Filed 9/19/19 Rahgoshay v. Luo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

MOHAMMAD RAHGOSHAY, as Trustee, etc.,

Plaintiff and Respondent,

v.

HONGYUN LUO,

Defendant and Appellant;

DAVID J. PASTERNAK,

Respondent.

G056735

(Super. Ct. No. 30-2014-00736857)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, Glenn R. Salter, Judge. Affirmed. Appellant’s Request for Judicial Notice. Denied. Respondent Pasternak’s Motion to Strike Appellant’s Reply Appendix and Portions of Appellant’s Reply Brief. Granted in part and denied in part. Respondent Pasternak’s Request for Judicial Notice. Denied. Respondent Pasternak’s Motion to Dismiss Appeal. Denied.

Ames Law Office and Douglas A. Ames for Defendant and Appellant.

Mohammad Rahgoshay, in pro. per., for Plaintiff and Respondent.

Pasternak, Pasternak & Alsbrook, David J. Pasternak and Blake C. Alsbrook for Respondent David J. Pasternak.

* * *

INTRODUCTION

Following a dispute regarding the ownership of a piece of rental property, the trial court entered a judgment determining the parties owned the property 50/50 as tenants in common. The judgment, as amended, also allocated the payment of certain fees expended by one party and the rental income received by the other, and appointed a referee to conduct a partition sale of the property.

After selling the property, the partition referee recommended that the trial court apportion additional fees and costs incurred during the postjudgment period before splitting the remainder of the sale proceeds 50/50. The court did so, and one of the owners, Hongyun Luo, challenges the postjudgment order on appeal.

We affirm. The trial court had broad discretion to apportion fees and costs following the partition sale. This order was well within the court’s discretion, and none of Luo’s arguments has any merit.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In July 2012, Mohammad Rahgoshay and Hongyun Luo purchased real property on Pebble Creek Lane in Orange at a real estate auction. They each provided half of the purchase price. Rahgoshay apparently recorded a deed identifying 252 W. Pebble Creek Lane Trust as the sole owner of the property, with himself identified as the trustee. (The trial court would later find that no such trust had ever existed.) For at least some period of time, Luo lived at the property and collected rent from its tenants.

As the relationship between Rahgoshay and Luo broke down, Rahgoshay sued Luo for unlawful detainer. The complaint was later amended to add claims for partition, constructive trust, and an accounting. Following a bench trial, the court found that Rahgoshay and Luo were each 50 percent owners of the property, and that title should have been held by them jointly, as tenants in common. Judgment was entered in August 2015.

The court entered an amended judgment in January 2017, reading in relevant part as follows:

“1. Title is quieted in the name of Hongyun Luo, individually, and Mohammed Rahgoshay, individually, on a 50/50 basis, as tenants in common, based on their agreement. . . . [¶] . . . [¶]

“3. The Court orders partition of the property by sale and that from the proceeds of the sale any encumbrance be paid, together with costs of the sale.

“4. The Court orders net proceeds to be divided between Mohammad Rahgoshay and Hongyun Luo, on a 50/50 basis, subject to the following deductions from Ms. Luo’s share: Mohammad Rahgoshay will receive a set off of half the $17,688.30 property taxes that he paid; Mohammad Rahgoshay will get a set off of half the $6,608 homeowners association fees he paid; Mohammad Rahgoshay will get a set off of half the $1,541 insurance he paid; Mohammad Rahgoshay will get half the $2,595 in rent collected per month by Luo from July 2014 through the date of trial (total was estimated at $32,681).”

In May 2017, the trial court appointed David J. Pasternak as the partition referee. The sale of the property closed in January 2018, for a purchase price of $575,000.

In February 2018, Pasternak submitted a final report and account to the trial court and requested that the court approve the report and authorize the distribution of funds from the partition sale.

In April 2018, the trial court entered a minute order providing, in part:

“The partition Referee, David Pasternak, seeks the issuance of various orders . . . .

“Although the majority of the Referee’s Report and the recommended divisions appear proper, the Referee needs to address certain issues.

“1. Has the Referee reviewed the Reply and Supplemental Declarations filed by the plaintiff, Mohammad Rahgoshay, on April 6, 2018 and April 9, 2018? If so, do they in any way alter his recommendations?

“2. Has the Referee included the figures from the Amended Judgment within his calculations? If so, where have they been included?”

