Dilonell v. Bua CA2/4

Filed 10/13/20 Dilonell v. Bua CA2/4
 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(a). This
 opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
                      DIVISION FOUR
 FRIDA DILONELL,                 B298212
                                 (Los Angeles County
     Plaintiff and Appellant,    Super. Ct. No. BC657879)

          v.                                                 ORDER MODIFYING
                                                             OPINION AND DENYING
 SHANE DAVID BUA,                                            PETITION FOR
          Defendant and Respondent.
                                                             NO CHANGE IN

      The opinion filed September 20, 2020, in the above-entitled
matter is ordered MODIFIED as follows:
      1. On page 20 of the opinion, the last sentence of the first
paragraph is deleted in its entirety and replaced with “Dilonell
contributed remodeling costs to the home but she proffered no
evidence that Bua agreed to repay some or all of her expenses as
part of any joint venture for ownership of the house. Thus, any
agreement to repay her remodeling expenditures standing alone
does not establish a joint venture.”
      These modifications do not change the judgment.
      The petition for rehearing is DENIED.

MANELLA, P.J.         WILLHITE, J.          CURREY, J.
Filed 9/21/20 Dilonell v. Bua CA2/4 (unmodified opinion)

 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(a). This
 opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

                      DIVISION FOUR

 FRIDA DILONELL,                                             B298212

          Plaintiff and Appellant,                           (Los Angeles County
                                                             Super. Ct. No. BC 657879)


      Defendant and

     APPEAL from a judgment of the Superior Court of Los
Angeles County. Rupert Byrdsong, Judge. Affirmed.
     Andrew Schoettle for Plaintiff and Appellant.
     Plotkin, Marutani & Kaufman, Jay J. Plotkin for Defendant
and Respondent.
       Plaintiff and Appellant Frida Dilonell seeks compensation for
an ownership interest in real property she contends she purchased
jointly with Defendant and Respondent Shane Bua. Dilonell further
seeks palimony and reimbursement for her improvements to the
property. The trial court granted nonsuit in favor of Bua after
Dilonell’s opening statement, concluding the statute of limitations
and statute of frauds barred Dilonell’s claims, and subsequently
entered judgment for Bua. On appeal, Dilonell primarily argues she
timely filed her complaint, and the statute of frauds does not bar her
claims. She also contends the trial judge exhibited bias and became
embroiled. We reject her contentions and affirm.


       Our review of a nonsuit granted after opening statement
generally is limited to the facts proffered in plaintiff’s opening
statement. (See, e.g., Hurn v. Woods (1982) 

132 Cal. App. 3d 896

, 902
[addressing whether opening statement alludes to facts sufficient to
prove case]; Abeyta v. Superior Court (1993) 

17 Cal. App. 4th 1037

1041 [same]; Galanek v. Wismar (1999) 

68 Cal. App. 4th 1417

, 1424
[same]; cf. Weyburn v. California Kamloops, Inc. (1962) 

200 Cal. App. 2d 239

, 240 [appellate court considers complaint and facts
asserted in opening statement].) We, therefore, include facts from
Dilonell’s complaint, as well as the parties’ declarations filed in
connection with Bua’s earlier motion to expunge a lis pendens, only
for the purpose of providing context and to make the factual
assertions in the opening statement more understandable.1 In

1    As discussed post, even these additional facts, if proved,
would not have saved Dilonell’s claims.

reviewing the trial court’s ruling on the nonsuit motion, we disregard
conflicting facts and engage in every presumption in plaintiff’s favor.

      1.    Dilonell’s Complaint.

       When Dilonell met Bua, she worked as an aesthetician at a
laser clinic. She and Bua became romantically involved in July 2006,
and Bua moved into Dilonell’s apartment in Santa Monica. Bua, who
Dilonell described as having a “controlling personality,” was a police
officer with the Los Angeles Police Department. He came from a
family with extensive real estate experience and took over the
couple’s finances based on his greater knowledge and life experience.
Although at first the couple shared expenses, Dilonell later began to
pay most of them.
       In mid 2007, after Dilonell’s landlord requested extra rent
because Bua was staying at her apartment full time, the couple
decided to rent a different apartment together. Bua gave Dilonell a
“move-in” ring, which she also described as an “engagement ring.”
After they located an apartment, Bua claimed he had poor credit, so
he asked Dilonell to add him to her credit card so he could improve
his credit.2 They moved in together in August 2007.
       Although Bua refused to be on the lease for the new
apartment, he insisted that due to his greater knowledge and
experience in life, he should handle their finances. At first they
shared expenses, but after a time, Dilonell again paid more than half
of the couple’s expenses. After Dilonell left her job to pursue a
nursing degree, she became dependent upon Bua to provide for her,
and he promised to do so.

