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What is an appeal?

The Truth News — Tue, 16 Aug 2022 06:46:15 +0000

What is an appeal?

An appeal is the legal process to ask a higher court to review a decision by a judge in a lower court (trial court) because you believe the judge made a mistake. A litigant who files an appeal is called an appellant. A litigant against whom the appeal is filed is called an appellee. The higher court, which may be called a court of appeals, appellate court, or supreme court, looks at the “record,” which includes the transcript, evidence, and documents from the trial court, and decides if the judge made certain mistakes that must be corrected.

Keep in mind:

You can only file an appeal after there has been a final ruling in your case, although there are some exceptions to this rule. In certain circumstances, you may file an “interlocutory appeal” to appeal the judge’s decision on an issue during an ongoing court case.
Pursuing an appeal does not stop the court order that you are appealing from going into effect; the order goes into effect immediately and must be followed during the entire appeal process unless you file a Motion to Stay and a “stay” is granted. See What is a motion to stay? How does it affect the order I am appealing? for more information.
You cannot introduce new evidence when you appeal your case to a higher court. The higher court only looks at what was said and done in the trial court.

Keep in mind:

You can only file an appeal after there has been a final ruling in your case, although there are some exceptions to this rule. In certain circumstances, you may file an “interlocutory appeal” to appeal the judge’s decision on an issue during an ongoing court case.
Pursuing an appeal does not stop the court order that you are appealing from going into effect; the order goes into effect immediately and must be followed during the entire appeal process unless you file a Motion to Stay and a “stay” is granted. See What is a motion to stay? How does it affect the order I am appealing? for more information.
You cannot introduce new evidence when you appeal your case to a higher court. The higher court only looks at what was said and done in the trial court.

What are some important words and phrases that I need to know as I start the appeals process?

Below we give the definitions to some key words and phrases that you will need to understand if you begin the appeals process. As you read the rest of this section, you may want to refer back to this question if you come across an unfamiliar word.

Appeal: The process of asking a higher court to review a trial court decision for possible mistakes.

Appellant: The party (litigant) who files an appeal seeking to reverse (overturn) the trial court’s decision.

Appellee: The party (litigant) who won in the trial court, also known as the lower court, and will be defending that decision in the appellate court.

Brief: Document filed in the appellate court that states the litigant’s legal reasons (arguments) for why the appeal should be granted or not granted. The appellant is allowed to file two briefs, the appellee only files one:

First, the appellant files an opening brief arguing that the trial court made mistakes that the appeals court should correct;
Second, the appellee files a brief responding to the appellant’s arguments and explaining why the trial court’s decision was correct and should be kept (“affirmed”) by the appeals court; and
Third, the appellant can file a “reply” brief that responds to the counter-arguments in appellee’s brief.

Case law: Law formed by judges’ decisions in other court cases in your state. Generally, case law that comes from a court that is higher than your appellate court is called “precedent” and the judges in your appellate court are supposed to follow those rulings when making their decision related to similar facts. In larger states with multiple appellate courts, it’s possible that case law will come from other courts that are not above your court – in this case, it’s optional if the judges want to follow it or not but it could help to influence their decision.

Filing Fee: Fee an appellant must pay to the appeals court when filing an appeal, typically between $100-$250.

Notice of Appeal: The document filed by the appellant to start the appeals process.

Record: All the documents contained in the trial court’s file connected to the litigation plus the written transcripts and trial exhibits.

Remand: The most common outcome of an appeal. It’s when appeals court agrees that the trial court made an error and sends the case back to the trial court to re-try the case with guidance on what to do differently to avoid making a similar appealable error.

Stay: A pause that prevents the lower court’s order from going into effect until the appeal is decided.

Transcript: The written recording of the trial ,often prepared by the court reporter.

What should I consider when deciding whether or not to file an appeal?

When considering whether filing an appeal is the right option for you, you will want to consider the following things:

Time: An appeal can take up to a year or more from start to finish.
Expense: Appeals are very difficult to do without a lawyer and hiring an appellate attorney can be extremely expensive. (If you are a victim of domestic violence, you may be eligible for pro bono (free) appellate representation from DV LEAP). Aside from the cost of an attorney, there will be a filing fee that is often between $100-$250. Also, you will probably need to pay for the written transcripts from the final trial in the lower court, which can be quite costly. Some states will waive the filing fees and transcript fees if you are low income, but many states do not offer this.
Outcome: Even if you “win” on appeal, which is very difficult, the most likely outcome will be another trial, called a “remand.” This is where the appellate court instructs the trial court judge to fix the mistakes that the appellate court decided the trial court judge made. You may have to re-litigate one part or all of the trial again in the lower court and it does not necessarily mean that you will win the case – the trial court judge could still rule in favor of the other party. There is also a good chance you will be back in front of the same trial judge whose order you appealed.
Emotional toll and safety concerns: If the other party is your abusive partner, it’s important to know that the appeals process is very long, which will drag out the conflict between you and the abuser and will create an extended time of uncertainty in your life. In addition, filing an appeal may anger the abuser, which could lead to additional abuse.

The good news, however, is that an appeal is decided only based on the written evidence and exhibits filed in court. Therefore, you will not have to testify or go through another trial at the appellate court. In addition, there is the potential that the court’s ruling on your appeal will change or strengthen the law to help others in similar situations.

What are the typical “grounds for appeal” that judges will consider?

Although it may vary by state or by the type of case that you are appealing, typically the grounds for an appeal are as follows:

The judge made an error of law
An “error of law” generally means that the judge in your case applied the wrong rule or “legal standard” to the facts of your case. This can occur if a trial court did not follow either the statute or case law in your state that is supposed to apply in your case’s circumstances. For example, in custody cases, a judge must determine what is in the child’s best interests. Most states have laws setting forth certain factors that must be considered, typically called “best interests factors.” If one of those factors is whether or not a parent committed domestic violence but the trial judge ignores domestic violence evidence in making the custody determination, you may have grounds to appeal based on an error of law.

An error of law is the strongest type of ground for appeal because the appellate court reviewing the case does not have to give any weight to what the trial court judge did. The appellate court will look at the law that was supposed to be applied and decide whether or not the trial court judge made a mistake.

The judge made an error regarding the facts
Generally, a judge’s ruling in the trial court must be based on the facts that are proven at trial. In most cases involving domestic violence and family law, there is no jury and the judge serves as the “fact finder.” As fact finder, the judge must consider the evidence and decide whether or not a certain fact has been proven. Because the trial judge has the opportunity to directly observe the evidence through witness testimony and documents, photos, etc., most appellate courts will very rarely second guess a judge’s factual findings. Therefore, a trial judge’s factual error is the most difficult to establish on appeal. Appellate courts will generally not overturn a factual finding unless it is clearly wrong (“erroneous”) and the record leaves absolutely no question that the judge was wrong.

