Volume 33: Motions After Trial thru Negotiable Instruments-Chs. 371-385

Chapter 373 MOTIONS IN LIMINE

Part I SCOPE
373.01 Scope of Chapter
This chapter discusses the motion in limine and its use in civil actions and contains forms of a motion [Form 1], and an order granting a motion in limine [Form 2].
373.02 Cross References
For discussion and forms relating to motions in general, see Ch. 372, Motions and Orders.

For discussion of pretrial conferences, at which motions in limine may be considered, see Ch. 425, Pretrial Proceedings.

For discussion of pretrial motions to suppress prejudicial matter in criminal proceedings, such as motions under Penal Code 1538.5[Deering's] , see Erwin, Millman, Monroe, Sevilla, Tarlow, CALIFORNIA Criminal Defense Practice, Ch. 23 (Matthew Bender).
373.03-373.09 [Reserved]

Part II LEGAL BACKGROUND
373.10 Governing Law
A motion in limine, while common, is not specifically authorized or governed by any California statute. A trial court's consideration of such a motion, however, appears to be authorized under Code Civ. Proc. 128(a)(3)[Deering's],(8)[Deering's] , which states that every court has the power to provide for the orderly conduct of proceedings before it and to amend and control its process and orders to make them conform to law and justice. Additional support for a motion in limine is provided by Evid. Code 350[Deering's] , which allows the admission of relevant evidence only, by Evid. Code 352[Deering's] , which authorizes the exclusion of unduly prejudicial evidence, and by Evid. Code 402(b)[Deering's] , which authorizes the hearing and determination of the admissibility of evidence out of the presence or hearing of the jury. California appellate courts have acknowledged the use of motions in limine by trial courts [see People v. Morris (1991) 53 Cal. 3d 152, 188, 279 Cal. Rptr. 720, 807 P. 2d 949 ; Clemens v. American Warranty Corp. (1987) 193 Cal. App. 3d 444, 451, 238 Cal. Rptr. 339 ; Lemer v. Boise Cascade, Inc. (1980) 107 Cal. App. 3d 1, 9-12, 165 Cal. Rptr. 555 ]. Although there is no decision outlining procedural guidelines for a motion in limine, numerous cases discuss the use of pretrial motions to exclude prejudicial evidence from the jury [see, e.g., Cherrigan v. City etc. of San Francisco (1968) 262 Cal. App. 2d 643, 646, 69 Cal. Rptr. 42 ; Sacramento, etc. Drainage Dist. ex rel. State Reclamation Bd. v. Reed (1963) 215 Cal. App. 2d 60, 66-68, 29 Cal. Rptr. 847 ; modified 217 Cal. App. 2d 611, 31 Cal. Rptr. 754].
373.11 Definitions
In limine is defined as ``on or at the threshold; at the very beginning; preliminarily'' [Black's Law Dictionary (5th ed.) (1978)]. A motion in limine is a motion directed to the judge outside the presence of the jury to limit or exclude certain evidence or testimony in anticipation of such references by adverse counsel or witnesses [see Cotchett & Cartwright, CALIFORNIA PRODUCTS LIABILITY ACTIONS, Ch. 10, Trial, 10.01[6] (2d ed. Matthew Bender)]. Such a motion generally is brought at the beginning of trial, although it also may be brought during trial [ People v. Morris (1991) 53 Cal. 3d 152, 188, 279 Cal. Rptr. 720, 807 P. 2d 949 ; Kelly v. New West Federal Savings (1996) 49 Cal. App. 4th 659, 56 Cal. Rptr. 2d 803 ].
373.12 Purpose of Motion
The usual purpose of a motion in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party [ People v. Morris (1991) 53 Cal. 3d 152, 188, 279 Cal. Rptr. 720, 807 P. 2d 949 ; Kelly v. New West Federal Savings (1996) 49 Cal. App. 4th 659, 669, 56 Cal. Rptr. 2d 803 ]. The scope of a motion in limine is any kind of evidence that could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial [ Clemens v. American Warranty Corp. (1987) 193 Cal. App. 3d 444, 451, 238 Cal. Rptr. 339 ]. A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial [ People v. Morris (1991) 53 Cal. 3d 152, 188, 279 Cal. Rptr. 720, 807 P. 2d 949 ]. Another purpose of a motion in limine is to prevent opposing counsel or witnesses from referring to matters that may be prejudicial, and might create a negative inference in the jurors' minds, even though they are subsequently instructed to disregard them [see Cotchett & Cartwright, CALIFORNIA PRODUCTS LIABILITY ACTIONS, Ch. 10, Trial, 10.01[6] (2d ed. Matthew Bender); Davis, ``Pre-Trial Motions to Suppress Prejudicial Matters,'' 4 Trial Lawyers Q. 43, 43-44 (1967)]. It is the prejudicial effect of the questions asked or statements made in connection with the offer of the evidence, rather than the prejudicial effect of the evidence itself, which a motion in limine is intended to reach [ Bridges v. City of Richardson (1962) 163 Tex. 292, 354 S.W.2d 366, 367 ]. The purpose of the motion is to avoid the obviously futile attempt to ``unring the bell'' in the event a motion to strike is granted in the proceedings before the jury [ Kelly v. New West Federal Savings (1996) 49 Cal. App. 4th 659, 669, 56 Cal. Rptr. 2d 803 ; Hyatt v. Sierra Boat Co. (1978) 79 Cal. App.3d 325, 337, 145 Cal. Rptr. 47 ]. Thus, if counsel anticipates that opposing counsel may make some effort to introduce evidence or facts that are likely to create an adverse inference in the jurors' minds, a motion in limine is advisable.

