that 

Shamitoff did not state he was going to travel to China at the same time as the scheduled 

trial date, and Dr. Kempert stated Shamitoff could travel to China only once “the 

medications appear to be working for Mr. Shamitoff’s benefit.” Judge Bauer fairly 

construed the declarations. Shamitoff said he needed to go to China “ASAP” (italics 

added), which could be construed to mean now or soon. Dr. Kempert stated the trip to 

China might be beneficial to Shamitoff and reduce his stress; that is, Shamitoff could go 

to China in his then current condition. In the request for a continuance, one of the 

grounds stated for a continuance was “Business Emergency” (boldface omitted) as stated 

in Shamitoff’s declaration, i.e., the need for Shamitoff to travel to China.

Plaintiffs did not seek a trial continuance “as soon as reasonably practical 

once the necessity for the continuance [was] discovered.” (Cal. Rules of Court, 

rule 3.1332(b).) The request for a trial continuance was based on Shamitoff’s preexisting 

health issues that were the basis for a trial continuance six months earlier. Plaintiffs 

delayed seeking the second trial continuance until the very morning of trial. The trial 

judge could reasonably conclude that the reason for the last-minute request for a trial 

continuance was Shamitoff’s desire to go to China or was Plaintiffs’ attempt to delay.

Even if the declarations compelled a finding that Shamitoff was not able to 

attend trial, the trial court was not required to grant a continuance. “The unavoidable 

absence of a party does not necessarily compel the court to grant a continuance. In such 

instance the court should be governed by the course which seems most likely to 
12

accomplish substantial justice, and it may take into consideration the legal sufficiency of 

the showing in support of the motion and the good faith of the moving party.” (Whalen v. 

Superior Court (1960) 184 Cal.App.2d 598, 600.)

Plaintiffs argue a trial continuance should have been granted because their 

trial counsel, Stocker, was “very ill” on the day of trial. They assert the reporter’s 

transcript from December 15, 2014 reveals that Stocker “appears to be confused, and 

unable to even argue coherently for the trial continuance.” We read nothing in the 

reporter’s transcript to indicate Stocker was confused or incoherent. The trial judge, who 

saw and heard Stocker in person, made no comment to suggest Stocker appeared 

confused or incoherent. Plaintiffs argue that Stocker admitted in his declaration 

submitted with the motion for a new trial that he was ill and confused on the day of trial. 

No such declaration appeared with the request for a trial continuance. Finally, Plaintiffs 

argue that Stocker only recently had been substituted in as counsel and was unable to 

engage in an issues conference with Anton’s counsel. But Stocker’s predecessors had 

plenty of time—at least six months since the first trial continuance—to conduct an issues 

conference. 

Other factors also weighed heavily against a trial continuance. Factors for 

the trial court to consider when ruling on a request for a trial continuance include: 

“(1) The proximity of the trial date; [¶] (2) Whether there was any previous continuance, 

extension of time, or delay of trial due to any party; [¶] (3) The length of the 

continuance requested; [¶] (4) The availability of alternative means to address the 

problem that gave rise to the motion or application for a continuance; [¶] (5) The 

prejudice that parties or witnesses will suffer as a result of the continuance; [¶] (6) If the 

case is entitled to a preferential trial setting, the reasons for that status and whether the 

need for a continuance outweighs the need to avoid delay; [¶] (7) The court’s calendar 

and the impact of granting a continuance on other pending trials; [¶] (8) Whether trial 

counsel is engaged in another trial; [¶] (9) Whether all parties have stipulated to a 
13

continuance; [¶] (10) Whether the interests of justice are best served by a continuance, 

by the trial of the matter, or by imposing conditions on the continuance; and [¶] 

(11) Any other fact or circumstance relevant to the fair determination of the motion or 

application.” (Cal. Rules of Court, rule 3.1332(d).)

Here, Plaintiffs sought a continuance on the very first day of trial. 

Shamitoff’s health issues—the heart valve condition and panic disorder—did not arise 

suddenly and Plaintiffs could have sought a trial continuance much earlier. (Cal. Rules of 

Court, rule 3.1332(d)(1).) Plaintiffs previously had sought and obtained a six-month trial 

continuance. (Id., rule 3.1332(d)(2).) In their second request, Plaintiffs sought a lengthy, 

open-ended trial continuance based on representations that Shamitoff’s condition might

be better in 125 to 155 days. (Id., rule 3.1332(d)(3).) Stocker was not engaged in another 

trial (id., rule 3.1332(d)(8)), and Anton’s counsel opposed a continuance (id.,

rule 3.1332(d)(9)). 

Plaintiffs raise a series of factors which, they contend, demonstrate the trial 

court abused its discretion by denying a trial continuance. They argue a continuance 

should have been granted because Anton’s counsel was not prepared for trial, and the 

matter had to be assigned to a different courtroom anyway. By opposing the continuance, 

Anton’s counsel represented he was ready, willing, and able to go forward with trial, 

whatever his state of preparedness.

