Filed 10/19/26 Missakian v. Amusement Industry CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
CRAIG MISSAKIAN, B348390
Plaintiff and Appellant, (Los Angeles
County
Super. Ct.
v. No. BC616089)
AMUSEMENT INDUSTRY, INC.,
Defendant and Respondent.
APPEAL from judgment of the Superior Court of
Los Angeles County, Gary D. Roberts, Judge. Reversed and
remanded with directions.
Craig H. Missakian; Law Offices of John Willman and
John L. Wollman; Salisian, Tyler E. Sanchez and Marius
Mateescu; The Freedman Firm and Simon P. Leen, for Plaintiff
and Appellant.
Bashir E. Eustache for Defendant and Respondent.
——————————
Former in-house counsel Craig Missakian appeals from a
judgment entered after the trial court granted a motion in limine
filed by his former employer Amusement Industry, Inc.
(Amusement) excluding testimony by Missakian’s expert witness
on calculating quantum meruit attorney fees. Missakian
contends the trial court’s evidentiary ruling was the equivalent of
a nonsuit, and that under a de novo standard of review the ruling
exceeded the court’s gatekeeping authority under Sargon
Enterprises, Inc. v. University of Southern California (2012) 55
Cal.4th 747 (Sargon). Amusement contends that under an abuse
of discretion standard of review, the trial court correctly decided
that it was improper for an expert witness to use the lodestar
method of calculating reasonable fees and to rely on data
concerning the hourly rates charged by New York law firm
attorneys without taking into consideration overhead costs and
an in-house counsel’s salary. We agree with Missakian, and so
we reverse and remand with directions to deny Amusement’s
motion in limine to exclude Missakian’s expert witness.
FACTS AND PROCEDURAL BACKGROUND
A. Factual Background and Prior Appeal
“Former in-house counsel Craig Missakian (Missakian)
filed suit against his former employer Amusement Industry, Inc.
(Amusement) and its founder Allen Alevy (Alevy), based on an
oral promise to pay a bonus and share of recovery from
litigation.” (Missakian v. Amusement Industry, Inc. (2021) 69
Cal.App.5th 630, 637–638, fn. omitted.) The lawsuit arose after
2
Missakian had been working as an in-house attorney at
Amusement between 2010 and 2014, under an alleged oral
agreement that Missakian would receive a percentage of funds
recovered in connection with litigation (the Stern Litigation) in
New York, stemming from a real estate deal in which
Amusement lost $13 million to an alleged fraudster. (Missakian,
supra, at p. 638.) Shortly after Missakian left Amusement, the
Stern Litigation settled for $26 million, and Missakian sought to
enforce the terms of the oral agreement. (Id. at pp. 640–641.) At
trial, a jury awarded Missakian well over $2 million on his claim
for breach of oral contract. (Id. at p. 641.) In 2021, this court
reversed that damages award, holding that Business and
Professions Code section 6147 precluded enforcement of an oral
contingency fee agreement.1 (Id. at pp. 642–653.)
B. Procedural History2
On remand, Missakian filed an amended complaint that
included a quantum meruit claim against Amusement only.
Missakian claims in his opening brief that after deciding a
1 All further statutory references are to the Business and
Professions Code unless otherwise stated.
2 The Appellant’s Appendix does not include a register of
actions, as required by the California Rules of Court, rules
8.122(b)(1)(f) and 8.124(b)(1)(A).
3
summary judgment motion, the court “invited the parties to
provide their views on what quantum meruit meant.”3
In August 2023, Missakian designated David Parker as an
expert witness, describing his area of testimony as follows: “the
value of Mr. Missakian’s legal services in connection with his
quantum meruit claim, including, but not limited to, the total
dollar amount(s) corresponding to such value, the appropriate
calculation methodology, and the nature and amount of Mr.
Missakian’s reasonable hourly rate when he represented
defendant Amusement Industry, Inc. in two cases filed in New
York: Amusement v. Stern, et al., Case No. 07-CV-11586
(S.D.N.Y.) and Amusement v. Midland Avenue Assocs., et al.,
Case No. 10-CV-5064 (S.D.N.Y.) (collectively, ‘the Stern
litigation’). Mr. Parker may also testify concerning the legal
effect of Mr. Missakian’s receipt of a salary in connection with his
quantum meruit claim.”
