Drexler v. Ryckman CA2/1 ( 2023 )

Filed 6/26/23 Drexler v. Ryckman CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
DAVID DREXLER et al., B316564
Plaintiffs, Cross-defendants, (Los Angeles County
and Respondents, Super. Ct. No. LC103510)
v.
GERALD OWEN RYCKMAN et al.,
Defendants, Cross-complainants,
and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, J. Stephen Czuleger, Judge. Affirmed and
remanded with instructions.
Gerald Owen Ryckman and Judith Lorraine Ryckman, in
pro. per., for Defendants, Cross-complainants, and Appellants.
Nemecek & Cole and Daniel L. Reback for Plaintiffs, Cross-
defendants, and Respondents.
________________________
The parties to this appeal jointly owned a three-story office
building in Sherman Oaks, California (the Property). Plaintiff,
cross-defendant, and respondent David Drexler operated his law
firm, the Law Offices of David Drexler (the Firm), from the
Property; the remainder of the Property was rented to other
tenants. Defendant, cross-complainant, and appellant Gerald
Owen Ryckman (Ryckman) worked at the Firm as an office
manager and legal assistant; his spouse Judith Lorraine
Ryckman (Mrs. Ryckman) worked at the Firm as a legal
secretary.
On August 10, 2015, Ryckman stopped working at the
Firm. Whether that departure was voluntary depends on whom
you believe: Ryckman says it was not; Drexler says it was. We
need not address that dispute because the court bifurcated
Ryckman’s employment-related claims and they are not now
before us. The issues presented by this appeal involve only
partition of the Property and related credits due to either party.
On November 2, 2015, Drexler and his spouse Laura
Drexler, as trustees of the Drexler Trust dated June 24, 1994 (the
Drexlers), sued for partition and for the Ryckmans to pay their
proportionate share of the Property’s post-separation operating
costs. Mr. and Mrs. Ryckman, as trustees of the Ryckman Trust
dated October 10, 1990 (the Ryckmans), cross-complained. They
denied owing any contribution to the Property’s operating costs
and alleged, among other things, that they were due rent from
the Firm’s use of the Property as well as profits from the
enhanced value of the Property following purported renovations
to it.
In 2016, the trial court granted, in part, the Drexlers’
special motion to strike the Ryckmans’ cross-claims pursuant to
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the anti-SLAPP statute, Code of Civil Procedure section 425.16.1
The trial court also awarded the Drexlers $25,000 in attorney
fees pursuant to section 425.16, subdivision (c) related to the
anti-SLAPP motion.
Before trial, the court imposed evidentiary sanctions
against the Ryckmans for discovery abuse that prohibited them
from introducing evidence not disclosed in their court-ordered
discovery responses, including any non-disclosed evidence of
alleged rents or profits due to the Ryckmans. At trial, however,
the court did not strictly enforce that order and admitted
substantial evidence on these topics that the Ryckmans did not
produce in discovery.
Following a bench trial, the trial court ordered partition of
the Property by sale, and ordered the Drexlers and Ryckmans to
share equally in the Property’s operating costs since August 10,
2015, as well as the attorney fees incurred in prosecuting the
partition action. The trial court ordered all third-party rents
from tenants other than the Firm be split equally between the
Drexlers and Ryckmans, but found that the Ryckmans did not
prove that the Firm agreed to pay the Ryckmans $10,000 per
month in rent. The trial court entered an interlocutory judgment
reflecting its rulings.2
1 Allsubsequent unspecified statutory citations are to the
Code of Civil Procedure.
2 The judgment was interlocutory because of the court’s
bifurcation of the partition claims from the remaining causes of
action, including Ryckman’s employment-related claims. A party
may appeal “[f]rom an interlocutory judgment in an action for
partition determining the rights and interests of the respective
3
The Ryckmans now appeal. First, they argue we should
reverse the judgment because the trial court excluded evidence of
the Ryckmans’ entitlement to rents and profits by erroneously
relying on “void” evidentiary sanctions orders. Second, they
argue that substantial evidence did not support the trial court’s
finding that the Ryckmans were financially responsible for half
the Property’s operating costs. Third, they argue the trial court
erred in ordering the Ryckmans to pay half of the attorney fees
incurred in the partition action, because the Drexlers incurred
such fees by refusing to accept the Ryckmans’ settlement offers.
The Ryckmans also argue that the trial court erred in precluding
evidence of these settlement offers, failing to review the amount
of fees for reasonableness, and not providing the Ryckmans an
opportunity to challenge the fees. Fourth, the Ryckmans contend
the trial court erred in awarding $25,000 in attorney fees related
to the special motion to strike. Fifth, they contend the trial court
did not make certain factual findings stated in the court-executed
judgment prepared by the Drexlers’ counsel.
We find no error in the trial court’s rulings and judgment,
with the exception of two statements included in the judgment
that Ryckman “chose” to leave or “voluntarily” left the parties’
business relationship. Accordingly, we affirm and remand with
instructions to correct these statements.
BACKGROUND
A. General Legal Principles Relating to Partition
We begin with a brief summary of the law applicable to
partition actions. “ ‘ “[P]artition” is “the procedure for
parties and directing partition to be made.” (§ 904.1, subd.
(a)(9).)
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segregating and terminating common interests in the same
parcel of property.” ’ [Citation.]” (Summers v. Superior Court
(2018) 24 Cal.App.5th 138, 142.) “ ‘The original purpose of
partition was to permit cotenants to avoid the inconvenience and
dissension arising from sharing joint possession of land.’ ” (LEG
Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.) Although
partition is governed by statute, it is an action in equity. (See 4
Miller & Starr, Cal. Real Estate (4th ed. 2022) § 11:15, citing
Code Civ. Proc., §§ 872.010 to 874.240.)
Upon determining the parties’ interests in the property and
ordering partition, a court may decide the manner of partition,
including that the property be sold and the proceeds divided
among the parties. (See Summers v. Superior Court, supra, 24
Cal.App.5th at p. 143; 4 Miller & Starr, Cal. Real Estate, supra,
§ 11:15 [Right of partition—Procedure in partition action].)
“Every partition action includes a final accounting according to
the principles of equity for both charges and credits upon each
cotenant’s interest. Credits include expenditures in excess of the
cotenant’s fractional share for necessary repairs, improvements
that enhance the value of the property, taxes, payments of
principal and interest on mortgages, and other liens, insurance
for the common benefit, and protection and preservation of title.”
(Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035-1036; see
§ 872.140 [“The court may, in all cases, order allowance,
accounting, contribution, or other compensatory adjustment
among the parties according to the principles of equity”].)
Further, “the court shall apportion the costs of partition”
(§ 874.040), which include “[r]easonable attorney[ ] fees incurred
or paid by a party for the common benefit” (§ 874.010), “among
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the parties in proportion to their interests or make such other
apportionment as may be equitable.” (§ 874.040.)
B. Relevant Factual Summary
We derive the following factual summary from the
testimony and exhibits introduced at trial.
1. Drexler and Ryckman Begin Working Together
In 1978, Drexler began working at a law firm where
Ryckman was a legal assistant and office manager. In 1985,
Drexler started his own firm and recruited Ryckman to work
with him. According to Drexler, Ryckman conducted other
ventures using the Firm’s staff and while on Firm time, and
Drexler considered Ryckman to be more like a consultant than an
employee. The Firm’s bookkeeper, Griselda Quirarte (whom the
parties referred to as Grace Rodriguez), confirmed that Ryckman
conducted other business from the Firm’s offices.
Drexler determined Ryckman’s compensation in his sole
discretion. To do so, Drexler considered the Firm’s expenses
(including rent of $3,000 per month that the Firm paid from a
“rental account”),3 Ryckman’s contribution to the Firm’s cases,
and what future matters were in the Firm’s “pipeline.” From
this, Drexler determined the Firm’s profit and paid Ryckman the
same amount as he paid himself. “[B]ecause of ethical
considerations,” Drexler never split fees with Ryckman on
individual cases. Rather, Drexler would wait to see what the
3 The Firm had three bank accounts: a business operating
account, a rental account, and a client trust account. Drexler was
the only signatory on the operating account although Quirarte
had access and authority to conduct online transactions.
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profits were, which sometimes occurred every three or six
months.
2. The Parties Purchase the Property
In 2002, Drexler used funds from the Firm’s operating
account to make a $300,000 downpayment to purchase the
Property. Drexler explained that in vesting title of the Property
equally between Ryckman and himself, Drexler “went through
the same process of decision-making that [he] did for all . . .
Ryckman’s compensation. [They] had profit in the office, it had
been a good year. There was sufficient money to pay for it. And
in [Drexler’s] mind, if [he] hadn’t used the money from [the Firm]
to pay $300,000, [he] would have divided it equally between . . .
