Motion-in-limine orders, like other evidentiary rulings, are not appealable. But there is one case, Brand v. 20th Century Insurance Company/21st Century Insurance Company (2004) 124 Cal.App.4th 594, where the excluded expert was a party’s former attorney and disqualified on that basis. And attorney-disqualification orders are appealable as collateral orders.
But when the same thing happened recently in Sheehy v. Chi. Title Ins. Co. (Cal. Ct. App. Jan. 21, 2025 No. G064229) (pub. opn.), the Court of Appeal found Brand’s approach erroneous, and dismissed the appeal from the order excluding the attorney expert witness. Here’s why:
Comment: The Court is clearly right on the first point that exclusion of evidence is not an “injunction.” But the second point strikes me as off. True, it’s more compelling when the DQ’d attorney was counsel of record rather than just an expert witness. But is the order still final? Yes, at least for its purposes. Is the order collateral to the merits? Yes again. Then it’s appealable as a collateral order. Here, the court essential says that, while it’s final and collateral, It’s just not as important as a matter of constitutional and judicial policy as a typical attorney DQ order. But to that I woud respond that we don’t base appealability on policy importance.
On the other hand, clear rules on appealability are to be favored. And a loose collateral-order doctrine would make attorneys lose sleep at night. So I think this opinion comes out right.
