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socrateaser
socrateaser, Lawyer
Category: Family Law
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Experience:  Retired (mostly)
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Socrateaser: Can I file a "Response to Strike Motion in Limine"

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Socrateaser: Can I file a "Response to Strike Motion in Limine" ? Is there such a thing?
Opposing counsel filed a motion in limine (to strike a bunch of my arguments and addenda in my RFO) a few weeks ago and we have our next hearing next week.

Obviously the Judge has read the motion in limine but I want to intercept "officially" before the next hearing
Can I file such a motion to prevent the Judge from "admitting" the motion in limine?

I want to file it as a RESPONSE TO MOTION IN LIMINE. a response so I don;t have to wait for a new court date (and avoid fees)
Thoughts?...
Hello again,

Except for a "special motion to strike" associated with an anti-SLAPP motion, a motion to strike is only appropriate where the pleading to be struck is a "demurrer, answer, complaint, or cross-complaint." CCP 435(a)(2). A motion in limine cannot be struck. The proper action is to either demand withdrawal of the motion under CCP 128.7 -- or, to simply oppose the motion on its merits.

Hope this helps.
Customer: replied 3 years ago.

Well... when you say A motion in limine cannot be struck. The proper action is to either demand withdrawal of the motion under CCP 128.7 -- or, to simply oppose the motion on its merits.

 

Opposing counsel writes in POA filed concurrently with MIL:

 

B.. ANY DECLARATION. EXHIBIT OR SUPPORTING DOCUMENT

5 II SUBMITTED WITH PETITIONER'S

6 II MOVING. RESPONDING OR SUPPLEMENTAL PAPERS IS HEARSAY,

7 II MUST BE STRICKEN. AND CANNOT BE CONSIDERED BY THE COURT

8 II 7. " (a) "Hearsay evidence" is evidence of a statement that was made other than

9 II by a witness while testifying at the hearing and that is offered to prove the truth of the

10 II matter stated. (b) Except as provided by law, hearsay evidence is inadmissible.

11 II California Evidence Code § 1200. Here, Petitioner attempts to request relief and/or

12111assert his claims via the use of myriad letters, reports and/or private records-all of which

13 are being offered for the truth of the matter asserted, and all of which lack the necessary

1411foundation that would permit their admission into evidence. For example, Petitioner's

15 moving papers filed March 5, 2012 rely upon the alleged statements of a mental health

16 II professional to assert the validity of his claims. As discussed above, res judicata

17 II prohibits Petitioner from introducing documentation pertaining to the issues resolved via

18 II the parties' stipulated Judgment But such statements are disallowed as hearsay,

19 II regardless. Thus, all statements proffered by the Petitioner for the same purpose are

20 IIinadmissible as hearsay, as are the attachments and/or exhibits subrnitted by Petitioner

21 with all of his remaining filings, including but not limited to, that paperwork submitted by

22 II Petitioner September 19,2012, November 20,2012, November 30,2012 and February

23 1111,2012. Thus, each of Petitioner's references to letters, notes or records from doctors,

24 IIteachers, administrators, therapists, court dockets or police records are inadmissible and

25 IImust be excluded. California Evidence Code § 1200.

26 II Again, Petitioner selects and/or references documentation pertaining to issues

27\IWhiCh existed at trial, and were addressed in the Judgment-a fact that makes such

28 evidence irrelevant to the instant proceeding, in any case.

 

So....Socrateaser, opposing counsel want's to strike with an MIL

Petitioner's (MY) references to letters, notes or records from doctors,teachers, administrators, therapists, court dockets or police records are inadmissible and must be excluded.

 

QUESTION: Should I then based of your last commend OPPOSE TO THE MOTION ON THE MERIT THAT THOSE DOCUMENTS ARE ALL VALID AND WITNESSES WILL BE BROUGHT TO TRIAL TO VALIDATE NEXT WEEK?

 

OR ..... would it be better to demand withdrawal of the motion under CCP 128.7?

 

Thanks!

A motion in limine is used to strike evidence, before it can be presented at trial, where it may confuse, prejudice, mislead or waste time with respect to the trier of fact (judge or jury). A motion to strike attempts to strike a pleading (previously defined). A motion in limine is an application for an order -- it is not, as a matter of law, a pleading, despite the fact that the motion (and for that matter, any motion) pleads certain matters and/or seeks to strike evidence.

That said, you asked:

QUESTION: Should I then based of your last commend OPPOSE TO XXXXX THE MERIT THAT THOSE DOCUMENTS ARE ALL VALID AND WITNESSES WILL BE BROUGHT TO TRIAL TO VALIDATE NEXT WEEK?

 

A: I can't answer this question definitively, because I don't know if the documents are in fact valid. Assuming that they can be validated by your witnesses as subject to the business records exception to the hearsay rule, then you can simply respond that the records complained about are all covered by the business records exception, that you will produce witnesses to properly authenticate the documents at trial. You can also complain that opposing counsel has made a blanket request to deny admissibility of all of your evidence, and that the lack of specificity makes it impossible for you to respond intelligently, or for the court to make an informed decision concerning the introduction of any specific item of evidence.

 

If the judge doesn't rule in your favor, I'll be very surprised, because this sort of blanket motion is the functional equivalent of a motion for summary judgment, since it deprives you of the opportunity to develop your case at trial. Strike that -- I won't be surprised. This is family court, and the judge will do whatever he/she feels like doing at the moment he/she decides to do whatever he/she decides to do.

 

OR ..... would it be better to demand withdrawal of the motion under CCP 128.7?

 

A: The motion isn't entirely frivolous, because it's probably true that some of your proposed evidence is inadmissible. So, I would stay away from the 128.7 motion.

 

Hope this helps.
Customer: replied 3 years ago.

That was very helpful Socrateaser


 


Can I ask the court for a continuation without appearing next week on the premise that now I need more time to subpoena all the witnesses?


 


Is there a procedural vehicle (paperwork or on-line request) of some sorts to request more time....


 


Thanks!

Can I ask the court for a continuation without appearing next week on the premise that now I need more time to subpoena all the witnesses?

A: You can ask, but I can practically guarantee that your motion will be denied. Courts are extremely hostile to changes in the trial date.

A motion for continuance has no particular form. You must shows good cause (a clear justification) to continue any hearing or trial date.

Hope this helps.
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