Ryckman and [himself] anyways. So the bottom line was the
same and [they] both thought that it was a good idea.” Drexler
thought it desirable to purchase the Property because the Firm
would no longer need to pay rent for an office. Ryckman also
testified that half of the money used for the downpayment would
have otherwise been paid to him. It is undisputed that upon
purchase the Drexlers’ and Ryckmans’ family trusts owned the
Property equally.
After purchasing the Property, Drexler continued to
compensate Ryckman as before and paid all operating expenses
for the Property, including building maintenance and
improvements, out of the Firm’s operating account. The Firm
used the rental account to pay the mortgage in the amount of
$5,056 each month. Two tenants rented office space in the
Property. In 2007, the Firm hired Quirarte, who provided
bookkeeping and property management services. Each month,
Drexler obtained rent checks from the two tenants, totaling
approximately $3,200 per month, which he cashed and split
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evenly between Ryckman and himself. The Firm also paid for
maintenance and repairs of the two rental units.
Ryckman testified that when he and Drexler started the
Firm, Drexler did not have money to pay him. Rather than
receive a salary, Ryckman wanted Drexler to pay him what
Drexler believed was the reasonable value of his services.
Ryckman and Drexler orally agreed that they would be equal
partners, equally share in the profits of the Property, equally
participate in the management and control of the Property, and
jointly make all decisions regarding the Property. Neither would
encumber the Property without the permission of the other or
take on any additional partners. They agreed the Property would
be a long-term investment for the Drexler and Ryckman families.
3. The Purported Agreement to Pay Rent to Drexler and
Ryckman
Whereas Drexler testified the purchase of the property
saved the Firm from having to pay rent, Ryckman testified the
Firm “rent[ed] the [Property] commencing immediately upon the
close of escrow,” for $20,000 per month, with $10,000 to be paid to
the Ryckmans and $10,000 to be paid to the Drexlers. Ryckman
claimed the Firm would pay all common tenant-related expenses.
Ryckman claimed he and Drexler agreed that Drexler would pay
any agreed-upon expenses from the Ryckmans’ monthly share of
the rent, that Drexler would establish a “joint rental trust
account in the names of both Ryckman and Drexler, from which
all financial transactions related to the [Property] would be
transacted,” and Drexler “[w]ould establish accounting records
that include rents paid to the Ryckmans, rents paid to the
Drexlers, along with all monies paid to or paid out in connection
with the [Property].”
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In support of his claim that the Firm paid rent to both the
Ryckmans and Drexlers, Ryckman pointed to a $100,000 check
from November 21, 2011 (approximately nine years after the
Property’s purchase) payable to Ryckman with a memo line that
stated, “rent.” He testified the check was to make up for rent
payments that had not been made to him.4 Mrs. Ryckman also
testified that she and Ryckman received rental payments from
the Firm, which they reflected on their tax records. For example,
the Ryckmans’ tax filings indicated rent paid to them in 2011 in
the amount of $100,000, equal to the November 21, 2011 check.
The Ryckmans summarized the rental income, mortgage interest,
and building expenses they reported on their taxes in an exhibit,
which also included several pages of tax schedules for
supplemental income and loss from rental real estate. According
to Ryckman, the Firm owed him $1,040,000 in unpaid rent.
Ryckman conceded he did not have copies of any other checks for
rent from the Firm besides the one for $100,000, but asserted he
was aware of other checks written for $10,000, $20,000, or
$50,000 purportedly for that purpose.
Drexler denied any agreement with Ryckman for the Firm
to pay rent to the two of them and disputed that any check was
given to the Ryckmans for payment of rent. Drexler testified the
Firm gave the $100,000 check because Ryckman asked for a
4 Ryckman testified he and Drexler “had a very loose
relationship. Mr. Drexler would get behind on rents, then he
would give me a check. I didn’t run home and check it off. He
would give me a check. Same thing with my wages. If I needed
. . . some money . . . he would give me the check. He would do the
crediting. My wife and the bookkeeper would keep track of what
we’re getting and that’s it.”
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distribution and that Ryckman requested Drexler write “rent” on
the memo line for tax reasons.
Ryckman questioned Quirarte extensively concerning
transactions made to or from the Firm’s rental account. In doing
so, Ryckman relied on an exhibit comprised of a list, created by
the Ryckmans during the litigation, of the Firm’s financial
transactions as well as Wells Fargo bank account records.
Ryckman asked Quirarte whether he and Drexler “paid rent out
of the [Firm’s] rental account.” Quirarte responded, “That’s not
to my knowledge. I don’t know.” She testified, “the rental
account was for the mortgage,” and that the mortgage payments
were withdrawn automatically out of that account. Further, she
indicated it was her general practice to transfer money between
the operating account and the rental account as needed. For
example, she made a transfer of $10,000 “from the operating
account to the rental account to cover the rental mortgage.”
Ryckman also used what was described in the record as emails
between Quirarte and the Ryckmans purportedly identifying
amounts of rent the Firm paid to them5 to attempt to refresh
Quirarte’s recollection that the Firm paid rent to the Ryckmans;
Quirarte did not recall writing the emails.
Quirarte testified that she understood the “rent” in the
rental account to refer to the payment of the mortgage. Further,
it was her practice and procedure to use the rental account as a
reserve account. Quirarte said Ryckman never demanded of her
that the Firm pay him rent using monies in the rental account.
5These exhibits (123 and 124) are not included in the
appellate record. We derive our description of them from the
portions of the reporter’s transcript where they were discussed.
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4. Property Related Expenses and Third-party Rent
Payments
Ryckman acknowledged during his testimony that between
January 2002 and August 2015, he paid 50 percent of all
mortgage payments and costs, including insurance payments,
and that he and Drexler had an understanding that the Firm
paid for the Property’s operating expenses out of funds that
would have otherwise been distributed to Ryckman for his
compensation. He explained, “[Drexler] had my full authority to
use whatever part of the money was that I was owed to pay
whatever he deemed appropriate to pay.” However, Ryckman
disagreed that he was “responsible” for paying half of the
operating expenses of the Property.
Ryckman ceased working for the Firm on August 10, 2015.
Drexler and Ryckman dispute whether Ryckman left voluntarily,
or Drexler fired him after learning that Ryckman was suffering
from bladder cancer. Notwithstanding Ryckman’s departure,
Drexler maintained Ryckman was welcome to come to the
Property as he pleased. Ryckman confirmed Drexler told him the
building was equally his and he could come and go as he liked.
Drexler never changed the locks, and Ryckman continued to store
personal possessions in half of the garage. Ryckman, however,
did not contribute to the management of the building.
Because Ryckman was no longer contributing to the Firm
or office, Drexler thereafter expected Ryckman to continue to be
responsible for half the building operating expenses, which the
Firm continued to pay. At trial, the Drexlers offered over 400
pages of bills relating to the Property’s operating expenses
incurred between August 10, 2015 through July 21, 2021. Both
Drexler and Quirarte testified that during that time period, the
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Firm incurred $260,451.71 in operating costs, with 10 percent
simple interest of $85,433.30. The Firm had also paid attorney
fees for the prosecution of the partition action in the amount of
$264,204.23 and there were outstanding invoices for $84,763.26.
Drexler, who had hired separate counsel to represent him as to
any non-partition related claims, testified that he was careful to
keep costs of the partition action separate.
Ryckman called forensic accountant Marc Rosenberg as an
expert.6 Rosenberg testified generally about methods to verify
bills were paid, the financial aspects of a division of a
partnership, and some duties of a partnership. He did not
conduct an analysis of the Property’s expenses.
After Ryckman’s departure, Drexler created a segregated
account with an escrow company for the deposit of rent from the
Property’s two other tenants, pending the outcome of the
litigation. At the time of trial, the account included $222,750.
5. Mortgage Payoff
On or about August 20, 2015, Ryckman and Drexler met.
Ryckman insisted that Drexler pay off the balance remaining on
the mortgage, and on August 25, 2015, Drexler used the Firm’s
funds to pay off the mortgage in the amount of $250,785.06.
Drexler did not make a distribution to Ryckman before or at this
time, and used the Firm’s money to make the payment “because
it came out of the same bottom line” and was “the same profit
money that would have been divided anyway.” Ryckman testified
that in 2014, Drexler was supposed to take money from
Ryckman’s share and Drexler’s share of a settled case to pay off
6The parties did not participate in an exchange of expert
information under section 2034.260.
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the mortgage. According to Ryckman, Drexler failed to do so
until Ryckman insisted upon it in August 2015. Drexler
therefore paid the mortgage off with money that was in the
account that would have been otherwise paid to Ryckman and
Drexler.
6. Purported Improvements to the Property
Ryckman himself did not testify about improvements he
made to the Property but did question the Drexlers about them.
Drexler testified that a few years after purchasing the Property
in 2002, he and Ryckman had it renovated. This included
building out two offices, installing marble and tile floors and a
wood stairway, erecting a brick façade, painting, roof repair, and
putting in electrical and phone wiring. The Firm paid for all the
materials and labor, and Drexler collaborated with Ryckman on
choosing the designs and materials. Mrs. Drexler testified that
following the remodel of the Property in 2002, it was “Functional.
