State Court Motion in Limine - California

MOTION IN LIMINE

(California Superior Court — Motion in Limine to Exclude Evidence)

TABLE OF CONTENTS

1. Caption
2. Notice of Motion and Motion

3. Memorandum of Points and Authorities
   3.1 Introduction
   3.2 The Evidence Sought to Be Excluded
   3.3 Legal Standard
   3.4 Argument — Numbered Grounds
   3.5 Conclusion

4. [Proposed] Order

5. Proof of Service

1. CAPTION

[ATTORNEY OR PARTY WITHOUT ATTORNEY]
Name: [________________] (SBN [________________])
Firm: [________________]
Address: [________________]
Telephone: [________________] | Facsimile: [________________]
E-Mail: [________________]

Attorney for [Plaintiff / Defendant] [________________]

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF [________________]

Case No.: [________________]

Assigned to: Hon. [________________]
Dept.: [________________]

[MOVANT]'S MOTION IN LIMINE NO. [____] TO EXCLUDE [________________]

Trial Date: [__/__/____]
Hearing Date: [__/__/____]
Hearing Time: [________________]
Action Filed: [__/__/____]

2. NOTICE OF MOTION AND MOTION

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on [__/__/____] at [________________] a.m./p.m., or as soon thereafter as the matter may be heard, in Department [________________] of the above-entitled court, located at [Courthouse Address], [Plaintiff / Defendant] [________________] ("Movant") will, and hereby does, move this Court, in advance of trial and outside the presence of the jury, for an order prohibiting [the opposing party] [________________] ("[Opposing Party]"), and its counsel and witnesses, from offering, mentioning, referring to, interrogating concerning, or attempting to convey to the jury in any manner — directly or indirectly — the evidence and matters described below, and from suggesting to the jury that such matters exist, without first obtaining a ruling from the Court outside the presence and hearing of the jury.

This Motion is made pursuant to the Court's inherent power to control the proceedings (Code Civ. Proc., § 128) and California Evidence Code sections 350, 352, and the additional authorities set forth below, on the grounds that the evidence is irrelevant and/or its probative value is substantially outweighed by the probability of undue prejudice, confusion of the issues, misleading the jury, and undue consumption of time. The Motion is based on this Notice, the accompanying Memorandum of Points and Authorities, the [Declaration of Counsel, if any,] the papers and records on file in this action, and any further evidence or argument that may be presented at or before the hearing.

DATED: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: ______________________________
[ATTORNEY NAME] (SBN [________________])
Attorney for [Movant]

3. MEMORANDUM OF POINTS AND AUTHORITIES

3.1 Introduction

This is an action for [describe nature of action — e.g., negligence arising from a motor-vehicle collision / breach of contract / products liability]. Trial is set for [__/__/____]. Movant anticipates that, absent an order from this Court, [Opposing Party] will attempt to introduce or elicit evidence and argument that is irrelevant under Evidence Code section 350, and/or that is subject to exclusion under Evidence Code section 352 because its probative value is substantially outweighed by the probability of undue prejudice, confusion, and undue consumption of time — the mere mention of which before the jury would cause harm that no admonition could cure. Movant therefore moves to exclude the matters set forth below.

3.2 The Evidence Sought to Be Excluded

Movant seeks an order excluding the following specific items of evidence:

1. [________________________________]
2. [________________________________]
3. [________________________________]

3.3 Legal Standard

Relevance (Evid. Code §§ 210, 350, 351). "No evidence is admissible except relevant evidence." (Evid. Code, § 350.) Relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)

Discretion to Exclude — California's § 352 (the FRE 403 analog). "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." (Evid. Code, § 352.)

Character and Other Acts (Evid. Code § 1101). Except as otherwise provided, evidence of a person's character or trait of character (whether by opinion, reputation, or specific instances of conduct) is inadmissible when offered to prove conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) Evidence that a person committed a crime, civil wrong, or other act may be admissible when relevant to prove a fact such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident — but not to prove disposition. (Evid. Code, § 1101, subd. (b).) Such evidence remains subject to exclusion under section 352.

Credibility and Impeachment (Evid. Code §§ 780, 788). A witness's credibility may be tested by any matter having a tendency in reason to prove or disprove the truthfulness of the testimony, including bias, capacity, prior inconsistent statements, and character for honesty. (Evid. Code, § 780.) A witness may be impeached with a prior felony conviction subject to the exceptions in Evidence Code section 788 and the court's discretion under section 352.