2     Later, Bua admitted to Dilonell that his credit was in good

       Bua requested they both contribute $10,000 to a certificate of
deposit at Bank of America in preparation for a joint home purchase.
In 2009, the parties visited real estate agents and decided on Culver
City as an area where they could afford a home. Around this time,
Dilonell added Bua to her credit card.
       In early 2010, however, the parties took a “break.” Bua moved
in with a friend, but left his belongings at Dilonell’s apartment. The
parties reconciled in August 2010, and agreed they would work
toward the common goal of a successful financial future together.
Around that time, they agreed to merge their assets and began to
look for a house. In May 2011, they found a house to purchase in
Culver City. Bua told Dilonell he would take care of everything
related to the house and their joint ownership of the property.
       The property was financed with a favorable VA loan that Bua,
a veteran, obtained. Dilonell provided $5,200 towards the purchase.
Dilonell at first believed her contribution would form part of the
down payment, but Bua later told her it was for closing costs. At the
close of escrow in July 2011, the escrow agent brought closing papers
to Dilonell’s house. But Bua stopped her from signing them, saying
“trust me,” and, “I will explain later,” and that the papers were not
final. Later, Dilonell learned she was not going to be listed on title,
ostensibly because of requirements related to Bua’s VA loan. After
the escrow closed, in August 2011, Bua told Dilonell he would add
her to the title in December, and on Thanksgiving 2011, Bua’s
mother gave Dilonell a ring.
       The parties moved into the house. Dilonell advanced sums
totaling $31,000 for remodeling, and expected that Bua would
reimburse her for half. Dilonell continued to pay house-related bills,
and although she was not on title, Dilonell was on Bua’s homeowners
insurance policy for the house. In March 2012, Bua became upset

when Dilonell asked when she would be put on title, but
approximately six months later, he told her she would be added to
title when a refinance was complete.
       After attending an out of town wedding in September 2012,
Dilonell returned to the home to find that Bua wanted her to move
out. At his request, she returned his mother’s ring. Before she moved
out, she requested that Bua reimburse her for the home-related
costs. He did not. After she moved out, she was afraid to ask Bua for
monies she believed were due to her.
       In December 2012, she moved to another home that contained
mold, causing her severe adverse health consequences for several
years (e.g., loss of memory, lack of clarity in thinking, headaches,
vertigo, tremors, and inability “to function normally on a daily
basis”). She contends the health consequences included cognitive
malfunction and impeded and delayed her assertion of her rights in
the house.
       In early 2015, Dilonell returned the keys to the house and was
removed from the homeowner’s insurance. Eventually, in March
2015, Bua paid her a total of $25,000 with two checks. One for $5,000
was marked “House $” and the other was for $20,000. Bua told her to
get a lawyer.
       On April 17, 2017, Dilonell filed her complaint, asserting
causes of action for breach of contract, breach of fiduciary duty,
fraud, money had and received, quantum meruit, unjust enrichment,
conversion, quiet title, and declaratory relief, and seeking the
imposition of a constructive trust, and partition. By these claims, she
sought an undivided one-half interest in the Culver City property,
palimony of not less than $250,000, and reimbursement for
improvements made to the property. (See Marvin v. Marvin (1976)

18 Cal. 3d 660

, 685 (Marvin).) Dilonell contended her health

problems prevented her from earlier asserting her claims for
reimbursement from Bua, and as a result, she did not learn she had
been excluded from title on the house until 2015. Dilonell claimed
she was entitled to at least $250,000 because of her contributions
and her one-half interest in the property (which had increased in

