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California Motions in Limine
What is a Motion in Limine?

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.] source


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With years of experience in litigating assisted living abuse and neglect cases, the Los Angeles nursing home and assisted living neglect lawyers at the Law Offices of Ben Yeroushalmi in Los Angeles have faced several common issues for motions in limine when preparing for trial. The following issues discuss the topics and methods that our knowledgeable attorneys have confronted in order to have achieved maximum results for our clients.

A motion in limine generally seeks to preclude disputably inadmissible or highly prejudicial evidence before trial. These motions are brought before trial, outside the presence of the jury, to avoid needing to “unring the bell” should the jury be exposed to prejudicial evidence. (See See People v. Morris (1991) 53 Cal.3d 152.) Motions in limine are governed by California Rules of Court Rule 3.1112, although there are usually specific local rules and even courtroom rules pertaining to these motions that should be considered when preparing to file.

Because each case has its own specific facts, motions in limine can be based on a variety of issues. However, the following are topics that are generally included in a plaintiff’s motions in limine in nursing home and assisted living cases.

ADMITTING PRIOR CDPH AND DSS DEFICIENCIES AND CITATIONSAlthough motions in limine are more commonly used to preclude evidence from being presented in front of a jury, they can also be used to admit evidence that is likely to be objected to by a defendant. Motions in limine can permit more careful pre-trial consideration of evidentiary issues than if the issues were presented during trial, help to minimize disruptions and sidebar conferences during trial, and foster efficiency of the trial process by resolving critical evidentiary issues prior to trial. (People v. Morris (1991) 53 Cal.3d 152, 188.) This minimizes trial disruption and promotes 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.)

PROVING RECKLESSNESS, MALICE, AND RATIFICATIONA plaintiff may want to admit substantiated complaints, deficiencies, and citations issued by the California Departments of Public Health (CDPH) or Social Services (CDSS) that involve the same types of violations that a defendant committed in the neglect of the specific plaintiff. It should be argued that a deficiency or citation is admissible under California Evidence Code Section 1101(b) as evidence of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident in the abuse and/or neglect of the facility’s patients or residents. Hickman v. Arons (1960) 187 Cal.App.2d 167 stated that the inspector’s notice regarding dangerous conditions of the building following a fire was admissible to prove notice and knowledge of that danger in an action for damages by the family of a man killed when the wall of the building collapsed two weeks later. These reports can show that a defendant was on notice and had knowledge of dangerous conditions pertaining to patient care, quality of care and various deficiencies in the performance of its staff, and that it ratified those deficiencies by failing to intercede and correct them before a plaintiff was injured from the same dangerous conditions.

Usually, substandard nursing homes and assisted living facilities have long histories of deficiencies. A defendant may subject a plaintiff to the same dangerous conditions even though it knew its patients or residents have been injured in the past. These facts are relevant to prove a plaintiff’s claims of malice, recklessness and ratification on part of a defendant, which in turn is directly relevant to an Elder Abuse claim and punitive damage liability. For more information regarding these issues pertaining to the Elder Abuse Act’s enhanced remedies and punitive damage liability, refer to our Resources section. Generally, a plaintiff must prove that a defendant had knowledge of a high degree of probability that dangerous consequences would result from its conduct, and that it acted with deliberate disregard of that probability or with a conscious disregard of the probable consequences. Statements of deficiencies can be admitted for the purpose of showing that a defendant’s conduct rose to the level of a “conscious choice of a course of action…with knowledge of the serious danger to others involved in it.”

Nevarrez v. San Marino Skilled Nursing and Wellness Center (2013) 221 Cal.App.4th 102 held that “citations tainted the verdict on negligence and therefore were prejudicial.” However, in Nevarrez, the plaintiff asked the court to admit the citation involving his own incident for the purposes of proving the defendant’s liability and negligence Per Se. Admission of prior statements of deficiencies of a specific facility does not violate Nevarrez. Rather, it is important to illustrate that a defendant had a pattern of the same violations, was aware of and on notice of the problems in its facility, and subsequently failed to address them when the plaintiff was injured. Establishing a defendant’s knowledge of the persisting problems of the same types of violations that a plaintiff claims does not resemble the facts and conclusions of the Nevarrez case, and therefore, it is not prejudicial to a defendant to admit this kind of evidence.