Pasternak responded to the trial court’s questions as follows:

“1. The Partition Referee has reviewed the Reply and Supplemental Declarations filed by Plaintiff Mohammad Rahgoshay on April 6, 2018 and April 9, 2018, and they do not alter his Reply recommendation that the total awarded to Plaintiff based on ‘Damages to Premises,’ ‘Post Judgment Expenses,’ and ‘Case No. 007396857’ is $36,929.42.

“2. The Partition Referee has NOT included the figures from the Amended Judgment within his calculations.”

In June 2018, the trial court entered an order (1) approving and settling Pasternak’s final report and account as presented, (2) authorizing, confirming, and settling the payment of Pasternak’s fees and costs as partition referee in the amount of $51,246.85, (3) allocating $66,785.32 to Rahgoshay, and (4) ordering that the remaining proceeds from the partition sale be distributed equally between Rahgoshay and Luo.

Luo timely filed a notice of appeal. The postjudgment order is appealable. (See Solis v. Vallar (1999) 76 Cal.App.4th 710, 713 [order confirming partition sale is appealable]; see also Orien v. Lutz (2017) 16 Cal.App.5th 957, 961, fn. 3 [orders made after interlocutory judgment ordering partition are appealable].)

POST-APPEAL FACTS

After the notice of appeal had been filed, Pasternak applied to the trial court ex parte for instructions regarding the distribution of proceeds from the partition sale. Pasternak explained that he had distributed the proceeds to Rahgoshay and Luo before the appeal period had expired; the check to Luo had included a typographical error and would not be honored by Luo’s bank; Luo had filed a notice of appeal in the interim; and Pasternak needed instructions from the court as to whether he should reissue the check to Luo or withhold all proceeds until the appeal had been settled. Rahgoshay filed a declaration in which he stated that he had used his share of the partition proceeds to pay off other debts, and would be unable to return the money if ordered to do so.

Following a hearing, the court issued the following order:

“The Partition Referee, David J. Pasternak, seeks guidance as to what to do given he distributed the funds to the parties prematurely.

“The following facts are undisputed: (a) the Court’s Order provided that the Referee could distribute the funds to the parties when the Order became final; (b) the Referee distributed the funds to the parties before the Order became final; (c) the Referee’s check to defendant Luo incorrectly spelled her name and the bank, on presentment, refused to honor it; (d) defendant Luo timely filed a notice of appeal (see G056735); and (e) defendant Luo filed a police report claiming the Partition Referee uttered a false instrument; i.e., the check with the misspelled name.

“The Partition Referee indicates he is ready, willing, and able to replace the check to defendant Luo with a new check. [¶] . . . [¶] At the initial ex parte hearing, the Court questioned whether it had jurisdiction to issue the order requested by the Partition Referee, or any other order, because of the pending appeal.

“The parties were asked to submit supplemental points and authorities, which they did. The Court has reviewed them and the applicable code sections.

“It appears that so long as the appeal remains pending the Court has only limited jurisdiction. (See Code Civ. Proc., § 916, subd. (a) [‘the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matter embraced therein or affected thereby, including enforcement of the judgment or order, but the court may proceed upon any other matter embraced in the action and not affected by the judgment or order.’])

“Thus, the Court cannot order, or allow, the Referee to issue a new check to defendant Luo until the appeal is final and the remittitur issues. There may be other minor matters the Court may address pending resolution of the appeal, but it appears none involves the check to defendant Luo.”

After briefing for this appeal was completed, Luo successfully negotiated the check for the proceeds of the partition sale.

MOTIONS ON APPEAL

I.

MOTION TO DISMISS

Pasternak moves to dismiss Luo’s appeal on the ground (1) Luo waived her right to appeal by accepting the benefits of the judgment and (2) the appeal is moot. During the pendency of the appeal, Luo deposited the check written by Pasternak representing her share of the partition proceeds. Pasternak therefore argues Luo may not challenge the postjudgment order, having now accepted its benefits. “[A]s a general proposition, one who accepts the benefits of a judgment cannot thereafter attack the judgment by appeal.” (Lee v. Brown (1976) 18 Cal.3d 110, 114; see Mathys v. Turner (1956) 46 Cal.2d 364, 365 [“the voluntary acceptance of the benefit of a judgment or order is a bar to the prosecution of an appeal”].)

