Losing your only fee witness in limine can work as a nonsuit, reviewed de novo: Missakian v. Amusement Industry

When a motion in limine excludes a party's only witness on damages, is the ruling still reviewed for abuse of discretion on appeal? Not when it works as a nonsuit. In Missakian v. Amusement Industry, Inc., an unpublished opinion filed October 19, 2026, the Second District reviewed that kind of ruling de novo, reversed a stipulated take-nothing judgment, and ordered the motion denied.

What happened in Missakian v. Amusement Industry

Craig Missakian worked as in-house counsel for Amusement Industry, Inc. from 2010 to 2014, including on litigation in New York. He sued his former employer over an oral promise to share in a litigation recovery. A jury awarded him more than $2 million, but in 2021 the Court of Appeal reversed, holding that Business and Professions Code section 6147 barred enforcement of an oral contingency fee agreement.

On remand he pursued a quantum meruit claim against Amusement for the reasonable value of his services. To prove that value, he designated David Parker, who used the lodestar method: hours reasonably spent multiplied by a reasonable hourly rate. Parker opined that a reasonable rate for Missakian's work would be over $800 per hour, relying on rates charged by New York lawyers of similar experience. He also opined that Missakian's own estimate of about 6,786 hours on the New York litigation was reasonable. Missakian had not kept timesheets; his estimate came from a memo he wrote.

Amusement moved in limine to bar Parker from testifying. The trial court found that, on these facts, testimony on the reasonable value of legal services was essential, because a jury would have no basis to set a reasonable fee from common experience. But it found Parker's approach failed the gatekeeping test of Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747. It had found no case using the lodestar method to compensate a salaried in-house lawyer who paid no overhead and sought fees from the employer that paid those costs, and it found his rate and hours opinions lacked foundation.

The ruling effectively ended the case. The parties stipulated to a consent judgment, for what the stipulation called "the express purpose of avoiding an unnecessary and futile trial and to expedite the appeal of certain critical issues in these proceedings." Judgment was entered that Missakian take nothing, and he appealed.

What standard of review applies to an order granting a motion in limine?

The parties disagreed about the standard of review as well as the merits. Amusement argued for abuse of discretion, the usual standard for evidentiary rulings in limine. Missakian argued for de novo review. The court explained that de novo review applies when the ruling rests on a conclusion of law, or when granting the motion serves "as the ‘functional equivalent’ of an order granting nonsuit."

This ruling fit the second category. Excluding Missakian's only witness on value, the court held, "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." Under that standard, inferences and doubts are resolved in the appellant's favor, and the judgment is upheld only if it was required as a matter of law.

Why the Court of Appeal reversed

Reviewing de novo, the court found no basis to exclude Parker. The lodestar method is a well-recognized and widely used way to determine reasonable attorney fees, and courts have applied a market-rate approach to in-house counsel, as reflected in PLCM Group v. Drexler (2000) 22 Cal.4th 1084 and Pasternack v. McCullough (2021) 65 Cal.App.5th 1050. Amusement was right that no published case had expressly approved lodestar for a salaried in-house lawyer suing his own employer. But, the court observed, no published authority disapproved it either.

"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 hours opinion survived too. The court noted that "the law does not require contemporaneous time records to support a claim for quantum meruit." Parker's almost exclusive reliance on Missakian's self-reporting might affect how persuasive his opinion was, but it was not a ground to exclude him. Questions about method went to persuasiveness, which is for the jury.

The court reversed the judgment and directed the superior court to vacate the part of its May 7, 2025 order granting the motion in limine and to enter a new order denying it. Missakian was awarded his costs on appeal.

Two record problems the court flagged

The win came with criticism. In a footnote, the court noted that the appellant's appendix did not include a register of actions, as the California Rules of Court require. In another, it noted that the opening brief made assertions without record citations, including about an earlier summary judgment ruling and about which defendants were part of the appeal, and it stated: "We disregard any factual assertions or arguments that are unsupported by proper record citations." Those lapses did not change the outcome here. In a closer case, an argument the court disregards is an argument that carries no weight.

What this means for parties who lose a key ruling in limine

Three points stand out. First, the standard of review does not follow automatically from the label on the motion. An evidentiary ruling that disposes of a cause of action can be reviewed as a nonsuit, and that framing gave this appellant de novo review instead of deference. Second, a stipulated judgment was the route to review here: the parties agreed to judgment to avoid what they called a futile trial and to expedite the appeal. Whether and how an interim ruling can reach the Court of Appeal is its own question; see our note on appealable and writ-only orders. Third, the record and the brief have to carry the argument. The court disregarded assertions that lacked proper record citations.

This opinion is unpublished. Under California Rules of Court, rule 8.1115(a), it cannot be cited or relied on by courts or parties in other actions. It is still a clear illustration of how the standard of review shapes an appeal. More on our appeals and writs practice and our motion practice.

Why appeals like this one need an appellate lawyer

Look at how this appeal was won. The ruling that ended the case was an evidentiary order, the kind appellate courts usually review with deference. The appellant's side argued that it operated as a nonsuit, and the court agreed, so it decided the admissibility question for itself rather than asking only whether the trial judge acted within the range of discretion. Getting the ruling before the Court of Appeal took a deliberate step too: a stipulated judgment entered to expedite review.

The same opinion shows where an appeal can leak. The appendix left out a document the rules require, and assertions in the brief without record citations were disregarded. An appellate lawyer frames the standard of review from the first page, decides how an adverse ruling can reach the reviewing court, builds the appendix the rules call for, and ties every fact to the record. If a ruling has gutted your case, talk to an appellate lawyer early, before a deadline runs or a record is lost.

Facing a ruling you may need to appeal or challenge by writ? Yisrael Gelb · yisrael@gelblawapc.com · (323) 632-6864

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