Motions in Limine Dont Miss Categories and Authorities

By Jeremy Pasternak and Shaana Rahman

CAOC "Forum" - October 2005

"You cant 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 i

not happen. The following are some "dont miss" categories for motions in limine, and a discussion of not only what motions you might want to bring and the a

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 pla
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
give you some tools to protect your client (and your case).
A. Preparing for Your Motions While Still in Litigation
Protecting your clients 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

scope of admissibility. Based on that rule, attorneys often say to themselves, "Well, this may look bad, but Ill just exclude it at trial." Taking this position is a bi

the general rule is not really the rule. When it comes to a plaintiffs privacy rights, the real rule is that the scope of discovery is narrower then the scope of admi

words, during discovery, there are ways you can protect your client from the other side discovering "bad" information. And obviously, if they dont have it in th
dont 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 Tru

Court (1981) 119 Cal.App.3d 516, 524 [addressing privacy rights in the context of personnel documents]. See also, Harding Lawson Associates v. Superior Cour

Cal.App.4th 7, 10. ["The court there noted that California courts have generally concluded that the public interest in preserving confidential information outwe

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;
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. Sp

Entertainment Group (1997) 55 Cal.App.4th 1379: "Discovery of constitutionally protected information is on a par with discovery of privileged information and

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 whe
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.3
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

plaintiffs 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

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 proba

keep it out of discovery, you wont even have to make that argument. The take-home message is this: if you are concerned about what might come in at trial, fir
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 isnt. After all, if you had to object during discovery to questions which have soli

information in the first place, the other side may already know about it, and therefore, doesnt care whether or not you are admitted to particular items. They c

questions at trial.

The argument to make is simply this: generally speaking, admissibility is broader than discovery, and if this stuff isnt discoverable, then it sure isnt 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 persons character or a trait of his or her character (whether in t
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
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 sides 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 othe
acts are admissible. See Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 991:

As we have previously noted, [the defendants] character or personality in the workplace was relevant to the issues of defendants liability and punitive damage

admissible evidence, including evidence of reputation, is admissible to prove a persons character or character trait when character or a trait of character is
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
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 undu
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 t
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 applicati
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 individu
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 mo

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 highl

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 p
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
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
of which witnesses were interviewed and which provided statements, is objectionable as invasive of the work product privilege.
Though the defendants 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 claim
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

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 C

["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 b
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
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 dont 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 sides evidence, as they may fear that if they dont disclose it, they wont be able to use i
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

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.1Whi

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 "deem
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 circum

particular case. The fact that a topic has been included in the judges examination should not preclude additional nonrepetitve or nonduplicative questioning in

counsel." (C.C.P. 222.5) Moreover, section 222.5 provides that: "A court should not arbitrarily or unreasonably refuse to submit reasonable written questionn

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 ju
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 dir

should also attach the proposed questionnaire (and have copies made in advance for the jury pool), thereby reducing any inconvenience the court may perceive
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

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 c

questionnaires versus the time it would take to elicit the information contained in the questionnaires orally. Ideally, you should request that both counsel be ab

questionnaires overnight. As a further incentive to use the questionnaire, you may suggest in your motion in limine that the questionnaires be completed by th
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 disqualifi

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
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 prejud
might feel freer to disclose such bias or prejudice by privately responding to written questions. The questionnaire allows prospective jurors to be candid about
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 a

targeting "caps" on damage awards, and other "tort reform" proposals. A significant proportion of the venire has been exposed to such media publicity, creatin

widespread bias against civil litigation, particularly personal injury litigation. The written juror questionnaire enables counsel to assess jurors opinions and po

prejudices on these and other topics without further "contaminating" other prospective jurors. Such a questionnaire also allows the court and counsel to determ
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 th

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 prep

limine to exclude such evidence of collateral source payments in front of the jury as it would play to a jurys biases and prejudices rather than to its sense of rea
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, suc
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

725, 728-29 [prejudicial error to allow evidence of plaintiffs receipt of compensation under medical payments section of automobile liability policy]; Gersick v.

Cal.App.2d 641, 649-50 [error to allow testimony that plaintiffs medical bills were paid by his insurer].) In addition, Evidence Code section 1155 precludes the
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
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 "ha

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 cou
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 h

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 f

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 b

other injury compensation) received by the plaintiff from sources wholly independent of the defendant are not deducted from the damages otherwise recoverab

circumstances, the defendant is not entitled to an "offset" for the plaintiffs "collateral source" compensation and cannot introduce the fact of such payments in

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

judicially-created rule reflects California public policy of encouraging "prudent investment in insurance" and ensuring that tort victims are "made whole." (Kar
Mut. Auto. Ins. Co. (1989) 207 Cal.App.3d 479.)

IV. LIMITING THE DEFENDANTS 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 f

you can use the defendants insincere responses to your advantage in a motion in limine to limit the defendants affirmative defenses and other evidence. Form
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 telephon
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 whi

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 attem
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 f
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 a

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 pro
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

Absent some unusual extenuating circumstances, the appropriate sanction when a party fails to provide certain evidence to the opposing party as required by t
preclusion of that evidence from the trial even if such a sanction proves determinative in terminating the defendants case. (Juarez v. Boy Scouts of America,

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 wh

some lesser sanction would permit the offending party to benefit from their stalling tactics. (Do It Urself Moving & Storage Inc. v. Brown, Leifer, Slatkin & Bern

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 entitle

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 C
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 defendants strateg

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

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

County (Lumbermens) (1963) 218 Cal.App.2d 460, 465.) "[D]efendants persistent refusal to share with plaintiff the facts underlying their denial of liability an

affirmative defenses" warrants an imposition of a sanction striking defendants answer to the complaint. (See, Collision & Kaplan v. Hartunian (1994) 21 Cal.Ap

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 sup

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 info

affirmative defenses. While an issue or evidentiary sanction may seem drastic, it is commensurate in seriousness with the egregious misuse of the discovery pro
seen.

V. BLOCKING THE OTHER SIDES EXPERTS

Finally, we will address using motions in limine to block the testimony of the other sides experts, either in their entirety, or at least in part. For a detailed discu
Containment," please see Chris Dolans 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 opin
that is offered by any party who has unreasonably failed to do any of the following:
(a) List that witness as an expert under Section 2034.260.
(b) Submit an expert witness declaration.
(c) Produce reports and writings of expert witnesses under Section 2034.270.
(d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).
If the other side has failed to comply in any way, that fact provides the basis for your first expert motion in limine.
B. The Expert Deposition

How you bring motions in limine should also inform how you take an experts deposition. Do not just spend all your time getting all of the experts opinions. Sp

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 no

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 d
the experts 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 inclu
your Motion in Limine to Exclude Specific Areas of Testimony on Which Defendants 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.A

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 (
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 appr
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 know

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
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 courts discretion to exclude an expert witness, particularly when it would not inform the jury as to

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. St

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 C
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, experien
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

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 opi
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.
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 bes
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.
Jeremy D. Pasternak has law offices in San Francisco. He is a member of the Forum Editorial Board.
Shaana A. Rahman is with The Dolan Law Firm in San Francisco. She is a member of the Forum Editorial Board.