There is no waiver of appellate rights, however, when the “appellant is concededly entitled to the accepted benefits, and his right to them is unaffected by the outcome of the case on appeal.” (Lee v. Brown, supra, 18 Cal.3d at p. 114.) Here, neither Rahgoshay nor Pasternak contends that Luo is not entitled to the amount delivered to her by Pasternak; the claim on appeal is whether Luo is entitled to more than that amount. Therefore, Luo did not waive her right to appeal by negotiating the check from Pasternak. The motion to dismiss is denied.

II.

LUO’S REQUEST FOR JUDICIAL NOTICE

Luo requests that this court take judicial notice of several documents filed in the trial court. All of these documents postdate the order from which Luo appeals, and all involve Pasternak’s request for instructions from the trial court regarding his distribution of the partition sales proceeds before the time to appeal had expired.

As Luo acknowledges, “Reviewing courts generally do not take judicial notice of evidence not presented to the trial court absent exceptional circumstances” and judicial notice may not be taken of “the truth of factual findings made in other court rulings. (In re K.M. (2015) 242 Cal.App.4th 450, 456.) Luo suggests that we, like the court in In re K.M., use our authority under Code of Civil Procedure section 909 to consider the evidence of these documents in order to “make factual determinations contrary to or in addition to those made by the trial court.” (Code Civ. Proc., § 909.)

The problem with Luo’s argument is threefold. First, the court in In re K.M. used the later-created evidence to determine whether or not the appeal was moot. Second, the documents before us are not relevant to any determination we might make vis à vis the trial court’s ruling from which Luo appeals. Essentially, the documents in question establish that Pasternak paid out the proceeds of the partition sale before the appeal period had expired. Pasternak also misspelled Luo’s name on her check, causing the check to be dishonored. For his part, Rahgoshay advised the court that he negotiated his check and used the proceeds to pay off other bills, rendering him unable to repay the money to Pasternak. After Luo filed her appeal, Pasternak sought the trial court’s guidance on how to proceed. The court ultimately determined that the appeal divested the court of jurisdiction to enter any further orders regarding the distribution of the partition sale proceeds. Such matters have no bearing on whether the court’s order regarding the distribution of the proceeds was correct. Third, Luo wants this court to take judicial notice of the truth of the facts asserted in the documents; e.g., Luo’s name in fact was misspelled on the check. The request for judicial notice is therefore denied.

III.

MOTION TO STRIKE LUO’S REPLY APPENDIX AND PORTIONS OF REPLY BRIEF,
OR TO PERMIT SUR-REPLY

Luo filed an appellant’s reply appendix with her reply brief. Pasternak moved to strike the reply appendix and pages 13 to 16 of the appellant’s reply brief. The reply appendix consists of a single document—Rahgoshay’s Response to an Order to Show Cause Re: Amended Judgment. This document existed at the time the appendix was prepared, but was not included by Luo. In the challenged pages of her reply brief, Luo contends this document is critical to our review because it shows that invoices and receipts relied upon by the trial court in its postjudgment order had previously been considered and rejected in the amended judgment.

“[W]e will not address arguments raised for the first time in the reply brief [citation] or documents in [appellant]’s ‘Reply Appendix’ filed with his reply brief because [respondents] lacked the opportunity to respond.” (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1295.) Luo’s argument regarding this issue was raised in the opening brief at pages 27 to 28; however, Luo has not offered any explanation in her opposition to the motion to strike why Rahgoshay’s response was not included in her appellant’s appendix. Indeed, Luo’s explanation of how the argument was presented in the opening brief contradicts any justification for failing to include the document in the appellant’s appendix. We grant the motion to strike Luo’s reply appendix, but deny the motion to strike portions of Luo’s reply brief.

DISCUSSION

I.

STANDARD OF REVIEW

We review the trial court’s order of apportionment of fees and costs after a partition sale for abuse of discretion. (Lin v. Jeng (2012) 203 Cal.App.4th 1008, 1025.)

