Motions in Limine in California PI Cases.

Overview

Pre-trial evidence battles that shape what the jury will and will not hear. Get the defense's most prejudicial evidence excluded before trial begins.

Overview and Procedure

What Is a Motion in Limine?

A motion in limine (Latin: "at the threshold") is a pre-trial motion requesting the court to rule on the admissibility of evidence before trial begins. The purpose is to prevent prejudicial or inadmissible evidence from reaching the jury.

Legal Basis

California courts have inherent authority to rule on evidentiary issues before trial. Evidence Code section 352 provides the primary basis for exclusion: the court 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, confusion, or misleading the jury.

The Practical Importance

Motions in limine serve critical strategic functions:

1. Prevent the bell from ringing. Once a jury hears inadmissible evidence, an instruction to disregard it may be insufficient. Prevention is far better than cure.
2. Shape the trial narrative. By excluding certain evidence, you control which story the jury hears.
3. Educate the judge. Even if the judge defers ruling, the motion educates the court on the evidentiary issues, leading to faster and better-informed rulings during trial.
4. Force the defense to show its hand. Motions in limine require the defense to articulate why evidence should be admitted, revealing their trial strategy.

Timing and Filing Requirements

When to File

Most California courts require motions in limine to be filed with the Final Status Conference (FSC) documents, typically 10-15 days before trial. Check local rules and the assigned judge's standing orders for specific deadlines.

Los Angeles Superior Court: Local Rule 3.57 requires motions in limine to be filed and served at least 5 court days before the FSC.

Format Requirements

Motions in limine should include:

• A notice of motion with hearing date (the FSC or first day of trial)
• A memorandum of points and authorities citing California Evidence Code sections, case law, and CACI instructions
• Any supporting declarations or evidence
• A proposed order

Standard Plaintiff Motions in Limine

MIL 1: Exclude Evidence of Plaintiff's Immigration Status

The Motion: Exclude any evidence, testimony, or argument regarding the plaintiff's immigration status, citizenship, national origin, or related documentation. California Authority:

• Evidence Code 352 -- Prejudicial effect substantially outweighs probative value
• Evidence Code 351.2 (effective January 1, 2017) -- In civil actions, "evidence of a person's immigration status shall not be disclosed in open court by a party or their attorney unless the judge presiding over the matter first determines that the evidence is admissible in an in camera hearing"
• Hernandez v. Paicius (2003) 109 Cal.App.4th 452 -- Immigration status is generally irrelevant and unduly prejudicial in tort actions
• CACI 3933 -- Lost earnings may be based on earning capacity in the United States regardless of immigration status

MIL 2: Exclude Evidence of Prior Accidents or Claims

The Motion: Exclude evidence of the plaintiff's prior unrelated accidents, injuries, or insurance claims. California Authority:

• Evidence Code 352 -- Unfair prejudice outweighs probative value
• Evidence Code 1101(a) -- Character evidence is generally inadmissible to prove conduct
• Hinson v. Clairemont Community Hospital (1990) 218 Cal.App.3d 1110 -- Prior claims are inadmissible absent a showing of relevance to the current claim

Exception: Prior injuries to the same body part may be relevant to causation and damages. The motion should seek exclusion of prior accidents that are unrelated to the injuries at issue, while acknowledging that the court may permit evidence of prior injuries to the same body part.

MIL 3: Exclude Evidence of Plaintiff's Criminal History

The Motion: Exclude evidence of the plaintiff's prior criminal convictions, arrests, or charges. California Authority:

• Evidence Code 352 -- Prejudicial effect substantially outweighs probative value
• Evidence Code 788 -- Permits impeachment by prior felony conviction, but subject to the court's discretion under 352
• People v. Wheeler (1992) 4 Cal.4th 284 -- Courts must weigh probative value of conviction for impeachment against prejudicial effect. Consider: (1) whether the conviction involves moral turpitude; (2) how recent the conviction is; (3) whether it is similar to the conduct at issue; (4) whether the plaintiff has a subsequent clean record

Strategy: Argue that any prior conviction, especially one unrelated to truthfulness, is far more prejudicial than probative. The jury will use it to judge the plaintiff's character rather than to evaluate their testimony.