The judge “abused his/her discretion”
A trial judge has a great deal of power to make decisions in a case, with the exception of decisions that are strictly about applying the law. Examples of this broad power, known as “judicial discretion,” include what evidence to admit during the trial, whether to grant a motion or request made by a party, and whether to grant a protection order or approve a proposed settlement agreement. Appellate courts respect the trial court judges’ discretionary power because they recognize that trial judges are in the best position to make these decisions. In general, an appeals court will go along with (“defer to”) a trial court judge’s decisions that are within the judge’s discretion.

Most types of errors will fall into this category of judicial discretion and they are very difficult to win on appeal, although not quite as difficult as in the case of factual errors. If a judge makes an error when using this discretion, it will not be a sufficient ground for appeal unless you can show that the judge “abused” this discretion. In “abuse of discretion” cases, the error is obvious because, for example, the evidence introduced at trial clearly does not support the judge’s decision or the judge’s decision was completely unreasonable. For example, let’s say in a custody case, when weighing the required factors to determine what is in the child’s best interests, the judge applies a lot of weight to the fact that the other party’s home has one more bedroom than yours, but applies very little weight to the fact that the other party has committed domestic violence and has a substance abuse problem.

How do I start the appeals process?

Usually, you only have a short amount of time to file an appeal after the judge issues the order or decision that you want to appeal. To start the appeals process, you must file a Notice of Appeal within the time limit required by your state. The time limit will depend on what state you live in and what type of case you want to appeal and may be extended if you file a post-trial motion, such as a Motion for Reconsideration. In many states, but not all states, a Notice of Appeal must be filed within 30 days from the date of the final trial order. After you file the Notice of Appeal, there are other documents and/or further steps that will be required, sometimes called “perfecting the appeal,” and often these further steps will have deadlines. Examples of those additional steps are explained in The typical steps in the appeals process. If at all possible, you should consult with an attorney in your state about what these steps and deadlines are. If you are not able to talk to an attorney, many states have excellent appellate guides for unrepresented litigants on their judiciary websites that provide this information.

Do I need a lawyer to appeal my case?

It is possible to file an appeal on your own, but it is generally a complicated procedure that involves written arguments (briefs) and technical rules of law. It is very hard to do without a lawyer. If you do decide to file an appeal on your own, you may want to talk to a lawyer for advice as you plan your strategy. You should also check your state’s judiciary website to see if there are resources for unrepresented (pro se) litigants. Often these websites will have pro se guides for the appeals process.

There is also an organization called DV LEAP, which takes civil appeal cases involving domestic violence or child abuse. This generally includes restraining orders, custody, divorce, or other civil cases. You can see their application form on the DV LEAP website. For other appeals organizations, please see our National Organizations – Appeals page.

What is a motion to stay? How does it affect the order I am appealing?

When you file to appeal a judge’s order, the act of filing the appeal does not stop the court order that you are appealing from going into effect. The only way that the order would not go into effect immediately is to file a post-trial motion called a Motion to Stay and for the judge to grant a “stay,” which prevents the original order from taking effect while the appeal is going on.

States may each have their own standards for when a stay will be granted but, generally, it is difficult to obtain a stay. For example, in Washington, D.C., a Motion to Stay must show: 1. that your appeal is likely to succeed; 2. that you will suffer irreparable harm if the stay is not granted and the order is allowed to go into effect; 3. that the other party will not suffer undue harm or prejudice if the stay is granted; and 4. that the public interest weighs in favor of granting the stay.¹

In many states, you must file this Motion to Stay first with the trial court and, if it is denied, then you would re-file it in the appellate court. It is important to speak with an attorney from your state to find out the specific process, timeline, and criteria for filing a Motion to Stay the trial court’s order.

¹Barry v. Washington Post Co., 529 A.2d 319 (D.C.App. 1987)

Step 1: File the Notice of Appeal.

The Notice of Appeal is usually a simple form that can often be found on the state’s judiciary website. It typically requires basic information, such as the name of the parties to the appeal, the court and case number of the order being appealed, and in some cases, a summary of the grounds for appeal. (Here is an example from Wisconsin.) Here are some key points to remember related to the Notice of Appeal:

When: Make sure to file within your state’s deadline. If you aren’t sure of the deadline, call your local legal services or consult with a private attorney to ask.
Where: Often, the Notice of Appeal must be filed in both the trial court that issued the decision you are appealing and in the appeals court. Sometimes the form itself will state where it must be filed.
Who: Before you file the Notice of Appeal, you must be sure to give (“serve”) your opposing party or his/her lawyer a copy of the Notice of Appeal. Many states will require that you “certify” that you have served the opposing party, for example, by signing a statement at the bottom of the Notice of Appeal.

Step 2: Pay the filing fee.

Typically, there is a fee for filing an appeal that must be paid to the clerk’s office in the appeals court. These fees can range from $100-$250. If you are unable to afford the filing fee, you may be eligible for a waiver based on your income. Check with the appeals court clerk’s office or the court’s website to see whether you can apply for a fee waiver.

Step 3: Determine if/when additional information must be provided to the appeals court as part of opening your case.

In some states, appellants must file a separate document with administrative information at the same time, or shortly after, filing a Notice of Appeal. For example, in Maryland you must file a “Civil Appeal Information Report” within 10 days of filing your Notice of Appeal.

Step 4: Order the trial transcripts.

Typically, the appeals court will need to review the trial transcripts, which are the written record of the trial. It is the appellant’s responsibility to order and pay for the transcripts. Usually transcripts are ordered through the trial court reporter. Check with the trial court clerk’s office to determine the process for your state. Here are some key points to keep in mind:

Transcripts are expensive. They are typically charged based on the number of pages, and therefore the cost is determined by the length of the trial. Check to see if your state offer’s transcript fee waivers based on income eligibility. If so, you will need to complete the required forms to request the waiver, which often includes a financial statement that proves your income.
Check with the trial court and/or the appellate court clerk about any deadlines related to the transcripts. Often there is a deadline for when the transcripts must be requested (and paid for), usually based on the date the Notice of Appeal is filed. For example, you may have to request the transcripts within 14 days of filing the Notice of Appeal. If your state has a deadline for when the transcripts must be prepared and they will not be ready in time, you will need to file a motion in the appeals court asking for an extension of the deadline and stating why you will not have the transcripts on time – for example, if the court reporter can’t complete the transcripts by the deadline.
Check with the appellate court as to whether you need to file any paperwork confirming that you have ordered the transcripts.
Check with the appellate court to ask if you must provide a copy of the transcript to the appellee. Typically, the trial court reporter (“court stenographer”) or whoever is preparing the transcripts will send the original directly to the trial court to be included in the record. However, often the appellant will be responsible for sending a copy of the transcript to the appellee.

