From time to time, the appellate courts have voiced a strong disapproval of the use of motions in limine, which they observe have evolved into dispositive motions. Trial judges also experience a certain irritation when faced with a mountain of motions in limine, all designed to keep out all unfavorable evidence, essentially leaving an opposing party with nothing to offer at trial. (As the mountain grows, so does the risk of having a judge deny most of the motions and deciding to rule on them as the issues arise during trial.)
Motions in limine have not only been used for their intended purpose - to keep out inadmissible evidence before a jury hears it - but as substitutes for motions for summary judgment or adjudication, demurrers or motions for judgment on the pleadings, nonsuits based on the evidence, and directed verdicts.
In
Amtower v. Photo Dynamics, Inc. (2008) 158 Cal.App.4th 1582, the court noted:
"What in limine motions are not designed to do is to replace the dispositive motions prescribed by the Code of Civil Procedure. It has become increasingly common, however, for litigants to utilize in limine motions for this purpose."
(
Id. at p. 1593.) In a concurring opinion in
R & B Auto Center, Inc.v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 371, Justice Rylaarsdam wrote, "To have the sufficiency of the pleading or the existence of triable issues of material fact decided in the guise of a motion in limine is a perversion of the process."
The
Amtower court also noted, "The disadvantages of such shortcuts are obvious. They circumvent procedural protections provided by the statutory motions or by trial on the merits; they risk blindsiding the nonmoving party; and, in some cases, they could infringe [on] a litigant's right to a jury trial. (Cal. Const., art. I, sec. 16.) Adherence to the statutory processes would avoid all risks. Furthermore, these irregular procedures can result in unnecessary reversals." (
Id. at p. 1594.)
The use of a motion in limine may suffer from a number of potential problems:
- It may fail to comply with the procedural rules applicable to the motion it attempts to mimic, such as a lack of sufficient notice, an opportunity for opposition, and in motions resembling a motion for summary judgment or adjudication, the lack of a separate statement and written objections.
- It may deprive a party of the right to a jury trial on the evidence.
- It may increase the risk of a reversal on appeal, and, as noted in Amtower, the party may face a standard of review that is less favorable than the one provided for in reviewing a dispositive motion.
If you have obtained a dispositive result based on a motion in limine, you may ask yourself whether you have provided your opponent with an issue on appeal, and quite possibly, a reason for the appellate court to reverse your win. In the long run, it might be preferable to bring the appropriate dispositive motion and comply with all procedural requirements. That might mean planning for a dispositive motion earlier in the proceeding than on the eve of trial, but it just might be worth it.