MIL 4: Exclude Evidence of Alcohol or Drug Use

The Motion: Exclude evidence of the plaintiff's alcohol or drug use unrelated to the incident. California Authority:

• Evidence Code 352
• Evidence Code 1101(a) -- Character evidence
• Conduct on other occasions is inadmissible to prove conduct on the occasion in question

Exception: If the plaintiff was intoxicated at the time of the incident, this evidence is directly relevant to comparative fault and likely admissible. The motion should target evidence of substance use at other times.

MIL 5: Exclude Improper Pre-Existing Condition Evidence

The Motion: Exclude evidence or argument that the plaintiff's pre-existing conditions (rather than the defendant's negligence) caused the plaintiff's current complaints, except to the extent the defense can show through competent medical testimony that specific current symptoms are attributable to the pre-existing condition. California Authority:

• CACI 3927 -- Aggravation of pre-existing condition instruction: "If you decide that [plaintiff] had a physical condition before the [incident] and that [defendant]'s negligence aggravated that condition, you must award damages for the aggravation but not for the pre-existing condition."
• The "eggshell plaintiff" / "thin skull" doctrine -- The defendant takes the plaintiff as they find them (CACI 3928)

Strategy: The motion should not seek to exclude all evidence of pre-existing conditions (this is unlikely to succeed). Instead, seek to:

1. Require the defense to present competent medical testimony connecting specific current complaints to the pre-existing condition (rather than just insinuating the connection)
2. Exclude evidence of pre-existing conditions to other body parts
3. Require the court to give the aggravation instruction (CACI 3927)

MIL 6: Exclude Surveillance Evidence Unless Properly Disclosed

The Motion: Exclude defense surveillance evidence (video, photographs, investigator reports) unless timely disclosed in compliance with discovery obligations. California Authority:

• CCP 2031.010 et seq. -- Demand for production of documents
• CCP 2017.010 -- Discovery scope
• Suezaki v. Superior Court (1962) 58 Cal.2d 166 -- Surveillance evidence is discoverable
• BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240 -- Surveillance evidence must be produced in discovery

Strategy: If the defense failed to produce surveillance evidence during discovery, move to exclude it. Even if produced, seek to:

1. Require the defense to identify the specific portions they intend to use
2. Exclude footage that is misleading or taken out of context (Evid. Code 352)
3. Exclude footage that does not actually show what the defense claims it shows
4. Require the full, unedited footage to be available if any portion is played

MIL 7: Exclude "Golden Rule" and Improper Defense Arguments

The Motion: Preclude the defense from making arguments that ask the jury to consider the impact of a plaintiff's verdict on insurance premiums, the legal system, or society at large. California Authority:

• The same principle that prohibits plaintiff golden rule arguments (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780) also limits defense appeals to societal consequences
• Evidence Code 352

MIL 8: Exclude Mention of Insurance (Unless Applicable)

The Motion: Exclude any reference to the existence or absence of liability insurance. California Authority:

• Evidence Code 1155 -- "Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible to prove negligence or other wrongdoing."

Note: This is a standard motion in nearly every PI case. The existence of insurance is inadmissible on the issue of negligence.

MIL 9: Exclude Collateral Source Evidence

The Motion: Exclude evidence that the plaintiff's medical bills were paid by health insurance or other collateral sources. California Authority:

• Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541 -- Economic damages for past medical expenses are limited to the amount actually paid or incurred, but collateral source payments remain inadmissible under the collateral source rule
• Pebley v. Santa Clara Organics, LLC (2018) 22 Cal.App.5th 1266 -- Plaintiff may recover the full billed amount if they have an obligation to repay the collateral source (e.g., lien)

MIL 10: Permit Per Diem Argument for Noneconomic Damages

The Motion: This is an affirmative motion seeking a pre-trial ruling permitting plaintiff to use a per diem calculation in arguing noneconomic damages. California Authority:

• Beagle v. Vasold (1966) 65 Cal.2d 166 -- The court criticized mathematical formulas but did not outright prohibit per diem arguments
• Subsequent Courts of Appeal have generally permitted per diem arguments when counsel acknowledges there is no fixed formula

Strategy: File this motion to get an advance ruling. If the court permits it, you can plan your closing argument accordingly. If the court prohibits it, you know in advance and can adjust. See Closing Arguments for detailed per diem argument strategies.

