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1 William L. Alexander (State Bar Number 126607)
Elizabeth Estrada (State Bar Number 232302)
2 Alexander & Associates, PLC
3 1925 G Street
Bakersfield, CA 93301
4 Phone: 661-316-7888
Email: walexander@alexander-law.com; service@alexander-law.com
5
6 Attorneys for Defendants, Thomas H. Fry and Ruth M. Fry, Trustees of the T & R Fry Family Trust
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF KERN – METRO JUSTICE BUILDING
10 BIG WASHINGTON, LLC, a California ) Case No. BCV-17-102341 BCB
Limited Liability Company, )
11 ) DEFENDANTS’ COMMON
Plaintiff, ) MEMORANDUM OF POINTS AND
12
) AUTHORITIES IN RELATION TO ALL
13 vs. ) MOTIONS IN LIMINE
)
14 BENHONG (AMERICA) RECYCLING CO. ) Assigned to: Hon. Bernard C. Barmann, Jr.
LTD, a California Limited Liability Company; ) Div.: H
15
and THOMAS H. FRY and RUTH M. FRY as ) Trial date: December 5, 2022
16 Trustees of the T & R FRY FAMILY TRUST; ) Time: 9:00 a.m.
and DOES 1 – 100, inclusive, )
17 ) Complaint Filed: October 6, 2017
Defendants. )
18
)
19
20 Defendants, Thomas H. Fry and Ruth M. Fry, as Trustees of the T&R Fry Family Trust
21 (“Fry” or the “Fry Defendants” or “Defendants”), have moved in limine for orders from this Court
22 excluding or limiting the use, mention and introduction of the evidence described below and:
23 1. Prohibiting the mention of these motions, their content or orders resulting therefrom,
24 in the presence of any juror or prospective juror by any party, attorney or witness other than by
25 objection to questions or answers which violate the court’s orders;
26 2. Instructing all trial counsel to refrain from mentioning the evidence and matters
27 excluded or limited by the court’s in limine orders during jury voir dire, opening statement,
28 examination or cross-examination of witnesses or closing argument or at any other time while in the
Alexander & Associates
1
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
DEFENDANTS’ COMMON POINTS AND AUTHORITIES RE: MOTIONS IN LIMINE
1 presence or hearing of any juror or prospective juror;
2 3. Instructing all trial counsel to examine any and all documents to be offered in
3 evidence, read or shown to any juror or prospective juror, and to delete therefrom, in advance of
4 their being so offered in evidence, read or shown, any and all reference to the matters which are the
5 subject of the court’s in limine orders; and
6 4. Instructing all trial counsel to inform any and all witnesses and prospective witnesses
7 of the court’s orders and its effect, and to instruct such witnesses or prospective witnesses to refrain
8 from mentioning these motions and orders, the content or effect of such orders, or allegations that
9 the motions were made, or any orders entered thereon, at any time while in the presence of any juror
10 or prospective juror.
11 DISCUSSION
12 I
13 MOTIONS IN LIMINE SERVE IMPORTANT NEEDS OF THE COURT
14 AND OF THE PARTIES
15 The power of the court to grant a motion in limine is found in the court’s inherent power to
16 provide for the orderly conduct of proceedings before it, to control its process and orders to make
17 them conform to law and justice and to exclude irrelevant evidence whose probative value is
18 outweighed by the probability that itsadmission will create undue prejudice, confuse the issues or
19 mislead the jury. (Code Civ. Proc., § 128(3), (8); Evid. Code, §§ 350 and 352; Sacramento, etc.,
20 Drainage Dist. Ex Rel State Reclamation Board v. Reed (1963) 215 Cal.App.2d 60, 67-68.) The
21 advantage of a motion in limine is to avoid “the obviously futile attempt to ‘unring the bell’ in the
22 event a motion to strike is granted in the proceedings before the jury.” (Hyatt v. Sierra Boat Co.
23 (1978) 79 Cal.App.3d 325, 337.)
24 While not expressly authorized by statute, motions in limine are commonly used trial tools
25 that are entertained and granted within the trial court’s inherent powers. (Peat, Marwick, Mitchell &
26 Co. v. Superior Court (1988) 200 Cal.App.3d 272, 288; Clemens v. American Warranty Corp.
27 (1987) 193 Cal.App.3d 444, 451.)