3 Missakian asserts that the court granted summary
judgment against him on his fraud claim based on an inability to
prove damages. He clarifies that he is not raising any contention
of error with respect to the summary judgment order. He also
incorrectly implies that the current appeal involves both
defendants, Amusement and Alevy, when the record does not
reflect that Alevy filed a motion in limine or was a party to the
consent judgment. Missakian does not provide any record
citations for these assertions, nor do we find any evidence to
support them in our record on appeal. We disregard any factual
assertions or arguments that are unsupported by proper record
citations. (See Cal. Rules of Court, rule 8.204(a)(1)(C); Le Mere v.
Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 248;
Fierro v. Landry’s Restaurant Inc. (2019) 32 Cal.App.5th 276,
281, fn. 5.)
4
A “memo to file” authored by Missakian and dated May 19,
2024 provides an estimate of the time Missakian spent “on three
specific cases pending in federal court in the Southern District of
New York (1) Amusement Industry, Inc. v. Stern, et al., No. 07-cv-
11586-LAK-GWG, (2) Amusement Industry, Inc. v. Buchanan,
Ingersoll & Rooney, P.C., et al., No. 11-cv-04416-LAK-GWK, and
(3) Amusement Industry, Inc. v. Midland Avenue Associates, LLC
et al. No. 10-cv-05064-LAK-GWG (collectively ‘the New York
litigation’).”4 Describing the methodology for arriving at his time
estimate, Missakian acknowledged that he “did not keep
timesheets like an outside lawyer. Rather, he was contractually
obligated to work at least 50 hours per week,” although he often
worked more than that. Based on the starting point of 50 hours
per week, he estimated he worked a total of 8,600 hours over the
43 months he worked for Amusement, between mid-December
2010 and August 1, 2014. Subtracting 1,662 hours for time spent
on administrative work and matters unrelated to the New York
litigation, Missakian estimated that he spent “approximately
80% of his total time, or approximately 6,786 hours,” on the New
York litigation. Missakian’s memo stated that his review of local
and opposing counsel’s hours confirmed that his “estimate of
157.8 hours per month is reasonable and likely lower than the
time actually spent.” The memo was one of the documents
furnished to Parker as part of his work preparing his expert
opinion.
4 Missakian’s briefing does not offer any explanation why
the three cases comprising the New York litigation includes one
case that is not part of the Stern litigation, which by Parker’s
definition consists of only two cases.
5
On May 31, 2024, Amusement deposed Parker. During the
deposition, Parker was shown and asked questions about a 19-
page analysis document prepared by Parker and his assistant,
which summarized the documents furnished to Parker, included
a timeline and cast of characters, and included a section titled
Analysis, with three subsections, respectively titled (A) Quantum
Meruit, (B) Assessment of a Reasonable Hourly Rate for Craig
Missakian, and (C) Reasonableness of the Hour Estimates
Offered by Missakian. He opined that a reasonable rate for
Missakian’s work would be over $800 per hour. During his
deposition, Parker was questioned about the methodology he
used in arriving at his opinions about a reasonable hourly rate
for Missakian’s work and the reasonableness of Missakian’s
estimate of the number of hours spent on the Stern litigation.
On June 11, 2024, defendants designated Gordon Kamisar
as a rebuttal expert witness. Defendants described Kamisar’s
expert testimony as “intended to rebut the testimony of David
Parker regarding the value of Mr. Missakian’s legal services in
connection with his quantum meruit claim, including but not
limited to, Mr. Parker’s reliance on billing rates charged by New
York law firms for litigation partners. Mr. Kamisar will address
David Parker’s failure to include a discount for Mr. Missakian’s
lack of civil experience in the 14 years prior to his acceptance of a
job at Amusement, Mr. Missakian’s lack of a license to practice
law in New York, and Mr. Parker’s failure to include a discount
for the profit and overhead a law firm would have taken out of a
legal [sic] before paying Mr. Missakian for his time. Mr.
Kamisar will also respond to Mr. Parker’s testimony that there is
no way to translate the quantum meruit value to an in-house
position. Finally, Mr. Kamisar will comment on the error in Mr.