Defense Motions in Limine to Oppose

Common Defense MILs and How to Respond

Defense MIL: Exclude Plaintiff's Day-in-the-Life Video Response: Day-in-the-life videos are admissible as demonstrative evidence when they fairly and accurately depict the plaintiff's daily life. They are subject to Evidence Code 352 balancing, but courts routinely admit them. Offer to provide the full, unedited video and agree to any reasonable conditions the court imposes.

Authority: Grimes v. Employers Mutual Liability Ins. Co. (1973) 32 Cal.App.3d 827 -- day-in-the-life films are admissible subject to foundational requirements.

Defense MIL: Exclude Evidence of Defendant's Wealth or Insurance Response: Generally, do not oppose this motion. Evidence of insurance is inadmissible (Evid. Code 1155). However, if punitive damages are at issue, the defendant's financial condition is relevant and admissible during the punitive damages phase. Defense MIL: Exclude "Reptile" Arguments Response: Argue that safety rule arguments are permissible advocacy. The plaintiff is entitled to argue that the defendant violated safety rules designed to protect the public. This is distinct from a golden rule argument. There is no California authority categorically prohibiting "reptile" arguments. Defense MIL: Exclude Plaintiff's Medical Bills as Excessive Response: Under Howell v. Hamilton Meats (2011) 52 Cal.4th 541, the plaintiff is entitled to recover the amounts actually paid or incurred. If the plaintiff has a lien or reimbursement obligation, the full billed amount may be recoverable. Present evidence of the lien and argue that the billed amount represents the reasonable value of the services. Defense MIL: Exclude Evidence of Subsequent Remedial Measures Response: Evidence Code 1151 generally excludes evidence of subsequent remedial measures to prove negligence. However, such evidence is admissible for other purposes: to prove ownership, control, or feasibility of precautionary measures. Argue the specific purpose for which you offer the evidence. Defense MIL: Limit Plaintiff's Expert Testimony Response: Under Evidence Code 801-802 and the Sargon v. University of Southern California (2012) 55 Cal.4th 747 framework, expert opinions must be based on reliable methodology and data. Demonstrate that your expert's opinions meet this standard. Provide the expert's qualifications, methodology, and the data on which they relied.

Drafting Effective Motions

Structure of a Motion in Limine

1. Notice of Motion: Identify the evidence to be excluded and the hearing date
2. Introduction: Briefly state the case and the nature of the motion (1-2 paragraphs)
3. Statement of Facts: Relevant background (keep it short -- the judge will have the FSC materials)
4. Legal Argument:
5. Identify the specific evidence to be excluded
6. Cite the applicable Evidence Code section
7. Apply the legal standard to the facts
8. Address the Evidence Code 352 balancing test
9. Cite supporting case law
10. Conclusion and Proposed Order

Writing Tips

• Be concise. Judges read dozens of motions in limine before trial. A 3-5 page motion is more likely to be read carefully than a 20-page brief.
• Lead with the strongest authority. If there is a directly on-point case or Evidence Code section, cite it immediately.
• Use headings. Make the motion easy to scan. The judge should be able to understand your argument from the headings alone.
• Include a proposed order. A proposed order with specific language makes it easy for the judge to grant the motion.
• Address the 352 balancing explicitly. For every motion, include an Evidence Code 352 analysis explaining why the probative value is substantially outweighed by the prejudicial effect.

