Perhaps the most common attack on the plaintiff is “character evidence,” such as prior suits, prior accidents, and the like.

California Evidence Code section 1101, “Evidence of character to prove conduct” states:

(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character ( whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. (Emphasis added.)

This section is a starting point for protecting your client at the pre-trial motion stage to exclude a whole host of information damaging to your client.

This is not to say that you cannot bring an affirmative motion in limine (or oppose one of theirs) to be sure that you can bring in the other side’s character.

In cases where “motive matters,” that is, punitive damages cases where the plaintiff must prove malice or fraud, or, for example, discrimination cases, the other side’s prior bad acts are admissible. See Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 991:

As we have previously noted, [the defendant’s] character or personality in the workplace was relevant to the issues of defendant’s liability and punitive damages. Any otherwise admissible evidence, including evidence of reputation, is admissible to prove a person’s character or character trait when character or a trait of character is an ultimate fact in dispute in the action. (Id. at p. 991; emphasis added.)

This is particularly useful in punitive damages cases where the basis for punitive damages rests on an allegation that the “bad actor” was an employee or agent who the defendant company retained despite knowledge of “lack of fitness for duty.” (See Civ. Code § 3294.)

The most oft-used motion in limine is probably one based on Evidence Code section 352:

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

This is probably also the Evidence Code section with the lowest number of reported cases interpreting it for the simple reason that so much deference is given to the trial court in determining what does and does not fall within this exclusion.

This is an obvious basis for any motion in limine, and in fact, should be cited along in nearly every motion in limine, because of its broad potential for application. However, be mindful of the following as stated in People v. Rucker (2005) 126 Cal.App.4th 1107:

The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.” (Id. at p. 1119.)

The courts know, as a matter of logic, that anything that is “relevant” is also “prejudicial” in the sense that it harms one side and benefits the other. If a 352 motion is brought simply because one side does not like some piece of evidence, and without any real basis for argument as to “emotional bias” or the like, that motion only highlights to the court that the evidence is significant.

Therefore, this motion must always start first with an argument as to why the information is irrelevant (or, at best, of limited relevance), that is, of “low or no probative value.” Only then should the motion argue the prejudice, and then particularly as to why the prejudice is unfair or emotionally-based.

Frequently, the other side wants to hide what they know about your client behind privilege. For example, they often choose not to disclose what they learned in investigation. There is good authority for this. In Nacht & Lewis Architects v. Superior Ct. (1996) 47 Cal.App.4th 214, the court held that Form Interrogatories 12.2 and 12.3, which ask for identification of which witnesses were interviewed and which provided statements, is objectionable as invasive of the work product privilege.

Though the defendant’s position may be legally correct, they may also be wielding a double-edged sword.

Litigants cannot use privilege as both a shield and a sword. In A&M Records, Inc. v. Heilman (1977) 75 Cal.App.3d 554, 566, the court held that a litigant claiming his constitutional privilege against self-incrimination in discovery could not then waive it and testify at trial. (See also Dwyer v. Crocker National Bank (1987) 194 Cal.App.3d 1418, 1432 [“courts have never allowed a plaintiff to use the self-incrimination privilege as a ‘shield and sword’”]; see also In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1171 [“No reason appears … why evidence preclusion orders under A&M should not apply ‘where relevant evidence is sought to be discovered … is withheld on the basis of attorney-client privilege.’”])

If you think the other side has been hiding something behind privilege, whether it be witnesses or anything else, bring this motion.

The nice thing about this motion is that it may be an exception to the “no general motions in limine rule.” Generally speaking, motions in limine must address the specific evidence to be excluded, as opposed to “general” ones, such as “No Character Evidence” or “Nothing That Is More Prejudicial Than Probative.” However,

There, because by definition you don’t know what the evidence is, you cannot make a more specific motion.

The other nice thing about this motion is that it may flush out the other side’s evidence, as they may fear that if they don’t disclose it, they won’t be able to use it.

The usefulness of a juror questionnaire is dependent on how much time and thought you give to its contents. A properly formulated questionnaire can provide a wealth of information in a short period of time allowing you to use voir dire to focus on specific issues with each juror, rather than just obtaining basic information.1While judges generally have their own predisposition regarding the efficacy of using questionnaires, Code of Civil Procedure section 205(d) allows the court to use a question if “deemed relevant and necessary for assisting in the voir dire process or to ascertain whether a fair cross section of the population is present by law.”

