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Copyright © 2011 by the author.For reprint permission, contact the publisher: www.plaintiffmagazine.com 1
www.plaintiffmagazine.com
JULY 2011
BY SOLANGE E. RITCHIE
Over the past few months, I noticemore and more that defense firms aremisusing motions in limine (literally “atthe threshold” in Latin) at the beginningof trial as a substitute for summary judg-ment/adjudication motions or other dis-positive motions which should have beenfiled much earlier than on the eve of trial.More and more, trial judges appear to be“taking the bait,” so to speak, grantingthese motions on the eve of trial, all to theprejudice of plaintiffs and their attorneys.This is a misuse of motions in limine thatis improper and prejudicial.
Motions in limine are meant to beused to preclude the presentation of evi-dence that a party considers inadmissibleor prejudicial. They may also be used tolimit testimony to a specific area, such aswith an expert. A typical order in limineexcludes the challenged evidence and di-rects the opposing lawyer, party, andwitnesses not to refer to the excluded mat-ters in the presence of the jury and also topreclude any information getting to thejury that the motion was filed and/orgranted. (Kelly v. New West Federal Savings(1996) 49 Cal.App.4th 659, 669.)
Motions in limine may also be used tohave the Court address Evidence Code§402 issues outside of the presence of thejury. Such motions are useful when the de-fense is trying to improperly attack thecharacter of a plaintiff or a witness in a
civil trial which may be prejudicialor confuse the jury. See EvidenceCode §787. Motions in limine areclassically used to preclude the in-troduction of evidence where theprobative value of the evidence is“substantially outweighed by theprobability that the admission will(a) necessitate the undue con-sumption of time, or (b) createsubstantial danger of undue preju-dice, of confusing the issues, or ofmisleading the jury.” (See Evid.Code, § 352.) But even under Evi-dence Code section 352, defensefirms routinely file motions in lim-ine ignoring the words “substan-tial” and “substantially.” Motions inlimine can also be used to pre-clude non-testifying non-party witnessesfrom being present in the courtroomwhen others are testifying. (See Evid.Code, § 777.) Courts routinely grant thesemotions.
Courts have noted that “[t]he advan-tage of such motions is to avoid the obvi-ously futile attempt to un-ring the bell inthe event a motion to strike is granted inthe proceeding before the jury.” (Hyatt v.Sierra Boat Co. (1978) 9 Cal.App.3d 325,337; Stein-Brief Group, Inc. v. Home Indem.Co. (1998) 65 Cal.App.4th 364, 369.)
A motion in limine, under appropri-ate circumstances, can serve the functionof a “motion to exclude” under EvidenceCode section 353 by allowing the trial
court to rule on a specific objection toparticular evidence (but note that in othercases a motion in limine may not satisfythe requirements of section 353-until theevidence is actually offered and the courtis aware of its relevance in context, itsprobative value, and its potential forprejudice, all being matters related to thestate of the evidence at the time an objec-tion is made, then the court cannot intelli-gently rule on admissibility. An objectionat the time the evidence is offered servesto focus the issue and to protect therecord. (Kelly v. New West Federal Savings(1996) 49 Cal.App.4th 659, 669.)
In rare cases, a motion in limine maybe used as the functional equivalent of an
Motions in liminemisused and abusedMore trial judges are taking the defense bait,granting motions on the eve of trialthat effectively gut your case
order sustaining a demurrer to the evi-dence, or nonsuit. An “objection to all evi-dence” is essentially the same as a generaldemurrer or motion for judgment on thepleadings seeking to end the trial withoutthe introduction of evidence. (MechanicalContractors Assn. v. Greater Bay Area Assn.(1998) 66 Cal.App.4th 672, 676-77; Ed-wards v. Centex Real Estate Corp. (1997) 53Cal.App.4th 15, 26.) An objection to allevidence is properly sustained where, evenif the plaintiff’s allegations were proven,they would not establish a cause of action.(Mechanical Contractors Assn., supra, at 677and Edwards, supra, at 26).)