Hearsay (Evid. Code §§ 1200 et seq.). Hearsay evidence is inadmissible except as provided by law. (Evid. Code, § 1200, subd. (b).)

Subsequent Remedial Conduct (Evid. Code § 1151). Evidence that, after the occurrence of an event, remedial or precautionary measures were taken which, if taken previously, would have tended to make the event less likely to occur, is inadmissible to prove negligence or culpable conduct in connection with the event.

Settlement / Offers to Compromise (Evid. Code §§ 1152, 1154). Evidence of an offer to compromise a disputed claim, and conduct or statements made in negotiation, is inadmissible to prove liability (§ 1152) or the invalidity of a claim or its amount (§ 1154).

Liability Insurance. Evidence that a party is insured is generally irrelevant to fault and is excludable under sections 350 and 352; reference to insurance is improper and prejudicial.

Expert Testimony — Kelly/Frye and the Sargon Gatekeeper (Evid. Code §§ 801, 802; People v. Kelly; Sargon). California is a Kelly/Frye jurisdiction — not a Daubert jurisdiction. Under People v. Kelly (1976) 17 Cal.3d 24, evidence based on a new or novel scientific technique is admissible only upon a showing that (1) the method is reliable and has gained general acceptance in the relevant scientific community, (2) the witness is properly qualified, and (3) correct scientific procedures were used in the particular case. Separately, and applicable to all expert opinion, under Evidence Code sections 801, subdivision (b), and 802, the trial court "acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative." (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771–772.)

Golden-Rule and Improper Appeals to Sympathy or Passion. Argument inviting jurors to place themselves in the position of a party (the "golden rule"), or appealing to sympathy, passion, or prejudice rather than the evidence, is improper and excludable under Evidence Code section 352 and California decisional law governing attorney misconduct in argument.

3.4 Argument — Numbered Grounds

GROUND 1 — Irrelevant Evidence (Evid. Code §§ 210, 350).
Movant moves to exclude [describe evidence] because it has no tendency in reason to prove or disprove any disputed fact of consequence in this action. Specifically, [________________________________]. Because the evidence is irrelevant, it is inadmissible under Evidence Code section 350.

GROUND 2 — Undue Prejudice, Confusion, and Consumption of Time (Evid. Code § 352).
Movant moves to exclude [describe evidence] because any probative value is substantially outweighed by the probability of undue prejudice, confusion of the issues, misleading the jury, and undue consumption of time. [________________________________].

GROUND 3 — Character and Other Acts (Evid. Code § 1101; § 352).
Movant moves to exclude evidence, reference, or argument concerning [describe prior bad acts / character / prior conviction], which is offered only to prove the [party/witness] acted in conformity with a disposition and is inadmissible under Evidence Code section 1101, subdivision (a), and which, even if offered under subdivision (b), should be excluded under section 352.

GROUND 4 — Improper Impeachment (Evid. Code §§ 780, 788; § 352).
Movant moves to exclude impeachment by [describe prior felony conviction / other matter] because it falls within an exception of Evidence Code section 788 and/or its probative value on credibility is substantially outweighed by the probability of undue prejudice under section 352.

GROUND 5 — Inadmissible Hearsay (Evid. Code §§ 1200 et seq.).
Movant moves to exclude [describe out-of-court statement / document] as inadmissible hearsay offered to prove the truth of the matter asserted, for which no exception applies.

GROUND 6 — Subsequent Remedial Conduct (Evid. Code § 1151).
Movant moves to exclude evidence of [describe post-event repair, change, recall, or policy change] offered to prove negligence or culpable conduct, inadmissible under Evidence Code section 1151.

GROUND 7 — Settlement and Offers to Compromise (Evid. Code §§ 1152, 1154).
Movant moves to exclude all evidence, reference, or argument concerning settlement discussions, offers of compromise, or statements made in negotiation, inadmissible under Evidence Code sections 1152 and 1154.

GROUND 8 — Liability Insurance (Evid. Code §§ 350, 352).
Movant moves to exclude any evidence, reference, or argument that any party was or was not covered by liability insurance, which is irrelevant to fault and unduly prejudicial.