Clean. Lawyer-like space.” Neither Drexler nor Mrs. Drexler
agreed with Ryckman’s characterization that it was a “high-end
law office.” Ryckman’s questions indicated he believed that he
was primarily responsible for the renovations, and he
represented to the court that he paid for them.
Ryckman called Shemaya Mandelbaum, a licensed general
contractor who had been hired to do a build out of the Property in
2002, as an expert. Mandelbaum testified he worked on the
building in 2002 for a few weeks and that the Firm paid him.
Ryckman sought to have Mandelbaum testify as to the amount
the Property’s value increased due to Ryckman’s improvements.
The trial court concluded Mandelbaum lacked foundation to
testify on this topic and did not permit Mandelbaum to opine on
this issue.
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C. Procedural History
The procedural history of this matter is both multifaceted
and protracted. We summarize only those portions relevant to
trial of the partition-related claims and the issues before us.
1. Pleadings and Relevant Pleading Challenges
On November 2, 2015, the Drexlers filed a verified
complaint against the Ryckmans for partition and recovery of
half the operating expenses and mortgage payments relating to
the Property. The Drexlers alleged the parties had significant
differences, making successful joint ownership of the property
impossible. The Drexlers hired an appraiser, who, in September
2015, valued the Property at approximately $1,995,000. The
complaint also prayed for one-half of the costs of the partition
action, including attorney fees. In their verified answer, the
Ryckmans denied that the parties had irreconcilable differences
or that partition by sale was necessary.
On March 14, 2016, the Ryckmans filed a verified cross-
complaint alleging 19 causes of action, including “[w]aiver of
[r]ight to [p]artition,” quiet title, and causes of action for breach
of contract, breach of fiduciary duty, fraud, and set off based on
the parties alleged “oral joint venture/partnership agreement . . .
that was partly written, partly oral, and partly implied” that the
Firm would pay $10,000 per month in rent to the Ryckmans.
On or about May 18, 2016, the Drexlers filed a special
motion to strike under section 425.16, arguing several of the
Ryckmans’ cross-claims arose from the allegations made in the
Drexlers’ complaint. For example, the Ryckmans’ cross-
complaint alleged, “ ‘The [Drexlers] filing an action for [p]artition
and [s]ale is in complete violation of the agreement to rent the
[Property] so long as [Drexler] continues to practice law as [sic]
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the [Firm] was in business or until [Drexler] and [Ryckman] were
in mutual agreement.’ ” The trial court granted the special
motion to strike as to the Ryckmans’ causes of action for waiver
of partition (first cause of action), breach of the covenant of good
faith and fair dealing based on the Drexlers’ filing of a partition
action (third cause of action), quiet title relating to the Property
(15th cause of action), declaratory relief relating to rights and
interests in the Property (16th cause of action), and specific
performance of an oral agreement concerning rent and partition
of the Property (18th cause of action).
The Drexlers, who claimed to have incurred $55,910 in
attorney fees on the special motion to strike, thereafter sought
fees under section 425.16, subdivision (c) in the amount of
$34,495.30, reduced to reflect their partial success on the motion.
The trial court awarded $25,000 in attorney fees to the Drexlers.
The Ryckmans’ third amended cross-complaint, filed
October 6, 2017, included among other causes of action claims for
breach of oral contract (concerning a joint venture or partnership
to operate the office building, pay rent to the Ryckmans, and to
employ Ryckman for life), partition, breach of promissory note,
and unfair competition.
2. Interrogatories and Motion in Limine
On or about May 2, 2016, the Drexlers propounded 25
special interrogatories on Ryckman.7 Interrogatory 6 asked
whether Ryckman contended he was entitled to any credits
against the Drexlers’ interest in the Property. Interrogatories 8,
7 Although the record indicates the Drexlers propounded
the same special interrogatories on Mrs. Ryckman, neither those
interrogatories nor her responses are included in the record.
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9, 10, and 11 then asked, if the response to interrogatory 6 was
yes, “for each such credit, state all facts that support [your]
contention that [you] are entitled a credit” (interrogatory 8) and
that support your contention as to the amount of the credit
(interrogatory 9), and identify all documents that support
entitlement to (interrogatory 10) and the amount of the credit
(interrogatory 11).
On June 6, 2016, Ryckman responded, “Yes,” to
interrogatory 6, and stated, in response to interrogatories 8, 9,
and 10, “Responding party has conducted a diligent search and
has not located any documents or other things necessary to
respond to this interrogatory. All documents containing the
information necessary to respond to this interrogatory are located
at the Law [O]ffices of David Drexler in the desk of [d]efendant
Gerald Owen Ryckman, in office filling [sic] cabinets and in a
number of storage boxes contained in the garage. Defendants
suspect [p]laintiff has engaged in the spoliation of evidence by
destroying or discarding the documents responsive to this
request. Defendants are not able to describe the documents other
than to say that they all relate to the subject building. [¶] The
offsets consist of $10,000 per month in unpaid rents from the Law
[O]ffices of David Drexler beginning in Jan[uary] 2002. $660,000
the reasonable value of services rendered by Gerald Owen
Ryckman and approximately $750,000 in enhanced value based
on Gerald Owen Ryckman design and remodeling of the building.
Further the information request is subject to expert opinion.
Defendants have not yet employed an expert to render opinions
as to the information requested in this interrogatory.”
Ryckman’s response to interrogatory 11 included the same
statement about the documents being at the Property, and then
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listed a number of persons who might be witnesses, including
Quirarte.
On July 21, 2016, the Drexlers moved to compel further
responses. The trial court conducted an informal discovery
conference and urged the Ryckmans to provide further responses.
On August 29, 2016, the Ryckmans, represented by counsel,
served further responses. For interrogatories 8 and 9, the
Ryckmans revised their answers to state, “Responding [p]arty is
entitled to a credit for unpaid rent, the reasonable value of the
services rendered by Gerald Owen Ryckman in the design and
remolding [sic] of the [Property] as well as a credit for the
enhancement in the value of the [Property] that resulted from the
services rendered by Gerald Owen Ryckman in the design and
remolding [sic] of the [Property]. Gerald Owen Ryckman was
solely responsible for the design and remodeling of the subject
property. It is Gerald Owen Ryckman’s design and remodeling of
the [Property] that is responsible for the enhancement in the
value of the [P]roperty as well as its current value. Responding
[p]arty asserts that the enhancement in the value of [the
Property] is a result of Gerald Owen Ryckman’s services. [¶]
Discovery is continuing and ongoing. Responding [p]arty
reserves the right to amend this response as additional
information is learned through the discovery process.”8 Ryckman
8 In response to interrogatory 7, the Ryckmans identified
the amounts for credits due to them as “$1,400,000 in unpaid
rent. [¶] $600,000 for services rendered by Gerald Owen
Ryckman in the design and remolding [sic] of the [Property]. [¶]
An estimated $1,500,000 in the enhancement in the value of the
[Property] as a result [of] services rendered in the design and
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identified documents supporting his claim to credits as
“Responding [p]arty’s [s]tatutory [o]ffers to [c]ompromise
pursuant to [section] 998[,] [o]nline marketing materials
available on redfin.com, zillow.com, and loopnet.com[,] . . .
equally available to [p]ropounding [p]arty. The appraisal of the
[P]roperty referenced by [p]ropounding [p]arty in [p]aragraph 9 of
[p]ropounding [p]arty’s [a]mended [c]omplaint for [p]artition. All
documents related to the revenue stream from the Property,
including the [Firm] and all third party tenants.
Documents/receipts and invoices as to the monies spent
upgrading the subject building are in the possession of David
Drexler. Responding [p]arty[ ] has made multiple requests for
copies of those documents. David Drexler has refused to provide
copies of those documents.”9 The record contains no support that
Ryckman requested these documents in discovery, that Drexler
stiff-armed any such discovery request, or that Ryckman moved
remolding [sic] of the [Property]. The enhancement in the value
of [the Property] as a result of responding party Gerald Owen
Ryckman’s services.”
9 On September 28, 2016, Ryckman was scheduled to
appear for his noticed deposition. He claimed he was unable to
give his best testimony due to “sleep deprivation.” He sat for his
deposition for nearly five hours the following day, but stated he
needed to leave, and the Drexlers were unable to reschedule
Ryckman’s further deposition before the trial court heard the
motion to compel. The Drexlers’ counsel states, “Unable to
conduct either Ryckman’s or his wife’s deposition[ ] before the
hearing on the [m]otion to [c]ompel, [the] Drexler[s] proceeded
with the hearing.”