Thus, motions in limine are supposedto regulate the introduction of evidence attrial or govern other aspects of the pro-ceedings before the jury. They were notdesigned to replace dispositive motions,such as those for summary judgment orjudgment on the pleadings. Nonetheless,it has become increasingly common for lit-igants, especially defendants, to use mo-tions in limine for that very purpose.
Amtower v. Photon
Amtower v. Photon Dynamics, Inc. (2008)158 Cal.App.4th 1582 illustrates this grow-ing trend. In Amtower, the trial courtgranted a motion in limine on a statute oflimitations defense after conducting aminitrial that consisted of oral testimonyand documentary evidence. The trial courtfound one of the plaintiff’s claims was time-barred, essentially making a statute of limi-tations determination that should havebeen made via a defense motion for sum-mary judgment or summary adjudicationwhich should have been filed months ear-lier. The court of appeal upheld the trialcourt’s misuse of the motion in limine.
Amtower criticized using a motion inlimine as a dispositive motion, stating:
Plaintiff maintains that the trialcourt’s use of an in limine motion to ad-judicate his section 11 claim deprivedhim of the right to a jury trial on thestatute of limitations issue. Plaintiff’s ar-gument highlights a procedure that hasbecome increasingly common amonglitigants in our trial courts, which is the
use of in limine motions as substitutesfor summary adjudication motions, mo-tions for judgment on the pleadings, orother dispositive motions authorized bystatute. We have certified this case forpublication in order to express our con-cerns surrounding the proliferation ofsuch shortcut procedures. The betterpractice in nearly every case is to affordthe litigant the protections provided bytrial or by the statutory processes. In thepresent case, however, although wewould have preferred that the statute oflimitations issue be decided by a propersummary adjudication motion or mo-tion for nonsuit, the trial court’s un-orthodox procedure does not warrantreversal because plaintiff could not haveprevailed under any circumstances.
(Id. at 1588.) Despite this criticism, the court never-
theless, blessed the “shortcut” motion inlimine that the trial court approved. A cur-sory reading of Amtower may thereforelead lawyers to think that motion in limine“shortcuts” are perfectly acceptable as asubstitute for summary judgment or otherdispositive motions.
This is problematic for a variety ofreasons. The appellate court in Amtowercited with approval Justice Rylaarsdam’sobservation in a concurring opinion inR&B Auto Center, Inc. v. Farmers Group,Inc. (2006) 140 Cal.App.4th 327, that theuse of a motion in limine to determinethe sufficiency of the pleading or the ex-istence of a triable issue of fact was a“perversion of the process.”
Amtower referred to motions inlimine used for dispositive purposes as“shortcuts,” noting that they circumventthe procedural protections that statutorymotions provide. The court of appealfound that these motions risk blindsid-ing the non-moving party and may in-fringe on a litigant’s right to a jury trial,as guaranteed by the California Constitu-tion.
In Amtower, the court found shaky au-thority to support its questionable holdingin cases where motions in limine wereused as shortcuts to reach a desired result.
In Coshow v. City of Escondido (2005) 132Cal.App.4th 687, the trial court construeda motion in limine as a motion for judg-ment on the pleadings and dismissed theentire action – notwithstanding the dan-ger of doing so, especially in light of caseauthority holding that motions for judg-ment on the pleadings are disfavored un-less leave to amend is given to theplaintiff.
In Stem-Brief Group, Inc. v. Home In-demnity Company (1998) 65 Cal.App.4th364, the trial court ordered the plaintiffto file a pretrial motion in limine settingforth its “best case scenario” in favor ofcoverage. In ruling on the motion, thetrial court concluded there was no poten-tial for coverage and entered judgmentfor the defense. In essence, the trial courtwas permitting the defendant to bring asummary judgment motion on the eve oftrial, without any of the statutory noticeand procedural protections that Code ofCivil Procedure section 437c provides.The appellate court found that since theissue of coverage was a matter of contractinterpretation by the court, the trialcourt’s unorthodox procedure was not tobe criticized as long as the plaintiff had afull opportunity to present its position.
