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Yes, you can use a motion in limine as a motion for summary judgment

Tim Kowal     December 27, 2023

Right before trial, you expect to see some motions in limine trying to exclude some of your objectionable evidence. But if you see an MIL trying to decide entire issues, you are probably ready to pounce with an argument that an MIL is not supposed to be a cheap substitute for a motion for summary adjudication. That practice is frowned upon.

But aside from frowning, there’s nothing preventing the trial judge from adjudicating issues in a motion in limine. That’s what happened in Memula v. Mojave Radiation Oncology Med. Grp. (D4d2 Dec. 14, 2023 No. D082262) [nonpub. opn.]. The employee plaintiff pounced when the employer filed a motion in limine to exclude evidence that the breach of the employment contract caused any damages. Not just some evidence of damages, but all of them. (There had been a prior suit where some similar issues were adjudicated, and the trial judge agreed that those issues included damages.)

Wait a minute, the employee said. Without any evidence of damages, my entire claim will be dismissed. And that sounds an awful lot like I just lost a motion for summary judgment. And the California legislature has provided me a lot of statutory protections on an MSJ, including extra notice and discovery rights. So shortcutting all that by just letting my opponent file an MIL—which doesn’t even have the lesser protections attending regular law-and-motion practice—cannot be right.

Well, in some cases, it is indeed ok for the trial court to use a motion in limine like a motion for summary judgment. True, an MIL should not be used as an “end run” around the MSJ procedures and protections. "Generally speaking, in limine motions are disfavored in cases in which they are used not to determine in advance the court's projected ruling if presented with an evidentiary objection during trial," and are instead used "to serve as a substitute for a dispositive statutory motion." (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 530 (Pellegrini).)

But here, the employer actually had filed an MSJ on the same ground. So the appellant had had the protections already, and the trial court told the employer to bring the motion instead as an MIL. So that’s what the employer did. No harm here.

But absent that circumstance, be ready to pounce on that use of an in limine motion.

And yes, you can stipulate to a judgment to expedite appeal of a devastating interlocutory ruling—like on a motion in limine.

After getting dealt a devastating ruling barring all her damages on a motion in limine, the savvy appellant decided to forgo the waste of a trial. Instead, the appellant stipulated to entry of a judgment. Here, once the adverse MIL ruling killed an element of plaintiff’s claim, it was the equivalent of a dismissal. The authority for that is Villano v. Waterman Convalescent Hospital, Inc. (2010) 181 Cal.App.4th 1189, 1192 [stipulated judgment after adverse motion in limine rulings was appealable].

But note that the normal rule is that stipulated judgments are not appealable. So make sure you qualify for the exception by ensuring that the adverse ruling is a “critical” issue, and that the parties clearly state their intent of the stipulation is to expedite the appeal.

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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