In Finney v. Gomez (2003) 111 Cal.App.4th 527, 548 to 550 (Finney), the appellate court held that a trial court may only award costs and fees incurred for the common benefit of the parties in a partition action. The appellate court reversed the judgment because the record showed an “absence of any rationale by the trial court and any evidence in the record suggesting the fees were for the common benefit,” resulting in an abuse of discretion in the award of fees. (Id. at p. 549.) The court in Lin v. Jeng refused to follow the holding of Finney because Finney was based on the Law Revision Commission comment to the statute, and not on the statutory language itself, which was unambiguous. (Lin v. Jeng, supra, 203 Cal.App.4th at p. 1025.) We agree with the analysis of Lin v. Jeng that Code of Civil Procedure section 874.040 permits the trial court to apportion fees and costs following a partition sale based on equitable considerations as well as the parties’ interests in the property. (Lin v. Jeng, supra, 203 Cal.App.4th at p. 1025; see Orien v. Lutz, supra, 16 Cal.App.5th at p. 968 & fn. 12 [recognizing disagreement and following Lin v. Jeng].)

II.

THE TRIAL COURT DID NOT ERR IN ITS ALLOCATION OF FEES AND COSTS.

Luo argues that the trial court erred in its allocation of fees and costs related to the partition sale. Specifically, Luo challenges the amount the court ordered be provided to Rahgoshay before the remainder of the proceeds was split 50/50.

In reviewing Luo’s arguments, we initially face the problem that a reporter’s transcript has not been provided as a part of the appellate record. The lack of a transcript of the hearing at which the trial court considered Pasternak’s final report precludes review for abuse of the court’s discretion in approving that report. A judgment is presumed to be correct and the appellant has a duty to provide the reviewing court with an adequate record to demonstrate error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.) In numerous situations, courts have declined to reach the merits of an appellant’s claims of abuse of discretion because the appellant failed to provide a reporter’s transcript or settled statement of the pertinent proceedings. (See Walker v. Superior Court (1991) 53 Cal.3d 257, 273-274 [transfer order]; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 1296 [attorney fees motion]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 [new trial motion]; In re Kathy P. (1979) 25 Cal.3d 91, 102 [waiver of and consent to informal adjudication]; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [surcharge; without reporter’s transcript, judgment is conclusively correct as to evidentiary issues]; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [nonsuit motion]; Sui v. Landi (1985) 163 Cal.App.3d 383, 385 [denial of dissolution of preliminary injunction]; Ehman v. Moore (1963) 221 Cal.App.2d 460, 462 [offer of proof].) Without a reporter’s transcript Luo’s burden to prove an abuse of discretion is even higher.

Luo argues that any award to Rahgoshay in excess of the amount specified in the amended judgment was an abuse of discretion. The allocation of fees and costs against the proceeds of a partition sale is established by statute. “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 apportionment as may be equitable.” (Code Civ. Proc., § 874.040, italics added.) “The costs of partition include: [¶] (a) Reasonable attorney’s fees incurred or paid by a party for the common benefit. [¶] (b) The fee and expenses of the referee. [¶] (c) The compensation provided by contract for services of a surveyor or other person employed by the referee in the action. [¶] (d) The reasonable costs of a title report procured pursuant to Section 872.220 with interest thereon at the legal rate from the time of payment or, if paid before commencement of the action, from the time of commencement of the action. [¶] (e) Other disbursements or expenses determined by the court to have been incurred or paid for the common benefit.” (Code Civ. Proc., § 874.010.)

The amended judgment addressed fees and costs incurred through the time the original judgment was entered in August 2015. Nothing in the amended judgment indicates it was intended to represent the only fees and costs that could be awarded. Following entry of the amended judgment, but before the partition sales proceeds could be distributed, the parties would be required to pay taxes, homeowners association fees, and maintenance costs, and might obtain rental income. Their history makes it obvious that Rahgoshay and Luo would be unable to agree on a fair distribution of these costs and earnings.

The order appointing Pasternak as the partition referee provided, in relevant part: “The Partition Referee shall report to the court regarding the allocation and distribution of the net sales proceeds of the Property in accordance with Code of Civil Procedure § 873.850 et seq., including the allocation of the sale proceeds with respect to Property costs, income and benefits among the parties.” (Italics omitted.) Thus, the trial court understood and anticipated that additional fees and costs would be expended, and additional rent received, requiring allocation by the partition referee.

The trial court did not err in exercising its statutory discretion to allocate fees and costs incurred after the entry of the original judgment in its postjudgment order: “The court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.” (Code Civ. Proc., § 872.140.)