       2.     Bua’s Response to Dilonell’s Allegations.
       On April 19, 2017, Dilonell recorded a lis pendens against the
Culver City property. In his motion to expunge the lis pendens, Bua
portrayed a different relationship.3 According to Bua, the parties’
relationship lasted from August 2007 to Spring 2010. The two met in
2006, when Bua lived in Hermosa Beach and Dilonell lived in Santa
Monica. In August 2008, the parties moved into Dilonell’s apartment
and agreed to split all expenses. After Dilonell informed Bua that it
was traditional in her native Sweden for a woman to get a “move in”
ring, Bua bought her a $2,200 ring. Bua did not consider it to be an
engagement ring. Bua also purchased a ring from his mother, but
never gave it to Dilonell. Bua never proposed to Dilonell, they were
never engaged to be married, nor did he promise to support her.
       According to Bua, the couple’s relationship ended in Spring
2010. At that time, they continued to be friends; after a few months
Bua moved back in with Dilonell as friends. In Spring 2011, Bua
began to look for a house. He made several verbal offers to Dilonell
for them to purchase a house together as an investment. Bua wanted
Dilonell to sell her car and use the proceeds to help with a down
payment, but she refused. Because Bua would not buy a house with

3      Bua submitted a declaration describing the parties’
relationship and the purchase of the Culver City property in
support of his motion to expunge the lis pendens.

Dilonell unless she put money in, he looked for a property on his
own. Bua denied any oral or written agreement to purchase a house
with Dilonell.
       In May or June 2011, Bua looked on his own for a home and
found the Culver City property. Bua purchased the home with a VA
loan and he was the only person on title to the property and the only
obligor on the loan. Bua characterized Dilonell’s payment of $5,200
as a loan to facilitate closing of the sale.
       Bua and Dilonell moved into the house in September 2011.
They each had their own bedroom as they were no longer
romantically involved. Bua let Dilonell live in the house rent-free,
and Dilonell advanced monies for improvements to the bathroom at
the property. At this time, Bua insisted the parties agreed that
Dilonell’s advances did not grant her any ownership interest in the
property and Bua would pay her back. Dilonell did make one
mortgage payment for Bua before she moved out.
       By spring 2012, Dilonell found a place to move. The residence
burned, however, and she was unable to move, so she remained in
the Culver City property. Finally, Dilonell moved out of the house in
October or November 2012. Bua disputed the amount but agreed to
pay a portion of the sums claimed. He also demanded his mother’s
ring back. In April 2015, Bua paid Dilonell $25,000 in “full
satisfaction” of all sums owed her.
       3.     Denial of Motion to Expunge Lis Pendens.
       The trial court denied the motion to expunge, finding that
based upon Bua’s acknowledgment of the parties’ relationship and
their shared expenses at the time of purchase, there was probable
validity to Dilonell’s claim. Further, the evidence showed Bua
advised the loan officer the parties were buying a house together,
and did not characterize the $5,000 down payment from Dilonell as a

“loan.” Although the parties separated in 2012, Dilonell maintained
keys to the property until 2015, when Bua gave her money on
account of her improvements to the property.
       4.    Bench Trial.4
       In opening statement, Dilonell’s counsel recited Dilonell’s basic
factual assertions, adding that in 2011, the couple looked for a house
with a large enough lot to add a second unit. The Culver City
property was zoned R4, providing an opportunity to expand and
build. Bua obtained a VA loan and Dilonell put up $5,000, as
reflected on the HUD-1 closing statement. Bua assured Dilonell she
would be added to title once they refinanced the property. In
reliance, Dilonell remodeled the kitchen and master bath and closet.
Dilonell expended $50,000 and made three $3,000 monthly mortgage
payments, while Bua continued to manage their joint Certificate of

4      There is no reporter’s transcript of the proceedings. Dilonell
filed an “Appellant’s Notice Designating Record on Appeal,”
Judicial Council form APP-003, and checked the box indicating
that she was proceeding with an “Agreed Statement.” Attached to
the form, however, is a document entitled “Joint Settled
Statement for April 2, 2019.” The document states it is a “settled
statement” that is the “joint record of the oral proceedings that
took place on April 2, 2019[.]” It is signed by both parties. The
Joint Settled Statement expressly notes it is not a transcript,
does not contain “literal quotes,” and is “a description and
approximation of what occurred.” Unlike a settled statement
prepared under California Rules of Court, rule 8.137, subdivision
(b)(2), it has not been reviewed or certified by the trial judge.
Rather, the document takes the form of an agreed statement,
consisting of a summary of the trial court proceedings as agreed
upon by the parties without judicial approval, in lieu of a
reporter’s transcript and/or clerk’s transcript. (Cal. Rules of
Court, rule 8.836, subd. (a).)