6
Parker’s use of billing rates for Partners when Mr. Missakian
was never offered a position in a law firm as a partner or even
counsel.”
C. Trial Court Rulings on Motions in Limine
1. Amusement’s Motion to Exclude Missakian’s Expert
Witness
Amusement filed a motion in limine to preclude Parker
from testifying at trial as an expert witness. To support its
argument that Parker’s opinions were unfounded because he
used information upon which an expert could not reasonably rely,
Amusement pointed to Parker’s own deposition admissions.
Regarding his opinion that the reasonable value of Missakian’s
services were around $800 per hour, Parker relied on information
about the hourly rates charged by partners at New York law
firms without taking into account overhead costs and other
expenses not reflected in compensation paid to in-house
attorneys. Regarding Parker’s opinion about whether the time
estimates provided by Missakian were reasonable, he did not
independently verify any of the information provided in
Missakian’s memo, including his estimate of time spent on the
Stern litigation, and any opinion offered would supplant the
jury’s role in determining whether the time spent was
reasonable.
The trial court granted Amusement’s motion. As a
threshold matter, it explained that it not only found the issue of
reasonable value of attorney services to be “a proper area for
expert testimony, but one on the facts of this case where expert
7
testimony is essential.” Pointing to Evidence Code section 801,
the court explained that unlike a case where the judge
determines attorney fees, here the jury would decide, and “they
simply have no basis to make the determination of a ‘reasonable
fee’ based on their common experience.” However, Parker’s
proffered expert testimony failed the Sargon gatekeeping test ,
that the trial court may exclude expert opinion testimony that is
“(1) based on matter of a type on which an expert may not
reasonably rely, (2) based on reasons unsupported by the
material on which the expert relies, or 3) speculative.” (Sargon,
supra, 55 Cal.4th at pp. 771–772.) The trial court noted that
based on the lodestar method used by Parker, Missakian was
seeking “at least $4.2 million” in fees, and the court had found no
case in which the lodestar method was used to compensate an
attorney who worked as in-house counsel, was already receiving a
salary, was paying no overhead expenses, and sought fees from
the entity who paid those expenses. In the court’s judgment,
reliance on the lodestar method was an unwarranted leap of
logic. In addition, Parker’s opinion about a reasonable hourly
rate lacked foundation, as did his opinion about whether the
number of hours expended was reasonable.
2. Missakian’s Motion to Exclude Reference to His
Salary5
Missakian in turn moved to exclude any reference to his
salary, arguing that such evidence was irrelevant and more
5 While not directly relevant to the current appeal, we
summarize Missakian’s motion to counter the Missakian’s
8
prejudicial than probative. The trial court denied the motion,
reasoning that the “information is relevant in determining the
reasonable fee.”
D. Stipulated Judgment
Missakian and Amusement then entered into a joint
stipulation for entry of a consent judgment, stating that the
stipulation was for “the express purpose of avoiding an
unnecessary and futile trial and to expedite the appeal of
certain critical issues in these proceedings.” The trial court
approved the stipulation, ordering that Missakian’s lone
remaining cause of action for quantum meruit was dismissed,
judgment was entered in favor of defendants Amusement and
Alevy, and Missakian was to take nothing.
DISCUSSION
Missakian and Amusement take opposing views, not just
on whether the trial court erred in excluding expert testimony
from Parker, but also what standard of review applies in this
appeal. Missakian contends that under a de novo standard of
review, the trial court’s reasons for granting Amusement’s motion
in limine to exclude Parker’s testimony were invalid because the
court impermissibly rejected Parker’s reliance on the lodestar
method, and focused more on the persuasiveness of Parker’s
opinion and not any analytical flaw. Amusement argues that the
incorrect and deceptive description of it as a motion “to exclude
defendants’ late-designated corporate headhunter.”
9
trial court acted within its discretion in excluding Parker’s
testimony, because no case has applied the lodestar method to a
quantum meruit claim brought by an in-house counsel against
his or her employer, and Parker’s own deposition testimony
exposed the fatal flaws in his methodology for arriving at an
opinion about Missakian’s reasonable hourly rate and whether
Missakian’s time estimate was reasonable.