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to compel for any such alleged non-compliance with discovery
obligations.10
On October 28, 2016, the trial court ordered the Ryckmans
to provide further responses and ordered them to pay monetary
sanctions totaling $8,700. On November 28, 2016, Ryckman, still
represented by counsel, provided further responses. Ryckman
did not change his substantive answer to interrogatories 8 and 9.
For interrogatories 10 and 11, Ryckman added, “The Law Offices
of David Drexler is in possession, custody, or control of financial
documents that would show the lump sum payments made to
Ryckman for the salaries and rent owed to him from 2002 to date.
Ryckman has produced all documents in his possession relating
to these lump-sum payments, which consist of copies of checks.
Responding [p]arty also identifies [r]esponse [sic] [p]arty’s
document production [of 441 pages]. Responding [p]arty also
identified those documents in the possession, custody or control of
[listing accountant firms, law firms, banks, and a tenant].”
On January 17, 2017, the Drexlers moved for issue,
evidentiary, terminating and/or monetary sanctions. They
argued that the Ryckmans’ responses continued to be “evasive
and obstructionist. [For example, t]he interrogatory asks that for
each credit, Ryckman provide all facts supporting the contention
that Ryckman is entitled to the credit. Yet, Ryckmna [sic] makes
10According to the case docket, the Ryckmans filed a
motion to compel accompanied by a separate statement in May
2016, but it does not specify what they sought to compel.
Without more, we cannot conclude this motion related in any way
to the Ryckmans’ purported demand that Drexler produce
documents related to the Property’s revenue stream or monies
spent upgrading the Property.
19
only conclusory statements devoid of any substantive
information.”
On April 28, 2017, the trial court, Judge Frank J. Johnson
presiding, granted evidentiary sanctions against the Ryckmans
for their failure to provide satisfactory, court-ordered responses.
The trial court’s minute order provided, “The [c]ourt notes that
[the Ryckmans] were previously . . . ordered to provide further
responses to [s]pecial [i]nterrogatories . . . . It appears that the
response[s] produced pursuant to the order were the same as
previously produced but without objections. The interrogatories
ask for facts. [The Ryckmans] maintain[ ] that they have no[ ]
supporting facts and all supporting material is with the
[Drexlers]. [¶] The [o]pposition is odd in that [the Ryckmans’]
assertion that all facts are with the [Drexlers] implies that [the
Ryckmans] have no facts or evidence to support their position.
[¶] The [c]ourt hears further argument. The [c]ourt tries to
impress upon the [Ryckmans] that the [Drexlers] will not prove
their case for them. [The Ryckmans] still insist that they have no
recollection or records to support their position. However, if
there are no facts the proper response is to document efforts to
comply and why compliance is not possible. [The Ryckmans] did
not do this and are technically in violation of the discovery order.
[The Ryckmans] must provide facts to support their position, not
allegations. [¶] The [c]ourt will not award terminating
sanctions, but will grant what amount to evidentiary sanctions.
As to the 11 special interrogatories, [the Ryckmans] are bound by
the responses provided. Practically, this means that, at least as
to the 11 special interrogatories above, that [the Ryckmans] are
bound by the position that they have no evidence or supporting
facts. [The Ryckmans] will not be permitted to ‘find’ evidence for
20
trial at a later date. [¶] Counsel for the moving party is to
prepare and submit an[ ] order for the [c]ourt’s signature.” The
record does not include a transcript of the April 28, 2017 hearing.
On May 25 and 26, 2017, the trial court entered the
sanctions orders prepared by the Drexlers. The orders prohibited
the Ryckmans from introducing evidence at trial beyond what
was contained in their discovery responses, including “further
facts or documents” that the Ryckmans were “owed or entitled to
any rents or profits produced by the Property” (the rents and
profits provision).
Nearly two years later, on March 22, 2019, the Ryckmans
filed a motion to strike the rents and profits provision of the
sanctions orders. They claimed the trial court’s minute order
following the April 28, 2017, hearing did not state they could not
present evidence of rents or profits due to them, that none of the
11 interrogatories related to the Ryckmans’ entitlement to rents
and profits, and that the Drexlers’ attorney, Michael Schwimer,
improperly “slipped in” reference to such rents or profits into the
sanctions orders.
On April 16, 2019, Judge Johnson issued a minute order
observing the trial court “fully considered the arguments of all
parties, both written and oral, as well as the evidence presented,”
and denied the Ryckmans’ motion to strike. A transcript of this
hearing is not included in the record.
On August 14, 2019, the Drexlers filed a motion in limine
to preclude evidence at trial pursuant to the sanctions orders. In
opposition, the Ryckmans argued, inter alia, that Schwimer had
“forged” the sanctions orders. Further, “financial documents that
show the lump sum payments made to Ryckman for the salaries
and rents owed to him from 2002 to date” were in Drexler’s
21
possession and control. Ryckman had “produced all documents in
his possession relating to lump-sum payments, which consist of
copies of checks.”
On June 18, 2021, the trial court heard the Drexlers’
motion in limine. Following argument, the trial court granted
the Drexlers’ motion. It found “the May 25, 2017 and May 26,
2017 orders are valid and will be enforced. This [c]ourt has
looked at the court records and the orders were signed and
entered properly and they remain in effect. They are valid court
orders and there does not appear to be any impropriety by
counsel.” However, the trial court observed “there were some
limited responses to the 11 special interrogatories,” thus, it was
“incumbent upon the [Ryckmans] to establish in a pleading that
each witness and piece of evidence referenced in the status report
is not barred by the May 2017 orders. [¶] . . . [¶] Failure to do
that will mean that the evidence described in the status report
will be barred under the [c]ourt’s ruling on” the motion in limine.
On July 28, 2021, the trial court noted the Ryckmans did
not advise the court of witnesses and evidence they believed were
admissible notwithstanding the trial court’s grant of the motion
in limine. The court denied the Drexlers’ motion to strike the
Ryckmans’ witnesses and evidence but stated the Drexlers could
object at trial to any evidence they believed was barred by the
motion in limine ruling.
3. Trial
On July 11, 2019, the trial court granted the Ryckmans’
motion to bifurcate trial of the partition claims from a jury trial
on the parties’ remaining claims for damages.
On August 10, 2021, the parties began a bench trial of the
partition claims. That afternoon, the trial court ordered the
22
parties to provide briefs the following day relating to the
Drexlers’ request for attorney fees recoverable as costs for the
partition action. Copies of these briefs are not included in the
appellate record.
During trial, the Drexlers called Drexler and Quirarte as
witnesses. The Ryckmans both testified, and called as further
witnesses the Drexlers, Rosenberg, and Mandelbaum. The
witnesses’ relevant testimony is summarized above. Both parties
also offered exhibits in support of their respective positions; the
majority of these exhibits are not included in the appellate
record.
During his closing argument, Ryckman addressed the issue
of rent. The court responded, “That’s sure a mess. You guys
have messy evidence there. You have an agreement of some sort
that you would simply take the . . . money as it came in, figure
out the expenses and come up with a figure that is going to be
equal that you each would be happy with. . . . I have a hard time
coming to the conclusion that you folks agreed that the . . . Firm
would pay $20,000 a month, thereby entitling you to [$]10,000.
There is some evidence of some checks. There is something
written on something that says rent. But that’s inconsistent with
the history of how this went on for a period of time[;] . . . what
you disclosed as rent on your tax return[;] . . . that is maybe how
you considered it. But I’m not sure that’s how this business
relationship that you had with Mr. Drexler would consider it. . . .
I’m having trouble finding that evidence of an agreement as to an
amount certain; to wit, $20,000 a month. That sounds like a lot
of rent for this building.”
Ryckman argued that “every time [he] brought up rent, [he]
was precluded from going into it because of [the sanctions
23
orders].” The court responded that Ryckman should have
produced discovery supporting that he was owed rent in a timely
fashion. Further, the court observed that notwithstanding the
sanctions orders, it twice offered Ryckman the opportunity to
proffer additional evidence on this topic (which Ryckman declined
to do), and notwithstanding the motion in limine order permitted
the Ryckmans to introduce evidence that they did not produce in
discovery.
Ryckman also argued the attorney fees were unreasonable
because the litigation went on for six years, longer than it should
have. The trial court responded that Ryckman was “a very
difficult litigant” who “ran the costs up.” The court nevertheless
asked the Drexlers to justify the amount of fees, noting “they
seem high.” The Drexlers explained the Ryckmans had filed
three cross-complaints (each of which included one or more
causes of action that touched on issues raised in the partition
action), two complaints in separate actions, at least two writ
petitions that dealt directly with the partition action, and several
motions to attack the sanctions orders. The court acknowledged
it thought the fees were a “little high,” but “understanding the
litigious nature of this, I can understand it and I will award the
fees.”
