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  • Donna Bader
  • Attorney at Law
  • Certified Specialist in Appellate Law
  • 668 North Coast Hwy, Ste. 1355
  • Laguna Beach, CA  92651
  • Tel.: (949) 494-7455
  • Fax: (949) 494-1017
  • Donna@DonnaBader.Com



Donna Bader

Attorney at Law

Certified Specialist in Appellate Law

668 North Coast Hwy, Ste. 1355

Laguna Beach, CA  92651

Tel.: (949) 494-7455

Fax: (949) 494-1017




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The correct use of a motion in limine

In Johnson v. Chiu (2011) 199 Cal.App.4th 775, the Fourth Appellate District, Division Three examined what it considered to be "a textbook example of the inappropriate use of in limine motions."  In that case, the plaintiff sued Dr. Chiu for medical malpractice and negligent maintenance of a laser machine that malfunctioned during a skin treatment.  The trial court granted summary adjudication on the medical malpractice cause of action, but denied summary judgment on the negligent maintenance claim.  After the case was sent to a second judge for trial, the defendant brought a motion to dismiss the negligent maintenance claim, labeling it as a motion in limine.  The motion was denied and defendant filed a writ, which was also denied.  Not one to give up, the defendant brought his motion in limine before a third judge, who was assigned to try the case, and the motion was granted.  What perserverence!  Then the plaintiff appealed.

The court examined the use of a motion in limine, noting it is a motion to exclude evidence before the evidence is offered a trial, on grounds that would also be sufficient to object or move to strike the evidence.  The motion is brought in advance of trial to avoid trying to undo damage (or "unring the bell") of evidence heard by the jury.  It is not designed to replace dispositive motions.  The court noted: 

"'[M]otions in limine deal with evidence.  May this particular documentbe admitted?  May an expert witness testify to certain facts or conclusions?  An in limine motion that seeks to exclude all evidence pertaining to part or all of a cause of action based on an argument that plaintiff lacks evidence to support part or all of the cause of action is but a disguised motion for summary adjudication.'"

(Id. at p. 780.)  The motion in limine was dispositive of plaintiff's action and it sought a determination that either the pleading was insufficient or there was no triable issue of fact.  Demurrers, motions for judgment on the pleadings, and summary judgment motions should be used to deal with such challenges.  Here, hwever, the plaintiff failed to challenge the motion in limine as a disguised (and insufficient) motion for summary judgment and a motion to reconsider.  She conceded this omission and withdrew her procedural challenge.

Nonethless, the appellate court found that the motion failed on a substantive level and that the trial court erred in granting defendant's motion.  The judgment was reversed and plaintiff will now be able to continue on with her negligent maintenance cause of action.


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