In addition, Civil Procedure Code section 222.5 provides for “liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case. The fact that a topic has been included in the judge’s examination should not preclude additional nonrepetitve or nonduplicative questioning in the same area by counsel.” (C.C.P. § 222.5) Moreover, section 222.5 provides that: “A court should not arbitrarily or unreasonably refuse to submit reasonable written questionnaires, the contents of which are determined by the court in its sound discretion, when requested by counsel.” (Emphasis added.) Thus, in the absence of good cause, the use of a jury questionnaire is encouraged.

Utilizing a motion in limine for this purpose allows you to provide the court with the relevant law and reasons why the use of a questionnaire will make voir dire expeditious. You should also attach the proposed questionnaire (and have copies made in advance for the jury pool), thereby reducing any inconvenience the court may perceive in using the questionnaire.

When requesting the use of a questionnaire, it is important to stress to the court how and why the questionnaire will save time in selection of the jury. It is also helpful to provide the court with the estimated time it will take the prospective jurors to complete the questionnaire and the time it will take the court and counsel to review the competed questionnaires versus the time it would take to elicit the information contained in the questionnaires orally. Ideally, you should request that both counsel be able to review the questionnaires overnight. As a further incentive to use the questionnaire, you may suggest in your motion in limine that the questionnaires be completed by the prospective jury panel during argument on motions in limine or administered by the jury commissioner at a convenient time.

It is important to note to the court that questionnaire answers will enable counsel and the court to quickly identify those persons who may have to be disqualified for bias or hardship so that voir dire of those jurors can occur prior to general voir dire. This will minimize the time persons who should be excused for cause must wait to be excused, would avoid jurors learning from each other “acceptable” hardship responses, and generally minimize time-consuming hardship voir dire.

Finally, a juror questionnaire should be designed to ferret out prospective jurors with bias or prejudice. Jurors who might be inhibited to express bias or prejudice in open court might feel freer to disclose such bias or prejudice by privately responding to written questions. The questionnaire allows prospective jurors to be candid about their biases or prejudices without “polluting” the minds or feelings of other jurors.

This is especially important in the current political climate where there has been extensive media coverage on the topics of “frivolous lawsuits,””excessive jury awards,” legislation targeting “caps” on damage awards, and other “tort reform” proposals. A significant proportion of the venire has been exposed to such media publicity, creating the potential for widespread bias against civil litigation, particularly personal injury litigation. The written juror questionnaire enables counsel to assess jurors’ opinions and possible biases and prejudices on these and other topics without further “contaminating” other prospective jurors. Such a questionnaire also allows the court and counsel to determine which prospective jurors need to be individually voir dired out of the presence of the other jurors.

A current trend is for defendants to attempt to preclude plaintiff from black boarding the actual amount of any special damages, instead limiting damages to those that have not been paid by insurance. However, the collateral source rule is still applicable in such circumstances and should be asserted prior to trial. Thus, it is wise to prepare a motion in limine to exclude such evidence of collateral source payments in front of the jury as it would play to a jury’s biases and prejudices rather than to its sense of reason, and as such should be excluded pursuant to California Evidence Code section 352.

It has been held that a defendant may not mitigate damages from collateral payments where the plaintiff has been compensated by an independent source, such as insurance, pension, continued wages or disability payments. (Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 17-18.)

The principle espoused in the Helfend decision, known as the “collateral source rule,” is well-recognized by the courts of this state. (See Hrnjak v. Graymar, Inc. (1971) 4 Cal.3d 725, 728-29 [prejudicial error to allow evidence of plaintiff’s receipt of compensation under medical payments section of automobile liability policy]; Gersick v. Shilling (1950) 97 Cal.App.2d 641, 649-50 [error to allow testimony that plaintiff’s medical bills were paid by his insurer].) In addition, Evidence Code section 1155 precludes the admission of any evidence of insurance as follows: “Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible to prove negligence or other wrongdoing.”