The trial court provided a detailed oral ruling and ordered
the Drexlers to prepare a judgment. In sum, the trial court found
the parties were entitled to the remedy of partition and that
partition by sale of the Property was more equitable than
physical division. It found the Drexler family trust and the
Ryckman family trust were each 50 percent owners of the
Property and that there had been a de facto partnership between
Drexler and Ryckman. It ruled the Drexlers and the Ryckmans
24
were each responsible to pay half of the Property’s operating
expenses from August 10, 2015 through July 21, 2021, which
totaled $345,805.01, as well as half the costs of the partition
action, including attorney fees which totaled $348,966.59; the
court further awarded prejudgment interest on these amounts.
The court denied the Drexlers’ claim that they were entitled to
credit for half the payoff amount of the mortgage, which totaled
$250,783.06, noting it was “clear that that mortgage was paid out
shortly after Mr. Ryckman left the business relationship with Mr.
Drexler . . . [from] a fund which had been used, in large part, by
both parties to pay each other for any—since at least 2002. . . .
Mr. Ryckman would have received that money as a part of a
distribution. So therefore, he has [already] paid his portion of the
mortgage.”
As to the third-party rents since August 10, 2015, totaling
$222,750, the court ruled they should be split equally between
the Drexlers and Ryckmans. The court concluded “the evidence
is sorely lacking as to the agreement for $20,000 a month [in rent
from the Firm to Ryckman and Drexler], thereby entitling Mr.
Ryckman to $10,000 a month.” Thus, it did not award any such
rent to the Ryckmans. The trial court granted the Drexlers’
request that the proposed judgment include the court’s findings of
fact and conclusions of law.
On August 23, 2021, the Drexlers lodged a proposed
judgment with the trial court. On September 2, 2021, the
Ryckmans filed written objections to the findings of fact and
conclusions of law contained in the judgment, arguing many did
not reflect what the trial court stated on the record; the
Ryckmans also filed a counter proposed judgment. On
September 3, 2021, the Drexlers responded to the Ryckmans’
25
objections and counter proposed judgment. On September 17,
2021, the trial court issued a minute order and executed the
judgment. The Ryckmans filed an objection and request to strike
the judgment. The trial court entered judgment on
September 21, 2021.11
The Ryckmans timely appealed.
DISCUSSION
The 50/50 ownership of the Property itself and its partition
by sale are not disputed on appeal. The Ryckmans instead
challenge the trial court’s finding that the Firm did not owe them
rent (including the court’s exclusion of evidence under the motion
in limine), and the court’s order that the Ryckmans were
responsible for one-half each of the Property’s operating expenses
and the attorney fees incurred in connection with partition. The
Ryckmans also appeal the court’s award of attorney fees on the
anti-SLAPP motion filed by the Drexlers, and certain language
included in the judgment.
A. The Trial Court Did Not Abuse Its Discretion in
Excluding Evidence Relating to Rents and Profits
Allegedly Owed to the Ryckmans
“Discovery sanctions must be tailored in order to remedy
the offending party’s discovery abuse, should not give the
aggrieved party more than what it is entitled to, and should not
be used to punish the offending party. We review the trial court’s
order under the deferential abuse of discretion standard.”
11 Neither the Drexlers’ response, the court’s minute order,
nor the Ryckmans’ motion to strike the judgment is included in
the record.
26
(Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.)
“ ‘ “An abuse of discretion occurs if, in light of the applicable law
and considering all of the relevant circumstances, the court’s
decision exceeds the bounds of reason and results in a
miscarriage of justice.” ’ [Citation.] ‘ “We presume that the court
properly applied the law and acted within its discretion unless
[appellants] affirmatively show[ ] otherwise.” ’ [Citation.]”
(Friends of Oceano Dunes v. California Coastal Commission
(2023) 90 Cal.App.5th 836, 847.) “Although these disputed
rulings were issued in the context of interpreting a discovery
sanction, they were still rulings to exclude evidence. In order to
obtain a reversal based on the erroneous exclusion of evidence,
[the Ryckmans] must show that a different result was probable if
the evidence had been admitted.” (Karlsson, supra, at p. 1223;
see also Evid. Code, § 354.)
The Ryckmans argue the sanctions orders are void because
Schwimer purportedly “forged” into them a rents and profits
provision that was not part of Judge Johnson’s ruling. They
claim none of the interrogatories related in any way to the
Ryckmans’ entitlement to rents, profits produced by the Property,
or improvements to the Property. This argument is without
merit.
Notwithstanding the Ryckmans’ current claim to the
contrary, it is clear the interrogatories at issue encompassed—
and the Ryckmans contemporaneously understood these
interrogatories to encompass—the Ryckmans’ entitlement to
rents as well as profits in the form of the alleged increased value
of the Property. Interrogatory 6 asked the Ryckmans whether
they contended they were entitled to any credits against the
Drexlers’ interest in the Property. The Ryckmans responded yes,
27
and in answering interrogatories 8, 9, and 10, which asked for all
facts and documents supporting this contention, explained they
were due “$10,000 per month in unpaid rents from the [Firm]
beginning in Jan[uary] 2002. $660,000 the reasonable value of
services rendered by . . . Ryckman and approximately $750,000 in
enhanced value based on . . . Ryckman[’s] design and remodeling
of the [Property].”
We have no transcript of the hearing on the discovery
motion that resulted in the evidentiary sanctions, and nothing
otherwise in the record shows the Drexlers’ counsel exceeded the
intended order of the trial court when he prepared the sanctions
orders. That the trial court did not expressly state the subject
matter of specific interrogatories in its minute order is
inconsequential. (Herrscher v. Herrscher (1953) 41 Cal.2d 300,
304 [“It is a matter of trial court procedure whether the court
chooses to make its final decision by the entry in the minutes of
an order without a direction that a written order be prepared,
signed and filed, or elects to enter a direction that a formal order
be prepared”].) The trial court not only signed the sanctions
orders that included the rents and profits provision (evincing that
it was part of the court’s order), but when the Ryckmans’
grievance about the scope of the orders was called to the
attention of the judicial officer who made the ruling, that judicial
officer denied the Ryckmans’ request to strike the rents and
profits provision from the orders after briefing and argument—
indicating that provision was in fact properly part of the court’s
order.
At bottom, the evidentiary sanctions and related motion in
limine order did nothing more than preclude the Ryckmans from
presenting evidence of rents and profits beyond what they stated
28
in their discovery responses. Such enforcement of the discovery
statutes is proper and not an abuse of discretion. “The discovery
statutes were intended to curtail surprises, enable each side to
learn as much as possible about the strengths and weaknesses of
its case, and thereby facilitate realistic settlements and efficient
trials.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 543,
fn. 3, italics omitted.) Thus, under section 2023.010, a court may
find a party who fails to respond to discovery, provides evasive
responses, or disobeys a court order to provide discovery
responses has engaged to discovery misuse. (Id., subds. (d), (f),
(g).) “If a party then fails to obey an order compelling further
response to interrogatories, the court may make those orders that
are just, including the imposition of an issue sanction, an
evidence sanction, or a terminating sanction.” (§ 2030.300,
subd. (e).)
Here, the interrogatories asked the Ryckmans to state “all
facts” supporting their entitlement to credits against the
Drexlers’ interest in the Property and identify “all documents”
related thereto. Yet, after several months, an informal discovery
conference, an order compelling them to do so as well as
monetary sanctions, the Ryckmans did not provide additional
facts supporting their conclusory assertion that the Firm owed
them rent or that they were entitled to money related to the
enhanced value of the Property. Rather, the Ryckmans insisted
they had no additional “recollection or records” to support their
contentions.12 The trial court acted well within its discretion in
12Considerable evidence indicates Ryckman’s statements
were not accurate. It is undisputed that Ryckman continued to
have access to the Property; that responsive documents were
29
ruling that the Ryckmans could not later “find” evidence and
were bound by their discovery responses, including their
responses to interrogatories 8, 9, 10, and 11.
What happened later was exactly what the discovery
statutes are designed to prevent. The Ryckmans showed up to
trial with documents they should have provided in discovery and
sought to spring them on the Drexlers and Quirarte. Even so, the
trial court did not obdurately enforce the motion in limine.
Notwithstanding the language of the motion in limine order and
the Drexlers’ objections at trial, the trial court allowed the
Ryckmans to elicit any testimony they wanted on the issue of
stored there (in Ryckman’s own desk, among other places),
without more, was not a sufficient explanation for his failure to
locate and produce such documents. Further, the Ryckmans’
original complaint (which predated the interrogatories),
Ryckman’s testimony at trial, and certain documents that he
introduced at trial all show that Ryckman did in fact know of
further facts and possessed documents supporting his claim that
the Firm owed him rent despite his discovery responses claiming
he had nothing further to provide. For example, Ryckman
testified at trial that he and Drexler entered into a joint venture
or partnership in which they agreed to purchase the Property and
that as part of this arrangement, the Firm would pay him and
Drexler rent in the amount of $20,000 per month, split equally,
until Drexler ceased doing business as the Firm or they agreed to
sell the Property. According to Ryckman, the rent payments
were irregular, with the Firm making lump sum catch-up
payments from time to time, such that Quirarte tracked rents
due to the Ryckmans and sent emails to them summarizing these
amounts (exhibits 123 and 124). Ryckman did not provide any of
these details or identify any of these documents in response to
the interrogatories despite his knowledge of them.