GROUND 9 — Inadmissible / Unreliable Expert Testimony (Evid. Code §§ 801, 802; People v. Kelly; Sargon).
Movant moves to exclude the opinion testimony of [Expert Name] because [it relies on a new scientific technique that has not gained general acceptance under People v. Kelly] and/or because, under Evidence Code sections 801, subdivision (b), and 802, and Sargon Enterprises, Inc. v. USC, the opinion is based on matter on which an expert may not reasonably rely, is unsupported by the material relied upon, and/or is speculative. Specifically, [________________________________]. The Court should exercise its gatekeeping responsibility and exclude this testimony.

GROUND 10 — Golden-Rule Argument and Appeals to Sympathy or Passion (Evid. Code § 352).
Movant moves to prohibit opposing counsel from making any "golden rule" argument asking jurors to place themselves in the position of a party, and from any argument or evidence appealing to sympathy, passion, or prejudice rather than the evidence.

GROUND 11 — [Additional Ground].
[________________________________]

3.5 Conclusion

For the foregoing reasons, Movant respectfully requests that the Court GRANT this Motion in Limine; ORDER that [Opposing Party], its counsel, and its witnesses refrain from offering, mentioning, or alluding to the excluded matters in the presence or hearing of the jury, whether during voir dire, opening statement, examination of witnesses, or closing argument, without first approaching the bench and obtaining leave of Court outside the jury's presence; DIRECT counsel to instruct and admonish their witnesses accordingly; and GRANT such other and further relief as the Court deems just and proper.

DATED: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: ______________________________
[ATTORNEY NAME] (SBN [________________])
Attorney for [Movant]

4. [PROPOSED] ORDER

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF [________________]

Case No.: [________________]

[PROPOSED] ORDER GRANTING [MOVANT]'S MOTION IN LIMINE NO. [____]

The Court, having considered Movant's Motion in Limine, any opposition, and the arguments of counsel, and good cause appearing, hereby ORDERS:

1. The Motion is GRANTED as set forth below.
2. The following evidence, testimony, argument, and reference is EXCLUDED: [________________________________].
3. [Opposing Party], its counsel, and its witnesses shall not offer, mention, refer to, or attempt to convey to the jury — directly or indirectly — any of the excluded matters during voir dire, opening statement, the examination of witnesses, or closing argument, without first obtaining leave of Court outside the presence and hearing of the jury.
4. Counsel for [Opposing Party] shall instruct and admonish each of its witnesses to comply with this Order.

Ruling on each numbered ground:

☐ GROUND 1 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 2 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 3 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 4 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 5 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 6 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 7 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 8 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 9 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 10 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐
☐ GROUND 11 — GRANTED ☐ / DENIED ☐ / RESERVED for trial ☐

IT IS SO ORDERED.

DATED: ______________________________

______________________________
JUDGE OF THE SUPERIOR COURT

5. PROOF OF SERVICE

I am employed in the County of [________________], State of California. I am over the age of 18 and not a party to the within action. My business address is [________________].

On [__/__/____], I served the foregoing document entitled [MOVANT]'S MOTION IN LIMINE NO. [____]; MEMORANDUM OF POINTS AND AUTHORITIES; [PROPOSED] ORDER on the interested parties in this action by ☐ electronic service / ☐ U.S. Mail / ☐ personal service as follows:

[Name, Firm, Address, Email]

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on [__/__/____] at [City, State].

______________________________
[Name]

SOURCES AND REFERENCES

• Cal. Evid. Code § 350 — Only relevant evidence admissible: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=350.&lawCode=EVID
• Cal. Evid. Code § 352 — Discretion to exclude evidence (probative value substantially outweighed by undue prejudice, confusion, or undue consumption of time): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=352.&lawCode=EVID
• Cal. Evid. Code § 1101 — Character evidence; other acts: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1101.&lawCode=EVID
• Cal. Evid. Code §§ 780, 788 — Credibility; impeachment by felony conviction
• Cal. Evid. Code § 1151 — Subsequent remedial conduct; §§ 1152, 1154 — Offers to compromise
• Cal. Evid. Code §§ 801, 802 — Expert opinion; basis and reasons
• People v. Kelly (1976) 17 Cal.3d 24 (Kelly/Frye general-acceptance standard for new scientific methods)
• Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 (trial-court gatekeeping under Evid. Code §§ 801(b), 802)
• Cal. Rules of Court, rules 3.1112, 3.1113 (motion format and memoranda): https://www.courts.ca.gov/cms/rules/index.cfm?title=three
• Code Civ. Proc., § 128 (court's inherent power to control proceedings)