Deposit investment. Even after moving out in 2012, Dilonell kept her
keys to the property and maintained personal property at the house.
Only in early 2015 did Dilonell learn that Bua was repudiating their
agreement and he told her to get an attorney. Dilonell asserted she
was entitled to approximately $370,000 to $625,000, a half-interest
in the current value of the property based upon an appraisal
establishing the value of the property as between $1,240,000 to
       At the conclusion of Dilonell’s opening statement, counsel and
the trial court engaged in colloquy. Bua’s counsel then made his
nonsuit motion, and the court heard argument on it. Bua’s counsel
argued the statute of limitations ran in 2011, that a contract for real
estate must be in writing, there was no palimony relationship, and
that during her deposition Dilonell admitted the parties did not
share a checking account and expenses were split. Dilonell’s counsel
argued there were indicia of a confidential relationship based on
Bua’s law degree, superior knowledge and experience with real
estate, and Dilonell’s clear trust of Bua.5
       According to the “Joint Settled Statement,” which as noted
above expressly disclaims being a verbatim record of the
proceedings, the trial court expressed doubt about the existence of
fiduciary duties between the couple, and asked Dilonell’s counsel
something along the lines of “what authority can you cite that would
establish a fiduciary duty between these two, between the couple?”
In response, rather than citing legal authority, Dilonell’s counsel

5      Bua also filed a written motion for nonsuit. Dilonell filed a
written opposition to the motion. It is not clear when the judge
received and reviewed these documents. At a minimum, the trial
court would have had an opportunity to review them over the
lunch recess.

answered something akin to, “By the trust [between the parties],
access to the house [after she moved out], [retaining] keys [after she
moved out], [and storing] her shoes and clothes [at the house after
moving out].” The “Joint Settled Statement” reports the trial court
responded in substance, “When I got divorced, I left personal
belongings at the house and I don’t think that entitled me to half of
the equity in the house.” The court then asked about Dilonell’s
witnesses, and what testimony Dilonell’s counsel expected from
       Dilonell’s counsel later objected to the court’s commentary
about leaving personal items in the house. Again according to the
Joint Settled Statement, the court responded along the lines of, “I
was only replying to you, citing my own experience as an example,
when talking about moving out.” The court reportedly commented
that the case did not reflect a breach of fiduciary duty, and there was
no written agreement regarding the house, thus running afoul of the
statute of frauds. The court reportedly continued, stating in
substance, “Defendant bought the property. Plaintiff is not on the
deed or loan application. Having him on her credit card to boost his
credit makes no sense. He already had a good credit rating. I don’t
see how Plaintiff can get equity in the house[;] they didn’t get
married, there was no breach of a promise to get married, and there
was no breach of representation to get married. The Statute of
Limitations has passed for these claims to be brought.”
       Dilonell’s counsel argued that the parties had a joint venture,
evidenced by Dilonell’s $5,200 contribution and her expenditures to
remodel the house. Her counsel also argued that she reasonably
delayed in bringing suit based upon her confidential relationship
with Bua, and thus it was not until his repudiation of the
relationship in 2015 that the statute began to run.

       The trial court granted nonsuit. The court found no fiduciary
relationship, that the statute of frauds barred Dilonell’s claims, and
that the time had passed for Dilonell to bring suit. Dilonell filed a
verified statement of disqualification asserting improper bias based
on the court’s statement concerning its own divorce, and the court
ordered it stricken as groundless. Judgment was entered for Bua,
and this appeal ensued.

       Dilonell argues she asserted sufficient facts in her opening
statement to overcome the bar of the statute of limitations because
she can establish estoppel and delayed discovery of her claims. She
also argues the existence of a joint venture was sufficient to
overcome the statute of frauds. She further asserts the trial judge’s
comments referencing his own divorce demonstrated impermissible
judicial bias and embroilment.

I.     Standard of Review and Basis for Nonsuit.
       Dilonell asserts that nonsuit may only be granted on grounds
specifically raised by Bua, namely, the statute of limitations and
statute of frauds. We conclude both of those grounds are sufficient to
support nonsuit and thus we need not look beyond the issues raised
in Bua’s nonsuit motion.
       Code of Civil Procedure section 581c, subdivision (a) provides
that, after the plaintiff presents his or her opening statement, the
court may grant nonsuit, if warranted. A defendant is entitled to
nonsuit after the plaintiff’s opening statement only if the trial court
determines that, as a matter of law, the evidence to be presented is
insufficient to permit a finding in the plaintiff’s favor. (Campbell v.
General Motors Corp. (1982) 

32 Cal. 3d 112

, 117-118; Galanek v.