30
rents and profits. Thus, in addition to Ryckman and Mrs.
Ryckman’s own testimony, Ryckman extensively questioned
Quirarte, Drexler, and Mrs. Drexler on these issues.
As to Ryckman’s two expert witnesses, the record indicates
the trial court excluded their testimony on grounds unrelated to
the motion in limine order or the evidentiary sanctions.
Rosenberg acknowledged he had not conducted an analysis of the
Firm’s expenses, and he therefore lacked the necessary
foundation to testify about the Firm’s rent payments. As to
Mandelbaum, Drexler objected that Mandelbaum’s testimony as
to the enhanced value of the Property lacked foundation. The
trial court asked Ryckman to describe the relevancy of
Mandelbaum’s testimony and concluded Mandelbaum could not
testify as to the enhanced value today given his limited general
contracting work years before. Thus, the record indicates the
court excluded a portion of Mandelbaum’s testimony due to a lack
of foundation and relevancy, and not based on prior discovery
responses or the motion in limine order.13
With respect to documents, the trial court provided
considerable leeway to the Ryckmans in using exhibits to elicit
13Moreover, Mandelbaum testified the Firm (not
Ryckman) paid him for renovations to the Property. Thus, any
enhanced value to the Property would not belong to Ryckman
alone but to the Ryckmans and Drexlers equally and would be
quantified and distributed when the Property was sold. To the
extent Ryckman challenges the court’s denial of a separate award
to him related to work he purportedly did to improve the
Property, we find no error in the court’s determination that
Ryckman failed to carry his burden of proof on this issue given
the contested evidence before the court. (Ajaxo, Inc. v. E*Trade
Financial Corp. (2020) 48 Cal.App.5th 129, 163.)
31
testimony and excluded only six exhibits in whole or in part
based on the motion in limine order. The excluded documents
fall into two categories. First, the trial court excluded portions of
two exhibits that were compilations the Ryckmans created to
summarize certain underlying documents. Although the trial
court excluded the portion of the exhibits purporting to
summarize other documents, it admitted the underlying
documents themselves: Wells Fargo Bank records and the
Ryckmans’ tax records. The Ryckmans cannot show prejudice
from the exclusion of these summaries given that the excluded
portions of the exhibits summarized other evidence that was
admitted. (Karlsson v. Ford Motor Co., supra, 140 Cal.App.4th at
p. 1223; see also Evid. Code, § 354.) The second category of
excluded exhibits were documents Ryckman had in his possession
but never produced or described in discovery: two emails between
the Ryckmans and Quirarte, gross-up calculations from 2014
prepared by the Drexlers’ or Drexlers’ accountant, and a
collection of emails between Drexler and Ryckman (described in
the record as sent in August or September 2015). Given the
Ryckmans’ discovery violations in failing to reference or produce
these documents, the trial court did not abuse its discretion in
excluding them. (See § 2030.300, subd. (e).)
The Ryckmans also suggest that but for the sanctions
orders, they would have introduced other unspecified documents
evidencing the Firm’s obligation to pay them rent and/or related
to improvements. The trial court twice asked the Ryckmans to
make an offer of proof regarding these purported documents; the
Ryckmans did not do so, and the record contains no such
documents or descriptions of them. We cannot reverse a trial
court’s judgment based on the purported erroneous exclusion of
32
evidence unless that error resulted in a miscarriage of justice and
“[t]he substance, purpose, and relevance of the excluded evidence
was made known to the court by the questions asked, an offer of
proof, or by any other means.” (Evid. Code, § 354.) Thus, we
cannot conclude that the trial court committed reversible error in
not admitting evidence when that evidence was not made known
to the trial court, nor described to us.
B. The Trial Court Did Not Err in Finding the
Ryckmans Did Not Prove the Firm Owed Them
Unpaid Rent in the Amount of $10,000 Per Month
The Ryckmans’ appellate briefing challenges the trial
court’s finding that the Ryckmans failed to prove there was an
agreement that the Firm would pay monthly rent in the amount
of $10,000 to Ryckman and to Drexler. We are not a second trier
of fact, and we find no reversible error in the trial court’s
resolution of this disputed issue.
We review challenges to the sufficiency of the evidence
supporting a trial court’s factual findings for substantial
evidence. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570,
581.) “This traditional standard of review is highly deferential.
It has three pillars. First, we accept all evidence supporting the
trial court’s order. Second, we completely disregard contrary
evidence. Third, we draw all reasonable inferences to affirm the
trial court. These three pillars support the lintel: We do not
reweigh the evidence.” (Ibid.) However, “where the trier of fact
has determined that the party with the burden of proof did not
carry its burden and that party appeals, . . . ‘the question for a
reviewing court becomes whether the evidence compels a finding
in favor of the appellant as a matter of law.’ ” (Ajaxo, Inc. v.
E*Trade Financial Corp., supra, 48 Cal.App.5th at p. 163.) We
33
presume the judgment or order to be correct, and it is appellants’
burden to overcome this presumption. (Jameson v. Desta (2018) 5
Cal.5th 594, 608-609.)
The Ryckmans adduced evidence at trial that the Firm
agreed to pay them rent. Ryckman so testified, and introduced
documentary evidence that he received one $100,000 check with a
notation stating “rent” and that he filed tax returns reporting
money he asserted was received as rent payments. Ryckman
further introduced bank records showing a total of three online
transfers into the Firm’s rental account in amounts of $5,000 or
$10,000 “for rental.”
But contrary evidence was also introduced. Drexler
testified there was no such agreement and explained that
Ryckman requested that the $100,000 check indicate it was for
rent for tax purposes even though it was not. Ryckman contends
the trial court should not have believed Drexler, but we may not
second-guess the trial court’s credibility determinations.
(Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 738-739.)
Moreover, other evidence supported Drexler’s position. The three
online transfers identified by Ryckman were sporadic and not
consistent with a monthly rent obligation of $20,000;
furthermore, the Ryckmans never demonstrated that any portion
of these funds were provided to them as rent. Moreover,
Quirarte, who made the transfers, appeared to use the phrases
“rent” and “mortgage” interchangeably. Nor was there any
documentary evidence that Ryckman demanded payment for
alleged rent—despite a significant arrearage of what he claimed
was owed—until after he stopped working with Drexler. Finally,
as the trial court observed, a purported monthly rent payment of
$20,000 appeared above-market for the building.
34
Given the contradictory evidence in the record concerning
whether there was an agreement for the Firm to pay rent to the
parties, we cannot say the trial court erred in finding the
Ryckmans failed to carry their burden of proof to establish such
an agreement. Given the disputed facts in the record, we cannot
conclude that “ ‘the evidence compels a finding in favor of the
[Ryckmans] as a matter of law.’ ” (Ajaxo, Inc. v. E*Trade
Financial Corp., supra, 48 Cal.App.5th at p. 163.)
C. The Trial Court Did Not Err in Finding the
Ryckmans Owed Half the Operating Costs of the
Property Since August 10, 2015
As noted above, partition actions include a final accounting
according to the principles of equity, including credits for a
party’s expenditures in excess of their fractional share for
repairs, improvements, “for the common benefit, and protection
and preservation of title.” (Wallace v. Daley, supra, 220
Cal.App.3d at p. 1036; see § 872.140.) The Drexlers presented
evidence of operating costs amounting to $260,451.71 following
Ryckman’s departure from the Firm, with prejudgment interest
of $85,433.30, for a total of $345,805.01. The judgment awarded
the Drexlers a lien against the Property for $172,902.50 (half of
$345,805) for the Ryckmans’ unpaid share of those operating
expenses.
The Ryckmans first argue the Drexlers incurred these costs
only because they did not accept the Ryckmans’ settlement offers,
and the trial court erred in excluding evidence of the Ryckmans’
settlement communications at trial. We find no such error.
Evidence Code section 1154 precludes the admission of
settlement offers to prove the invalidity of any claim, and thus
barred the Ryckmans from offering their settlement
35
communications to prove the Drexlers were not entitled to
operating costs. (Evid. Code, § 1154 [“Evidence that a person has
accepted or offered or promised to accept a sum of money or any
other thing, act, or service in satisfaction of a claim, as well as
any conduct or statements made in negotiation thereof, is
inadmissible to prove the invalidity of the claim or any part of
it”]; Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471,
1475 [Evid. Code, § 1154 is “based on the public policy in favor of
the settlement of disputes without litigation and [is] intended to
promote candor in settlement negotiations”].)