Evidence Code section 350 states that “[n]o evidence is admissible except relevant evidence.” Relevant evidence is defined by Evidence Code section 210 as “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (See People v. Kelly (1992) 1 Cal.4th 495, 523.) The court has no discretion to admit irrelevant evidence. (People v. Keating (1981) 118 Cal.App.3d 172, 179-80.)

In a personal injury case, this issue arises when the plaintiff receives reimbursement for medical expenses incurred as a result of the subject accident through his health insurer. The decision in Hrnjak applies to such a situation. Additionally, it has been held that evidence that the plaintiff has been reimbursed or will receive payments from a “collateral source” is inadmissible in personal injury cases. (Helfend v. Southern Calif. Rapid Transit Dist., supra, 2 Cal.3d 1.) Under the “collateral source rule,” medical benefits (and any other injury compensation) received by the plaintiff from sources wholly independent of the defendant are not deducted from the damages otherwise recoverable. In such circumstances, the defendant is not entitled to an “offset” for the plaintiff’s “collateral source” compensation and cannot introduce the fact of such payments into evidence on the question of mitigation of damages. (Id. at pp. 6-13.) (See also Acosta v. Southern Calif. Rapid Transit Dist. (1970) 2 Cal.3d 19, 25-26; De Cruz v. Reid (1968) 69 Cal.2d 217.) This judicially-created rule reflects California public policy of encouraging “prudent investment in insurance” and ensuring that tort victims are “made whole.” (Kardly v. State Farm Mut. Auto. Ins. Co. (1989) 207 Cal.App.3d 479.)

If you have taken the time to propound Form Interrogatories Nos. 15.1 and 17.1 (with a Request for Admission) and in response received pro forma responses from the defendant, you can use the defendant’s insincere responses to your advantage in a motion in limine to limit the defendant’s affirmative defenses and other evidence. Form Interrogatory 15.1 requests the following:

FORM INTERROGATORY 15.1:

Identify each denial of a material allegation and each special or affirmative defense in your pleadings and for each state;

(a) state all facts upon which you base the denial or the special or affirmative defense;

(b) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and

(c) identify all DOCUMENTS and other tangible things that support your denial or special or affirmative defense, and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.

Similarly, Form Interrogatory 17.1, served in conjunction with Requests for Admission, requires that a party provide all facts, witnesses and documents on which a denied response was based. Oftentimes a defendant will respond with a general denial, failing to put forth any specific facts, witnesses or documents. If the defendant later attempts to use specific facts, witnesses and documents to establish affirmative defenses in the case, a motion in limine can preclude admission of such evidence.

If a defendant fails to provide substantive responses to 15.1 and 17.1, a motion in limine can be brought pursuant to Code of Civil Procedure section 2023.030 for an issue and/or evidentiary preclusion. Sections 2023.030(b) and (c) provide the following:

(b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.

(c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.

Absent some unusual extenuating circumstances, the appropriate sanction when a party fails to provide certain evidence to the opposing party as required by the discovery rules is preclusion of that evidence from the trial – even if such a sanction proves determinative in terminating the defendant’s case. (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377.) The trial court does not abuse its discretion when it prevents a party from introducing evidence without considering less drastic sanctions when the imposition of some lesser sanction would permit the offending party to benefit from their stalling tactics. (Do It Urself Moving & Storage Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27.) The Discovery Act essentially mandates that parties respond with the “truth, the whole truth, and nothing but the truth” and plaintiff is entitled to presume that defendant did, in fact, respond “fully and truthfully” and that the defendant has no evidence to support any of its affirmative defenses. (Scheiding, supra., 64 Cal.App.4th at p. 76, citing Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 593.)

In any such motion in limine, it is important to assert that the rules of discovery would be rendered a nullity by virtue of a ruling permitting defendant’s strategy to “surprise” plaintiff with the evidence during trial. The defendant is simply not allowed to keep plaintiff in suspense until the time of trial with respect to the defense of his case. (See Burke v. The Superior Court of Sacramento County (Fidelity) (1969) 71 Cal.2d 276; Singer v. Superior Court (1960) 54 Cal.2d 318, 323-325; Durst v. The Superior Court of Los Angeles County (Lumbermens) (1963) 218 Cal.App.2d 460, 465.) “[D]efendant’s persistent refusal to share with plaintiff the facts underlying their denial of liability and their purported affirmative defenses” warrants an imposition of a sanction striking defendant’s answer to the complaint. (See, Collision & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1619.)

