August 21, 2018
A motion in limine is an evidentiary motion brought on the threshold of trial by which a party seeks to exclude arguably inadmissible or highly prejudicial evidence from trial. The purpose of these motions is to avoid having to “unring the bell” by objecting to the evidence after the jury sees or hears it. [See People v. Morris (1991) 53 Cal.3d 152, 188, disapproved on other grounds by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 530.] Motions in limine can minimize trial disruption and promote efficiency by permitting the thoughtful resolution of potentially difficult evidentiary issues at the outset, in a manner that may not be possible under the time constraints and pressures of trial. [People v. Morris, supra, 53 Cal.3d at 188; Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 669 – 670.]
The power to bring such motions is well-established in practice and case law. [See e.g., People v. Morris, supra, 53 Cal.3d at 188; Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1156.] The California Rules of Court specifically prescribe formatting and procedural requirements for motions in limine. [Cal. Rules of Court, rule 3.1112(f).]
A motion in limine can make a major impact on a case, though this impact may not be apparent at first. For example, in Schweitzer v. Westminster Investments, Inc. (2007) 157 Cal.App.4th 1195, a home seller (“Plaintiff”) sought to regain his property from an equity purchaser (“Defendant”) on the ground that Defendant did not obtain a bond required by Section 1695.17 of the Home Equity Sales Contracts Act (Section 1695.17). On the eve of trial, Plaintiff tried to add a new legal theory to his complaint, but his motion was denied. Defendant then brought a motion in limine to block evidence related to that new legal theory. Exhibits regarding a legal theory that would not be argued at trial would be irrelevant. Defendant’s motion in limine was granted. At trial, Plaintiff won on his original “no bond” theory. Defendant appealed, and the appellate court held that Defendant should have won because Section 1695.17 is void due to vagueness so there is no bond requirement. Because Defendant had wisely brought a motion in limine before trial to block any evidence on Plaintiff’s other theory, there was no ground by which Plaintiff could further pursue the matter.
There are no limits on the subject matter of motions in limine, so long as they address evidence and not the merits of the parties’ legal arguments. They can be used to exclude “any kind of evidence which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial.” [Ulloa v. McMillan Real Estate (2007) 149 Cal.App.4th 333, 337; Evid. Code § 352.]
Motions in limine are sometimes misused to defeat a legal argument by blocking all evidence that supports the argument on the ground that the argument itself is meritless. In McMillin Companies, LLC v. American Safety Indemnity (2015) 233 Cal.App.4th 518, an insured business (McMillin) sued its insurer (ASI) for bad faith in refusing to defend McMillin in an underlying case. ASI argued that (1) it had no duty to defend McMillin in the underlying case, and (2) McMillin had no damages against ASI. McMillin brought a motion in limine to bar any evidence that ASI had no duty to defend; ASI brought a motion in limine to bar any evidence that McMillin had damages against ASI. Rather than deny these motions and proceed to trial, the trial court granted both, effectively ruling on the two key legal theories of the case. The trial court entered judgment that ASI had a duty to defend McMillin in the underlying case and that McMillin had no damages against ASI, because all the remaining evidence pointed to those conclusions. The trial court acted in error, because motions in limine cannot be used to dispose of legal arguments. Accordingly, the appellate court reversed the trial court’s judgment and sent the matter back to the trial court to be retried.
The most common use of a motion in limine is to prevent opposing parties from using unfairly prejudicial evidence. In addition to excluding the prejudicial evidence, the court may instruct the opposing counsel to avoid any mention of the evidence during trial or in arguments to the jury; and to direct opposing counsel’s clients, witnesses, and other persons under opposing counsel’s control to avoid such mention. [L.A. Sup. Ct. Rule 3.57; see Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 793 and In re Charbonneau (1974) 42 Cal.App.3d 505, 507.]
Another common reason lawyers file motions in limine is to exclude expert witnesses who were not properly disclosed before trial. The trial court “shall exclude” expert opinion testimony offered by a party who “unreasonably” failed to exchange expert witness information or make the expert available for a deposition. [Code Civ. Proc. § 2034.300.]