Although generally used for exclusion of evidence, motions in limine also may request favorable pretrial rulings on admissibility of evidence. Such motions are particularly useful in cases containing massive documentary evidence.

Motions in limine serve additional purposes. They permit more careful consideration of evidentiary issues than would take place during trial. They minimize side-bar conferences and disruptions during trial, allowing an uninterrupted flow of evidence. By resolving potentially critical issues at the outset, they enhance the efficiency of trials and promote settlements [ People v. Morris (1991) 53 Cal. 3d 152, 188, 279 Cal. Rptr. 720, 807 P. 2d 949 ; Kelly v. New West Federal Savings (1996) 49 Cal. App. 4th 659, 669-670, 72, 56 Cal. Rptr. 2d 803 ].

Unlike an objection to all evidence, which may be used to end the trial and obtain judgment on the pleadings without the introduction of evidence, motions in limine are usually directed at particular items of evidence, rather than at a plaintiff's entire case [ Clemens v. American Warranty Corp. (1987) 193 Cal. App. 3d 444, 451, 238 Cal. Rptr. 339 ]. When the net affect of a motion or motions in limine is to exclude all evidence, the court has the power to dismiss the action without requiring a separate motion for judgment on the pleadings [ Clemens v. American Warranty Corp. (1987) 193 Cal. App. 3d 444, 451, 238 Cal. Rptr. 339 (while unorthodox, irregularity was nonprejudicial)]. However, if erroneous rulings on motions in limine prevent the plaintiff from offering evidence to establish their case, the error is reversible per se [ Kelly v. New West Federal Savings (1996) 49 Cal. App. 4th 659, 677, 56 Cal. Rptr. 2d 803 ].

For a form of motion in limine, see 373.50.

A motion in limine is not properly used to attempt to compel a witness or party to conform his or her trial testimony to a preconceived factual scenario based on testimony given during pretrial discovery [ Kelly v. New West Federal Savings (1996) 49 Cal. App. 4th 659, 672, 56 Cal. Rptr. 2d 803 (improper to exclude evidence regarding one of two elevators that could have been site of accident when plaintiff who initially identified one elevator as the one involved, later suggested that she was uncertain as to which was involved)].

Matters of day-to-day trial logistics and common professional courtesy should not be the subject of motions in limine [ Kelly v. New West Federal Savings (1996) 49 Cal. App. 4th 659, 671, 56 Cal. Rptr. 2d 803 (citing examples of requirement that counsel inform opposing counsel the day before of what witnesses will be called the next day and that no exhibits be shown to the jury without first being seen by all counsel and the court)].
373.13 Power of Court to Grant Motion
The power of a California court to grant a motion in limine, although not specifically provided for by statute, is found in the court's inherent power to provide for the orderly conduct of proceedings before it, to control its process and orders to make them conform to law and justice, and to exclude irrelevant evidence whose probative value is outweighed by the probability that its admission will create undue prejudice, confuse the issues, or mislead the jury [ Code Civ. Proc. 128(a)(3)[Deering's],(8)[Deering's] ; see Evid. Code 350[Deering's], 352[Deering's] ; Clemens v. American Warranty Corp. (1987) 193 Cal. App. 3d 444, 451, 238 Cal. Rptr. 339 ; Davis, ``Pre-Trial Motions to Suppress Prejudicial Matters,'' 4 Trial Lawyers Q. 43, 45 (1967)]. Cases in which the use of a motion in limine has been recognized include the following:

In Cherrigan v. City etc. of San Francisco (1968) 262 Cal. App. 2d 643, 646-647, 69 Cal. Rptr. 42 , a wrongful death case, plaintiff made a pretrial motion in chambers to exclude evidence of plaintiff's premarital pregnancy and subsequent remarriage. The motion was granted and judgment for plaintiff affirmed by the appellate court.

In Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal. 3d 1, 16-18, 84 Cal. Rptr. 173, 465 P.2d 61 , a personal injury case, defendant sought to ask about payments made to plaintiff by his insurer for the limited purpose of questioning the reasonableness of medical costs or showing that plaintiff was a malingerer. The California Supreme Court found that the trial court did not abuse its discretion in excluding the evidence and further indicated that the initial inquiry on this subject by counsel should have been made out of the presence of the jury.

In Sacramento, etc. Drainage Dist. ex rel. State Reclamation Bd. v. Reed (1963) 215 Cal. App. 2d 60, 66-68, 29 Cal. Rptr. 847 , modified 217 Cal. App. 2d 611, 31 Cal. Rptr. 754, the court of appeal sustained the trial court's granting of a pretrial motion to exclude evidence of damage from increased flooding that might be caused by future construction of levees on the Sacramento River across from the defendant's property. The court of appeal stated that while such a motion was not a conventional procedure, it was well conceived under the circumstances, and was an entirely proper mode of objection.

In Pierce v. J.C. Penney Co. (1959) 167 Cal. App. 2d 3, 5 n.1, 13, 334 P.2d 117 , counsel for plaintiff, in a pretrial discussion in chambers, sought permission to introduce evidence of subsequent repairs. An objection at trial that a question about subsequent repairs was immaterial was held sufficient to preserve the issue on appeal, on the rationale that the positions of the parties had been fully stated in chambers. The court thereby indicated that pretrial discussions on the admissibility of evidence are permissible [see also Delta Dynamics, Inc. v. Arioto (1968) 69 Cal. 2d 525, 527 n.1, 72 Cal. Rptr. 785, 446 P.2d 785 (approving use of pretrial conference to frame issues to be decided at trial)].

The court's inherent equity, supervisory, and administrative powers, as well as its inherent power to control litigation and conserve judicial resources allow the court to entertain a motion in limine to dismiss the entire action where the court believes that the plaintiff has failed to state a cause of action [ Lucas v. County of Los Angeles (1996) 47 Cal. App. 4th 277, 284-285, 54 Cal. Rptr. 2d 655 (irregular, but not improper procedure); see Clemens v. American Warranty Corp. (1987) 193 Cal. App. 3d 444, 451-452, 238 Cal. Rptr. 339 ]. This is not precluded by the Code Civ. Proc. 438(g)(1)[Deering's] requirement for a motion for judgment on the pleadings that there be a material change in law or statute or by the Code Civ. Proc. 1008[Deering's] requirements for a motion for reconsideration when an earlier motion for summary judgment has previously been denied [ Lucas v. County of Los Angeles (1996) 47 Cal. App. 4th 277, 284, 54 Cal. Rptr. 2d 655 ].
373.14 Examples of Application
The motion in limine has been suggested for use in excluding the following types of evidence [Davis, ``Pre-Trial Motions to Suppress Prejudicial Matters,'' 4 Trial Lawyers Q. 43, 45-50 (1967)]:

(a) Evidence of an injured party's compensation for medical expenses from a source wholly independent of the tortfeasor. Such evidence was held to be properly excluded in Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal. 3d 1, 14, 84 Cal. Rptr. 173, 465 P.2d 61 ; see also Evid. Code 1155[Deering's] .

(b) Evidence of an injured party's compensation for loss of wages from a source wholly independent of the tortfeasor. Such evidence was held improper to diminish recovery in Peri v. L.A. Junction Ry. (1943) 22 Cal. 2d 111, 131, 137 P.2d 441 ; see also Evid. Code 1155[Deering's] .

(c) Evidence of estimated future income tax or other deductions from plaintiff's expected gross salary. Such evidence was held improper to diminish damages in O'Donnell v. Great Northern Ry Co. (N.D. Cal. 1951) 109 F. Supp. 590, 591 .

(d) Evidence of an injured party's compensation for property damages from a source wholly independent of the tortfeasor. Such evidence was held improper to defeat recovery in Anheuser-Busch, Inc. v. Starley (1946) 28 Cal. 2d 347, 349-350, 170 P.2d 448 ; see also Evid. Code 1155[Deering's] .

(e) In a wrongful death action, evidence of the surviving spouse's remarriage or intent to remarry. Such evidence was held properly excluded in Cavallaro v. Michelin Tire Corp. (1979) 96 Cal. App. 3d 95, 106-109, 157 Cal. Rptr. 602 ; see Cherrigan v. City etc. of San Francisco (1968) 262 Cal. App. 2d 643, 646, 69 Cal. Rptr. 42 ; Wood v. Alves Service Transportation, Inc. (1961) 191 Cal. App. 2d 723, 727-728, 13 Cal. Rptr. 114 .