As we explain below, we apply a de novo standard of review
to the trial court’s decision to exclude Parker as an expert
witness, and in doing so, we reach the opposite conclusion of the
trial court. Parker’s use of the lodestar method to reach an
opinion about the reasonable value of Missakian’s legal services
meant that he was using a widely accepted and recognized
methodology for determining the reasonable value of legal
services. Cases also provide support for his decision to rely upon
rates charged by New York lawyers with similar levels of
education and experience. To the extent there are other methods
of arriving at an opinion about a reasonable hourly rate, that
goes to the persuasiveness of his opinion and does not provide
grounds for excluding Parker as an expert witness. Similarly,
while the persuasive value of Parker’s opinion about the
reasonableness of Missakian’s time estimate may be impacted by
his almost exclusive reliance on Missakian’s self-reporting, it
does not provide grounds for excluding Parker from providing
expert testimony on the topic.
A. Court’s Authority to Exclude an Expert Witness
“[U]nder Evidence Code sections 801, subdivision (b), and
802, the trial court acts as a gatekeeper to exclude expert opinion
10
testimony that is (1) based on matter of a type on which an expert
may not reasonably rely, (2) based on reasons unsupported by the
material on which the expert relies, or 3) speculative.” (Sargon,
supra, 55 Cal.4th at pp. 771–772.) The Sargon court has
cautioned that a “trial court’s preliminary determination whether
the expert opinion is founded on sound logic is not a decision on
its persuasiveness. The court must not weigh an opinion’s
probative value or substitute its own opinion for the expert’s
opinion. Rather, the court must simply determine whether the
matter relied on can provide a reasonable basis for the opinion or
whether that opinion is based on a leap of logic or conjecture.”
(Id. at p. 772.) Rather than resolving scientific controversies, a
trial court “conducts a ‘circumscribed inquiry’ to ‘determine
whether, as a matter of logic, the studies and other information
cited by experts adequately support the conclusion that the
expert’s general theory or technique is valid.’ [Citation.] The
goal of trial court gatekeeping is simply to exclude ‘clearly invalid
and unreliable’ expert opinion. [Citation.]” (Ibid.)
Anticipating situations where a trial court might find one
party’s expert more persuasive than another’s, the Sargon court
pointed to U.S. Supreme Court authority, noting that “[t]he trial
court’s gatekeeping role does not involve choosing between
competing expert opinions. The [U.S. Supreme Court] warned
that the gatekeeper’s focus ‘must be solely on principles and
methodology, not on the conclusions that they generate.’
(Daubert v. Merrell Dow Pharmaceuticals, Inc. [(1993)] 509 U.S.
[579,] 595.)” (Sargon, supra, 55 Cal.4th at p. 772.) “In short, the
gatekeeper’s role ‘is to make certain that an expert, whether
basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of
11
intellectual rigor that characterizes the practice of an expert in
the relevant field.’ (Kumho Tire Co. v. Carmichael [1999] 526
U.S. [137,] 152.)” (Sargon, supra, 55 Cal.4th at p. 772.)
B. Standard of Review
The parties present competing positions on whether this
court should apply an abuse of discretion or de novo standard of
review. In most circumstances, an order on an evidentiary
motion in limine, such as one to exclude an expert witness, is
subject to an abuse of discretion standard of review. (Sargon,
supra, 55 Cal.4th at p. 773.) However, a de novo standard
applies when the trial court bases its decision on a conclusion of
law or when the decision to grant a motion in limine serves “as
the ‘functional equivalent’ of an order granting nonsuit.” (Garner
v. BNSF Railway Co. (2024) 98 Cal.App.5th 660, 674 (Garner);
Sargon, supra, 55 Cal.4th at p. 773; see also Fergus v. Songer
(2007) 150 Cal.App.4th 552, 569–570 (Fergus) [when a trial
court’s in limine ruling “disposes of one or more causes of action,
it is the functional equivalent of the granting of a nonsuit as to
those causes of action”].)
We agree with Missakian that the trial court order
excluding his only expert witness had the effect of granting a
nonsuit on his only remaining cause of action, his quantum
meruit claim. We therefore review the trial court’s decision de
novo.
