First District Suggests That Nonstatutory Motions For Judgment On The Pleadings Might No Longer Be Viable And Cautions Against Use Of Motions In Limines As Substitutes For Statutorily Authorized Dispositive Motions.
Plaintiff in Tung v. Chicago Title Co., Case No. A151526 (1st Dist., Div. 3 Apr. 28, 2021) (published) sought attorney’s fees as damages for securing/quieting title from defendants (many insured by Chicago Title) of a two-unit San Francisco residence. The lower court granted a motion in limine on the eve of trial in which it refused to allow introduction of fees because they were not specifically pled as damages and also denied a motion to amend as tardy/prejudicial to the defense.
The 1/3 DCA, in an opinion authored by Retired Justice Wiseman (a former Fifth District justice sitting by assignment), reversed on behalf of a 3-0 panel. Because defense counsel was aware fees were being sought as damages, the denial of leave was an abuse of discretion under the circumstances. She also made two other interesting observations in the opinion: (1) questioning whether nonstatutory motions for judgment on the pleadings are viable (although not deciding the issue); and (2) cautioning against the use of motions in limine as substitutes for statutorily authorized dispositive motions, which put the burden on the trial judge rather than the moving trial counsel. Here is what she said on the last issue: “In addition, we 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.”