Tolley v. Kobzoff CA5

Filed 12/8/20 Tolley v. Kobzoff CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

LORI TOLLEY,
F078021
Plaintiff and Respondent,
(Super. Ct. No. MCV076134)
v.

FRED KOBZOFF et al., OPINION
Defendants and Appellants.

THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. Michael J.
Jurkovich, Judge.
Pascuzzi, Pascuzzi & Stoker and William E. McComas for Defendants and
Appellants.
Law Offices of Lisa R. McCall and Lisa R. McCall for Plaintiff and Respondent.
-ooOoo-
This appeal is taken from an interlocutory judgment for the partition of real
property. The issue is whether the trial court erred by ordering one party to bear the

*Before Detjen, Acting P.J., Peña, J., and Snauffer, J.
“costs of partition” within the meaning of Code of Civil Procedure section 874.010.1 The
apportionment of such costs is a discretionary ruling. Perceiving no abuse of discretion,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2017, respondent Lori Tolley filed a partition action under section
872.010 et seq. against her siblings, Bonnie Kobzoff and Fred Kobzoff (appellants). She
pleaded causes of action for the partition of real and personal property, and for an
accounting. In December 2017, defaults were entered against both appellants.
A default “admits, so far as such defaulting defendant is concerned, the absolute
verity of all the allegations of the complaint.” (City of Los Angeles v. Los Angeles
Farming & Milling Co. (1907) 150 Cal. 647, 649; accord, Sporn v. Home Depot USA,
Inc. (2005) 126 Cal.App.4th 1294, 1303 [“The default admits the allegations of the
complaint”].) As such, our factual summary is derived from the complaint.
Tolley and appellants are the adult children of Alex Kobzoff, who died in August
2003. The decedent’s assets were distributed pursuant to the rules of intestate succession.
In late 2005, appellant Fred Kobzoff (Kobzoff), in his capacity as administrator of the
estate, deeded title to certain real property located in Chowchilla (the property) to himself
and his siblings as tenants in common. At all times relevant herein, Tolley and appellants
each owned an undivided one-third interest in the property.
The parties agreed Kobzoff would be responsible for managing the property and
getting it sold “as soon as practically possible.” In 2006, Kobzoff rejected a purchase
offer of approximately $300,000. Tolley did not learn of the offer until after Kobzoff had
rejected it.
An entire decade passed, during which time Kobzoff neither sold the property nor
communicated with Tolley regarding his management of the property. Tolley initiated

1All undesignated statutory references are to the Code of Civil Procedure.

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this lawsuit after discovering that the house on the property was destroyed by a fire in
2016. Kobzoff had failed to maintain the necessary insurance, so the value of the home
was lost.
On June 15, 2018, the trial court held a prove-up hearing on Tolley’s three causes
of action. Tolley and her counsel made factual representations consistent with those
alleged in the complaint. According to Tolley, “[n]umerous offers for sale of the
property were received over the course of time, but [Kobzoff] refused to even consider all
of the offers, and when questioned about it, said he didn’t care what his sisters wanted to
do—he wanted to hold on to the property.” Tolley “entreated her brother on numerous
occasions to consider these other offers,” but he refused to do so.
The filing of Tolley’s lawsuit allegedly had the causal effect of getting Kobzoff to
finally honor his prior commitment to selling the property. At the time of the hearing, the
parties had mutually agreed to accept a purchase offer and the property was in escrow.
Having incurred legal expenses to achieve that result, Tolley asked to be awarded the
costs of partition, including attorney fees, as prayed for in the complaint.
Based on the trial court’s tentative ruling to award Tolley the costs of partition and
impose those costs against Kobzoff, Tolley dismissed her claims for the partition of
personal property and for an accounting. The trial court adopted its tentative ruling. On
June 18, 2018, the trial court entered an interlocutory judgment ordering “that the
property be sold and the proceeds divided among the parties according to their respective
[one-third] interests,” subject to a costs award in favor of Tolley. The costs of suit and
costs of partition, “including the cost of a policy of title insurance, if any, and reasonable
attorneys’ fees,” were ordered to be deducted from Kobzoff’s share of the sale proceeds.
On July 3, 2018, appellants were served with a notice of entry of the interlocutory
judgment. Although not confirmed by the record, appellants allege in their briefing that
the property was sold on August 1, 2018. The notice of appeal was filed on August 23,
2018.