A continual pattern of violating regulations applicable to caring for elders in skilled nursing facilities can also constitute elder abuse and neglect under the Elder Abuse Act. (See Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339.) A continuous and regular practice of violating federal and state regulations pertaining to adequate facility staffing, in conjunction with allegations that the understaffing was the cause of an elderly patient’s injury, has been held to be sufficient to state a viable cause of action for elder abuse. (Id.) A plaintiff should indicate which specific deficiencies and citations to include as evidence at trial in order to prove that the injuries and neglect suffered were not isolated incidents at a nursing home or assisted living facility, but rather a pattern of neglect that eventually caused preventable harm.

USING SPECIFIC DEFICIENCIES FOR NON-HEARSAY PURPOSESA redacted investigation report for the specific incident concerning a plaintiff may also be relevant for its non-hearsay purpose as evidence of prior inconsistent statements. A specific report may be admitted for its non-hearsay purpose when it is not submitted for proving a defendant’s liability for a plaintiff’s harms in a specific case. A plaintiff can intend to submit a specific portion of a statement of deficiency issued as a result of his or her incident specifically, not as evidence of fault but rather as evidence of prior inconsistent statements and/or grounds for impeachment. In contrast to Nevarrez, a plaintiff may not submit such evidence to prove that a defendant did in fact commit Elder Abuse in a specific case, but rather to prove that the statements made by a defendant to the CDPH or CDSS in the subsequent investigation of the subject incident are not consistent with the statements made by a defendant to the plaintiff during discovery and at trial.

EXCLUDING SPECIFIC DEFICIENCIES FROM CDPH OR CDSSConversely, a plaintiff may wish to exclude the deficiency or citation that involved the specific injury attributed to the plaintiff in a given case. These reports may have findings that negatively impact a plaintiff’s case. Regardless, admission of these reports directly contradicts the holding in Nevarrez, which held that the citation was improperly used to taint the jury’s finding of elder abuse and negligence where the “citation was offered essentially as an endorsement by the government of [the plaintiff’s] case against [the nursing home]” and where it was used to “predetermine the case and confuse the jury.”

The Nevarrez court further held that the citation was not admissible under Evidence Code § 1280 because the citation relied on sources other than the investigator’s personal observation. It also held that there was no justification for not ordering the plan of corrections redacted since it is inadmissible under Health and Safety Code § 1280(f) and is a remedial measure under Evidence Code § 1151. Nevarrez noted that the admission of the citation was inadmissible under Evidence Code § 352 because it created undue prejudice to defendants by insinuating that appellants must be liable because the state issued a citation against the nursing home. In fact, the Court of Appeal held that the citation was largely used to confuse the jury into believing the negligence issues were already established by the citation.

Normally, it is the intent of the plaintiff to seek admission of past citations in elder abuse and negligence cases to establish knowledge on part of the defendant of a pattern of dangerous conditions. Regardless, Nevarrez strictly holds that evidence of a citation associated with the plaintiff is not admissible because it taints the jury’s finding of elder abuse and negligence to “predetermine the case and confuse the jury.”

ADMITTING SUBSEQUENT CDPH AND DSS DEFICIENCIES AND CITATIONSA plaintiff may also seek to admit substantiated complaints, deficiencies, and citations issued by the CDPH or CDSS subsequent to the subject incident which forms the basis of the litigation, involving the same types of violations that a defendant committed in the neglect of the plaintiff. The purpose is to infer conscious willfulness by a defendant from CDPH or CDSS findings of failure to follow regulations. This is strong evidence of a defendant’s “conscious disregard” for purposes of punitive damage liability under Civil Code § 3294, as well as the award of enhanced remedies under the Elder Abuse Act.

If a defendant’s conscious disregard of residents’ rights and safety continues after the subject incident and through the time of trial, that is particularly strong evidence of reprehensible conduct that should be deterred. (Boeken v. Philip Morris, Inc. (2005) 127 CA4th 1640, 1701.) The plaintiff should emphasize in the motion that the deficiencies or citations are only submitted for their non-hearsay purpose and not as evidence proving a defendant’s liability for the plaintiff’s injuries in a specific case in order to conform with the ruling in Nevarrez.