A motion in limine can also be used to prevent counsel from introducing testimony or exhibits without proof of the necessary foundational facts. For example, before expert opinion testimony may be offered, the expert must be shown to have “special knowledge, skill, experience, training, or education” about the subject involved. [Evid. Code § 720(a); People v. Montes (2014) 58 Cal.4th 809, 861.] The trial judge has broad discretion to determine whether an expert witness is qualified to testify based on knowledge, skill, education, and experience. [People v. Montes, supra, 58 Cal.4th at 861.] In order to render an expert opinion, courts require that the so-called expert must first be qualified as an expert in the field in which he would offer an opinion. It is error for a trial judge to admit the testimony of a witness if the witness clearly lacks the qualifications to render the opinions for which the party is asking. [People v. Dowl (2013) 57 Cal.4th 1079, 1089.]
Although experts are given considerable leeway concerning the matters upon which they may rely, they may not rely on speculation or conjecture. [People v. Wright (2016) 4 Cal.App.5th 537, 545 – 546.] “[E]ven an expert witness cannot be permitted just to testify in a vacuum [about] things that he might think could have happened.” [Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 338.] “[T]he courts have the obligation to contain expert testimony within the area of the professed expertise, and to require adequate foundation for the opinion.” [Redevelopment Agency of San Diego v. Mesdaq (2007) 154 Cal.App.4th 1111, 1130, citing Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523.]
A motion in limine can also be used to ask the court to exercise its discretion under California Evidence Code section 352 to exclude photographs, physical evidence, or other materials whose probative value is substantially outweighed by the probability their admission will necessitate undue consumption of time or create substantial danger of undue prejudice, confusing the issues, or misleading the jury. [Evid. Code § 352.]
A judge need not grant or deny a motion in limine before trial. Indeed, a common approach is to defer the ruling by taking the motion under submission, pending a full hearing pursuant to Evidence Code section 402 during trial. [L.A. Sup. Ct. Rule 3.57; Fatica v. Superior Court (2002) 99 Cal.App.4th 350, 352.] Taking the motion under submission is a frequent outcome because the trial judge has not yet heard the lawyers’ opening statements or seen all of the trial exhibits. However, the lawyer bringing a motion in limine must press the court for a ruling during trial, or else the motion is waived.
If the judge takes the matter under submission, the judge may grant a temporary exclusion order. If a temporary exclusion order is granted, the judge usually instructs counsel to avoid mentioning the evidence until the court makes its final ruling, and the judge also instructs counsel’s associates, clients, witnesses, and others under the lawyer’s control accordingly. [L.A. Sup. Ct. Rule 3.57(d).]
If the opposing lawyer violates an order in limine (by referring to excluded evidence), a series of remedial options are available to the court. These include holding the lawyer in contempt of court, citing the lawyer for misconduct, and/or granting a mistrial. An attorney or party who is held in contempt may be fined up to $1,000.00, imprisoned up to five days, or both, and may also be ordered to pay the reasonable attorneys’ fees and costs of any other party in initiating the contempt proceeding. [Code Civ. Proc. § 1218(a).] If the court finds that the violating attorney’s behavior constitutes professional misconduct, the attorney may also owe State Bar disciplinary charges. [Simmons v. Southern Pac. Transp. Co. (1976) 62 Cal.App.3d 341.]
The normal remedy for a single violation of an order in limine is to: 1) Admonish the attorney or party to cease the objectionable conduct; and 2) Instruct the jury to disregard the objectionable exhibit or testimony. However, admonishing the attorney/party and jury is not always a satisfactory remedy. Indeed, as stated earlier, the major advantage of granting a motion in limine is to avoid the futile attempt to “unring the bell” by moving to strike evidence after the jury sees it. [Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337.] Therefore, if the court finds that the violation of an order in limine is so prejudicial that even a prompt admonition to the jury cannot cure it, the court may declare a mistrial. [Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 593.]
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This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.