(f) In a wrongful death action, evidence of the heirs' wealth or poverty. Such evidence was held admissible for a limited purpose only in Stathos v. Lemich (1963) 213 Cal. App. 2d 52, 55-56, 28 Cal. Rptr. 462 .

(g) Evidence of a prior felony conviction to impeach a witness where a pardon, or similar relief, has been granted or the accusatory pleading has been dismissed under Penal Code 1203.4[Deering's] [inadmissible under Evid. Code 788[Deering's] ].

(h) Evidence of an offer to compromise. Such evidence was held properly excluded in Lemer v. Boise Cascade, Inc. (1980) 107 Cal. App. 3d 1, 9-12, 165 Cal. Rptr. 555 ; see also Evid. Code 1152[Deering's] .


373.15 Granting Motion Subject to Offer of Proof
A court may conditionally grant a motion in limine to prevent mention of prejudicial matter subject to offers of proof at trial. If facts adduced at trial have probative value that may outweigh their prejudicial impact, the trial court may reconsider its ruling on the motion in limine and change it, if appropriate [see, e.g., Lemer v. Boise Cascade, Inc. (1980) 107 Cal. App. 3d 1, 9-12, 165 Cal. Rptr. 555 ].
373.16 Procedure on Motion
[1]--Notice
Motions in limine generally are directed to the judge of the department to which the case has been assigned for trial, on the day trial is scheduled to begin, preferably prior to jury selection. They may be made orally or in writing, and should be made on the record with all counsel present. Motions in limine must be made outside the hearing of the jury or in chambers [see Cotchett & Cartwright, CALIFORNIA PRODUCTS LIABILITY ACTIONS, Ch. 10, Trial, 10.01[6] (2d ed. Matthew Bender)].

California law does not clearly delineate the proper procedure for making a motion in limine. Generally, when a motion seeks to affect the rights of an adverse party, notice to the adverse party is required [see Code Civ. Proc. 1005.5[Deering's] ; McDonald v. Severy (1936) 6 Cal. 2d 629, 631, 59 P.2d 98 ].

In certain instances, a motion may be made on ex parte application. For example, a motion for continuance may be made ex parte where, for good cause, notice cannot be given [see Cal. Rules of Ct., Rule 375(a)[Deering's] ]. An order, however, based on an ex parte application is granted only in the plainest and most certain of cases where it appears that the rights of the adverse party will not be affected [ Consolidated Const. Co. v. Pacific E. Ry. Co. (1920) 184 Cal. 244, 246, 193 P. 238 ]. Therefore, under normal circumstances the granting of an ex parte motion in limine would be inappropriate since the in limine motion, by its nature, raises factual questions and affects the rights of the adverse party.

It appears to be customary in California trial courts to make motions in limine without giving advance notice to the adverse party. Nevertheless, the motion would not be granted ex parte, since it would be made in chambers with all counsel present.

A recommended practice is to give the judge and opposing counsel a written motion in limine accompanied by a memorandum of points and authorities, and a proposed order. If the judge signs the order, it should then be filed and served on all parties. For forms of a notice and an order, see 373.50 and 373.51, respectively.

When counsel has advance notice of which judge will be hearing the case, a noticed motion in limine may be made [For discussion and checklists for noticed motion procedure and for forms for use in giving notice of a motion, see Ch. 372, Motions and Orders]. On making such a noticed motion, an order shortening time for notice would be particularly appropriate [see Ch. 524, Shortening and Extension of Time].
[2]--Refusal to Hear Motion
When the court refuses to entertain the motion in limine on the ground that it is without power to issue an in limine order, a writ of mandate may issue to compel it to hear the motion. The writ has been held proper to compel an exercise of discretion when a trial court has refused to do so on the mistaken belief that it is without such authority [see Nadler v. Superior Court (1967) 255 Cal. App. 2d 523, 525, 63 Cal. Rptr. 352 ].
[3]--Effect of Trial Delay Reduction Programs
The Trial Court Delay Reduction Act requires all superior and municipal courts to implement delay reduction programs [ Gov. Code 68605.5[Deering's], 68620[Deering's] ]. Local rules enacted to implement the Act may affect the procedure for motions in limine. For example, the motions may be required to be in writing, with filing and service completed at least three days before the issue conference [see, e.g., Contra Costa Co. Super. Ct. Rules, Rule 5(k)(1) ]. In Los Angeles County, with respect to individual calendar cases, parties must file all motions in limine with timely statutory notice so as to be heard on the day of the final status conference; with respect to master calendar cases, parties must file and serve motions in limine at least five days before the final status conference, for hearing on the first day of trial [ Los Angeles Co. Super. Ct. Rules, Rule 7.9(d) ].