Luo also argues the trial court abused its discretion by authorizing payment to Rahgoshay in an amount greater than that requested by Pasternak. As noted ante, because there is no transcript from the hearing at which the trial court considered Pasternak’s final report, we cannot adequately determine whether there was any abuse of discretion. The documents included in the appellate record, however, provide adequate support for the postjudgment order. Pasternak’s final report, as amended, recommended that Rahgoshay be paid $43,366.95 from the partition sale proceeds. Following a hearing on the final report, the trial court issued a minute order asking whether Pasternak had “included the figures from the Amended Judgment within his calculations?” Pasternak filed a response to the trial court’s minute order in which he confirmed that he had not included the costs from the amended judgment in his recommendations. The amended judgment in effect had provided that Rahgoshay receive a payment of approximately $29,259.15. When the amounts from the amended judgment and Pasternak’s report are combined, the total is $72,626.10‬, which is greater than the $66,785.32 included in the court’s postjudgment order. Thus, the amount allocated by the court to Rahgoshay in the postjudgment order was not greater than the amount recommended by Pasternak.

Luo argues that any allocation of fees and costs in excess of what was specified in the amended judgment is an abuse of discretion. Luo contends that the fees and costs Pasternak recommended be awarded were identical to the fees and costs Rahgoshay requested from the court before the amended judgment was entered. Because the court did not include those fees and costs in the amended judgment, Luo continues, the court specifically rejected them and it was error for the court to later award them. As we will detail, Luo’s argument is without merit.

The trial of the ownership of the property was conducted on July 7, 2015. Three days later, the trial court issued a minute order determining the parties’ ownership interests in the property, and ordering that the charges for property taxes, insurance, and homeowners association fees, and the credit for rental income be deducted before the partition sale proceeds were divided. The original judgment, entered in August 2015, apparently contained the same terms regarding ownership, credits, and charges. After the pending escrow of the property failed to close, allegedly due to Luo’s refusal to obey the partition order and cooperate in the property inspection, a new escrow was opened, with which Luo also failed to cooperate. When Rahgoshay moved to enforce the original judgment, the court issued an order to show cause regarding how the original judgment “should be amended to promote enforcement and whether the Judgment should be amended to require a sale by a Receiver.”

In his response to the order to show cause, in May 2016, Rahgoshay requested that the court award him additional fees and costs incurred due to the failure to sell the property, including homeowners association fees, insurance premiums, utilities, property taxes, and repairs to the property. The trial court’s amended judgment, entered in January 2017, carried forward the language regarding the allocation of charges and credits. The trial court neither approved nor disapproved Rahgoshay’s request for additional fees and costs. When Rahgoshay presented at least some of the same invoices and receipts to Pasternak as the referee in November 2017, he was not requesting fees and costs that had been denied by the trial court, but rather that had not been ruled on by the trial court.

Luo also argues that Pasternak improperly charged her with a withholding tax equalization fee. One portion of the total fee charged against Luo was the withholding from the sale proceeds by the Franchise Tax Board. On that subject, Pasternak’s declaration in support of the final report states: “Finally, in the correspondence, [Luo]’s counsel objects to a 3 1/3% withholding totaling $9,573.75 required by the Franchise Tax Board that was necessitated by [Luo]’s refusal to cooperate with the escrow agent in closing the sale. Specifically, the Franchise Tax Board requires escrow to withhold 3 1/3% of the sale price unless the seller completes Form 593-E, which allows for a smaller deduction. Because the Referee is not the taxpayer [who] must ultimately bear this tax, it is the former owners of Pebble Creek who will receive the sale proceeds [who] must complete this necessary form to the extent they prefer a deduction less than the baseline 3 1/3%. Mr. Rahgoshay completed the necessary form without issue, resulting in a smaller withholding amount of $1,107 for him. [Luo] refused to cooperate or complete the form required by the [Franchise Tax Board], so the escrow company was mandated by California law to deduct the full 3 1/3 %. The objection by [Luo]’s counsel was both unusual and unnecessary, and the withholding could easily have been avoided. Because this problem was created by [Luo], I believe that this Court should require that she bear the brunt of the withholding and [Rahgoshay] bear the cost of the $1,107 withheld for him. The difference in the two withholding amounts is $8,466.75, which should be paid to [Rahgoshay] from the sale proceeds as a tax withholding equalizing payment.”