Arguing Motions in Limine

At the FSC or Day One of Trial

Motions in limine are typically argued at the FSC or on the first morning of trial. Be prepared with:

• A binder containing all your motions and oppositions
• Key cases printed and ready to hand to the judge
• A concise oral presentation (2-3 minutes per motion)
• Responses to anticipated defense arguments

Oral Argument Tips

• Prioritize. If you filed 10 motions, identify the 3-4 most critical and argue those most vigorously.
• Be prepared to concede on lesser motions. If the judge pushes back on a marginal motion, concede gracefully rather than damaging your credibility on important motions.
• Offer compromise. "Your Honor, if the court is inclined to deny the motion, we would ask that the defense be required to approach the bench before raising this topic."
• Get the ruling on the record. After argument, confirm the court's ruling and ask that it be reflected in the minutes.

Preserving the Record

Why Record Preservation Matters

A denied motion in limine does not automatically preserve the issue for appeal. You must continue to object at trial when the evidence is actually offered. (People v. Morris (1991) 53 Cal.3d 152.)

Steps to Preserve the Record

• [ ] File the written motion with points and authorities
• [ ] Argue the motion and obtain a ruling
• [ ] If denied, object again when the evidence is offered at trial
• [ ] State specific grounds for the objection (Evidence Code section, case law)
• [ ] If the objection is overruled, request a continuing objection
• [ ] Make an offer of proof if your evidence is excluded (Evid. Code 354)

Motions in Limine Checklist

Standard Plaintiff MIL Package for PI Cases

• [ ] MIL 1: Exclude immigration status evidence (Evid. Code 351.2)
• [ ] MIL 2: Exclude prior unrelated accidents and claims (Evid. Code 352, 1101)
• [ ] MIL 3: Exclude criminal history (Evid. Code 352, 788)
• [ ] MIL 4: Exclude unrelated alcohol/drug use (Evid. Code 352, 1101)
• [ ] MIL 5: Limit pre-existing condition evidence (CACI 3927, 3928)
• [ ] MIL 6: Exclude undisclosed surveillance (CCP 2031.010)
• [ ] MIL 7: Exclude improper defense arguments
• [ ] MIL 8: Exclude mention of insurance (Evid. Code 1155)
• [ ] MIL 9: Exclude collateral source evidence (Howell)
• [ ] MIL 10: Permit per diem damages argument

Case-Specific Motions to Consider

• [ ] Exclude defense accident reconstruction if methodology is unreliable
• [ ] Exclude defense biomechanical testimony if speculation-based
• [ ] Exclude photographs that are unduly graphic (Evid. Code 352)
• [ ] Exclude hearsay statements from non-testifying witnesses
• [ ] Exclude evidence of plaintiff's subsequent injuries
• [ ] Exclude evidence of plaintiff's failure to mitigate (if inapplicable)
• [ ] Exclude evidence of seatbelt non-use (Vehicle Code 27315(j))
• [ ] Exclude evidence of plaintiff's social media posts (if improperly obtained or irrelevant)

Filing and Follow-Up

• [ ] File all motions per local rule deadlines
• [ ] Serve opposing counsel with all motions
• [ ] Prepare opposition to defense motions in limine
• [ ] Bring copies of all motions and authorities to the FSC
• [ ] Obtain and record all court rulings
• [ ] Distribute rulings to trial team and witnesses
• [ ] Prepare to re-object at trial for denied motions

Cross-References

• Trial Practice
• Evidence Rules
• Opening Statements
• Closing Arguments
• Voir Dire
• Spoliation of Evidence

Common Questions

Sources & Legal Citations

1. California Evidence Code § 352. Discretion to exclude evidence whose prejudice outweighs probative value.
2. California Evidence Code § 351.2. Prohibition on immigration status evidence in civil cases.
3. California Evidence Code § 1101(a). Prohibition on character evidence to prove conduct.
4. California Evidence Code § 1152. Exclusion of settlement offer evidence.
5. California Evidence Code § 1151. Subsequent remedial measures exclusion.
6. Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659. Standards for in limine rulings and preservation of error.