Step 5: Confirm that the record has been transferred to the appellate court.

The trial court clerk will typically put together the “record,” usually after the transcripts are completed, and send it to the appeals court. The record includes all of the documents connected to your case, including the transcripts. While it is usually the lower court’s responsibility to ensure that the record is transferred, it is a good idea for you to contact the appellate court clerk’s office to check on the status of the transfer. In many states, the transfer of the record from the lower court to the appellate court is what triggers the start of the “briefing schedule,” explained below in Step 7.

Step 6: Determine what must be filed with your brief.

In most states, the appellant’s brief must include select portions of the record that support your position to make it easier for the appeals court to determine whether or not it agrees with your arguments. It could be included as attachments (“exhibits”) to the brief itself or you may have to put it in a separate document that gets filed along with the brief. In Maryland, for example, the brief must be accompanied by a “record extract,” which includes photocopies of transcript excerpts and exhibits that support your arguments. In Massachusetts, this is called a “record appendix,” and the brief must also include an attachment (“addendum”) with copies of the order being appealed and other relevant documents. Most appellate court websites have guides that will help you identify the particular requirements in your state. For example, the website for Maryland’s Court of Special Appeals includes a guide for self-represented litigants in Maryland.

Step 7: Determine when your brief must be filed.

You should receive a written notice giving you the deadlines for your briefs and the other party’s briefs, often called a briefing schedule. If you did not, contact the appellate court clerk to ask for one. Different states have different timelines for when appellate briefs are due, as well as different events that would start (trigger) the timing. In many states, the transfer of the record to the appellate court starts the timing. Typically, once the timing is triggered, the appellate court will send the parties a briefing schedule laying out the deadlines for each brief.

Many states, although not all, use the following schedule:

The appellant has 30 days from the triggering event to file the “opening brief.”
The appellee has 30 days from the time the opening brief is filed to file his/her brief.
The appellant has 15 days from the date the appellee’s brief is filed to file a reply brief.

The appellate court’s rules, which are usually available on the court’s website, should lay out the timing requirements of the briefing schedule for your state. Many appellate courts have helpful guides that will direct self-represented litigants to the correct rules.

Step 8: Check the length and formatting requirements for the brief.

Most appellate courts have strict rules about how long each type of brief can be and will have either a page limit or word limit. You should also check if there are any specific formatting requirements, such as font type and size. If you are unable to find these rules on the appellate court’s website, call the clerk.

What is a Motion to Amend or Motion to Modify?

Instead of appealing, in some cases, you may be able to request a change (modification) of the court order by filing a Motion to Amend or Motion to Modify. To request a modification of a court order, you will likely need to show that there has been a substantial change in circumstances that has happened since the order was issued. You will need to go back to the court where your order was issued and file modification forms. There will probably be a new hearing on the issue. You may also want to consult with an attorney to see if filing for a modification is appropriate under the circumstances of your case. If you are trying to modify a custody order, you can see general information about modifying a custody order at Changing a final custody order, or find state-specific information by selecting your state from the dropdown menu at same link.

What is a Motion for Reconsideration?

After trial, there are several types of motions that can be filed to address possible trial errors. You may want to consult with an attorney to see if any of these options may work better in your situation than filing an appeal. Depending on the type of motion, there are often short filing deadlines for these motions. The most common type of post-trial motion is a Motion for Reconsideration in which you are asking the judge to reconsider his/her ruling and change one specific part of the court order or the court’s overall ruling. Depending on your state’s laws, a Motion for Reconsideration may be an option in the following situations:

when you believe the judge did not consider or properly examine certain evidence or correctly apply the law; or
when new evidence is available that you were not able to present before the judge made a decision.

One way that a Motion for Reconsideration may have a negative effect, however, is that if the judge rules against you, s/he may use it as an opportunity to make the ruling harder to appeal by strengthening his/her factual findings or legal analysis against your position. For more information, see our Motions for Reconsiderationsection.

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California Motions in Limine – What is a Motion in Limine?

The Truth News — Tue, 08 Feb 2022 01:17:00 +0000

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

COMMON ISSUES FOR MOTIONS IN LIMINE

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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.

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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.

I. PROTECTING YOUR CLIENTS (AND THEIR IMAGE)

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.

II. THE USE OF JUROR QUESTIONNAIRES IN A PERSONAL INJURY CASE

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.

III. EDUCATING THE COURT ON COLLATERAL SOURCE ISSUES

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.)

IV. LIMITING THE DEFENDANT’S AFFIRMATIVE DEFENSES AT TRIAL

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.

V. BLOCKING THE OTHER SIDE’S EXPERTS

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.

(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.

CONCLUSION

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.

source

Pretrial-Motions-in-Limine PDF Here

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

The Truth News — Sun, 12 Dec 2021 00:31:47 +0000

Cal. Code Civ. Proc. § 1008 Section 1008

Motion to reconsider matter and modify, amend or revoke prior order

Motion for Reconsideration in California

Section 1008 - Motion to reconsider matter and modify, amend or revoke prior order

(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted,
or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of
written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the
same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party
making the application shall state by affidavit what application was made before, when and to what judge, what order or
decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.(b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or
on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which
case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were
made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this
subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.(c) If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it
entered, it may do so on its own motion and enter a different order.(d) A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition,
an order made contrary to this section may be revoked by the judge or commissioner who made it, or vacated by a judge of
the court in which the action or proceeding is pending.(e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals
of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous
motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for
the renewal of a previous motion may be considered by any judge or court unless made according to this section.(f) For the purposes of this section, an alleged new or different law shall not include a later enacted statute without a
retroactive application.(g) An order denying a motion for reconsideration made pursuant to subdivision (a) is not separately appealable. However, if the
order that was the subject of a motion for reconsideration is appealable, the denial of the motion for reconsideration is reviewable
as part of an appeal from that order.(h) This section applies to all applications for interim orders.

Ca. Civ. Proc. Code § 1008

Amended by Stats 2011 ch 78 (AB 1067),s 1, eff. 1/1/2012.

What Is a Motion for Reconsideration?

Section 1008 of the Code of Civil Procedure provides for reconsideration of court orders. A motion to reconsider is broad in scope and allows any party affected by the order to seek reconsideration and modification, amendment or vacation of prior orders. Morite of Calif. v. Super. Ct. (1993) 19 Cal.App.4th 485, 490.

The Court has inherent authority to reconsider any of its own rulings on its own motion provided that it gives the parties notice and a reasonable opportunity to litigate the issue. Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096-1109.

“The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier.” Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018) ¶9:328, p.9(I)-148 citing Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500 (Gilberd), et al.

“A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.” Code of Civ. Proc., § 1008(b).