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 DISCUSSION
1. Legal Overview
“A co-owner of real or personal property may bring an action for partition.
[Citation.] ‘The primary purpose of a partition suit is … to partition the property, that is,
to sever the unity of possession.’” (LEG Investments v. Boxler (2010) 183 Cal.App.4th
484, 493.) “If the court finds that the plaintiff is entitled to partition, it shall make an
interlocutory judgment that determines the interests of the parties in the property and
orders the partition of the property and, unless it is to be later determined, the manner of
partition.” (§ 872.720, subd. (a).)
“In lieu of dividing the property among the parties, the court shall order the
property be sold and the proceeds divided among the parties in accordance with their
interests in the property if the parties agree to such relief or the court determines sale and
division of the proceeds would be more equitable than a division of the property.” (LEG
Investments v. Boxler, supra, 183 Cal.App.4th at p. 493, citing § 872.820.) Appellants do
not dispute the part of the interlocutory judgment ordering sale of the property and
division of the proceeds. They claim the trial court erred by ordering Kobzoff to pay the
costs of partition instead of apportioning the burden of those costs equally among the
three siblings.
As defined in section 874.010, the “costs of partition” include “[r]easonable
attorney’s fees incurred or paid by a party for the common benefit” (id., subd. (a)), “[t]he
reasonable costs of a title report procured pursuant to Section 872.220” (id., subd. (d)),
and “[o]ther disbursements or expenses determined by the court to have been incurred or
paid for the common benefit” (id., subd. (e)). “[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.”’” (Orien v. Lutz (2017) 16 Cal.App.5th 957, 967.)
Pursuant to section 874.040, a trial court “shall apportion the costs of partition among the

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parties in proportion to their interests or make such other apportionment as may be
equitable.” (Italics added.)
“The standard of review for an interlocutory judgment of partition is abuse of
discretion.” (Cummings v. Dessel (2017) 13 Cal.App.5th 589, 597.)
2. Appealability
An interlocutory ruling leaves some issues open for future determination. (See
Summers v. Superior Court (2018) 24 Cal.App.5th 138, 141.) Most interlocutory
decisions are not appealable. (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 754.)
However, under section 904.1, an appeal may be taken from “an interlocutory judgment
in an action for partition determining the rights and interests of the respective parties and
directing partition to be made.” (Id., subd. (a)(9).)
Tolley acknowledges the relevant provision of section 904.1, but she contends
“the interlocutory attorney’s fees and costs order is not appealable, as it reserves for
future determination the amount of reasonable attorney’s fees and costs to be awarded
and is thus not a final judgment.” We are not persuaded. Appellants are not challenging
the amount of the costs of partition, which has yet to be determined, but rather the trial
court’s apportionment of those costs.
“An interlocutory decree in an action for the partition of real property, although
preliminary to the final judgment of confirmation, is conclusive as to the matters
determined therein [citations]; that is, it is final upon the questions adjudicated in it and is
to all intents and purposes a final judgment from which an appeal may be taken ….”
(Pista v. Resetar (1928) 205 Cal. 197, 199; accord, Holt v. Holt (1901) 131 Cal. 610, 611
[an interlocutory decree of partition is considered final “as to all questions determined in
it”].) Because the challenged order is part of the interlocutory judgment, we conclude
Tolley’s entitlement to the costs of partition is an appealable issue.

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3. Appellants Received Notice of the Potential Costs Award
Appellants concede they “willingly allowed their respective defaults to be taken,”
but allege they would have “fought against [Tolley’s] claims” had they known Kobzoff
might be held liable for the costs of partition. Kobzoff specifically complains of being
ordered to pay “all costs, all real estate related fees, and all attorney fees.” We note the
phrase “real estate related fees” does not appear anywhere in the record. The
interlocutory judgment says Tolley “shall recover from defendant Fred Kobzoff costs of
suit herein incurred, costs of partition, including the cost of a policy of title insurance, if
any, and reasonable attorneys’ fees, all pursuant to a cost bill to be submitted by
[Tolley].”
In her complaint, Tolley alleged she had incurred and would further incur “costs of
partition, including but not limited to reasonable attorney’s fees, for the common benefit
of the parties,” and that she was “entitled to payment of or reimbursement of such costs,
including attorney’s fees, pursuant to … Section 874.010, and any related law.” Tolley
also cited and quoted section 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.” In the prayer for relief, Tolley requested that proceeds from
the sale of the property be distributed “taking into account any and all compensatory
adjustments pursuant to … Section 872.140 and related law.” She also prayed for an
award of “the costs of partition, and of this action, including reasonable attorney’s fees
incurred by [her] for the common benefit, and any other costs of partition, … [pursuant
to] Section 874.010, and any related law.”
All costs awarded in the interlocutory judgment were explicitly prayed for in the
complaint except “the cost of a policy of title insurance, if any.” However, Tolley cited
section 874.010 in conjunction with her prayer for the “costs of partition,” and the statute
provides such costs may include the “reasonable costs of a title report.” (Id., subd. (d).)
Under the statutory scheme, a “title report” is defined to include “a preliminary report,