Amtower relied on Michelson v. Camp(1999) 72 Cal.App.4th 955. In that case,the trial court dismissed an action whenthe plaintiff was unable to make an offer ofproof of recoverable damages after the de-fendant had filed a pretrial motion in lim-ine. The Michelson court rationalized itsdetermination by finding that the plain-tiff’s offer of proof as tantamount to anopening statement and granted nonsuit.
Amtower also relied on Atkinson v.Elk Corp. (2003) 109 Cal.App.4th 739,748-749, a case in which the trial courtgranted nonsuit on its own motion afterstudying the law and inviting stipula-tions concerning the contractual rela-tionship between the parties. All ofthese cases improperly bypass the signifi-cant statutory and notice requirementsof summary judgment motions andother dispositive motions which canbe detrimental to a plaintiff’s case and
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invite the attention and scrutiny fromthe court of appeal.
The Amtower case and other cases likeit undoubtedly lead to local rules limitingthe scope of motions in limine, such asthe Superior Court of Los Angeles, rule8.92(b):
A motion in limine shall not be usedfor the purpose of seeking summaryjudgment or the summary adjudicationof an issue or issues. Such motions mayonly be made in compliance with Codeof Civil Procedure Section 437c andcourt rules pertaining thereto.Trial courts using these nontradi-
tional methods of disposing of cases onthe eve of trial create problems and canactually make litigation more expensive.
The disadvantages of using motionsin limine in this way include circumvent-ing procedural protections provided bythe statutory motions or by trial on themerits, blindsiding the nonmoving party,and, in some cases, infringing on a liti-gant’s right to a jury trial. (Cal. Const., art.I, § 16.)
Unnecessary reversals
Motion in limine misuse can also re-sult in unnecessary reversals. The risk ofreversal arises when appellate courts arerequired to review a dispositive ruling onan in limine motion as if it were the prod-uct of a motion for nonsuit after openingstatement. “[G]ranting of a nonsuit afteran opening statement is a disfavored prac-tice; it will be upheld only when it is clearthat counsel has undertaken to state all ofthe facts which he expects to prove and itis plainly evident that those facts will notconstitute a cause of action.” (Uccello v.Laudenslayer (1975) 44 Cal.App.3d 504,509; and see John Norton Farms, Inc. v.Todagco (1981) 124 Cal.App.3d 149, 161.)The standard of review in such cases re-quires that all inferences and conflicts inthe evidence be resolved in favor of thelosing party and against the judgment.(Panico v. Truck Ins. Exchange (2001) 90Cal.App.4th 1294, 1296.) By contrast, onappeal from a judgment following trial,appellate review favors the judgment. (In
re Marriage of Arceneaux (1990) 51 Cal.3d1130, 1133.) This creates a situation wherethe determinations in some cases will besubject to reversal where, had the trialcourt just taken the time to hold a trial, re-versal would not be warranted. (Panico v.Truck Ins. Exchange, supra, 90 Cal.App.4that p. 1296.) The misuse of motions in lim-ine as shortcuts can lead to more reversalson appeal, all other things being equal,because the governing standard of reviewis less deferential in cases involving thedispositive use of motions in limine.
Further, although motions in liminemay seek the same result as summaryjudgment motions, they do so without theprocedural and constitutional notice anddue process protections afforded fromthe Code of Civil Procedure section 437c.
Authority now exists for the propo-sition that trial courts have the inherentpower to use the motions in liminewith relatively few procedural safe-guards. The Amtower court set forththis argument:
In spite of the obvious drawbacksto the use of in limine motions todispose of a claim, trial courts dohave the inherent power to use themin this way.... Courts have inherentpower, separate from any statutoryauthority, to control the litigation be-fore them and to adopt any suitablemethod of practice, even if themethod is not specified by statute orby the Rules of Court... But when thetrial court utilizes the in limineprocess to dispose of a case or causeof action, we review the result as wewould the grant of a motion for non-suit after opening statement, keepingin mind that the grant of such a mo-tion is not favored, that a key consid-eration is that the nonmoving partyhas had a full and fair opportunity tostate all the facts in its favor, and thatall inferences and conflicts in the evi-dence must be viewed most favorablyto the nonmoving party.