The Ryckmans further argue the award of operating costs
violated their due process rights because they had “no say” as to
“what expenses would be incurred or which bills would or would
not be paid.” The Ryckmans could have challenged at trial any
expenses they considered unreasonable, but they did not. The
Drexlers provided as exhibits over 400 pages of bills relating to
the Property’s operating expenses incurred between August 10,
2015 through July 21, 2021, and the Ryckmans did not identify a
single expense as unreasonable or unnecessary. To the contrary,
when the trial court asked Ryckman whether he agreed to
splitting costs 50-50, Ryckman responded, yes.
Further, the trial court’s award of operating costs was
equitable. The Property undoubtedly had operating costs—taxes,
insurance, maintenance, and the like. Throughout their business
relationship, Ryckman indirectly paid half of the Property’s
operating costs when Drexler deducted expenses (with Ryckman’s
permission) before they split the remaining funds. Indeed,
Ryckman expected to be treated and was treated as a de facto
partner, including receiving half the rent from third party
tenants both before and, pursuant to the trial court’s ruling, after
36
August 10, 2015. Moreover, Ryckman acknowledged that he
continued to have access to the building and to use it for storage
even after August 10, 2015. The Ryckmans were entitled to half
the Property, and that appropriately included responsibility for
half of its operating costs.
The Ryckmans also claim we should vacate the trial court’s
award of prejudgment interest on the operating expenses.
Parties are entitled to prejudgment interest on damages that are
“certain, or capable of being made certain by calculation.” (Civ.
Code, § 3287, subd. (a).) The operating expenses were certain
specified amounts, and subject to prejudgment interest. The
Ryckmans do not explain why they should not be liable for
prejudgment interest, nor did they include with the appellate
record any of the documentary evidence presented at trial
relating to the prejudgment interest.14 Thus, the Ryckmans have
not demonstrated any error in the trial court’s ruling that they
pay half the operating costs or prejudgment interest thereupon.
D. The Trial Court Did Not Err in Finding the
Ryckmans Liable for Half the Attorney Fees
Incurred in the Partition Action
Section 874.040 states, “Except as otherwise provided in
this article, the court shall apportion the costs of partition among
the parties in proportion to their interests or make such other
14 The trial transcript indicates that in addition to the over
400 pages of bills, the Drexlers submitted exhibit 25, which
summarized operating cost totals. As Drexler testified
concerning the prejudgment interest on operating costs, the trial
court stated, “Mr. Ryckman, you have the figures and can check
the math yourself.”
37
apportionment as may be equitable.” Such costs include
“[r]easonable attorney’s fees incurred or paid by a party for the
common benefit.” (§ 874.010, subd. (a).) “[T]he ‘common benefit’
in a partition action is the proper distribution of the ‘ “respective
shares and interests in said property by the ultimate judgment of
the court.” ’ [Citation.] This sometimes will require that
‘ “controversies” ’ be ‘ “litigated” ’ to correctly determine those
shares and interests [citation], but this ultimately can be for the
common benefit as well.” (Orien v. Lutz (2017) 16 Cal.App.5th
957, 967.)
We review awards of attorney fees and costs for abuse of
discretion. (Finney v. Gomez (2003) 111 Cal.App.4th 527, 545.)
Because “[t]he ‘experienced trial judge is the best judge of the
value of professional services rendered in his court,’ ” the trial
court has substantial discretion in calculating the amount of
attorney fees, and its decision in this regard “ ‘will not be
disturbed unless the appellate court is convinced that it is clearly
wrong.’ ” (Serrano v. Priest (1977) 20 Cal.3d 25, 49.)
The Ryckmans contend the trial court erred in awarding
the Drexlers a lien on the Property for $174,483.29, half the
amount of attorney fees the Drexlers incurred in the partition
action. The Ryckmans first argue we should vacate the award
because the Drexlers failed to file a memorandum of costs. The
Ryckmans cite no authority requiring a memorandum of costs for
a section 874.040 fee award, and nothing in the statute sets forth
such a requirement. Instead, section 874.040 states only that the
court “shall” apportion the costs and fees of partition “among the
parties in proportion to their interests or make such other
apportionment as may be equitable.” (§ 874.040.) We
accordingly decline to read into the statute a requirement it does
38
not contain. (See Harvey v. Stafford (1930) 106 Cal.App. 307, 309
[holding memorandum of costs is not required under earlier
version of § 874.040, former § 796, which stated, “[t]he costs of
partition, including reasonable counsel fees, expended by the
plaintiff or either of the defendants, for the common benefit, fees
of referees, and other disbursements, must be paid by the parties
respectively entitled to share in the lands divided, in proportion
to their respective interests therein”].)
The Ryckmans next argue that they were not provided with
an opportunity to challenge the reasonableness of the fees. The
record demonstrates that they were. The Drexlers provided their
attorney’s invoices as exhibits in advance of trial. On August 10,
2021, the trial court requested briefing relating to the Drexlers’
request for fees, providing the Drexlers with another opportunity
to raise concerns relating to the reasonableness of the fees. At
the close of trial, on August 13, 2021, both the Drexlers and
Ryckmans presented arguments relating to the fees, including
the reasonableness of the total amount. Ultimately, the trial
court concluded the amount of fees was reasonable because the
Ryckmans’ litigiousness “ran the costs up.” The Ryckmans’
appellate briefing does not question any particular task(s) or
billing rate(s). Nor are the attorney invoices that were before the
trial court included in the appellate record. We therefore have no
grounds to question any particular entries in those billing
records. “A trial court’s attorney fee award will not be set aside
‘absent a showing that it is manifestly excessive in the
circumstances.’ ” (Raining Data Corp. v. Barrenechea (2009) 175
Cal.App.4th 1363, 1375.) Given the circumstances of this matter,
we cannot conclude that $348,966.58 in fees over a six-year
period involving extensive litigation is manifestly excessive.
39
Instead of disputing any portion of the fees, the Ryckmans
argue the court should have awarded no fees at all because the
matter could have been settled early in the litigation if the
Drexlers had accepted any of the Ryckmans’ settlement offers,
including one which they claim was made pursuant to section
998.15 They also argue the trial court erred in excluding evidence
of their settlement offers. In support of their argument, the
Ryckmans cite two cases: Meister v. Regents of University of
California (1998) 67 Cal.App.4th 437 and Marek v. Chesny (1985)
473 U.S. 1 [105 S.Ct. 3012, 87 L.Ed.2d 1].
In Meister v. Regents of University of California, supra, 67
Cal.App.4th 437, the Sixth District held that a trial court had
discretion to reduce an attorney fees award to a prevailing
plaintiff by the amount of fees the plaintiff incurred after the
plaintiff declined an informal (non-section 998) settlement offer
for an amount greater than that recovered at trial, relying on the
policy underlying section 998. (Meister, supra, at p. 452.) In
Greene v. Dillingham Construction N.A., Inc. (2002) 101
Cal.App.4th 418, however, Division Four of the First District held
that section 998’s cost shifting provision has no application to an
15 A section 998 offer to compromise must include “a
statement of the offer, containing the terms and conditions of the
judgment or award, and a provision that allows the accepting
party to indicate acceptance of the offer by signing a statement
that the offer is accepted.” (Id., subd. (b).) Section 998 also
includes cost-shifting provisions, including that “[i]f an offer
made by a defendant is not accepted and the plaintiff fails to
obtain a more favorable judgment or award, the plaintiff shall not
recover his or her postoffer costs and shall pay the defendant’s
costs from the time of the offer.” (Id., subd. (c)(1).)
40
informal settlement offer where the offeree recovered less at trial.
Greene disagreed with Meister that an informal settlement offer
could be used as a factor in determining the reasonableness of
attorney fees. Greene reasoned in part that Meister ignored the
procedural protections afforded by section 998, including that
“[a]n offer pursuant to section 998 may not be withdrawn prior to
trial or within 30 days after the offer is made, whichever occurs
first.” (Greene, supra, at p. 425.) We agree with the reasoning of
Greene and decline to apply Meister here. Marek v. Chesny,
supra, 473 U.S. 1 concerns a settlement offer made pursuant to
Federal Rules of Civil Procedure, rule 68, the federal analog to
section 998. Thus, it has no application to the Ryckmans’
informal settlement offers.