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guarantee, binder, or policy of title insurance.” (§ 872.010, subd. (e).) Therefore,
appellants were given notice of their potential liability for all costs ultimately awarded in
the interlocutory judgment. Appellants’ failure to appreciate the significance of what was
pleaded is not a ground for reversal. (See Arthur Andersen v. Superior Court (1998) 67
Cal.App.4th 1481, 1506 [“It was established long ago that ignorance of the law does not
excuse one from the consequences of the law”].)
In a related claim, appellants argue the interlocutory judgment is void under
section 580. The argument is difficult to follow, but appellants appear to contend Tolley
was required to pray for a specific amount of costs, including attorney fees, in her
complaint. Case law holds otherwise.
A complaint must contain “[a] demand for judgment for the relief to which the
pleader claims to be entitled.” (§ 425.10, subd. (a)(2).) Section 580, which applies to
default judgments, provides in relevant part: “The relief granted to the plaintiff, if there
is no answer, cannot exceed that demanded in the complaint ….” (Id., subd. (a).)
However, “‘relief,’ as used in section 580, means ‘damages,’” which do not include costs
or attorney fees. (Simke, Chodos, Silberfeld & Anteau, Inc. v. Athans (2011) 195
Cal.App.4th 1275, 1288.) For purposes of section 580, “the operative complaint must
allege the amount of ‘relief’ sought for damages, but not prejudgment interest, attorney
fees, or costs.” (Sass v. Cohen (2019) 32 Cal.App.5th 1032, 1040, review granted on a
separate issue, May 22, 2019, S255262.) Therefore, appellants’ reliance on section 580 is
misplaced.
4. The Costs Award Is Statutorily Authorized
As previously stated, section 874.040 authorizes a trial court to “apportion the
costs of partition among the parties in proportion to their interests or make such other
apportionment as may be equitable.” Section 874.040 was enacted in 1976 and replaced
a predecessor statute, former section 796. (Lin v. Jeng (2012) 203 Cal.App.4th 1008,

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1023 (Lin).) “There is a key difference, however, between section 874.040 and former
section 796. Former section 796 did not include a general equitable exception to the rule
that costs in a partition action must be apportioned among the parties in proportion to
their interests in the property. Instead, it set forth a single exception to an otherwise
mandatory rule.” (Ibid.) The exception under former section 796 applied only when
litigation arose between some, but not all, of the owners of the partitioned property. (Lin,
at pp. 1023–1024.)
In Finney v. Gomez (2003) 111 Cal.App.4th 527 (Finney), Division Seven of the
Second Appellate District held that a trial court’s discretion under section 874.040 is
limited to situations where “‘litigation for the common benefit arises among only some of
the parties, or where the interest of the parties in all items, lots, or parcels of property are
not identical.’” (Finney, at p. 546, italics omitted.) This conclusion was based on the
California Law Revision Commission comments to section 874.040. (Finney, at pp. 545–
546 & fn. 88.) In Lin, Division Four of the Second Appellate District concluded Finney’s
analysis was flawed because (1) comments of the Law Revision Commission are not
controlling and (2) the plain language of section 874.040 does not state or imply such
limitations. (Lin, supra, 203 Cal.App.4th at pp. 1024–1025.)
Appellants attempt to factually distinguish Lin, but they do not claim Lin was
wrongly decided. We agree with the holding of Lin, i.e., that section 874.040’s “broad
language does not limit the trial court’s equitable discretion” to disproportionately
allocate the costs of partition. (Lin, supra, 203 Cal.App.4th at p. 1025; see Orien v. Lutz,
supra, 16 Cal.App.5th at p. 968 & fn. 12 [noting the conflict between Finney and Lin, and
impliedly following Lin].) The trial court below had discretion to apportion the costs of
partition to a single party based on equitable considerations.

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5. The Trial Court Did Not Abuse Its Discretion
“When a trial court makes a ruling based upon equitable considerations, the abuse
of discretion standard applies on review of that ruling. [Citation.] In other words, the
ruling must stand unless [appellants] establish that the trial court exceeded the bounds of
reason, resulting in a miscarriage of justice.” (Lin, supra, Cal.App.4th at p. 1025; see
Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 712 [a trial court’s “application of
the law to the facts is reversible only if arbitrary and capricious”].) The ruling is
presumed correct, and it is appellants’ burden to affirmatively demonstrate error with
legal analysis and citations to evidence in the record supporting any factual assertions.
(Equilon Enterprises LLC v. Board of Equalization (2010) 189 Cal.App.4th 865, 881;
Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685.)
The admitted allegations of the complaint, as well as the testimony before the trial
court, established that Kobzoff agreed to sell the property in 2006. This fact is conceded
in appellants’ briefing. Kobzoff later refused to honor the agreement. After
approximately 11 years of resistance, and apparently in response to Tolley’s filing of this
lawsuit, Kobzoff finally cooperated in getting the property sold. Those circumstances
permitted the trial court to reasonably infer Tolley would not have incurred the costs of
partition but for Kobzoff’s obstructive behavior. The additional evidence of Kobzoff’s
mismanagement of the property shows the trial court’s ruling was neither arbitrary nor
outside the bounds of reason.
6. Appellants’ Request for Alternative Relief Is Denied
Appellants alternatively seek permission “to make a special appearance in [the
trial court] to argue … why partition costs and fees should be equally recognized from
the parties’ respective 1/3 share of the proceeds from the sale of the [p]roperty.” No
authority is cited in support of this request. Once a default is entered, the defaulting party
no longer has a right to appear in the action other than to move to set aside the default or

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to appeal the judgment. (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155
Cal.App.3d 381, 385–386.) Therefore, the request for alternative relief is denied.
DISPOSITION
The interlocutory judgment is affirmed. Respondent shall recover her costs on
appeal.

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