To be entitled to reconsideration, a party must show new or different facts and a satisfactory explanation for failing to produce such evidence earlier. Kalivas v. Barry Controls Corp., (1996) 49 Cal.App.4th 1152, 1160-61. The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence. Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.

“The burden under § 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial. Case law after the 1992 amendments to § 1008 has relaxed the definition of ‘new or different facts,’ but it is still necessary that the party seeking that relief offer some fact or circumstance not previously considered by the court.” New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.

A motion for reconsideration cannot be granted on the ground that the court misapplied the law in its initial ruling. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” Code of Civ. Proc., § 1008(a). cited https://trellis.law/ca/motion-type/motion-to-reconsider-california-45

What will a judge consider in a Motion for Reconsideration?

The exact factors a judge will consider when deciding whether to grant your Motion for Reconsideration will depend on your state’s laws. Generally, a judge will consider factors such as whether:

there is new evidence that is significant to the legal issue and was not available when the case ended, despite your best efforts to get that evidence;
the final decision was made after an incorrect interpretation of the law or the law has changed since the judge made his/her final decision; and
denying the Motion for Reconsideration will result in an obvious injustice.

California Code of Civil Procedure section 1008.

(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

(b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.

(c) If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.

(d) A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition, an order made contrary to this section may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending.

(e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.

(f) For the purposes of this section, an alleged new or different law shall not include a later enacted statute without a retroactive application.

(g) An order denying a motion for reconsideration made pursuant to subdivision (a) is not separately appealable. However, if the order that was the subject of a motion for reconsideration is appealable, the denial of the motion for reconsideration is reviewable as part of an appeal from that order.

(h) This section applies to all applications for interim orders. cited https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP§ionNum=1008.

(Amended by Stats. 2011, Ch. 78, Sec. 1. (AB 1067) Effective January 1, 2012.)

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Contesting / Appeal an Order / Judgment / Charge

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Penal Code 995 Motion to Dismiss in California

The Truth News — Fri, 18 Jun 2021 21:38:49 +0000

PC 995 Motion: Request to Dismiss a Felony after Preliminary Hearing

Penal Code 995 Motion to Dismiss in California

Penal Code “995 Motions” in California

In California state criminal prosecutions, a Penal Code 995 Motion is a defense motion asking the court to dismiss one or more felony counts on the grounds that they were improperly sustained at the preliminary hearing. The motion can be brought after the preliminary hearing but before trial.

A 995 motion (pronounced “nine-nine-five”) is essentially an appeal of the preliminary hearing judge’s decision to bind the case over for trial. Technically it is known as a “motion to set aside the information.” “Information” is the legal name for the criminal complaint in a California felony prosecution.

Thus a 995 motion asks the trial judge to “set aside” (dismiss) all or part of the complaint. The judge will grant the motion if there were insufficient legal grounds to bind the defendant over for trial.

What is a Preliminary Hearing?

A quick not about preliminary hearings: A preliminary hearing is similar to a mini-trial where the prosecutor must demonstrate to a criminal court judge that there is probable cause to believe that the defendant committed the alleged offense(s). Probable cause is a much lower burden than proof beyond a reasonable doubt (see below). The district attorney usually calls the arresting officers to testify at the preliminary hearing, but alleged victim’s can also be called to testify. The preliminary hearing has more relaxed evidentiary rules than a trial and there is no jury present at a preliminary hearing. If the district attorney is successful, the court will “hold the defendant to answer (for trial).” If the district attorney is not successful at the preliminary hearing the criminal charges will be dismissed without further request to the court.

Note: Sometimes, a defendant can be ‘held to answer’ on some crimes, but not all crimes alleged. If the defendant is charged with misdemeanor and felony crimes, and only the misdemeanor crimes are sustained at the preliminary hearing, then the defendant is not ‘held to answer’ on those crimes; rather, the case proceeds to trial or pretrial stage (case is usually set for pretrial in the misdemeanor court).

If the defendant is ‘held to answer’ after the preliminary hearing, then the district attorney will file a new criminal charges against the defendant. The new criminal charges are contained in a document called an “information.”

When Do I File a PC 995 Motion

A PC 995 motion is filed by the defendant after the defendant was “held to answer” to criminal charges by the judge at a preliminary hearing. A PC 995 motion must be heard before the start of a trial on the criminal allegations.

Will a Judge Grant My PC 995 Motion

As stated, a PC 995 motion is a request to have a judge reconsider another judge’s decision as to whether there is sufficient evidence to ‘hold the defendant to answer.’ Thus, PC 995 motions are usually difficult motions upon which to succeed. Nevertheless, a PC 995 motion will be granted if the criminal defendant can show that the earlier judge held the defendant to answer without probable cause, or that the defendant was illegal committed.

Probable Cause: Probable cause is defined as reasonable and strong suspicion, based on articulated facts, that demonstrate that the defendant is more likely than not guilty of the alleged offense. In essence, this means that a PC 995 motion asks a subsequent judge to reconsider the balance of evidence offered at the preliminary hearing. A judge is not likely to overturn the preliminary hearing judge’s decision without some articulated reason(s) listed in a PC 995 motion to dismiss.

Note: Probable Cause is not equal to “proof beyond a reasonable doubt.” This means that the defendant can be ‘held to answer’ on a criminal allegation (move forward to trial) without the judge making a determination as to whether the judge believes the defendant is guilty beyond a reasonable doubt. The ‘beyond a reasonable doubt’ language is a ‘burden of proof’ that the district attorney must meet at jury trial (or court trial) on the criminal allegations. For more information, see Insufficient Evidence Defense.

Common PC 995 “Lack of Probable Cause” Claims

A PC 995 motion to dismiss is common where the judge basis her ‘holding order’ decision on unreliable evidence at the preliminary hearing (i.e. clearly unreliable witness statements, use of multi-level hearsay, lack of foundation to introduce prosecution evidence, etc.).

Note: The “probable cause” standard applies to every element of the alleged felony offense. For example, if the defendant is charged with felony vandalism because the amount of the loss to the alleged victim is alleged to be above $950, but the district attorney shows no evidence of the amount of the loss to the alleged victim at the preliminary hearing, then the defendant may file a PC 995 motion to dismiss the felony vandalism allegation.

Illegal Commitment: A defendant is “illegally Committed” when she is denied certain rights at the preliminary hearing. These preliminary hearing rights include:

Right to a ‘continuous’ and uninterrupted preliminary hearing (no unreasonable delay once the preliminary hearing starts);
No attorney provided to the defendant during the preliminary hearing and/or no warning to the defendant that she has a right to a lawyer for the preliminary hearing;
No opportunity given to the defendant to cross-examine witnesses;
Due Process violation (i.e. failure of the district attorney to provide known exculpatory evidence before the preliminary hearing, use of illegally obtain evidence, failure to timely file the “information,” etc.), and more.