“Where the trial court’s ruling operates as a nonsuit and we
review the order de novo, ‘ “all inferences and conflicts in the
evidence must be viewed most favorably to the nonmoving
party.” ’ ([City of Livermore v.] Baca [(2012)] 205 Cal.App.4th
12
[1460,] 1465.) In such circumstances, we resolve all
presumptions, inferences, and doubts in the appellant’s favor,
‘and uphold the judgment for respondent . . . only if it was
required as a matter of law.’ (Fergus, supra, 150 Cal.App.4th at
p. 570.)” (Garner, supra, 98 Cal.App.5th at p. 674.)
C. Quantum Meruit
The current dispute between Missakian and Amusement
has arisen because the oral compensation agreement that
Missakian claims to have entered was voided by Amusement as
violative of the requirements of section 6147, which provides that
“[f]ailure to comply with any provision of this section renders the
agreement voidable at the option of the plaintiff, and the attorney
shall thereupon be entitled to collect a reasonable fee.” (§ 6147,
subd. (b).)
An attorney may seek recovery in quantum meruit in
various circumstances, including importantly when a fee
agreement is determined to be invalid (see, e.g., Fergus, supra,
150 Cal.App.4th at pp. 560, 567–569) or when a contingency fee
attorney is discharged prior to settlement (Mardirossian &
Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 272
(Mardirossian), citing Fracasse v. Brent (1972) 6 Cal.3d 784, 791
(Fracasse); see also Chodos v. Borman (2014) 227 Cal.App.4th 76,
96–97 (Chodos) [“Attorney claimed, and the jury award was for,
the reasonable value of attorney’s services, i.e., quantum
meruit”].
By asserting a quantum meruit claim, “attorneys may
recover from their clients the reasonable value of their legal
services when their fee contracts or compensation agreements are
13
found to be invalid or unenforceable for other reasons.
[Citations.]” (Huskinson & Brown v. Wolf (2004) 32 Cal.4th 453,
461.) “Quantum meruit refers to the well-established principle
that ‘the law implies a promise to pay for services performed
under circumstances disclosing that they were not gratuitously
rendered.’ [Citation.] To recover in quantum meruit, a party
need not prove the existence of a contract [citations], but it must
show the circumstances were such that ‘the services were
rendered under some understanding or expectation of both
parties that compensation therefor was to be made’ [citations].”
(Id. at p. 458; Chodos, supra, 227 Cal.App.4th at p. 96.) “The
underlying idea behind quantum meruit is the law’s distaste for
unjust enrichment.” (Maglica v. Maglica (1998) 66 Cal.App.4th
442, 449–450.)
D. Determination of a Reasonable Fee for Legal Work
The need to determine a reasonable fee for legal work
already performed arises not just in the context of section 6147,
but also under fee shifting statutes such as Civil Code section
1717 or Code of Civil Procedure sections 1021.5 or 425.16. The
task of calculating the recoverable fee amount can fall to either
the trial court or the jury. (See PLCM Group v. Drexler (2000) 22
Cal.4th 1084, 1094–1095 (PLCM) [trial court correctly
determined Civil Code section 1717 fee award when it multiplied
“reasonable in-house attorney hours” and “the prevailing hourly
rate in the community for comparable legal services”]; Pech v.
Morgan (2021) 61 Cal.App.5th 841, 851 [limiting attorney’s right
to collect to a reasonable fee under section 6148, absent a valid
fee agreement]; Chodos, supra, 227 Cal.App.4th at pp. 98–99
14
[case was unusual because “normally awards of attorney fees are
made by the trial court, not a jury”].)
While not the exclusive method for determining reasonable
attorney fees, the lodestar adjustment method is well-recognized
and widely used. (See, e.g., Laffitte v. Robert Half Internat. Inc.
(2016) 1 Cal.5th 480, 500 [citing numerous high court opinions
endorsing the lodestar method of calculating an attorney fee
award under fee shifting statutes]; Chodos, supra, 227
Cal.App.4th at p. 99 [in the context of an attorney’s quantum
meruit claim, rejecting an enhancement to the lodestar amount,
but not the base lodestar calculation].) The California Supreme
Court has emphasized that every fee-shifting statute must be
construed on its own merits, and so while the lodestar
enhancement method was valid in the context of a fee award
under Code of Civil Procedure section 425.16, the court was not
“mandating a blanket ‘lodestar only’ approach; every fee-shifting
statute must be construed on its own merits.” (Ketchum v. Moses
(2001) 24 Cal.4th 1122, 1136.)