For further coverage of the act and the local delay reduction rules, see Ch. 552, Trial Court Delay Reduction.
373.17 Violation of Order
An attorney who violates an in limine order by mentioning prohibited matter within the hearing of the jury may be cited for contempt [see Code Civ. Proc. 1209(a)(5)[Deering's] ; Charbonneau v. Superior Court (1974) 42 Cal. App. 3d 505, 507, 116 Cal. Rptr. 153 ]. Moreover, a motion for a new trial may be granted on the ground that violation of the order constituted an irregularity in the proceedings of the adverse party [see Code Civ. Proc. 657(1)[Deering's] ]. A mistrial may be declared where the attorney's misconduct has seriously prejudiced an adverse party's claim or defense [see Code Civ. Proc. 616[Deering's] ; Grimshaw v. Ford Motor Co. (1981) 119 Cal. App. 3d 757, 793-795, 174 Cal. Rptr. 348 (declining to reverse trial court's denial of motion for mistrial, which impliedly found that misconduct did not result in prejudice)].
373.18 Review of Order
[1]--Extraordinary Writ
The order granting or denying the motion in limine is not appealable and review of the order by extraordinary writ will not usually be possible [see Code Civ. Proc. 904.1-904.2[Deering's] ]. However, in a few situations, the court's decision may be reviewable by a writ of mandate or prohibition [see Code Civ. Proc. 1084-1086[Deering's] (mandate); Code Civ. Proc. 1102-1103[Deering's] (prohibition); cf. Penal Code 1538.5(i)[Deering's],(o)[Deering's] (authorizing use of these writs to review order granting or denying motion to suppress under Penal Code 1538.5[Deering's] )]. A writ of mandate is available to correct an error at law [see Code Civ. Proc. 1085[Deering's] ]. A writ of prohibition may be used to arrest proceedings that are without or in excess of jurisdiction, or involve an error of constitutional dimension [see Code Civ. Proc. 1102[Deering's] ]. Both writs require a showing that there is no plain, speedy, and adequate remedy in the ordinary course of law [see Code Civ. Proc. 1086[Deering's], 1103[Deering's] ]. For detailed discussions of these procedures, see Ch. 358, Mandate and Prohibition.
[2]--Appeal After Judgment
[a]--Issue Is Admission or Exclusion of Evidence
The erroneous granting or denial of a motion in limine does not, in itself, constitute reversible error, since on appeal the issue is not whether the motion was improperly granted or denied, but rather whether the evidence was improperly excluded or admitted at trial [ Hartford Acc. & Indem. Co. v. McCardell (Tex. 1963) 369 S.W.2d 331, 335 ; see also Davis, ``Pre-Trial Motions to Suppress Prejudicial Matters,'' 4 Trial Lawyers Q. 43, 45 (1967)]. The appeal is taken from the rejection or admission of the evidence and not from the order on the motion.
[b]--Admission of Evidence
Where the error claimed is the erroneous admission of evidence, the verdict of the trial court may not be set aside on appeal unless the motion to exclude was timely and the specific ground of the motion clear [ Evid. Code 353[Deering's] ]. Evid. Code 353[Deering's] does not specify when the objection is to be made. Under appropriate circumstances, a motion in limine can serve the function of a motion to exclude under Evid. Code 353[Deering's] by allowing the trial court to rule on a specific objection to particular evidence. A motion in limine to exclude evidence is a sufficient manifestation of objection to protect the record on appeal when it satisfies the basic requirements of Evid. Code 353[Deering's] , i.e.: (1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context. When such a motion is made and denied, the issue is preserved for appeal. On the other hand, if a motion in limine does not satisfy each of these requirements, a proper objection satisfying Evid. Code 353[Deering's] must be made when the evidence is proffered at trial to preserve the evidentiary issue for appeal [ People v. Morris (1991) 53 Cal. 3d 152, 189-190, 279 Cal. Rptr. 720, 807 P. 2d 949 ]. Nevertheless, the better practice in handling motions in limine is for the parties to stipulate to the effect of the court's rulings or for the trial judge to make it clear to counsel at the end of in limine arguments not only what the ruling on the motion is, but whether further objection or argument is desired when the evidence is presented. If this is done, the stipulation or order of the trial court will be respected in the appellate court's determination whether error has been properly preserved [ People v. Morris (1991) 53 Cal. 3d 152, 190-191, 279 Cal. Rptr. 720, 807 P. 2d 949 ].
Before a judgment will be reversed on appeal because of the erroneous exclusion of evidence, an offer of proof is usually necessary unless the rulings of the court make compliance with this requirement futile [see Evid. Code 354(a)[Deering's],(b)[Deering's] ]. When the trial court has ruled or clearly intimated that it will receive no evidence of a particular type or class, or on a particular issue, the prejudicial nature of the exclusion of such evidence may be argued on appeal regardless of whether or not an offer of proof was made [see Lawless v. Calaway (1944) 24 Cal. 2d 81, 91, 147 P.2d 604 ]. Therefore, it appears that an offer of proof will not be necessary for appeal where exclusion of evidence was based on an order granting a motion in limine.