Note: The district attorney has 15 days from the last day of the preliminary hearing to file the “information” against the defendant. The information is the charging document that starts the case on the road to trial. A defendant will enter a plea as to the allegations in the “information” even though the defendant has already entered a plea at the arraignment stage. For this reason, the process of entering a plea on the “information” is called the “information arraignment.” The reason the defendant enters another plea in these felony cases is that the preliminary hearing will often, but not always, result in different charges than those criminal charges that started the defendant’s criminal case.

Example I: If the defendant was initially charged with one count of lewd and lascivious acts on a minor (PC 288(a)), but the preliminary hearing prosecutor is able to find more instances of PC 288(a) crimes committed by the defendant at the preliminary hearing, then the prosecution will likely add more PC 288(a) charges in the “information.”

Example II: David is arrested on suspicion of a Residential Burglary (PC 459/460). During the drive to the police station the arresting officer asks David questions about the alleged residential burglary. David is not Mirandized or given any warning that his statements could be used against him in a court of law. Later, at the preliminary hearing, the arresting officer testifies at the preliminary hearing as to David’s statements that were made in the police vehicle. Thereafter, the judge holds the defendant to answer (held to answer at trial for the allegations). Subsequently, David’s attorney files a PC 995 motion to dismiss because the defendant was held to answer based on illegally obtained evidence (use of David’s non-Mirandized statements at the preliminary hearing).

Note: If the only evidence used against the defendant at the preliminary hearing is illegally obtained evidence, then the PC 995 motion to dismiss should be granted. On the other hand, if the evidence used at the preliminary hearing was a mix of illegally obtained evidence and legally obtained evidence, and the legally obtained evidence is sufficient to find probable cause without the use of the illegally obtained evidence, then a PC 995 motion to dismiss based on illegal commitment should not be granted.

PC 995 Motion Granted: If the defendant is successful with her PC 995 motion to dismiss, then the charges against the defendant will be dropped. A PC 995 motion can be granted as to some criminal allegations and not granted as to other criminal allegations. This is common in sex crimes offenses such as lewd and lascivious acts against a minor (PC 288(a)), where the alleged victim is certain as to the number of times he was sexually violated according to the police report, but then at the preliminary hearing, the alleged victim changes his story or the officer indicates that the alleged victim was uncertain at the time of reporting the allegations.

Note: If the court reverses the preliminary hearing judge’s hold order, then the court “sets aside” the allegations. Thereafter, the district attorney may refile the allegation (two filing in most felonies is allowed [two felony dismissal rule]), or the district attorney can appeal the “set aside” decision. The district attorney may also elect to not prosecute any criminal allegations dismissed by the criminal defendant’s 995 motion and simply move forward with prosecution on any remaining felonies that were not dismissed pursuant to the same PC 995 motion. Also, there are some exceptions to the “two felony dismissal” rule.

Also, if the judge grants the defendant’s PC 995 motion to dismiss, and there are no pending allegations against the defendant, then the defendant is entitled to have his bail return (if any bail was staked with the court).

PC 995 Motion Denied: If the defendant’s PC 995 motion to dismiss is denied, then the defendant may appeal the court’s decision. There are strict time limitations when it comes to appealing a denied 995 motion. It is important to speak to a criminal defense lawyer at the earliest opportunity if your PC 995 motion is denied.

PC 995 Motion Process in a Nutshell

Defendant’s case advances to preliminary hearing (prelim). Keep in mind that many cases are plea bargained before preliminary hearing or are otherwise dismissed for other reasons (motion to dismiss for untimely prosecution, motion to dismiss in the interest of justice after a successful suppression motion, etc.).
The preliminary hearing judge finds there is sufficient evidence against the defendant such that the defendant should answer for allegations at the trial court level (i.e. “defendant held to answer” after prelim).
The defendant files a written PC 995 motion in the trial court to have the trial judge reconsider the preliminary hearing judge’s decision(s) [i.e. lack of probable cause or illegal commitment issues]. “Oral” PC 995 motion might be allowed, but not suggested.
If defendant loses her PC 995 motion the issue usually ends there; however, a defendant may file for a reconsideration of the trial court’s decision to deny her PC 995 motion. Strict time limitation apply to these appeals. If the defendant wins her PC 995 motion then the district attorney may also appeal, or simply move forward with prosecution on any felony that were not dismissed pursuant to the defendant’s 995 motion.

cited https://www.calcriminaldefenselawyers.com/post/pc-995-motion-request-to-dismiss-a-felony-after-preliminary-hearing

Penal Code 995 Law (Abbreviated)

PC 995(a) … the information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases:
PC 995(a)(2) If it is an information:
- (A) That before the filing thereof the defendant had not been legally committed by a magistrate.
- (B) That the defendant had been committed without reasonable or probable cause.
- (b) In cases in which the procedure set out in subdivision (b) of Section 995a is utilized, the court shall reserve a final ruling on the motion until those procedures have been completed.

1. What is a Penal Code 995 motion?

A motion under California Penal Code 995 asks a trial judge to dismiss all or part of a criminal case.

It applies in cases in which:

All the charges are for felonies, or
The charges include both felony and misdemeanor charges.¹

The motion may also apply to a prosecutor’s request for sentencing enhancements and/or allegations of special circumstances.

All the charges – including enhancements and special circumstances – must be supported by facts. The preliminary hearing judge must decide if those facts are strong enough to merit a trial.

If the defense believes the preliminary hearing judge decided incorrectly, they can bring a 995 motion. This asks the trial judge to review the preliminary hearing judge’s decision.

2. When can you make a 995 motion?

When a defendant is charged with a felony there is a preliminary hearing. At this hearing, a judge determines whether there is enough evidence to send the case to trial.²

If so, the judge will “hold the defendant to answer” for the crimes. This means the case can move forward. The prosecutor will then file an “information” (complaint) with the trial court.

Once the prosecutor files the information with the trial court, the defense can make a Penal Code 995 “motion to set aside the information.” This is usually done before any other California pretrial hearings.

In essence, the motion asks the trial judge to review the preliminary judge’s decision.

What Are Some Reasons Why a Motion to Dismiss Can Be Filed?

A motion to dismiss is often filed based on procedural reasons, rather than the merits of the claim. Some reasons a party might file a motion to dismiss include:

The statute of limitations has expired.
The court does not have jurisdiction over the parties or the subject matter of the case.
The venue, or location where the lawsuit was filed, is not proper.
The complaint was not served on the defendant properly.
The plaintiff failed to name a necessary party in the complaint, or named the wrong party.