3

 The court calendar and the fact the trial judge was 

tending to another trial were factors to be considered (Cal. Rules of Court, 

rule 3.1332(d)(7)) but were not dispositive. Plaintiffs argue the trial judge knew the 

result of denying a request for trial continuance would be dismissal because Stocker was 

unprepared for trial. California Rules of Court, rule 3.1332(c) does not identify counsel’s 

 

 

3

 When the trial judge asked Anton’s counsel if he were ready for trial, counsel did not 

say he personally was not prepared to try the case. Instead, Anton’s counsel explained: 

“We haven’t had an issues conference. We haven’t done anything. Mr. Stocker hasn’t 

even subbed into the case. [¶] There’s no way to communicate with the party himself. 

There’s one individual and two entities.” 
14

unpreparedness as a ground for continuing trial, and rule 3.1332(d) does not identify 

unpreparedness as a factor to be considered. While the trial judge perhaps could have 

considered counsel’s unpreparedness, if excusable, in “the interests of justice” (id., 

rule 3.1332(d)(10) or as “[a]ny other fact or circumstance” (id., rule 3.1332(d)(11), the 

judge was not required to grant a continuance on that ground. 

Plaintiffs argue that comments made by Judge Bauer when denying the 

request for a trial continuance “clearly reveal a hostile attitude towards Mr. Shamitoff 

rising to the level of bias.” We categorically reject this argument. Judge Bauer fairly 

interpreted the declarations presented to him and, given all the circumstances, acted well 

within the bounds of reason by denying the request.

II.

The Trial Court Did Not Err by Granting Anton’s

Motion for Nonsuit.

Plaintiffs contend Judge Moss erred by granting a nonsuit before opening 

statements. Code of Civil Procedure section 581c, subdivision (a) provides: “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, without waiving his or 

her right to offer evidence in the event the motion is not granted, may move for a 

judgment of nonsuit.” A nonsuit based on the opening statements is warranted only when 

the court can conclude from all the facts and inferences that there will be no evidence of 

sufficient substantiality to support a judgment in the plaintiff’s favor. (Willis v. Gordon 

(1978) 20 Cal.3d 629, 633.) 

Granting a nonsuit before opening statement is not reversible error “if it is 

clear the plaintiff could not have prevailed even if he had presented his opening 

statement.” (Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 114; see 

Michel v. Moore & Associates, Inc. (2007) 156 Cal.App.4th 756, 760, fn. 4; Atkinson v. 

Elk Corp. (2003) 109 Cal.App.4th 739, 747-749, 757-758.)
15

In this case, it is clear that Plaintiffs could not have prevailed even if they 

had presented opening statement. Plaintiffs’ counsel, Stocker, represented he had no 

witnesses or evidence to present. Based on that representation, the trial court could 

conclude there would “be no evidence of sufficient substantiality to support a judgment 

in [Plaintiffs’] favor.” (Willis v. Gordon, supra, 20 Cal.3d at p. 633.) Granting a nonsuit 

before opening statements therefore was harmless error.

III.

The Trial Court Did Not Err by Denying Plaintiffs’ 

Motion for a New Trial.

Plaintiffs argue the trial court erred by denying their motion for a new trial 

because the denial of their request for a trial continuance and the order granting nonsuit

constituted “[i]rregularit[ies] in the proceedings of the court, . . . or any order of the court 

or abuse of discretion by which either party was prevented from having a fair trial.” 

(Code Civ. Proc., § 657, subd. 1.) 

A trial court has broad discretion in ruling on a new trial motion, and the 

court’s exercise of discretion is accorded great deference on appeal. (City of Los Angeles 

v. Decker (1977) 18 Cal.3d 860, 871‒872.) An order denying a motion for a new trial 

will not be set aside unless there was an abuse of discretion that resulted in prejudicial 

error. (Id. at p. 872.) An order denying a motion for a new trial is reviewed on appeal 

from the underlying judgment (Walker v. Los Angeles County Metropolitan 

Transportation Authority (2005) 35 Cal.4th 15, 19), which in this case is the order of 

nonsuit.

As we have concluded, the trial court did not err by denying Plaintiffs’ 

request for a trial continuance or by granting a nonsuit. The declaration of Stocker, 

which was the evidentiary basis for Plaintiffs’ motion for a new trial, does not alter that 

conclusion. In his declaration, Stocker stated that, on the day of trial, he was disoriented 

and confused from new medication, and, in such a state, failed to ask the court for a brief 
16

continuance to assemble secondary witnesses. That information was not before 

Judge Bauer when he denied the request for a continuance or before Judge Moss when he 

granted nonsuit. In fact, Plaintiffs did not file the motion for a new trial until after they 

filed the notice of appeal. Stocker’s admitted “failure to think on my feet as usual” and 

failure to seek a brief continuance do not constitute an irregularity in proceedings or 

abuse of discretion by the trial court justifying a new trial under Code of Civil Procedure 

section 657, subd. 1.

DISPOSITION

The judgment/order of nonsuit and the order denying Plaintiffs’ motion for 

a new trial are affirmed. Respondent shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.