Luo’s unsigned Form 593-E appears in the appellate record. Luo’s counsel objected to Luo having to complete the form because she was not the “seller” of the property. The uncompleted form appears to have been sent by Luo’s counsel on January 3, 2018, although the closing date of the sale was January 2, 2018, meaning the form was both late and incomplete.

The withholding of tax on any sale of real property is required by California law. (Cal. Code Regs., tit. 18, § 18662-3, subd. (a).) Luo’s claim that she should not have had to complete the necessary form because she was not the seller of the property is frivolous. The trial court found that Luo and Rahgoshay owned the property as tenants in common, 50/50. “The term ‘seller’ includes the seller or any other transferor of real property.” (Cal. Code Regs., tit. 18, § 18662-2, subd. (v).)

Luo’s claim that Pasternak and the trial court discriminated against her because the Franchise Tax Board withholding charge attributed to her was significantly higher than that attributed to Rahgoshay is also frivolous. Rahgoshay completed and returned the necessary tax form, thereby lowering the amount to be withheld from his share of the sales proceeds. Luo’s failure to do so caused a larger portion of the sales proceeds to be withheld, lowering the overall amount available to be split between Luo and Rahgoshay. The trial court was well within its discretion to accept Pasternak’s recommendation to charge a portion of this larger withholding against Luo to avoid unfairly decreasing Rahgoshay’s share.

Luo also argues that Pasternak’s recommendations for the allocation of fees and costs were based on an improper ex parte communication from Rahgoshay to Pasternak. In November 2017, Rahgoshay sent an e mail to Pasternak with lengthy attachments, which Rahgoshay claimed supported his request for allocation. Nothing in the record indicates that the email or the attachments were sent to Luo or her attorney. However, the e mail and attachments were an exhibit to Pasternak’s final report, which was served on Luo’s counsel. In her opposition to Pasternak’s report, Luo did not object to the e mail and attachments on grounds of improper ex parte contact, and had plenty of opportunity to challenge or counter any or all of Rahgoshay’s attachments.

III.

LUO HAS FAILED TO SHOW THE TRIAL COURT DID NOT CONDUCT A MEANINGFUL HEARING ON PASTERNAK’S REPORT.

Luo argues that the trial court erred by failing to conduct a meaningful hearing on the referee’s report. She relies on Code of Civil Procedure section 873.730, subdivision (a), which applies to hearings on motions to confirm the sale of a property. The order confirming the sale of the property was entered in December 2017, and the time to appeal any improprieties in that hearing has long since expired.

Luo’s failure to provide this appellate court with a transcript from any of the hearings after the amended judgment was filed, moreover, prevents us from considering whether and to what extent the trial court conducted a meaningful hearing. Nothing in the record even remotely suggests the trial court did not meaningfully consider the papers filed by Luo, Rahgoshay, and Pasternak.

IV.

REFEREE’S FEES

Luo argues that the award of fees to the referee should be disallowed due to his malfeasance. Luo contends that Pasternak, as referee, refused to comply with the appointment order by ignoring the charges and credits in the amended judgment. By stating he had not included the amended judgment charges and credits in his calculation of the appropriate allocation of fees and costs, Pasternak was not refusing to accept the amended judgment; rather, he was providing his calculation of fees and costs that had not already been addressed by the trial court.

Luo also contends that Pasternak “made widely disparate tax assessments against Luo.” As we have explained ante, the different assessments for withholding taxes were due to Luo’s failure to timely complete the necessary form for the Franchise Tax Board, not Pasternak’s alleged bias against Luo.

Finally, Luo contends Pasternak’s disbursement of funds before the appeal date had expired severely prejudiced her. Any prejudice to Luo in this regard would occur only if this court were to determine Luo was entitled to more from the sales proceeds before their 50/50 distribution. As we have explained in detail ante, the trial court did not err in accepting the allocation presented by Pasternak.

V.

ATTORNEY FEES ON APPEAL

Luo requests that this court direct the trial court to award her attorney fees on remand. Luo is not entitled to attorney fees because she lost on appeal. Whether Rahgoshay is entitled to recover attorney fees in addition to those already included in the amended judgment is a matter for the trial court’s consideration in the first instance.

DISPOSITION

The postjudgment order is affirmed. Respondents to recover costs on appeal.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

IKOLA, J.