Wismar (1999) 

68 Cal. App. 4th 1417

, 1424.) When determining
whether the plaintiff’s evidence is sufficient, the court must accept as
true all favorable facts asserted in the plaintiff’s opening statement,
indulge all legitimate inferences from those facts, and disregard all
conflicting evidence. (Hoff v. Vacaville Unified School Dist. (1998) 

19 Cal. 4th 925

, 930.) We independently review the ruling on a motion
for nonsuit, guided by the same rules that govern the trial court.
(Saunders v. Taylor (1996) 

42 Cal. App. 4th 1538

, 1541-1542.) We will
not sustain the judgment “‘“unless interpreting the evidence most
favorably to plaintiff’s case and most strongly against the defendant
and resolving all presumptions, inferences and doubts in favor of the
plaintiff, a judgment for the defendant is required as a matter of
law.’” [Citations.]” (Nally v. Grace Community Church (1988) 

47 Cal. 3d 278

, 291.) Although “‘a judgment of nonsuit must not be
reversed if plaintiff’s proof raises nothing more than speculation,
suspicion, or conjecture, reversal is warranted if there is “some
substance to plaintiff’s evidence upon which reasonable minds could
differ. . . .” [Citations.]’ [Citations.]” (Claxton v. Atlantic Richfield Co.

108 Cal. App. 4th 327

, 335.)
        Generally, a court may not grant nonsuit on grounds that were
not specified in the motion. (Alvarez v. Jacmar Pacific Pizza Corp.

100 Cal. App. 4th 1190

, 1200.) As explained in Timmsen v.
Forest E. Olson, Inc. (1970) 

6 Cal. App. 3d 860

, an appellate court can
consider grounds not before the trial court “‘only if it is clear that the
defect is one which could not have been remedied had it been called
to the attention of the plaintiff by the motion.’ [Citation.] ” (Id. at p.
868; Sands v. Walnut Gardens Condominium Assn. (2019) 

35 Cal. App. 5th 174

, 176 [appellate court may affirm only on logic stated
in the motion for nonsuit, unless the defect would have been
impossible to cure].)

       Here, we need not look beyond the grounds Bua asserted in
the trial court, namely, statute of frauds and statute of limitations, to
find that the trial court properly granted nonsuit based on the
undisputed facts. “It is true that a nonsuit is proper when the
plaintiff’s evidence conclusively establishes a defense. [Citations.]”
(Van Buskirk v. McClenahan (1958) 

163 Cal. App. 2d 633

, 638.) As
discussed below, Dilonell’s claims accrued in December 2012, and
she is not entitled to any tolling of the statute of limitations based on
delayed discovery or estoppel. Further, Dilonell failed to establish a
joint venture sufficient to take her outside the statute of frauds on
her claim to an interest in the Culver City property.

II.     The Statute of Limitations Bars All of Dilonell’s Claims.
        Dilonell asserts Bua is estopped to assert the statute of
limitations because he lulled her into forbearing litigation by leading
her to believe he would reimburse her expenses and place her on
title. She also asserts she reasonably delayed discovering Bua’s
alleged fraud and breach of fiduciary duty because she was unaware
he would not place her on title until he tendered the $25,000 in April
2015. We disagree.
        The nature of the right sued upon rather than the form of
action or the relief demanded determines the applicability of the
statute of limitations. (Hensler v. City of Glendale (1994) 

8 Cal. 4th 1

23.) In general, a cause of action accrues when it is complete in all its
elements. (Norgart v. Upjohn Co. (1999) 

21 Cal. 4th 383

, 397.)
“‘“Ordinarily this is when the wrongful act is done and the obligation
or the liability arises, but it does not ‘accrue until the party owning it
is entitled to begin and prosecute an action thereon.’” [Citation.] In
other words, “[a] cause of action accrues ‘upon the occurrence of the
last element essential to the cause of action.’” [Citations.]’ [Citation.]”