Further, it is arguable that an offer of proof may be made at a pretrial hearing on the motion by presenting the substance, purpose, and relevance of the evidence in question to the court by means of counter affidavits or declarations [see Evid. Code 354[Deering's] (offers of proof); Code Civ. Proc. 2009[Deering's] (affidavits), 2015.5[Deering's] (declarations)].

Evid. Code 354[Deering's] does not specify when an offer of proof is to be made. Although such offers have invariably been made at trial, there would seem to be no objection to allowing an offer of proof at a pretrial hearing where both parties are present and prepared to argue the evidence question. In Delta Dynamics, Inc. v. Arioto (1968) 69 Cal. 2d 525, 527 n.1, 72 Cal. Rptr. 785, 446 P.2d 785 , an appeal was allowed where the attempted offer of proof at trial, taken alone, was too general to provide a ground for appeal but the court had been sufficiently apprised of the substance, purpose, and relevance of the evidence at the pretrial conference.
373.19-373.29 [Reserved]

Part III RESEARCH GUIDE
373.30 Cross References
For motion practice generally, see Ch. 372, Motions and Orders
373.31 State Constitution
Harmless error rule. Cal. Const., art. VI, 13[Deering's]
373.32 State Statutes
[1]--Contempt
Disobedience of any lawful judgment, order, or process of court as contempt. Code Civ. Proc. 1209(a)(5)[Deering's]
[2]--Evidence
Only relevant evidence as admissible. Evid. Code 350[Deering's]

Exclusion of time-consuming, prejudicial, confusing, and misleading evidence. Evid. Code 352[Deering's]

Error in admitting evidence. Evid. Code 353[Deering's]

Error in excluding evidence. Evid. Code 354[Deering's]
[3]--Motions and Orders
Motion on all grounds stated in written notice thereof as deemed to have been made and to be pending before court for all purposes on service and filing of notice. Code Civ. Proc. 1005.5[Deering's]
[4]--Powers of Courts
Power of court to provide for orderly conduct of proceedings before it. Code Civ. Proc. 128(a)(3)[Deering's]

Power of court to amend and control processes and orders make them conform to law and justice. Code Civ. Proc. 128(a)(8)[Deering's]
[5]--Review
Appealability of orders. Code Civ. Proc. 904.1-904.2[Deering's]

Writ of mandate. Code Civ. Proc. 1084-1086[Deering's]

Writ of prohibition. Code Civ. Proc. 1102-1105[Deering's]
373.33 Local Court Rules
Time for making motions in limine. San Francisco Uniform Local Ct. Rules, Rule 6.2
373.34 Decisions
[1]--Purpose
Courts routinely conduct hearings in limine to determine scope of admissible evidence; court may exclude incompetent evidence or evidence not relevant to issues presented to jury. Redevelopment Agency v. Tobriner (1989) 215 Cal. App. 3d 1087, 1097 n.5, 264 Cal. Rptr. 481

Motion in limine is intended to reach prejudicial effect of questions asked or statements made in connection with offer of evidence and not prejudicial effect of evidence itself. Bridges v. City of Richardson (1962) 163 Tex. 292, 354 S.W.2d 366, 367
[2]--Objection to All Evidence
Objection to all of party's evidence through motion in limine is available when party's pleading is fatally defective; dismissal is not inappropriate or prejudicial following granting of motion. Clemens v. American Warranty Corp (1987) 193 Cal. App. 3d 444, 452, 238 Cal. Rptr. 339
[3]--Offer of Proof
Offer of proof is not prerequisite for arguing on appeal prejudicial nature of exclusion of evidence where entire class of evidence declared inadmissible by trial court. Lawless v. Calaway (1944) 24 Cal. 2d 81, 91, 147 P.2d 604
[4]--Out of Jury's Presence
In personal injury case where defendant sought to ask about payments made to plaintiff by his insurer, initial inquiry was improperly made in presence of jury. Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal. 3d 1, 16-18, 84 Cal. Rptr. 173, 465 P.2d 61
[5]--Pretrial Discussions
Appeal is allowed where attempted offer of proof at trial, taken alone, was too general to provide ground for appeal but court had been sufficiently apprised of substance, purpose, and relevance of evidence in question at pretrial conference. Delta Dynamics, Inc. v. Arioto (1968) 69 Cal. 2d 525, 527 n.1, 72 Cal. Rptr. 785, 446 P.2d 785