Where a defendant chooses to play fast and loose in the discovery process and refuses to provide any facts, any evidence, or identify any witness who would support the defendant’s denial and affirmative defenses, the defendant must be precluded from introducing any such evidence at trial as the plaintiff would be unable to search out information to rebut the affirmative defenses. While an issue or evidentiary sanction may seem drastic, it is commensurate in seriousness with the egregious misuse of the discovery process that is often seen.

Finally, we will address using motions in limine to block the testimony of the other side’s experts, either in their entirety, or at least in part. For a detailed discussion on “Expert Containment,” please see Chris Dolan’s article on this subject in the Sept 2004 edition of Forum, on which this section of our article is largely based.

This is the starting point for your expert motions in limine. California Code of Civil Procedure section 2034.300 states:

[O]n objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:

(a) List that witness as an expert under Section 2034.260.

(b) Submit an expert witness declaration.

(c) Produce reports and writings of expert witnesses under Section 2034.270.

(d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).

If the other side has failed to comply in any way, that fact provides the basis for your first expert motion in limine.

How you bring motions in limine should also inform how you take an expert’s deposition. Do not just spend all your time getting all of the expert’s opinions. Spend just as much time “closing the door,” with questions like, “So you have not as of this date formed an opinion as to ________.” Some common areas on which experts do not reach opinions are the reasonableness of medical expenses, the issue of causation, prognosis, future care, and the like. Look for these areas and others like them to ask questions designed to close off the expert’s testimony.

Every time you get a “yes” to one of these questions, turn to the court reporter, and say “MIL.” That will make it easy for you to find these sections later, to include, verbatim, in your Motion in Limine to Exclude Specific Areas of Testimony on Which Defendant’s Expert Dr. X Has Stated He Has No Opinion.”

California Code of Civil Procedure section 2034.210 et seq. mandates full and timely disclosure concerning expert witnesses. (Huntley v. Foster (1995) 35 Cal.App.4th 753.) The Code requires the court to exclude expert opinions by parties that have not been properly designated and/or made available for deposition. (See Bonds v. Roy (1999) 20 Cal.4th 140.)

Sometimes the defense will designate someone as an expert who is just going to express an opinion as to the “ultimate issue,” and/or in an area that is not appropriate for expert testimony. This can be blocked in a motion in limine by citing California Evidence Code section 801:

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of expert would assist the trier of fact; and

(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion. (Emphasis added.)

Your motion in limine should also note that it is within the court’s discretion to exclude an expert witness, particularly when it would not inform the jury as to anything outside their common knowledge or experience. (See County Sanitation Dist. No. 8 of Los Angeles County v. Watson Land Co. (1993) 17 Cal.App.4th 1268; Easton v. Strassburger (1984) 152 Cal.App.3d 90, 106; People v. Herring (1993) 20 Cal.App.4th 1066; People v. McDonald (1984) 37 Cal.3d 351, 367; Wells Truckways v. Cebrian (1954) 122 Cal.App.2d 666; Burch v. Valley Motor Lines (1947) 78 Cal.App.2d 834; Vallejo & N.R. Co. v. Reed Ochard Co. (1915) 169 Cal. 545.)

Your motion should, if applicable, also note the requirement of Evidence Code section 720 that the person be an expert, with the appropriate training, experience, etc., in the first place.

We have all heard experts, in response to the deposition question, “Do you have any other opinions that you have not expressed today,” hem and haw and state that it depends on what else they are asked, or asked to consider, or review, etc. Exclude this testimony with Jones v. Moore (2000) 80 Cal.App.4th 557, 565, which holds that opinions of experts that they assured they did not hold at the time of deposition may be excluded.

Cumulative experts can and should be excluded at the discretion of the court. (Cal. Evid. Code § 723; South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861, 906.) Note that they are also properly excluded under Evidence Code section 352.

We trust that the above tips and information will give you the background for some critical motions in limine, and assist you in preparing your case so as to best serve those motions when the time comes to make them.

The Judicial Council has approved guidelines for jury questionnaires which comply with the dictates of Code of Civil Procedure section 205.

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