(Howard Jarvis Taxpayers Assn v. City of La Habra (2001) 

25 Cal. 4th 809

, 815.)
       Dilonell’s claims here are predicated on contract and fraud—
namely, the parties’ alleged joint venture to purchase and own and
improve the property, and Bua’s alleged promise to provide Marvin
support. Contrary to Dilonell’s assertion that the claims accrued in
March or April 2015 when Bua gave her $25,000, all of her claims
accrued when Bua repudiated the parties’ agreement in December
2012 by excluding her from ownership of the property by not putting
her on title, refusing to reimburse her for the improvements, and
failing to pay any palimony. Dilonell moved from the Culver City
property, and although she left personal property there and had keys
to the property, at no time after that did Bua make any
representations about putting Dilonell on title, refinancing for the
purpose of putting her on title, or otherwise providing funds to her.
Thus, in December 2012, all of the elements of Dilonell’s claims were
complete, and she could have brought suit. When Bua ultimately
gave her money in early 2015, the statute of limitations did not start
running anew.
       The longest statute of limitations applicable to Dilonell’s
claims is three years, making her complaint filed in April 2017
       The statute of limitations for breach of fiduciary duty is four
years, unless the gravamen of the complaint is fraud (as is the case
here), in which case it is three years.6 (American Master Lease LLC
v. Idanta Partners Ltd. (2014) 

225 Cal. App. 4th 1451

, 1479.) Three

6      Because the statute of limitations has run on Dilonell’s
claims, we need not consider the merits of such claims, including
her claim that a fiduciary relationship existed. We only assume
one for purposes of calculating the statute of limitations.

years similarly govern Dilonell’s claims for fraud (Code Civ. Proc.,
§ 338, subd. (d)), constructive trust where premised on fraud (Davies
v. Krasna (1975) 

14 Cal. 3d 502

, 515-516 [constructive trust is not a
substantive device but a remedy, action seeking to establish a
“constructive trust is subject to the limitation period of the
underlying substantive right”]), quiet title where premised on fraud
(Walters v. Boosinger (2016) 

2 Cal. App. 5th 421

, 427, 433), unjust
enrichment based upon claims of fraud (Federal Deposit Ins. Corp. v
Dintino (2008) 

167 Cal. App. 4th 333

, 348), conversion (Code Civ.
Proc. § 338, subd. (c)(1)) and declaratory relief (Maguire v. Hibernia
S. & L. Soc. (1944) 

23 Cal. 2d 719

, 734 [duration of limitations period
applicable to a declaratory relief action determined by the nature of
the underlying obligation]).
       Two years governs claims for money had and received based
on oral contract (Code Civ. Proc., § 339, subd. (1)), and for breach of
oral contract based upon Marvin claims. (Kurokawa v. Blum (1988)

199 Cal. App. 3d 976

, 985,989 [oral or implied-in-fact agreement
between nonmarital cohabitants to “provide” for each other or share
earnings or property rights is subject to the two-year statute of
limitations].) Two years similarly governs claims for quantum
meruit. (Leighton v. Forster (2017) 

8 Cal. App. 5th 467

, 490.)7

7       There is no statute of limitations for partition because it is a
remedy and a co-tenant has the right to demand partition at any
time (American Medical International, Inc. v. Feller (1976) 

59 Cal. App. 3d 1008

, 1013.) The claim accrues when the partition action
is filed or, at the very earliest, when the plaintiff demands partition.
(Akley v. Bassett (1922) 

189 Cal. 625

, 645-646.) Nonetheless, because
Dilonell’s partition remedy is based upon her other time-barred
claims, she would not have the right to demand partition and hence
the claim is substantively barred.

        Neither delayed discovery nor estoppel salvages Dilonell’s
        A plaintiff can rely on delayed discovery if she or he “could not
have discovered facts supporting [a] cause of action within the
applicable statute of limitations.” (Fox v. Ethicon Endo-Surgery, Inc.