Objection at trial to question about subsequent repairs was sufficient to preserve issue on appeal, although specific ground of objection was not stated at trial, since parties had stated their positions at pretrial meeting in chambers. Pierce v. J.C. Penney Co. (1959) 167 Cal. App. 2d 3, 5 n.1, 13, 334 P.2d 117
[6]--Proper Denial
Trial court's discretion in denying Evid. Code 352[Deering's] motion in limine is properly exercised when record contains affirmative indications that trial court fully understood and executed its duty to weigh probative value against prejudicial effect of evidence. Ramona Manor Convalescent Hospital v. Care Enterprises (1986) 177 Cal. App. 3d 1120, 1137, 225 Cal. Rptr. 120
[7]--Review of Order
Defendant failed to properly raise issue of trial court's exercise of discretion in denying defendant's motion in limine on retrial to exclude plaintiff's evidence of trust deeds and liens recorded after sale of property at issue, testimony by plaintiff's expert, and testimony relating to compensatory damages not awarded in first trial, where, on appeal, defendant failed to identify exhibits or refer to page numbers where appellate court could find evidence defendant claimed was admitted over its objection, failed to refer to trial court's ruling on its objections, failed to refer to or discuss any testimony or other evidence to show how it was prejudiced by unidentified trust deed and liens and unidentified testimony; and failed to support its contention with applicable authority. Simon v. San Paolo United States Holding Co., Inc. (2003) 113 Cal. App. 4th 1137, 1153, 7 Cal. Rptr. 3d 367

Writ of mandate is proper to compel exercise of discretion where trial court refuses to do so mistaken belief that it is without such authority. Nadler v. Superior Court (1967) 255 Cal. App. 2d 523, 525, 63 Cal. Rptr. 352

Improper granting of Evid. Code 352[Deering's] motion in limine is reversible error when granting of motion results in miscarriage of justice. Palmer v. Ted Stevens Honda, Inc. (1987) 193 Cal. App. 3d 530, 542, 238 Cal. Rptr. 363
373.35 Law Reviews
Lerach, Invoking the Motion in Limine, 8(10) Cal. Law. 94 (1988)

Colbert, The Motion in Limine in Politically Sensitive Cases: Silencing the Defendant at Trial, 39 Stan. L. Rev. 1271 (1987)

Davis, Pre-Trial Motions to Suppress Prejudicial Matters, 4 Trial Lawyers Q. 43 (1967)

Davis, Motions in Limine, 15 Cleveland-Marshall L. Rev. 255 (1966)

Davis, The Motion in Limine--A Neglected Trial Technique, 5 Washburn L.J. 232 (1966)
373.36 Text References
Witkin, California Procedure, Vol. 6, Proceedings Without Trial, 1-57 (4th ed. 1997)

CJER, California Judges Benchbook, Civil Trials (1981), Ch. 3, Conference Before Trial, 3.12-3.15

Werchick, California Preparation and Trial, Ch. 12, Overcoming Defenses, 12.5 (3d ed., 1981)
373.37-373.39 [Reserved]

Part IV PROCEDURAL CHECKLIST
373.40 Checklist for Motion in Limine
NOTE: Scope of Checklist. This checklist sets forth the procedure to be followed in obtaining an order in limine without making a noticed motion. For the procedure on noticed motions generally, see Ch. 372, Motions and Orders.
[1]--Preliminary Determinations
r Identify facts that are inadmissible in evidence and potentially prejudicial to your client's case if referred to at trial [see 373.06].

r Consider facts opposing counsel may refer to in a question as well as facts counsel may seek to put in evidence.

r Consider whether motion should address facts even where opposing counsel has not indicated any knowledge of or interest in these facts; opposing counsel may later learn of them or decide, on reevaluation of the case, that they would be helpful to his or her client.

r Determine if there is any other factual evidence, documentary or otherwise, for which a pretrial ruling on admissibility would be optimal.