The defendant might also file a motion to dismiss because the plaintiff failed to state a claim for which relief can be granted. In other words, the plaintiff has not alleged a valid cause of action or has failed to allege all of the elements required for a particular cause of action.

3. What are the legal grounds for a 995 motion?

The purpose of the preliminary hearing is to “weed out groundless or unsupported charges.”³

Charges are considered groundless or unsupported when:

The defendant was illegally committed for trial, and/or
The defendant was committed for trial without probable cause.

If either of these applies, the trial court will grant the motion to set aside the information.

Let’s take a closer look at what these two things mean.

3.1. The defendant was illegally committed for trial

A defendant is “illegally committed” when they are denied a substantial right during the preliminary hearing. Such rights include (but are not limited to):

The right to be represented by a lawyer;⁴
The right to be advised that they can be represented by a lawyer;⁵
The right to have the preliminary hearing conducted in “one session”;⁶ and
The right to present and cross-examine witnesses at the hearing.⁷

3.2. The defendant was committed without probable cause

The Due Process Clause of the Fourteenth Amendment requires that a judge have probable cause in California to try someone for a crime.

This means that a judge can only send a case to trial if the allegations in the complaint are supported by facts.⁸

The facts do not need to prove that the defendant is guilty beyond a reasonable doubt. That determination is for the jury (or, in a bench trial, the judge).

Though the facts must be sufficient enough that a reasonable person could have “an honest and strong suspicion that the defendant is guilty” of the crime(s) charged.⁹

As Palm Springs criminal defense attorney Michael Scafiddi¹⁰explains:

“As long as there is some evidence that supports probable cause, a judge cannot grant a 995 motion.¹¹Still it is often worth bringing the motion anyway. A 995 motion is an opportunity to highlight weaknesses in the prosecution’s case at an early stage.”

3.3. Examples of specific defects

Lack of probable cause and illegal commitment can arise in a number of situations. Some of the most common include (but are not limited to):

3.3.1. Illegal evidence

Evidence of a crime may not be obtained by violating federal or California search and seizure laws. If the only evidence in the case came from an illegal search, the judge should grant the 995 motion.¹²

Example: The police pull Bill over for a broken brake light on his car. During the stop, Bill is polite and cooperative. He does not seem intoxicated. But the police tell Bill to open his trunk. Inside they find a bag of cocaine. Bill is arrested and charged with Health and Safety Code 11350, possession of a controlled substance and Health and Safety Code 11351, possession of drugs for sale.

But the police had no probable cause to suspect Bill of a crime. So ordering him to open his trunk was illegal. If there is no other evidence, the preliminary hearing judge should not set the case for trial. If they do, however, Bill’s California criminal defense attorney should be able to prevail on a 995 motion.¹³

3.3.2. Insufficient evidence

The prosecution must introduce facts to support every element of the charges, including:

All elements of each felony charge,
All elements of any misdemeanor charges,
Any basis for a sentencing enhancement, and
Grounds for a finding of special circumstances.

Example: Let’s say in the above example that Bill was acting suspicious. This gave the police probable cause to search his trunk. But the prosecutor presents no evidence of intent to sell (such as scales or separate baggies). The complaint simply contains the bare allegation that Bill intended to sell the cocaine. Since there are no facts to support the allegation, Bill’s 995 motion should be granted as to the possession for sale charge.¹⁴

3.3.3. “Fatal” findings of fact

Sometimes the preliminary judge makes a factual finding that tends to establish the defendant’s innocence.

A common example is a ruling that a key eyewitness is not credible.¹⁵For instance,

a witness may not have been able to adequately identify the defendant because of poor lighting and distance from the crime scene, or
a witness may have testified only that the defendant “looked like” the perpetrator.¹⁶

If this is the only evidence supporting a complaint, the preliminary hearing judge should not commit the charge to trial. If they do, it is an error. The trial judge should grant the 995 motion.

3.3.4. Failure to provide discovery

The Due Process Clause requires a prosecutor to disclose any and all evidence that is favorable to the defendant.¹⁷ If they willfully fail to do so, the charges should be dismissed.

Example: When the police stop Bill in the example above, Bill tells them he borrowed the car from his neighbor. During their investigation, the police speak to several other people who tell them Bill asked to borrow a car from them earlier that evening. The prosecutor does not disclose this to Bill. Since their testimony could have helped prove that Bill was telling the truth, the failure to disclose it violates Bill’s due process rights.

3.3.5. Failure to file the information within the deadline

The prosecutor has only 15 days after the preliminary hearing in which to file the “information” (trial complaint) against the defendant.¹⁸

If the prosecutor does not file the complaint within 15 days of the preliminary judge’s order, the trial judge should grant the defendant’s 995 motion to dismiss the case.¹⁹

4. What charges can a motion to set aside the information apply to?

California preliminary hearings apply to felony complaints. If there are no felony charges, there is no preliminary hearing.

A criminal complaint often combines both felony and misdemeanor counts. It may also allege facts in support of:

Sentencing / penalty enhancements (such as a California gang enhancement), or
Special circumstance allegations (such as lying in wait in a California murder case).

The defense can use a 995 motion to challenge any of these counts, enhancements or circumstances, including the misdemeanors.²⁰

5. What is the process for a Penal Code 995 motion?

The defense will typically file a 995 motion after the case is assigned to a trial judge and before any other pretrial proceedings.

The hearing on the motion does not take long – usually less than one hour. The defense attorney argues first, then the prosecutor. The defense attorney then has the opportunity to make a final argument.

The judge will usually issue a decision immediately after the arguments conclude. Though they may occasionally continue the case in order to consider the arguments further.

6. What happens if I win a 995 motion?

If the trial court grants a 995 motion, the affected charges will be dismissed. Though the prosecutor has the right to appeal the decision.

While the appeal is pending, the prosecutor can:

Proceed with a California jury trial or bench trial on the remaining counts (if any), or
Request a continuance of the trial until the appeal is resolved.²¹

Or the prosecutor can skip the appeal and simply re-file the charge(s) in a new complaint. Though California follows a “two dismissal” rule. Under this rule, charges that have been dismissed twice can generally not be prosecuted again.²²

There are some exceptions to the two-dismissal rule. Your California criminal lawyer can explain the exceptions to you if you are in this situation.

6.1. What happens to my bail if my case is dismissed?

If all the charges are dismissed after a 995 motion, the court must either:

Refund the defendant’s California bail within 15 days,²³ or
If the prosecutor refiles the charges, apply the bail to the new offense(s).²⁴

7. What happens if I lose a 995 motion?

If the judge denies a 995 motion, the defendant has the right to appeal the decision. The time in which the appeal must be filed depends on the original grounds cited in the motion.