LIMITING AND EXCLUDING EXPERT TESTIMONYOften, defendants proffer speculative expert testimony in order to prevent a plaintiff from establishing the cause of injury. In this regard, the defendant’s expert seeks to tell the jury why the plaintiff was harmed at the defendant’s facility. However, this is for the jury to decide, who can and should determine for themselves the reasons why the plaintiff was injured based on the evidence in this case. (See Westbrooks v. State of Cal., (1985) 173 Cal.App.3d 1203, 1210 (“If the jurors would be able to draw a conclusion from the facts testified to as easily and as intelligently as the expert, the opinion testimony of the expert is not admissible.”)

Such testimony usurps the role of the jury by reaching a conclusion any lay person could draw but giving it the appearance of “expertise.” (See Kotla v. Regents of Univ. of Cal., 115 Cal.App.4th 283, 293 (2004) (finding prejudicial error to permit expert testimony about “indicators” of retaliation that “created an unacceptable risk that the jury paid unwarranted deference to [the expert’s] purported expertise when in reality [the expert] was in no better position than they were to evaluate the evidence concerning retaliation.”) Evidence Code § 801 states that expert testimony must “relate to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” In contrast to typical areas of expert testimony, such as medicine, environmental impact, and damages, this type of testimony is not “beyond common experience.” (See Kennemur v. State of California, (1982) 133 Cal.App.3d 907, 925-26) (stating that if jurors are fully capable of deciding the issue based on their own experience then there is no need for an expert to give his opinion on the issue.) Such testimony is improper and should be excluded from evidence at trial.

PRE-INSTRUCTION TO THE JURY ON REGULATIONS GOVERNING PHYSICIANS, NURSING HOMES AND ASSISTED LIVING FACILITIESGenerally, the jury is instructed at the close of trial. “Increasingly, however, judges are giving general instruction to the jury before they receive any evidence in the case to educate them on general legal principles before they receive any evidence in the case. This helps jurors understand their role and duties in the case and educates them on general legal principles…so they will not receive evidence in a legal vacuum.” (2-31 California Trial Handbook Sect. 32:09.) “Appellate Courts have actually commended the astute judge who tries to give the jury advance notice of law applicable to the case.” (Id., citing People v. Valenzuela (1977) 7 6 Cal.App.3d 218, 222.)

EVIDENCE OF THE APPLICABLE STANDARD OF CAREA plaintiff may seek to prove that a defendant’s consistent violation of regulations governing nursing home or assisted living care were a causative factor in the plaintiff’s injuries. Numerous cases have held that these regulations provide the “standard of care” for such facilities. (See, e.g., Gregory v. Beverly Enterprises (2000), 80 Cal.App.4th 514, 523 [holding that regulations are a factor to be considered by the jury in determining the reasonableness of the conduct in question]; see also Housley v. Godinez (1992) 4 Cal.App.4th 737, 741.) Norman v. Life Care Centers of America, Inc., (2003) 107 Cal.App.4th 1233 specifically held that the California Code of Regulations define those facilities’ duty of care owed to their resident and therefore define duties of care applicable to elder abuse of those residents. Fenimore v. Regents of the University of California (2016) 245 Cal.App.4th 1339 also stated that a hospital’s violation of regulations – combined with allowing the decedent to fall within minutes after entering the facility and failing to treat the fractured hip for days – amounted to a valid elder abuse claim.

Therefore, it may be important for a plaintiff to request that a court issue pre-instruction on applicable federal and state statutes and regulations so that the jury will be able to put the testimony in context. It may be further helpful to attach copies of those applicable statutes and regulations as an exhibit to the motion.

EVIDENCE OF NEGLIGENCE PER SEA defendant’s violation of federal and state regulations is additionally relevant to prove a plaintiff’s claim of negligence Per Se. The failure of a defendant to exercise due care is presumed if: (1) he or she violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. (Evid. Code § 669(a); Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1526.) Although compliance with the law does not prove the absence of negligence, violation of the law does raise a presumption that the violator was negligent. (Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1526; see also Cal. Law Revision Com. to Evid. Code § 669.) It therefore may be helpful, if not necessary, to pre-instruct the jury on the applicable federal and state regulations that the defendant violated in order to prove a negligence Per Se theory of liability.