r Determine when and how to raise the issue, including whether or not to proceed by written motion and what local rules may require regarding addressing the issue in a pretrial conference [see 373.16].
[2]--Prepare Papers
r Prepare sufficient copies of the following papers for presentation to the court and all counsel:

r Motion in limine stating grounds for inclusion or exclusion of the subject evidence or reference [see 373.50];

r Memorandum of points and authorities; and

r Proposed order in limine [see 373.51].
[3]--Present Motion
Present the motion orally or give copies of papers to court and counsel at trial, preferably before jury selection. This should be done on the record, in chambers, with all counsel present.
[4]--Order in Limine
r If not familiar with local procedure, check with court clerk before trial to determine procedure for presentation and service of order in limine.

r Judge may sign the proposed order, with or without modification, or may issue an order orally on the record [For procedures for orders generally, see Ch. 372, Motions and Orders].
373.41-373.49 [Reserved]

Part V FORMS
373.50 Motion in Limine
[1]--FORM
Motion in Limine

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

[or other as appropriate ]



_________________________ [name ], )NO. __________
Plaintiff,)MOTION IN LIMINE
)Date: _______________
vs. )Time: _______________
)Dept.: _______________
_________________________ [name ], )Trial Date: __________
Defendant.)
)

_________________ [Specify moving party, e.g., Plaintiff] _________________ [name ] hereby moves this court for an order _________________ [specify, e.g., instructing defendant and his/her counsel not to refer to, interrogate any witness concerning, comment on, or attempt to suggest to the jury in any way the fact that plaintiff received compensation for his/her medical expenses from a collateral source, and to inform his/her witnesses of these instructions and direct them not to make any reference to collateral source payments].

This motion is made on the grounds that _________________ [specify, e.g., the fact that plaintiff received compensation for his/her medical expenses from a collateral source is irrelevant and any attempt to convey this information to the jury would be highly improper and prejudicial to plaintiff, even if the court were to sustain an objection and instruct the jury not to consider such facts].

The motion is based on [the declarations of _________________ (name ) and] the memorandum of points and authorities accompanying this motion, on the papers and records on file herein, and on such oral and documentary evidence as may be presented at the hearing of this motion.

Dated: _________________.

_________________ [firm name, if any]
By: _________________ [signature]
_________________ [typed name]
Attorney For _________________ [party's status and name]
[2]--Use of Form
The form of motion in limine in [1], above, should be presented to the judge, with copies to all counsel, when making a motion in limine on the record, before jury selection, in chambers with all counsel present. It should be accompanied by a memorandum of points and authorities and a proposed order [see 373.51].

For discussion of the matters to which the motion may be addressed, see 373.12-373.14, and for discussion of the procedure on the motion, see 373.16.

Local rules of court or local court practice may require service of a written motion within a certain number of days prior to trial. Counsel should consult local rules or other guidelines for the appropriate procedures.
373.51 Order Granting Motion in Limine--With Findings
[1]--FORM
Order Granting Motion in Limine--With Findings

SUPERIOR COURT OF CALIFORNIA,
COUNTY OF _________________

[or other as appropriate ]



_________________________ [name ], )NO. __________
Plaintiff,)ORDER IN LIMINE
)Date: _______________
vs. )Time: _______________
)Dept.: _______________
_________________________ [name ], )Trial Date: __________
Defendant.)
)

The motion of _________________ [specify moving party, e.g., plaintiff] _________________ [name ] for an order _________________ [specify nature of order, e.g., instructing defendant and his/her attorney not to mention in the hearing of the jury that plaintiff _________________ (name ) received compensation for his/her medical expenses from a collateral source] was heard by the court on _________________ [date]. Plaintiff appeared by counsel _________________ [name ]; defendant appeared by counsel _________________ [name ].

The court, having considered the documents before it, having heard the arguments of counsel, and being fully advised, finds as follows: _________________ [specify findings, e.g., the fact that plaintiff _________________ (name ) received compensation for his/her medical expenses from a collateral source is irrelevant to the action pending before this court, and any mention thereof would be highly improper and prejudicial to plaintiff].

IT IS ORDERED that the motion be and it hereby is granted and _________________ [specify, e.g., defendant and his/her attorney are instructed not to refer to, interrogate concerning, comment on, or attempt to suggest to the jury in any way the fact that plaintiff _________________ (name ) received compensation for his/her medical expenses from a collateral source and to inform his/her witnesses of these instructions and direct them not to make any reference to collateral source payments].

Dated: _________________.

_________________ [signature ]
Judge of the _________________ Court
[2]--Use of Form
The form of order in [1], above, is for submission to the trial judge, with copies to all counsel, along with the motion in limine [see 373.50] and memorandum of points and authorities. Counsel should check with the individual judge's clerk to determine whether a written order is appropriate and the procedure for filing and serving any signed order.