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Order on Admissibility of Expert Testimony by Attorney Is Nonappealable, C.A. Declares
Fourth District’s Div. Three Rejects Reasoning in Contrary Decision Handed Down in 2004
By a MetNews Staff Writer
An appeal does not lie from an order in limine allowing or disallowing testimony by an attorney as an expert witness, Div. Three of the First District Court of Appeal has held, repudiating a contrary 2004 decision by this district’s Div. Two.
The fact situations in the two cases were identical—except that in 2004, a defendant-insurance company appealed from then-Los Angeles Superior Court Judge Soussan G. Bruguera’s denial of its motion to bar testimony in favor of the plaintiff by a lawyer who previously represented it, and in the present case, Orange Superior Court Judge Andre De La Cruz excluded such testimony. (Bruguera, now an arbitrator/mediator, has since legally changed her first name to “Suzanne.”)
In a decision 20 years ago, then-Justice Kathryn Doi Todd (now retired) wrote, in Brand v. 20th Century Insurance Company/21st Century Insurance Company:
“The trial court’s order denying the motion to disqualify counsel and prohibit [Culver City attorney Barry] Zalma from testifying in this action as an expert constitutes a ‘final order upon a collateral issue’ as well as an order denying an injunction. As such, it is directly appealable.”
Todd cited as authority the California Supreme Court’s 1955 holding in Meehan v. Hopps and the 2001 Court of Appeal decision by this district’s Div. Four in Reed v. Superior Court as authority. Both cases dealt with a motion to disqualify a lawyer from participating in a case based on prior representation of the objecting party.
Sanchez’s Opinion
In yesterday’s opinion, Justice Maurice Sanchez said:
“This case presents us with an unusual situation: an appellant appealing directly from an order on a motion in limine, and with published authority supporting the proposition that such an appeal is possible. We dismiss the appeal and publish this opinion to express our disagreement with that authority and our view that this type of order is properly reviewed only by writ petition or by appeal from the final judgment.”
He declared that Todd’s reason represents “an erroneous conflation of two separate ideas,” explaining:
“A ‘motion to disqualify counsel’ is directed to counsel representing a party in a case. Granting such a motion means removal of the attorney from the case as counsel….Orders granting or denying such motions, per Supreme Court precedent, are directly appealable.
“By contrast, an order on a motion to prohibit an attorney from testifying is a discovery or evidentiary ruling, irrespective of the fact that it happens to involve an attorney. Such orders do not require a client to choose new counsel, only (at most) a new witness. Most importantly, there is no Supreme Court case explaining that such orders are appealable.”
Avoids ‘the Unthinkable’
The jurist added:
“Nor does it make any sense to consider an order on a motion in limine an appealable ‘injunction.’ An order disqualifying an attorney from representing a client in an action enjoins that attorney from engaging in certain behavior, both in and out of the courtroom. Meanwhile, an order on a motion in limine merely excludes certain evidence or declines to exclude that evidence. The only sense in which anyone is ‘enjoined’ by such a ruling is that a party and/or their attorney may be restrained from introducing certain evidence. But the same can be said for any evidentiary or discovery ruling. We can see no principled distinction between evidentiary or discovery rulings that happen to involve attorneys or the State Bar Rules of Professional Conduct and those that do not. Absent such a distinction, we must choose between the unthinkable—allowing direct appeals from every evidentiary or discovery ruling characterizable as an injunction—and disagreeing with the Brand case. We choose the latter.”
The case is Sheehy v. Chicago Title Insurance Company, 2025 S.O.S. 195.
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