If the grounds were an illegal commitment, the defendant has until 60 days from the date of their California arraignment to file an appeal.²⁵

If the grounds were commitment without probable cause, the appeal must be filed within 15 days of the judge’s denial of the 995 motion.²⁶

If the defendant does not appeal or loses the appeal, the case will proceed toward trial.

Legal references:

People v. Thiecke (1985) 167 Cal.App.3d 1015.
California Penal Code 872 PC.
People v. Superior Court (Mendella) 33 Cal.3d 754 (quoting People v. Brice (1982) 130 Cal.App.3d 201).
People v. Napthaly (1895) 105 Cal. 641.
People v. Miller (1932) 123 Cal.App. 499.
People v. Bucher (1959) 175 Cal.App.2d 343.
Jennings v. Superior Court of Contra Costa County (1967) 66 Cal.2d 867.
People v. Chapple (2006) 138 Cal.App.4th 540.
People v. Ingle (1960) 53 Cal.3d 407; see also Malleck v. Superior Court (1956) 142 Cal.App.2d 396.
Palm Springs criminal defense attorney Michael Scafiddi uses his insider knowledge as a former police officer to represent clients throughout the Inland Empire, in San Bernardino and Riverside County courthouses, including the Murrieta Southwest Justice Center, Banning, Fontana, Joshua Tree, Barstow and Victorville.
See Garabedian v Superior Court (1963) 59 C2d 124; Barber v Superior Court (1991) 1 CA4th 793.
People v Lilienthal (1978) 22 C3d 891; People v Scoma (1969) 71 C2d 332; People v Sherwin (2000) 82 CA4th 1404.
In re Justin B. (1999) 69 CA4th 879.
People v Upton (1968) 257 CA2d 677).
People v. Superior Court (Gibson) (1980) 101 Cal.App.3d 551.
Vukman v Superior Court (1981) 116 CA3d 341, disapproved on other grounds in People v Cuevas (1995) 12 C4th 252.
Brady v. Maryland (1963) 373 U.S. 83. See also Izazaga v. Superior Court (1991) 54 Cal.3d 356.
California Penal Code 1382 PC.
People v. Ganger (1950) 97 Cal.App.2d 11.
See, for example, People v Thiecke (1985) 167 CA3d 1015 (misdemeanors); Huynh v Superior Court (1996) 45 CA4th 891 (penalty enhancement allegations); People v Ghent (1987) 43 C3d 739 (special circumstance allegations).
People v. Superior Court (Caudle) (1990) 221 Cal.App.3d 1190. See also California Rules of Court 8.112 and 8.116.
California Penal Code 1387 PC.
California Penal Code 977 PC.
California Penal Code 1303 PC.
California Penal Code 1510 PC.
California Penal Code 999a PC.

cited https://www.shouselaw.com/ca/defense/penal-code/995-motion/

In California state criminal procedure, a motion to dismiss pursuant to Penal Code Section 995 gives the defendant the option of moving a trial court to dismiss their criminal case following a preliminary hearing at which the defendant was held to answer on one or more criminal charges.

In simple terms, a PC 995 motion to dismiss is a legal motion asking for the dismissal of a criminal case. It’s filed after a preliminary hearing in a felony case.

Under Penal Code 995, if the judge at the preliminary hearing incorrectly allowed the case to proceed, then a defendant’s criminal defense lawyer could file a PC 995 motion. This motion is asking the trial judge to partially or entirely dismiss the criminal complaint. In other words, the defense makes the motion after the preliminary hearing, but before a trial.

A 995 motion is an appeal of the preliminary hearing judge’s decision to set the case for trial and often called a “motion to set aside the information.” Typically, a judge will grant the motion if they find there were insufficient legal grounds to hold the defendant over for trial.

A 995 motion can’t be used to respond to a criminal complaint of only misdemeanor charges, but could be used if the charges include both felony and misdemeanor charges. This is because without a felony charge, there will be no preliminary hearing. Filing motions, such as a PC 995, is a crucial component in the criminal case process in California.

There are many situations where it’s appropriate to file a Penal Code 995 motion. However, the most common are a lack of probable cause and illegal commitment.

To give readers important information about a 995 motion to dismiss, our California criminal defense attorneys are providing an overview below.

PRELIMINARY HEARING AND PROBABLE CAUSE

At a preliminary hearing, the court hears evidence, usually from one or more police officers, regarding the basis for the defendant’s arrest. The preliminary hearing has many features of a jury trial, but also has important differences.

Most obviously, the preliminary hearing is held by a judge with no jury present. The judge is the finder of fact and resolves all credibility issues between witnesses. Second, and perhaps most importantly, the burden of proof, while still on the government, is much lower than at a jury trial.

We are all familiar with the “beyond a reasonable doubt” standard, the highest in the law, which applies at a criminal jury trial. At a preliminary hearing, conversely, the standard is only probable cause.

The preliminary hearing probable cause standard is stated in different ways by various appellate courts through time, but essentially it requires the government to put forth sufficient evidence that a reasonable person would find that the person being charges likely committed the crime.

This is a standard somewhere below 50%, which is known as a preponderance. For that reason, a preliminary hearing court can find that it is more likely than not that the defendant is not guilty, but still hold them to answer for the charge following preliminary hearing where the evidence raises a reasonable inference of guilt.

DEFENDANT COMMITTED WITHOUT PROBABLE CAUSE

The Fourteenth Amendment requires a judge have probable cause in California to try somebody for a crime. In other words, they can only send the case to trial if the allegations are not supported by facts. Again, the facts don’t have to prove defendant’s guilty beyond a reasonable doubt, but they have to be sufficient enough that a reasonable person would have a strong suspicion they are guilty of the crime charged.

A motion under Penal Code Section 995 therefore has to allege that the court could not have found a reasonable inference of guilt based on the evidence presented by the prosecution. While the burden of proof is low, it is still on the government.

Where the government’s case derives solely from information which requires speculation, conjecture, or guess-work in order to infer the defendant’s guilt, a dismissal pursuant to Penal Code Section 995 is proper. The trial court must also appraise the case in light of the whole record, not just isolated bits of evidence selected by the prosecution.

PROCESS FOR A PENAL CODE 995 MOTION

Procedurally, a Penal Code Section 995 motion is almost always brought before a trial court with a judge other than the one who presided over the preliminary hearing. Though this is not legally required, this procedure is preferable over having the same judge hear a Penal Code Section 995 motion as the one who heard the preliminary hearing.

This allows the Section 995 process to function as a check on the preliminary hearing court, with a set of fresh eyes re-evaluating the case to check for obvious errors.

It should be noted, however, that the trial court which hears the Penal Code Section 995 motion to dismiss is not reviewing the record at the preliminary hearing as if it had itself heard the preliminary hearing. All reasonable inferences in favor of the preliminary hearing judge’s determination will be afforded by the trial court.