35 Cal. 4th 797

, 809 (Fox).) If so, an action may be brought
upon a showing that “despite diligent investigation of the
circumstances of the injury,” the plaintiff “could not have reasonably
discovered facts supporting the cause of action within the applicable
statute of limitations period.” (Ibid.) In other words, to invoke the
delayed discovery doctrine, Dilonell must show “‘the time and
manner of discovery and . . . the inability to have made earlier
discovery despite reasonable diligence.’ [Citation.]” (Id. at p. 808.)
        Here, the facts upon which Dilonell could have sued were
always in plain view, and there was nothing more to discover. Bua
never falsely told Dilonell that she was actually on title, only that he
would put her on title. She knew she was not on title when the
escrow closed. She knew she was not on title throughout the time the
parties lived in the Culver City property in 2011 and 2012. She also
knew that Bua did not refinance the property to place her on title at
any time before she moved out. Bua also failed to reimburse her for
the improvements or pay her support, thereby breaching his alleged
promises to do so. Once Dilonell moved out in December 2012, no one
contends Bua continued to make promises, nor did he put her on
title. Thus, all of the elements of Dilonell’s claims were in place and
nothing was hidden.
        Further, equitable estoppel does not apply here for the same
reasons: no facts were unknown to or concealed from Dilonell, and
Bua did not act in a manner that delayed Dilonell from suing.
Equitable estoppel to assert a statute of limitations defense “‘arises

as a result of some conduct by the defendant, relied on by the
plaintiff, which induces the belated filing of the action.’ [Citation.]”
(Prudential-LMI Com. Ins. v. Superior Court (1990) 

51 Cal. 3d 674

689-690; Lantzy v. Centex Homes (2003) 

31 Cal. 4th 363

, 384.)
“Generally speaking, four elements must be present in order to apply
the doctrine of equitable estoppel: (1) the party to be estopped must
be apprised of the facts; (2) he must intend that his conduct shall be
acted upon, or must so act that the party asserting the estoppel had
a right to believe it was so intended; (3) the other party must be
ignorant of the true state of facts; and (4) he must [reasonably] rely
upon the conduct to his injury. [Citations.]” (Driscoll v. City of Los
Angeles (1967) 

67 Cal. 2d 297

, 305; Santos v. Los Angeles Unified
School Dist. (2017) 

17 Cal. App. 5th 1065

, 1076 (Santos) [plaintiff’s
reliance must be reasonable under the circumstances].) The
existence of equitable estoppel may be decided as a matter of law
“when the undisputed evidence is susceptible of only one reasonable

(Santos, supra

, 17 Cal.App.5th at p. 1076.)
        Here, Dilonell cannot benefit from equitable estoppel. Dilonell
always knew she was not on title to the property. Further, after
December 2012, she knew that Bua was not putting her on title,
paying Marvin palimony, or reimbursing for her costs of remodeling
or the closing costs. He did not engage in any conduct after that time
causing her to delay filing suit.
        Finally, other than asserting cognitive impairments from the
ill effects of mold, Dilonell offered no facts demonstrating this
disability prevented her from bringing her claims in a timely fashion.
The only statutory basis for tolling based upon mental infirmity
requires Dilonell to establish insanity sufficient to establish complete
inability to function. (Code Civ. Proc., § 352, subd. (a).) A plaintiff is
“insane” if “‘incapable of caring for his [or her] property or

transacting business or understanding the nature or effects of his [or
her] acts[.]’”(Feeley v. S. Pac. Transp. Co. (1991) 

234 Cal. App. 3d 949

951-952 [action tolled while plaintiff was comatose as a result of
injuries he received on defendant’s premises].) Here, Dilonell has not
met this high bar for showing disability. Instead, she has merely
asserted that her illness from mold made it difficult for her to attend
to the affairs of daily life.

III. The Statute of Frauds Bars Dilonell’s Claim To An
Interest In The Culver City Property.
       Dilonell argues that because the parties formed a joint venture
to purchase the property, the statute of frauds is not a bar to her
claims. We disagree.
       The statute of frauds provides that an interest or conveyance
in real estate must be in writing, signed by the party to be charged.
(Civ. Code, § 1624, subd. (a); Kaljian v. Menezes (1995) 

36 Cal. App. 4th 573

, 582.) Here, it is undisputed that Bua is the only
party on title. Thus, Dilonell must establish an exception to the
statute of frauds to prevail on her claims.
       Such an exception exists for joint ventures, where an oral
agreement regarding real property may be enforced. (Kaljian v.

Menezes, supra

, 36 Cal.App.4th at pp. 583-586.) Where the parties
agree to purchase real property for their joint account, but one
person takes title to the property in his or her own name, the
agreement will be enforced on the theory that the existence of the
joint venture places the parties in a confidential relationship. (Id. at
pp. 583-584.) By violating fiduciary duties, “the offending party
constituted himself a constructive trustee for the benefit of the other
[party]. [Citation.]” (Ibid.)

