Filed 6/26/23 Drexler v. Ryckman CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

DAVID DREXLER et al.,

Plaintiffs, Cross-defendants,

 and Respondents,

v.

GERALD OWEN RYCKMAN et al.,

Defendants, Cross-complainants,

 and Appellants.

 B316564

 (Los Angeles County

 Super. Ct. No. LC103510)

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, Crossdefendants, and Respondents.

________________________
2

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 
3

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 All subsequent 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 
4

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).)
5

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 
6

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.
7

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 
8

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].”
9

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.”
10

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.

5 These 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.
11

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 
12

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 

6 The parties did not participate in an exchange of expert 

information under section 2034.260.
13

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.
14

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 crosscomplaint 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’ crosscomplaint 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] 
15

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.
16

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 
17

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 
18

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.”
19

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 

10 According 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.
20

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 
21

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 
22

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 
23

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 
24

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 
25

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’ 
26

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.
27

(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, 
28

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 
29

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 

12 Considerable evidence indicates Ryckman’s statements 

were not accurate. It is undisputed that Ryckman continued to 

have access to the Property; that responsive documents were 
30

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.
31

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 

13 Moreover, 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.)
32

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 
33

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 
34

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.
35

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 
36

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 
37

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.”
38

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 
39

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.
40

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).)
41

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 
42

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.
43

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 antiSLAPP 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’ nonpartition 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.
44

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 antiSLAPP 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 antiSLAPP 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 
45

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 antiSLAPP 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 antiSLAPP statute contains “no additional requirement of proving [a 
46

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
47

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.