The lodestar adjustment method “begins with
ascertainment of the lodestar, i.e., the number of hours
reasonably expended multiplied by the reasonable hourly rate.
[Citation.] The lodestar figure may then be adjusted, based on
factors specific to the case, to fix the fee at the fair market value
for the legal services provided. [Citation.] [¶] To determine the
reasonable hourly rate, courts consider the rate prevailing in the
community for similar work. [Citation.] This market rate
approach has been applied in cases involving in-house counsel,
contingency fees, and pro bono work. In each of these cases,
courts have refused to limit the market rate to the attorney’s fee
arrangement with the prevailing party. [Citations.]” (Pasternack
15
v. McCullough (2021) 65 Cal.App.5th 1050, 1055–1056
(Pasternack).) “Although the terms of [a fee] contract may be
considered, they ‘do not compel any particular award.’
[Citations.]” (PLCM, supra, 22 Cal.4th at p. 1096.) In fact, “an
attorney who accepts a reduced rate from a client is not precluded
from seeking a reasonable hourly rate pursuant to the lodestar
method. ‘ “The reasonable market value of the attorney’s services
is the measure of a reasonable hourly rate. [Citations.] This
standard applies regardless of whether the attorneys claiming
fees charge nothing for their services, charge at below-market or
discounted rates, represent the client on a straight contingent fee
basis, or are in-house counsel. [Citations.]” ’ [Citations.]”
(Pasternack, supra, at p. 1055.)
E. Analysis
Applying a de novo standard of review (Garner, supra, 98
Cal.App.5th at p. 674), we find no basis to exclude Parker as an
expert witness to opine on the reasonable value of Missakian’s
legal services. At core, the parties have a dispute about the
correct methodology for measuring the reasonable value of legal
services rendered by a salaried in-house attorney, where the
attorney is seeking payment from his or her own employer/client.
Amusement correctly observes that no published case has
expressly approved the lodestar method in this particular
context, and that there may be policy considerations that impact
whether the lodestar method or some other method, such as the
“cost-plus” method, is a “better” method to calculate the
reasonable value of legal services. (See PLCM, supra, 22 Cal.4th
at pp. 1096–1097.) It is equally true, however, that no published
16
authority disapproves of the lodestar method in the present
context. The lack of caselaw establishing a preferred method of
calculating reasonable fees does not justify excluding expert
witness testimony under the standards articulated in Sargon,
supra, 55 Cal.4th at pages 771–772.
For determining damages on a quantum meruit claim in
the context of legal services, “ ‘[t]he most useful starting point for
determining the amount of a reasonable fee is the number of
hours reasonably expended on the litigation multiplied by a
reasonable hourly rate. This calculation provides an objective
basis on which to make an initial estimate of the value of a
lawyer’s services. The party seeking an award of fees should
submit evidence supporting the hours worked and rates claimed.’
(Hensley v. Eckerhart (1983) 461 U.S. 424, 433.)” (Mardirossian,
supra, 153 Cal.App.4th at p. 272.)
Starting first with hourly rates, “courts consider the rate
prevailing in the community for similar work. [Citation.] This
market rate approach has been applied in cases involving in-
house counsel, contingency fees, and pro bono work. In each of
these cases, courts have refused to limit the market rate to the
attorney’s fee arrangement with the prevailing party. (PLCM,
supra, 22 Cal.4th at p. 1096; Persson v. Smart Inventions, Inc.
(2005) 125 Cal.App.4th 1141, 1172–1176 [contingency
agreement]; Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 284–
287 [pro bono].) ‘Although the terms of [a fee] contract may be
considered, they “do not compel any particular award.”