Turning to section 998 itself, the Ryckmans do not cite any
authority that attorney fees in a partition action are recoverable
as costs under section 998. Assuming for the sake of argument
that section 998 applies to such attorney fees, the Ryckmans did
not advise the court that any of their settlement communications
were made pursuant to section 998. They have thus forfeited any
argument that the court should have considered such a statutory
offer to compromise in determining the reasonableness of the
Drexlers’ attorney fee request. (Meridian Financial Services, Inc.
v. Phan (2021) 67 Cal.App.4th 657, 700.) Further, the one
settlement communication the Ryckmans now identify as a
section 998 offer, dated February 5, 2016, does not state it is a
section 998 offer, the first page of the offer is missing from the
record, and the portion provided does not state anything about
the Ryckmans’ position on partition of the Property or the
Drexlers’ claim for operating costs. Rather, it indicates only that
the Ryckmans proposed waiving their claims for past rent, the
41
value of renovation enhancements, and all other claims for fraud
or punitive damages relating to the purchase, ownership, and
operation of the Property. Thus, the communication is of limited
usefulness in determining the reasonableness of fees relating to
the partition action. Moreover, because no one provided the
valuation of the Property at the time of judgment, the court could
not have estimated whether the Drexlers truly failed to obtain a
more favorable judgment. Accordingly, we conclude the trial
court did not err in excluding evidence of the Ryckmans’
settlement communications and in ordering the Ryckmans pay
half the attorney fees incurred in the partition action.
Finally, the Ryckmans argue the trial court erred in
awarding prejudgment interest on the attorney fees. As noted
above, parties are entitled to prejudgment interest on damages
that are “certain.” (Civ. Code, § 3287, subd. (a).) This includes
legal fees because those amounts become certain when billed
and/or paid. (See, e.g., Government Employees Ins. Co. v.
Nadkarni (N.D.Cal. 2020) 477 F.Supp.3d 1091, 1097.) Other
than the arguments already made about the fees generally, the
Ryckmans have not set forth why the Drexlers should not be
entitled to such prejudgment interest. In arguing against
prejudgment interest, the Ryckmans’ reply brief also cites to Civil
Code section 3291 and cases interpreting that statute. That
section is inapposite as it applies to section 998 offers in personal
injury actions; as noted above, this was a partition action (not a
personal injury/tort case) in which the record does not evidence
any section 998 offer. Accordingly, we find no error.
42
E. The Trial Court Did Not Err in Awarding Attorney
Fees of $25,000 Under Section 425.16, Subdivision (c)
The Ryckmans contend the trial court’s award of attorney
fees in the amount of $25,000 pursuant to section 425.16,
subdivision (c) was unreasonable.16 They note the Drexlers
brought the motion to strike as to all 19 causes of action in the
cross-complaint, but that they prevailed in striking only five
claims. The trial court struck causes of action for waiver of
partition, breach of the covenant of good faith and fair dealing
based on the Drexlers’ filing of a partition action, quiet title
relating to the Property, declaratory relief relating to rights and
16 The Ryckmans also challenge the trial court’s ruling on
the merits of the Drexlers’ special motion to strike. However, the
trial court granted the special motion to strike on June 15, 2016,
and thus the time for appellate review of the trial court’s anti-
SLAPP ruling has expired. (See Maughan v. Google Technology,
Inc. (2006) 143 Cal.App.4th 1242, 1246-1247.) In contrast, a
movant under section 425.16 who does not seek attorney fees
simultaneously with his or her special motion to strike must wait
until judgment before seeking appellate review of an attorney fee
award under section 425.16, subdivision (c). (See Doe v. Luster
(2006) 145 Cal.App.4th 139, 150.) Although the parties’ non-
partition claims are not final or before us on this appeal, the trial
court rendered judgment on the bifurcated partition claims and
all of the Ryckmans’ cross-claims stricken under section 425.16
relate to the Property, the partition action, and any credits due as
part of the partition action. Further, the Drexlers do not contend
the Ryckmans’ appeal relating to the section 425.16, subdivision
(c) fees is premature. Thus, we conclude the appeal concerning
the section 425.16, subdivision (c) attorney fees is timely and
properly before us.
43
interests in the Property, and specific performance of an oral
agreement concerning rent and partition of the Property.
Section 425.16, subdivision (c) states in relevant part, “a
prevailing defendant on a special motion to strike shall be
entitled to recover that defendant’s attorney’s fees and costs.”
(§ 425.16, subd. (c)(1).) “The purpose of the statute is to
‘compensate[e] the prevailing defendant for the undue burden of
defending against litigation designed to chill the exercise of free
speech and petition rights. [Citation.]’ [Citation.]” (Maleti v.
Wickers (2022) 82 Cal.App.5th 181, 232.) “The term ‘ “prevailing
defendant,” ’ as used in section 425.16, subdivision (c)(1), is not
defined, and it is unstated whether a defendant who prevails on
some, but not all, of the claims challenged in his or her anti-
SLAPP motion is entitled to fees and costs. [Citation.] But as a
general rule, a defendant who prevails in part in bringing a
special motion to strike is entitled to fees and costs, subject to the
trial court’s determination of the appropriate amount awardable
based upon the defendant’s partial success. [Citations.] The
entitlement to fees and costs where the defendant prevails in
part, however, is not absolute. As explained by the court in
Mann [v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th
328,] at page 340, ‘a party who partially prevails on an anti-
SLAPP motion must generally be considered a prevailing party
unless the results of the motion were so insignificant that the
party did not achieve any practical benefit from bringing the
motion.’ The trial court’s determination of whether a defendant
prevailed such that he or she is entitled to fees and costs is
reviewed for abuse of discretion. [Citation.]” (Ibid.)
The Ryckmans’ original cross-complaint included numerous
claims. The Drexlers’ motion to strike meaningfully narrowed
44
what was at issue, as well as the time and resources otherwise
necessary to address the claims struck for lack of merit. For
example, the cause of action for quiet title alleged the Drexlers
owned no interest in the Property and that their title to the
Property was “fraudulent” because only the Ryckmans’ monies
were used (again, fraudulently) to pay the mortgage and building
expenses. By the time of the trial court’s ruling on the anti-
SLAPP motion, however, the trial court reported, “Ryckman
admits he and Drexler purchased and owned the [Property].”
Thus, the anti-SLAPP motion relieved the parties from having to
prove and defend against several claims, including allegations of
fraud. Thus, the Drexlers did achieve a practical benefit as a
result of the motion entitling them to an award of attorney fees.
(See Maleti v. Wickers, supra, 82 Cal.App.5th at p. 232.)
Nor can we conclude that $25,000 is an unreasonable fee
award. The Drexlers incurred $55,910 in attorney fees on the
special motion to strike. They sought fees in the amount of
$34,495.30 reduced to reflect their partial success on the motion.
The trial court reduced the amount still further, awarding
$25,000. The Ryckmans fail to explain why this reduced fee
award did not properly account for the anti-SLAPP motion being
granted in part, saying only that they “reasonably (mistakenly)
believed” the struck causes of action were proper, and that they
should not be penalized for “a pleading error.” There is, however,
no good faith exception to the anti-SLAPP law or its fees
provision. (Equilon Enterprises v. Consumer Cause, Inc. (2002)
29 Cal.4th 53, 67-68, fn. omitted [immaterial that party whose
claims are struck “had pure intentions when suing”; the anti-
SLAPP statute contains “no additional requirement of proving [a
45
party]’s subjective intent”].) We accordingly find no error in the
anti-SLAPP fee award.
F. The Trial Court’s Judgment Contains Factual
Determinations Not Made by the Trial Court
Following trial, the Drexlers prepared a draft judgment for
the trial court, which the trial court executed and entered. The
Ryckmans contend the judgment contains “[e]xtraneous unproven
statements,” “which could be used by the Drexlers (as proven
facts) against the Ryckmans in separate proceedings.” The
Ryckmans do not provide any argument in their appellate briefs
as to this issue, but instead cite to their objections filed with the
trial court and provided in the record. Having reviewed the 15
objections, we conclude that the majority of the objections have
no merit or that no prejudice arises therefrom. For example, the
Ryckmans claim the judgment does not apply to the Ryckmans’
cross-complaint for partition. Yet, it is clear the resolution of the
Drexlers’ cause of action for partition conclusively resolved the
Ryckmans’ cause of action for partition.
However, we do find merit to the Ryckmans’ two objections
concerning Ryckman’s departure from the de facto partnership.
In particular, the judgment states at page 2, lines 14 to 15 that
“Ryckman chose to leave the de facto partnership” and at line 16
that “Mr. Ryckman’s voluntary departure from the de facto
partnership on August 10, 2015 did not divest . . . .” The court
found Drexler and Ryckman “operated the Property together
until 2015, when Mr. Ryckman, for reasons that are still
unknown, left the business relationship.” In other words, the
trial court did not determine whether Ryckman’s departure was
voluntary or not. Because the cause of Ryckmans’ departure may
be relevant to his claim for wrongful termination (the resolution
46
of which may not yet be final), these statements should be
corrected. Accordingly, we will remand for the limited purpose
that the trial court replace the phrase “chose to leave” at page 2,
lines 14 to 15 with “left” and strike the word “voluntary” from
page 2, line 16.
DISPOSITION
The trial court’s judgment is affirmed and remanded with
instructions to correct the judgment by replacing the phrase
“chose to leave” at page 2, lines 14 to 15 with “left,” and striking
the word “voluntary” from page 2, line 16. The Drexlers are
awarded their costs on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
47