LOZANO vs KITTA, et al.

22CV008756: LOZANO vs KITTA, et al. 08/20/2026 Hearing on Motion - Other MOTION FOR NONSUIT in Department 512

Tentative Ruling - 08/19/2026 Elizabeth Riles

The Motion to Dismiss filed by John N Kitta, John N Kitta and Associates on 07/10/2026 is Denied with Prejudice.

Defendants John N. Kitta and John N. Kitta & Associates (“Defendants”) move under Code of Civil Procedure §581c for a nonsuit on plaintiff Juan Lozano's (“Lozano” or “Plaintiff”) causes of action for legal malpractice and breach of contract, contending that both are barred by the oneyear limitations period of §340.6(a). Defendant’s Motion for Nonsuit filed on July 10, 2026 is DENIED WITHOUT PREJUDICE.

Relevant Factual Background

Lozano filed his complaint for legal malpractice on March 22, 2022, and a first amended complaint adding a cause of action for breach of contract on October 10, 2022. (Power Dec. ¶¶ 10-11.) Trial began on June 22, 2026. During Lozano's case-in-chief, and before he rested, Defendants moved for nonsuit on both causes of action based on his trial testimony and admitted exhibits. Defendants concede that Lozano has not formally rested, and they alternatively ask the court to defer ruling and treat the motion as one for judgment under §631.8 at the close of his evidence. (Mot. at pp. 4, 16.)

Legal Standard

A motion for nonsuit has the effect of a demurrer to the evidence: It concedes the truth of the facts proved and contends that those facts are not sufficient as a matter of law to sustain the plaintiff's case. Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1328, as modified on denial of reh'g (June 30, 2000)

“‘In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give “to the plaintiff['s] evidence all the value to which it is legally entitled, ... indulging every legitimate inference which may be drawn from the evidence in plaintiff['s] favor....”’ Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838.

In a court trial, a nonsuit may be made either after the Plaintiff’s opening statement or after the Plaintiff has rested his case. California Code of Civil Procedure (“CCP”) §581c; Lingenfelter v. County of Fresno (2007) 154 Cal.App.4th 198, 204. A motion for nonsuit that is erroneously made can be deemed a motion for judgment under CCP §631.8.

The Court cannot take this motion for nonsuit as applying simply to the Plaintiff’s opening statement (and such a motion would have to be DENIED as sufficient allegations were raised in 22CV008756: LOZANO vs KITTA, et al. 08/20/2026 Hearing on Motion - Other MOTION FOR NONSUIT in Department 512 the opening statement to support his claims) because the motion asks the Court to review the testimony of the Plaintiff in making its decision. As such, the motion is premature as a motion for nonsuit because the Plaintiff has yet to rest his case.

Even if the Court were to take the motion as a motion for judgment under CCP §631.8, it would again have to be denied as premature. A motion for judgment cannot be made until the Plaintiff has completed his presentation of the evidence. CCP § 631.8. As such the Court denies the motion without prejudice to Defendant renewing the motion at an appropriate time in the matter.