(Id. at 1576 (citations omitted))The cause of action that the trial
court ruled on in Amtower was a claim for
breach of fiduciary relationship. Theplaintiff had argued that a statute of limi-tations defense normally presents a ques-tion for the jury, and that the plaintiffwould be denied his right to a jury trial ifthe motion were granted. The Court ofAppeal found the trial court’s determina-tion in Amtower to be harmless. So taken toits illogical conclusion, Amtower stands asproposition that it is acceptable to deny aplaintiff the right to a jury trial throughthe use of a motion in limine as a disposi-tive motion.
While Amtower shows that using mo-tions in limine as a dispositive device maysave time, it creates issues because it de-nies the non-moving party of their funda-mental right to a jury trial. In myperspective, it takes motions in limine outof their normal role. It denies a litigantthe right to proper notice of a defendant’sarguments, just prior to trial, when liti-gants are in “trial mode” and may be leastable to deal with a “surprise” motion. It of-fers none of the notice and proceduralsafeguards of proper and timely filed mo-tions for summary judgment or summaryadjudication motions. It allows trial courtsto potentially clear their dockets, while atthe same time creating a nightmare forthe Court of Appeal. It denies litigantsdue process notice of defense argumentsand strategy. For all these reasons, motionin limine misuse should be curtailed bydefense firms and frowned on by the trialcourts. Motions in limine should be usedonly for their original purpose – to chal-lenge evidence that is so inadmissible andprejudicial that its mere mention in thepresence of the jury would lead to an un-fair trial.
A few cases have been critical of theholding of Amtower, and rightfully so. Onesuch case, Pellegrini v. Weiss (2008) 165Cal.App.4th 515 involved a real-estatetransaction. In the case, Weiss raised as anaffirmative defense the fact that Californiahad disqualified Pellegrini & Associatesfrom doing business in the state. Pelle-grini filed a motion in limine to excludethe evidence of disqualification and of-fered a Certificate of Revivor from the
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state to show that the plaintiff had curedany defects and had been in good stand-ing during the time that the real estatetransaction occurred. The trial Court tookjudicial notice of the Certificate of Revivoron motion in limine, ruling that evidenceof the plaintiff’s disqualification was notrelevant for trial. On appeal this ruling ofthe trial court was affirmed. On appeal,the court of appeal again stated its dissatis-faction with this use of motions in limineas case-dispositive motions:
Generally speaking, in limine mo-tions are disfavored in cases in whichthey are used not to determine in ad-vance the court’s projected ruling if pre-sented with an evidentiary objectionduring trial, but instead to serve as asubstitute for a dispositive statutory mo-tion. The increasing prevalence of thepractice of using in limine motions inthis way produces substantial risk of re-versal, particularly in situations in whichthe constitutional rights to jury trial andconfrontation are implicated. As westated in the recent case of Amtower v.Photon Dynamics, Inc. (2008) 158Cal.App.4th 1582, 1594 [71 Cal.Rptr.3d361]: “The disadvantages of such short-cuts are obvious. They circumvent pro-cedural protections provided by thestatutory motions or by trial on the mer-its; they risk blindsiding the nonmovingparty; and, in some cases, they could in-fringe a litigant’s right toa jury trial. (Cal. Const., art. I, § 16.)”(Ibid.) “The better practice in nearlyevery case is to afford the litigant theprotections provided by trial or by thestatutory processes.”
(Id. at p. 1588, 71 Cal.Rptr.3d 361; see alsoMiller v. Campbell, Warburton, Fitzsimmons,Smith, Mendel & Pastore (2008) 162Cal.App.4th 1331 [76 Cal.Rptr.3d 649].)