There are relatively infrequent, though certainly not unheard of, instances however where the trial court will determine that the evidence presented at the preliminary hearing was truly insufficient and the judge erred in holding the defendant to answer.

This determination will take the form of setting aside the Information – the charging document filed post-preliminary hearing against the defendant – and dismissing the case completely.

PC 995 OPPORTUNITY TO DISMISS CRIMINAL CHARGES

Through the Penal Code Section 995 vehicle, therefore, defendants have an opportunity to have their cases dismissed completely by a judge without having to risk a jury trial. This is unique in California criminal procedure – leaving aside the limited circumstances which give rise to a demurrer – as there is no true analogue to a motion to dismiss as exists in civil procedure.

If the trial court grants a 995 motion, the charges will be dismissed. However, the prosecutor can appeal the decision. While their appeal is pending, the prosecutor could proceed with a trial on any remaining charges, or request a continuance of the trial until appeal is resolved. They also have the option to just re-file the charge in a new complaint.

If all charges are dismissed after a 995 motion, the court has to either refund defendant’s bail within 15 days, or apply the bail to the new charges if the prosecutor refiles charges.

CONTACT OUR CRIMINAL ATTORNEYS FOR HELP

If you or a family member has been charged with a felony and has had a preliminary hearing at which the defendant was held to answer and the case bound over to the trial court, you should consult an experienced Los Angeles criminal defense lawyer about the viability of the Penal Code Section 995 motion to dismiss.

Even if such a motion is ultimately denied, the filing of an effective Section 995 motion puts the court and the prosecution on notice of the important issues in the case and, if nothing else, can often inspire a more favorable settlement in the matter. Effective litigation at the Penal Code Section 995 phase of a felony prosecution is a crucial part of achieving a favorable result in a California felony criminal case.

Eisner Gorin LLP is a nationally recognized criminal defense law firm with a team of highly experienced lawyers. We are located at 1875 Century Park E #705, Los Angeles, CA 90067. We also have an office right next to the Van Nuys Courthouse located at 14401 Sylvan St #112 Van Nuys, CA 91401. Contact our office for a consultation at (310) 328- 3776.

CITED https://www.egattorneys.com/criminal-case-process-california/995-motion-to-dismiss

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42 U.S. Code § 1983– Civil Action for Deprivation of Right$

$ection 1983 Lawsuit – How to Bring a Civil Rights Claim

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

$uing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

RELATIONSHIP WITH YOUR CHILDREN & YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

We also have the 9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment thisCODE PROTECTS all US CITIZENS

We also have the Amdt5.4.5.6.2 – Parental and Children’s Rights 5th Amendment thisCODE PROTECTS all US CITIZENS

We also have the 9.32 – Interference with Parent / Child Relationship – 14th Amendment thisCODE PROTECTS all US CITIZENS

We also have the California Civil Code Section 52.1Interference with exercise or enjoyment of individual rights

We also have the Parent’s Rights & Children’s Bill of RightsSCOTUS RULINGS FOR YOUR PARENT RIGHTS

We also have a SEARCH of our site for all articles relatingfor PARENTS RIGHTS Help!

GRANDPARENT CASE LAW

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Parent’s Rights & Children’s Bill of Rights

Cal State Bar PDF to read about Three Parent Law – The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Contesting / Appeal an Order / Judgment / Charge

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California – Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Epic Criminal / Civil Rights SCOTUS Help – Click Here

Epic Parents SCOTUS Ruling – Parental Rights Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on Judicial & Prosecutorial Conduct

Family Treatment Court Best Practice Standards

Download Here this Recommended Citation

Please take time to learn new UPCOMING

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

Motion Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content

What is an appeal?

What is an appeal?

What are some important words and phrases that I need to know as I start the appeals process?

What should I consider when deciding whether or not to file an appeal?

What are the typical “grounds for appeal” that judges will consider?

How do I start the appeals process?

Do I need a lawyer to appeal my case?

What is a motion to stay? How does it affect the order I am appealing?

Step 1: File the Notice of Appeal.

Step 2: Pay the filing fee.

Step 3: Determine if/when additional information must be provided to the appeals court as part of opening your case.

Step 4: Order the trial transcripts.

Step 5: Confirm that the record has been transferred to the appellate court.

Step 6: Determine what must be filed with your brief.

Step 7: Determine when your brief must be filed.

Step 8: Check the length and formatting requirements for the brief.

What is a Motion to Amend or Motion to Modify?

What is a Motion for Reconsideration?

To Learn More…. Read MORE Below and click the links Below

Abuse & Neglect – The Reporters (Police, D.A & Medical & the Bad Actors)

If You Would Like to Learn More About: The California Mandated Reporting Law Click Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166 Article 2.5. (CANRA) Click Here

Mandated Reporter form Mandated Reporter FORM SS 8572.pdf – The Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS INFO BULLETIN Click Here Officers and DA’s for (Procedure to Follow)

You can learn more here California Child Abuse and Neglect Reporting Law its a PDF files taken from

Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment

Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

We also have the Brayshaw v. City of Tallahassee – 1st Amendment – Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment – Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1st Amendment

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive – 1st Amendment

ARE PEOPLE LYING ON YOU? CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

We also have the Penal Code 118 PC – California Penalty of “Perjury” Law

We also have the Federal Perjury – Definition by Law

We also have the Penal Code 132 PC – Offering False Evidence

We also have the Penal Code 134 PC – Preparing False Evidence

We also have the Penal Code 118.1 PC – Police Officer$ Filing False Report$

We also have the Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

We also have the Penal Code 148.5 PC – Making a False Police Report in California

We also have the Penal Code 115 PC – Filing a False Document in California

Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse Allegations – Family Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court Sanction Click Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee Recovery – Click Here

Know Your Rights Click Here (must read!)

Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

$ection 1983 Lawsuit – How to Bring a Civil Rights Claim

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

18 U.S. Code § 241 – Conspiracy against Right$

$uing for Misconduct – Know More of Your Right$

Police Misconduct in California – How to Bring a Lawsuit

New Supreme Court Ruling – makes it easier to sue police

RELATIONSHIP WITH YOUR CHILDREN & YOUR CONSTITUIONAL RIGHT$ + RULING$

We also have the 9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the Amdt5.4.5.6.2 – Parental and Children’s Rights 5th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the 9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the California Civil Code Section 52.1 Interference with exercise or enjoyment of individual rights

We also have the Parent’s Rights & Children’s Bill of Rights SCOTUS RULINGS FOR YOUR PARENT RIGHTS

We also have a SEARCH of our site for all articles relating for PARENTS RIGHTS Help!

GRANDPARENT CASE LAW

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS **INFO BULLETIN Click Here Officers and DA’s for (Procedure to Follow)**

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

California Motions in Limine –
What is a Motion in Limine?