28 The court may properly exercise its inherent power to prevent objectionable evidence or
Alexander & Associates
2
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
DEFENDANTS’ COMMON POINTS AND AUTHORITIES RE: MOTIONS IN LIMINE
1 testimony from going before the jury. (Ganey v. Doran (1987) 191 Cal.App.3d 901, 907.) When
2 evidence relates to a legal issue for the judge rather than a factual issue for the jury, a party may
3 exclude such evidence through a motion in limine. (Ibid.)
4 Similarly, through a motion in limine, the court can exclude evidence which lacks
5 foundation. (Hyatt v. Sierra Boat Company, supra, 79 Cal.App.3d at pp. 337-339.) Evidence Code,
6 sections 402 and 403 provide a procedure wherein such an issue can be determined. Section 402
7 provides that the court may hear and determine the question of the admissibility of evidence out of
8 the presence of the jury when the existence of a preliminary fact is disputed.
9 Motions in limine serve other purposes as well, which include: permitting more careful
10 consideration of evidentiary issues than would take place during the heat of battle during trial;
11 minimizing side-bar conferences and disruptions during trial; and, by resolving potentially critical
12 issues at the outset, enhancing the efficiency of trials and promotion of settlements. (People v.
13 Morris (1991) 53 Cal.3d 152, 188; Kelley v. New West Federal Savings (1996) 49 Cal.App.4th 659,
14 669-70.)
15 II
16 THIS COURT’S USE OF MOTIONS IN LIMINE MAY EXCLUDE EVIDENCE
17 AND DIRECT COUNSEL, PARTIES AND WITNESSES NOT TO REFER
18 TO EXCLUDED MATTERS DURING TRIAL
19 This Court may use an in limine order to exclude the challenged evidence. (Kelley v. New
20 West Federal Savings (1996) 49 Cal.App.4th 659, 669.) “Under appropriate circumstances, a
21 motion in limine can serve the function of a ‘motion to exclude’ under Evidence Code section 353
22 by allowing the trial court to rule on a specific objection to particular evidence.” (People v. Morris
23 (1991) 53 Cal.3d 152, 188-90.)
24 This Court may also order counsel, parties and witnesses not to refer to the excluded matters
25 during trial. (Trans-Action Commercial Investors v. Firmaterr (1997) 60 Cal.App.4th 352; Kelley v.
26 New West Federal Savings (1996) 49 Cal.App.4th 659, 669.) Violating an order restricting the
27 mention of evidence can result in contempt. (Trans-Action Commercial Investors v. Firmaterr
28 (1997) 60 Cal.App.4th 352; In re Charbonneau (1974) 42 Cal.App.3d 505, 507.)
Alexander & Associates
3
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
DEFENDANTS’ COMMON POINTS AND AUTHORITIES RE: MOTIONS IN LIMINE
1 The scope of a motion in limine is “any kind of evidence which could be objected to at trial,
2 either as irrelevant or subject to discretionary exclusion as unduly prejudicial.” (Clemens v.
3 American Warranty Corp. (1987) 193 Cal.App.3d 444, 451.)
4 Motions in limine may be used to keep particular evidence items from the jury. They are also
5 used as an “objection to all evidence,” which is essentially the same as a general demurrer or motion
6 for judgment on the pleadings seeking to end the trial without introduction of evidence. (Edwards v.
7 Centex Real Estate Corp. (1997) 53 Cal.App.4th 15; Clemens v. American Warranty Corp. (1987)
8 193 Cal.App.3d 444, 451.)
9 CONCLUSION
10 As can be seen by the above, motions in limine empower this Court with great discretion and
11 flexibility in controlling the trial. In particular, and in cases where the cause is acrimonious and
12 much is at stake, such as this case, this Court can largely eliminate or reduce irrelevant and
13 inflammatory evidence. Importantly, this Court can determine that much evidence the parties intend
14 to introduce should be excluded.