[Citations.]’ (PLCM, supra, 22 Cal.4th at p. 1096.)” (Pasternack,
supra, 65 Cal.App.5th at pp. 1055–1056.) While Parker’s reliance
on hourly rates charged by New York attorneys with levels of
experience similar to Missakian’s may or may not be persuasive
17
to a jury, we disagree with the trial court’s reasoning that “the
proposed hourly rate for [Missakian] is not properly established
and is made without adequate foundation.” Missakian argues
that his role as the lead attorney in the New York based Stern
Litigation, and the work he did while serving in that role, is
equivalent to work that would have been done by New York
attorneys of similar professional experience, and so it is
reasonable for Parker to use the identifiable market rates of
those attorneys for his lodestar analysis. Amusement does not
argue that it would have been able to obtain an equivalent level
of skill and work at a lower price. Instead, it takes the position
that the only reasonable way to value work done by an in-house
attorney is to either examine the salaries of other in-house
attorneys, or to discount law firm partner billing rates to account
for things like overhead costs. We are unpersuaded by
Amusement’s argument, accepted by the lower court, that one
can disregard the market rate for similar work, simply because
the work was performed by an in-house lawyer, who does not
operate under the same cost structure as a lawyer in a firm. The
opinion in Pasternack articulates our reasoning very well. In
that case, the plaintiff appealed an attorney fee award in favor of
a prevailing defendant, arguing that the trial court erred when it
used an hourly rate greater than the “package” rate defendant
had actually paid its attorneys. (Pasternack, supra, 65
Cal.App.5th at pp. 1052−1054.) In rejecting Amusement’s
argument, we apply the same reasoning as the reviewing court in
Pasternack, that when determining a reasonable hourly rate the
factfinder is guided not by the actual costs incurred, but by “the
rate prevailing in the community for similar work.” (Id. at
p. 1055.) In Pasternack, the relevant community and comparable
18
work was “experienced appellate lawyers in Los Angeles County”
(id. at p. 1058); here, Parker determined that the relevant
community and comparable work was New York litigators
experienced in complex litigation.
Turning next to Parker’s opinion that it was reasonable
that Missakian spent approximately 80 percent of his time, or
6786 hours, while working at Amusement on the New York
litigation,6 such expert testimony is both relevant and
admissible. Amusement argues in its brief that Parker’s opinion
“simply lent expert form to Missakian’s own untested estimate,”
and that Sargon does not require a court to admit expert
testimony that merely repeats a party’s disputed factual
assertions. However, the law does not require contemporaneous
time records to support a claim for quantum meruit. (See, e.g.,
Mardirossian, supra, 153 Cal.App.4th at p. 270; Chodos, supra,
227 Cal.App.4th at pp. 84, 87−89.) More importantly, in
Mardirossian, the court explained that an expert’s testimony
“was plainly relevant and likely to assist the jury in evaluating
all the factors related to the issue of reasonableness.”
(Mardirossian, supra, 153 Cal.App.4th at p. 273.) The court
explained further that “providing evidence as to the number of
hours worked and rates claimed is not the end of the analysis in
such a quantum meruit action. The party seeking fees must also
show the total fees incurred were reasonable. Factors relevant to
that determination include ‘[t]he nature of the litigation, its
difficulty, the amount involved, the skill required in its handling,
the skill employed, the attention given, the success or failure of
6 We again note that the New York litigation includes one
case in addition to the two cases comprising the Stern litigation.
19
the attorney’s efforts, the attorney’s skill and learning, including
his [or her] age and experience in the particular type of work
demanded.’ (Los Angeles v. Los Angeles–Inyo Farms Co. (1933)
134 Cal.App. 268, 276, cited with approval in Fracasse, at p. 791;
see also PLCM[, supra,] 22 Cal.4th [at p.] 1096 [citing same
factors in considering whether fees to the prevailing party under
[Civil Code section] 1717 were reasonable].) Because evidence
and analysis of all these factors can be a ‘formidable undertaking’
[citation], expert testimony in a quantum meruit action for
attorney fees is appropriate to assist the fact finder. [Citation.]”
(Mardirossian, supra, 153 Cal.App.4th at p. 272.)
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DISPOSITION
The judgment is reversed. We remand the case and direct
the superior court to vacate the portion of its May 7, 2025 order
granting Amusement Industry Inc.’s motion in limine to preclude
David Parker from testifying at trial as an expert witness, and to
enter a new order denying that motion in limine. Plaintiff Craig
Missakian is awarded his costs on appeal.
NOT TO BE PUBLISHED.
MOOR, J.
WE CONCUR:
HOFFSTADT, P. J.
KUMAR, J.*
Retired Judge of the Los Angeles Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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