Miller v. Campbell, Warburton, Fitzsim-mons, Smith, Mendel & Pastore (2008) 162Cal.App.4th 1331 illustrates motion in lim-ine misuse. In Miller, Defendant was a lawfirm that had represented plaintiff ReikoMiller in connection with her duties as theexecutor of her mother’s estate. At theconclusion of that matter, Campbell
Warburton requested its attorneys’ feesfrom the probate court and was awardedall but one category of the fees it sought.The probate court’s major reason fordenying that one category of fees was itsfinding that the fees had been generatedby services rendered to Miller personally,not as the executor of the estate. Camp-bell Warburton did not appeal the pro-bate court’s decision but initiated anaction for quantum meruit to recover thefees directly from Miller. The trial courtgranted Miller’s motions in limine to ex-clude all evidence, which resulted in dis-missal of the case. There were twogrounds for the trial court’s ruling. First,the trial court held that the claim wasbarred by the final judgment in the pro-bate case. Second, the trial court con-cluded, based upon the evidencesubmitted in connection with motions inlimine, that Campbell Warburton couldnot prove its quantum meruit claim.Campbell Warburton appealed the trialcourt’s judgment. The court of appeal re-versed, having issues with the use of mo-tions in limine in the case.
In reversing the trial court, the courtof appeal held that the standard of reviewwas the same as the one applied to a grantof a nonsuit after an opening statement.The court felt that the lack-of-expectationsmotion was, in effect, a motion for sum-mary judgment or for nonsuit. The courtexpressed its disfavor of these substitutesfor trial or for statutory motions that testthe factual basis for a claim, noting the riskthey pose to fair adjudication of factual is-sues. (Amtower v. Photon Dynamics, Inc.(2008) 158 Cal.App.4th 1582 [71Cal.Rptr.3d 361.]) As stated in Amtower,“when the trial court utilizes the in limineprocess to dispose of a case or cause of ac-tion for evidentiary reasons, we review theresult as we would the grant of a motionfor nonsuit after opening statement, keep-ing in mind that the grant of such a mo-tion is not favored, that a keyconsideration is that the nonmoving partyhas had a full and fair opportunity to stateall the facts in its favor, and that all infer-ences and conflicts in the evidence must
be viewed most favorably to the nonmov-ing party.” (Id. at p. 1595.)
The court in Miller refused to usethe substantial evidence or the abuse-of-discretion standard used in Pellegrini. Afterreviewing the law on an executor’s per-sonal liability for fees, the court of appealfound the trial court erred in ruling thatthe evidence was insufficient as a matterof law.
Amtower is the perfect example of“bad facts make bad law.” In Amtower, thetrial court overstepped its boundaries try-ing to get at a result which apparently bestsuited the trial judge and his docket, asopposed to the parties. In doing so, thetrial court forgot the system which it ismeant to serve, a judicial system where allparties to a case are supposed to havetheir day in court, regardless of how muchmoney one might have or how slick orhigh-priced one’s lawyers are. It is not theAmerican way, when a plaintiff makes itthrough expensive discovery and case-dis-positive motions under the Code of CivilProcedure, only to be blind-sided either intrial or just before trial by a slick motionin limine being misused for purposesother than its original purpose. All partiesshould play by the same rules – ruleswhich avoid such gamesmanship and “sur-prise” at trial.
Further, plaintiff should be entitledafter surviving to trial, to have their day incourt. Amtower and its progeny cases mustnot be used as a means to offset proceduralsafeguards provided by the Code of CivilProcedure. Nor should a plaintiff have toincur the stress and costs associated withpreparing for trial on multiple causes of ac-tion, only to have some, or all of thosecauses of action, evaporate just before trialthrough motion in limine misuse.
Misusing motions in limine creates anunfair and biased system, where randomdeterminations of a trial judge using Am-tower can totally derail a case just beforetrial. Given the shaky authority uponwhich Amtower and its progeny cases rest,it should not be considered valid authorityfor motion in limine misuse. Plaintiff’s at-torneys must be prepared to rebut its
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holdings and its findings. Trial courtsmust also be careful not to fall into thetrap that Amtower creates, only to havetheir misuse of motions in limine reversedon appeal.
Solange Ritchie practices law with SteveYoung, a civil justice attorney with over 150
jury trials to his credit. She has experience incomplex fraud and contract related matters, in-cluding Anthony v. Mazon, a fraud/breach ofcontract case tried in Orange County which re-sulted in a jury award recognized as one of theTop Verdicts for 2005 for plaintiffs by the LosAngeles Daily Journal. She publishes extensively
on the issue of punitive dam-ages, arbitration, summaryjudgment and other areasrelated to civil practice.She can be reached [email protected].
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Ritchie