15
16 DATED: November 30, 2022 ALEXANDER & ASSOCIATES, PLC
17
18 By: /s/ William L. Alexander /s/
WILLIAM L. ALEXANDER
19 Attorneys for Defendants, Thomas H. Fry
and Ruth M. Fry as Trustees of the
20 T & R Fry Family Trust
21
22
23
24
25
26
27
28
Alexander & Associates
4
Attorneys at Law
1925 G Street
Bakersfield, CA 93301
(661) 316-7888
DEFENDANTS’ COMMON POINTS AND AUTHORITIES RE: MOTIONS IN LIMINE
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1 William L. Alexander (State Bar Number 126607) Elizabeth Estrada (State Bar Number 232302) 2 Alexander & Associates, PLC 3 1925 G Street Bakersfield, CA 93301 4 Phone: 661-316-7888 Email: walexander@alexander-law.com; service@alexander-law.com 5 6 Attorneys for Defendants, Thomas H. Fry and Ruth M. Fry, Trustees of the T & R Fry Family Trust 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF KERN – METRO JUSTICE BUILDING 10 BIG WASHINGTON, LLC, a California ) Case No. BCV-17-102341 BCB Limited Liability Company, ) 11 ) DEFENDANTS’ COMMON Plaintiff, ) MEMORANDUM OF POINTS AND 12 ) AUTHORITIES IN RELATION TO ALL 13 vs. ) MOTIONS IN LIMINE ) 14 BENHONG (AMERICA) RECYCLING CO. ) Assigned to: Hon. Bernard C. Barmann, Jr. LTD, a California Limited Liability Company; ) Div.: H 15 and THOMAS H. FRY and RUTH M. FRY as ) Trial date: December 5, 2022 16 Trustees of the T & R FRY FAMILY TRUST; ) Time: 9:00 a.m. and DOES 1 – 100, inclusive, ) 17 ) Complaint Filed: October 6, 2017 Defendants. ) 18 ) 19 20 Defendants, Thomas H. Fry and Ruth M. Fry, as Trustees of the T&R Fry Family Trust 21 (“Fry” or the “Fry Defendants” or “Defendants”), have moved in limine for orders from this Court 22 excluding or limiting the use, mention and introduction of the evidence described below and: 23 1. Prohibiting the mention of these motions, their content or orders resulting therefrom, 24 in the presence of any juror or prospective juror by any party, attorney or witness other than by 25 objection to questions or answers which violate the court’s orders; 26 2. Instructing all trial counsel to refrain from mentioning the evidence and matters 27 excluded or limited by the court’s in limine orders during jury voir dire, opening statement, 28 examination or cross-examination of witnesses or closing argument or at any other time while in the Alexander & Associates 1 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 DEFENDANTS’ COMMON POINTS AND AUTHORITIES RE: MOTIONS IN LIMINE 1 presence or hearing of any juror or prospective juror; 2 3. Instructing all trial counsel to examine any and all documents to be offered in 3 evidence, read or shown to any juror or prospective juror, and to delete therefrom, in advance of 4 their being so offered in evidence, read or shown, any and all reference to the matters which are the 5 subject of the court’s in limine orders; and 6 4. Instructing all trial counsel to inform any and all witnesses and prospective witnesses 7 of the court’s orders and its effect, and to instruct such witnesses or prospective witnesses to refrain 8 from mentioning these motions and orders, the content or effect of such orders, or allegations that 9 the motions were made, or any orders entered thereon, at any time while in the presence of any juror 10 or prospective juror. 11 DISCUSSION 12 I 13 MOTIONS IN LIMINE SERVE IMPORTANT NEEDS OF THE COURT 14 AND OF THE PARTIES 15 The power of the court to grant a motion in limine is found in the court’s inherent power to 16 provide for the orderly conduct of proceedings before it, to control its process and orders to make 17 them conform to law and justice and to exclude irrelevant evidence whose probative value is 18 outweighed by the probability that itsadmission will create undue prejudice, confuse the issues or 19 mislead the jury. (Code Civ. Proc., § 128(3), (8); Evid. Code, §§ 350 and 352; Sacramento, etc., 20 Drainage Dist. Ex Rel State Reclamation Board v. Reed (1963) 215 Cal.App.2d 60, 67-68.) The 21 advantage of a motion in limine is to avoid “the obviously futile attempt to ‘unring the bell’ in the 22 event a motion to strike is granted in the proceedings before the jury.” (Hyatt v. Sierra Boat Co. 23 (1978) 79 Cal.App.3d 325, 337.) 