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Failure to Exercise Discretion

Update Your Trial Bookmarks: Dispositive Motions in Limine and Nonstatutory Motions for Judgment on the Pleadings "a Recipe for Reversal"​

Tim Kowal     May 12, 2021

There is an important point of trial practice about filing dispositive motions in limine in Tung v. Chicago Title (D1d3 Apr. 28, 2021) no. A151526 (published). That point is: Don't. The same point is made about relying on nonstatutory motions for judgment on the pleadings. Finally, there is also an excellent tip for expediting an appeal of an early catastrophic trial ruling and avoiding judgment collection pending appeal. Read on.

In Tung, a real estate broker failed to disclose she had lost her license – due to multiple felony convictions for loan fraud – and had her client seller, Tung, sign a forged document so broker could collect her $25,000 commission. Seller sued to rescind, and after settling with the buyer, proceeded to trial against the title company. In the meantime, the seller had been forced to incur attorney fees to quiet title and defend against eviction proceedings, during which time he paid rent to continue living in his own property.

At the outset of trial, the title company made a motion in limine – or alternatively a nonstatutory motion for judgment on the pleadings – to exclude the plaintiff-buyer's evidence of attorney fees incurred quieting title and defending against eviction. The judge ruled those damages were not foreseeable and granted the motion.

But that's not right, the Court of Appeal held. Foreseeability here is a fact question. It cannot be determined in a motion in limine.

As the judge had also noted the complaint did not specifically allege plaintiff's theory for recovering attorney fees as damages, plaintiff then moved to amend his complaint. But the judge denied that, ruling defendants would be prejudiced.

But that's not right either, because there was extensive discovery demonstrating defendants were well aware of exactly what plaintiff's damages theory was.

A Shrewd Maneuver to Facilitate Appeal and Effect a Stay: 

By this point, trial had not even begun and plaintiff's case had been reduced to a couple meager claims for about $6,000 in transfer taxes and escrow fees. So he withdrew those claims and appealed.

There was also the matter of attorney fees. Defendant title company claimed $280,000 in fees and costs. Rather than litigate that, plaintiff agreed to entry of the award, to be stayed pending appeal.

I was impressed with this maneuvering. Lesser attorneys might have misstepped here, such as by dismissing the remaining claims without prejudice, and thus running into a Kurwa v. Kislinger trap. Or by litigating the fees, which would result in a judgment that likely could be immediately enforceable and not stayed pending the appeal of the underlying judgment. While a pure fees/costs award is stayed without bond pending appeal from the fees/cost award, it arguably is not stayed if the appeal is also taken from the underlying judgment. (See Quiles v. Parent (D4d3 2017) 10 Cal.App.5th 130, discussed on the Cal.App.Podcast ep. 7.)

Instead, plaintiff was able to proceed directly to appeal the judge's troubling rulings on the motion in limine and motion for leave to amend, without having to bond or defend against a large judgment for fees. Plaintiff's attorneys served their client very well here.

Warning: Nonstatutory motions for judgment on the pleadings and dispositive motions in limine strongly disfavored, "fraught with appellate peril," and "reversals may become necessary":

A motion for judgment on the pleadings must be brought before trial pursuant to Code of Civil Procedure 438, enacted in 1994. But many practitioners know that pre-1994 authorities allowed for a nonstatutory motion for judgment on the pleadings at any time.

But no post-1994 authorities exist on that question, the Tung court points out. And while Tung does not go further than that, it does leave this ominous clue: "As we have repeatedly observed, ' "cases are not authority for propositions not considered." ' " (B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11.)

So no recent authorities support a nonstatutory motion for judgment on the pleadings. And none of the older authorities are worth anything. So that brings the tally of authorities supporting nonstatutory motions for judgment on the pleadings to: None.

Beyond that, the court says, it "need not decide" the question. But it does further warn that "trial judges should think twice before becoming ensnared in addressing [nonstatutory motions for judgment on the pleadings] on the merits on the eve of trial...."

On this score, a motion in limine should not replace dispositive motions. While courts have not squarely prohibited dispositive motions in limine, they have cast doubt on them. And Tung joins them: "In limine motions are designed to facilitate the management of a case, generally by deciding difficult evidentiary issues in advance of trial. . . . What [they] 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." (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1593 (Amtower).) .... Appellate courts are becoming increasingly wary of this tactic."

"We add our voice," the Tung court says, to these concerns. Specifically, Tung warns that "reversals may become necessary where these types of irregular procedures are employed by counsel late in the trial game." Tung reiterates: an order granting a dispositive motion in limine "raises issues that are fraught with appellate peril." "Trial judges, the vast majority of whom are incredibly hard-working, should not feel compelled to have to decide these types of ersatz in limine/dispositive motions just because trial counsel asks them to do so."

Still not sure what Tung thinks of these motions in limine? Here is the quote to put in your opposition: "[W]e caution trial judges to be wary when choosing to decide an in limine motion that, no matter how captioned, functions as a nonstatutory motion for judgment on the pleadings, particularly when the motion is filed on the eve of trial. Doing so, under circumstances like those presented here, is a recipe for reversal."

Tung will sit right next to Amtower in my next opposition to a dispositive motion in limine or nonstatutory motion for judgment on the pleadings.

(Thanks to the Cal. Attorney's Fees Blog for discussing this important case.)

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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