Motions in Limine – Don’t Miss Categories and Authorities

By Jeremy Pasternak and Shaana Rahman

CAOC “Forum” – October 2005

“You can’t unring the bell.” Every trial lawyer knows this. Unfortunately, too often the logical follow up, that is, bringing a motion in limine to be sure the bell is never rung, does not happen. The following are some “don’t miss” categories for motions in limine, and a discussion of not only what motions you might want to bring and the authorities upon which to do so, but also how to prepare your case during litigation so as to best protect your motions in limine or even obviate the need for them in the first place.


Nearly every plaintiff is attacked personally at trial. This can be as simple as the standard “greedy plaintiff” innuendo, or it can be far more direct. This section of our article will give you some tools to protect your client (and your case).

A. Preparing for Your Motions While Still in Litigation

Protecting your client’s privacy rights in discovery is not the focus of this article, but it bears mentioning here. The general rule is that the scope of discovery is broader than the scope of admissibility. Based on that rule, attorneys often say to themselves, “Well, this may look bad, but I’ll just exclude it at trial.” Taking this position is a big mistake, because the general rule is not really the rule. When it comes to a plaintiff’s privacy rights, the real rule is that the scope of discovery is narrower then the scope of admissibility. In other words, during discovery, there are ways you can protect your client from the other side discovering “bad” information. And obviously, if they don’t have it in the first place, you don’t have to worry about excluding it with a motion in limine!

1. The Defendant Must Show a Compelling Need for Discovery Before Privacy Rights Are Invaded

The constitutional right of privacy is “not absolute”; it may be abridged when, but only when, there is a “compelling” and opposing state interest. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 524

[addressing privacy rights in the context of personnel documents]. See also, Harding Lawson Associates v. Superior Court (1992) 10 Cal.App.4th 7, 10. [“The court there noted that California courts have generally concluded that the public interest in preserving confidential information outweighs the interest of a private litigant in obtaining the confidential information.” Citing Board of Trustees, supra]. See also, Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999; Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853.)

2. Relevance Must Be Shown First – a Useful “Catch-22”

Before a defendant can seek discovery of private information, it must first show that the information is directly relevant to the litigation. See, Hunter Tylo v. Spelling Entertainment Group (1997) 55 Cal.App.4th 1379: “Discovery of constitutionally protected information is on a par with discovery of privileged information and is more narrowly proscribed than traditional discovery.” (Id. at p. 1387, citing Britt v. Superior Court (1978) 20 Cal.3d 844, 852-853.) The Hunter Tylo court also ruled that when privacy rights are at issue, the discovery sought must be “directly relevant to the litigation.” (Id. at p.1387.)

Other very strong cases establishing the “Catch-22”: Brenda L. v. Superior Court (1998) 65 Cal.App.4th 794.; Knoettgen v. Superior Court (1990) 224 Cal.App.3d 11; Mendez v. Superior Court (1988) 206 Cal.App.3d 557.

All of these protections exist even in light of claims of alternate stressors. The most common “fishing” that defense counsel conduct is to try and find something else “bad” in the plaintiff’s life, call it an alternate stressor, and then bring it in to trial, not to really show an alternate stressor but to make the client look bad (divorce, abortion, an arrest, you name it). The irony is that this may well be admissible at trial, where you have few protections beyond Evidence Code section 352 (more prejudicial than probative). But if you can keep it out of discovery, you won’t even have to make that argument. The take-home message is this: if you are concerned about what might come in at trial, first see if you can protect it in discovery.

3. Using Privacy Rights in Motions Themselves

The above is not to say that all of that authority is useless at the time of trial. It isn’t. After all, if you had to object during discovery to questions which have solicited this information in the first place, the other side may already know about it, and therefore, doesn’t care whether or not you are admitted to particular items. They can just ask the questions at trial.

The argument to make is simply this: generally speaking, admissibility is broader than discovery, and if this stuff isn’t discoverable, then it sure isn’t admissible.

B. Character Evidence – Keeping It Out

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.

C. Character Evidence – Getting It In

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.)

D. Prejudicial vs. Probative

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.

E. Other Bad Stuff – When the Other Side Hides Their Knowledge Behind Privilege

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.

A Written Jury Questionnaire Will Streamline and Facilitate the Jury Selection Process

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:


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.

A. The Designation

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.

B. The Expert Deposition

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.”

C. Experts Not Properly Designated

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.)

D. Excluding “Non Expert” Experts

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.

E. Excluding Post-Deposition Opinions

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.

F. Cumulative Experts

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.


Pretrial-Motions-in-Limine PDF Here