24 While not expressly authorized by statute, motions in limine are commonly used trial tools 25 that are entertained and granted within the trial court’s inherent powers. (Peat, Marwick, Mitchell & 26 Co. v. Superior Court (1988) 200 Cal.App.3d 272, 288; Clemens v. American Warranty Corp. 27 (1987) 193 Cal.App.3d 444, 451.) 28 The court may properly exercise its inherent power to prevent objectionable evidence or Alexander & Associates 2 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 DEFENDANTS’ COMMON POINTS AND AUTHORITIES RE: MOTIONS IN LIMINE 1 testimony from going before the jury. (Ganey v. Doran (1987) 191 Cal.App.3d 901, 907.) When 2 evidence relates to a legal issue for the judge rather than a factual issue for the jury, a party may 3 exclude such evidence through a motion in limine. (Ibid.) 4 Similarly, through a motion in limine, the court can exclude evidence which lacks 5 foundation. (Hyatt v. Sierra Boat Company, supra, 79 Cal.App.3d at pp. 337-339.) Evidence Code, 6 sections 402 and 403 provide a procedure wherein such an issue can be determined. Section 402 7 provides that the court may hear and determine the question of the admissibility of evidence out of 8 the presence of the jury when the existence of a preliminary fact is disputed. 9 Motions in limine serve other purposes as well, which include: permitting more careful 10 consideration of evidentiary issues than would take place during the heat of battle during trial; 11 minimizing side-bar conferences and disruptions during trial; and, by resolving potentially critical 12 issues at the outset, enhancing the efficiency of trials and promotion of settlements. (People v. 13 Morris (1991) 53 Cal.3d 152, 188; Kelley v. New West Federal Savings (1996) 49 Cal.App.4th 659, 14 669-70.) 15 II 16 THIS COURT’S USE OF MOTIONS IN LIMINE MAY EXCLUDE EVIDENCE 17 AND DIRECT COUNSEL, PARTIES AND WITNESSES NOT TO REFER 18 TO EXCLUDED MATTERS DURING TRIAL 19 This Court may use an in limine order to exclude the challenged evidence. (Kelley v. New 20 West Federal Savings (1996) 49 Cal.App.4th 659, 669.) “Under appropriate circumstances, a 21 motion in limine can serve the function of a ‘motion to exclude’ under Evidence Code section 353 22 by allowing the trial court to rule on a specific objection to particular evidence.” (People v. Morris 23 (1991) 53 Cal.3d 152, 188-90.) 24 This Court may also order counsel, parties and witnesses not to refer to the excluded matters 25 during trial. (Trans-Action Commercial Investors v. Firmaterr (1997) 60 Cal.App.4th 352; Kelley v. 26 New West Federal Savings (1996) 49 Cal.App.4th 659, 669.) Violating an order restricting the 27 mention of evidence can result in contempt. (Trans-Action Commercial Investors v. Firmaterr 28 (1997) 60 Cal.App.4th 352; In re Charbonneau (1974) 42 Cal.App.3d 505, 507.) Alexander & Associates 3 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 DEFENDANTS’ COMMON POINTS AND AUTHORITIES RE: MOTIONS IN LIMINE 1 The scope of a motion in limine is “any kind of evidence which could be objected to at trial, 2 either as irrelevant or subject to discretionary exclusion as unduly prejudicial.” (Clemens v. 3 American Warranty Corp. (1987) 193 Cal.App.3d 444, 451.) 4 Motions in limine may be used to keep particular evidence items from the jury. They are also 5 used as an “objection to all evidence,” which is essentially the same as a general demurrer or motion 6 for judgment on the pleadings seeking to end the trial without introduction of evidence. (Edwards v. 7 Centex Real Estate Corp. (1997) 53 Cal.App.4th 15; Clemens v. American Warranty Corp. (1987) 8 193 Cal.App.3d 444, 451.) 9 CONCLUSION 10 As can be seen by the above, motions in limine empower this Court with great discretion and 11 flexibility in controlling the trial. In particular, and in cases where the cause is acrimonious and 12 much is at stake, such as this case, this Court can largely eliminate or reduce irrelevant and 13 inflammatory evidence. Importantly, this Court can determine that much evidence the parties intend 14 to introduce should be excluded. 15 16 DATED: November 30, 2022 ALEXANDER & ASSOCIATES, PLC 17 18 By: /s/ William L. Alexander /s/ WILLIAM L. ALEXANDER 19 Attorneys for Defendants, Thomas H. Fry and Ruth M. Fry as Trustees of the 20 T & R Fry Family Trust 21 22 23 24 25 26 27 28 Alexander & Associates 4 Attorneys at Law 1925 G Street Bakersfield, CA 93301 (661) 316-7888 DEFENDANTS’ COMMON POINTS AND AUTHORITIES RE: MOTIONS IN LIMINE