       “‘A joint venture exists where there is an “agreement between
the parties under which they have a community of interest, that is, a
joint interest, in a common business undertaking, an understanding
as to the sharing of profits and losses, and a right of joint control.”’
[Citations.]” (Simmons v. Ware (2013) 

213 Cal. App. 4th 1035

, 1053.)
“‘A joint venture can be formed by a written or an oral agreement or
by an agreement implied by the parties’ conduct.’” (Id at p. 1052.)
However, while a joint venture “can be created with little formality”
there must still be an agreement based upon a “meeting of the minds
as to the essential structure and operation of the alleged joint
venture[.]” (Bustamante v. Intuit, Inc. (2006) 

141 Cal. App. 4th 199

       “There are three basic elements of a joint venture: the
members must have joint control over the venture (even though they
may delegate it), they must share the profits of the undertaking, and
the members must each have an ownership interest in the
enterprise. [Citation.]” (Orosco v. Sun-Diamond Corp. (1997) 

51 Cal. App. 4th 1659

, 1666.) The right of joint participation in the
management and control of the business is an essential element of a
partnership or joint venture. (Simmons v. 

Ware, supra

, 213
Cal.App.4th at p. 1056.) “‘“Absent such right, the mere fact that one
party is to receive benefits in consideration of services rendered or for
capital contribution does not, as a matter of law, make him a partner
or joint venturer. [Citations.]”’ [Citations.]” (Ibid., quoting Kaljian v.

Menezes, supra

, 36 Cal.App.4th at p. 586.)
       Here, there was no joint venture because the terms of any
such venture were insufficiently precise to permit its enforcement
and establish a meeting of the minds. The proffered evidence does
not show that Bua and Dilonell had agreed upon the percentage of
her ownership interest, or the nature of Dilonell’s contribution to the

venture through her improvements to the property or advancement
of closing costs. There is no claim that the parties had an agreement
on how title would be held (joint tenants or tenancy in common), or
how the property would be managed (or by whom), or whether or
when it would ultimately be sold for profits. (See Bustamante v.

Intuit, supra

, 141 Cal.App.4th at p. 215 [evidence must demonstrate
agreement on essential structure and operation of joint venture].) On
the contrary, the facts alleged by Dilonell at most establish that Bua
purchased the home for himself with a VA loan in his own name and
borrowed the closing costs from Dilonell—costs he later repaid.
Dilonell contributed remodeling costs to the home but she proffered
no evidence that Bua agreed to repay some or all of her expenses.
Thus, her remodeling expenditures do not establish a joint venture.

IV.     Judicial Bias.
        Finally, Dilonell contends the trial judge was biased because
he allegedly made clear that his own personal experience with
divorce predetermined his view of the case, by pointing out that his
leaving personal belongings at his house did not entitle him to half of
the equity. Further, the judge observed that Dilonell’s $5,200
contribution to the house did not entitle her to “dip into [Bua’s]
investment and ruin his future,” and that such sums constituted a
gift. Dilonell also contends that by transforming himself from judge
to “litigant,” the judge improperly “embroiled himself in the
litigation.” We disagree with Dilonell’s contentions.
        Every litigant has a due process right to an impartial decision
maker. (Today’s Fresh Start, Inc. v. Los Angeles County Office of
Education (2013) 

57 Cal. 4th 197

, 212.) But due process requires
judicial disqualification only under the “‘most “extreme facts.”’”
(People v. Cowan (2010) 

50 Cal. 4th 401

, 456-457.) To establish a due

process violation, the appellant has the burden of showing “‘“‘the
probability of actual bias on the part of the judge[.]’”’” (Id. at p. 456.)
“The appellate court’s role is not to examine whether the trial judge’s
behavior left something to be desired, or whether some comments
would have been better left unsaid, but to determine whether the
judge’s behavior was so prejudicial it denied the party a fair . . . trial.
[Citation.] Mere expressions of opinion, based on observation of the
witnesses and evidence, do not demonstrate judicial bias.
[Citation.] . . . . [¶] A constitutional finding of judicial . . . bias is
appropriate only when ‘extreme facts’ demonstrate a probability of
actual bias. [Citation.]” (Schmidt v. Superior Court (2020) 

44 Cal. App. 5th 570

, 589.) The same is true for comments made in
response to a nonsuit motion.
       Here, Dilonell has failed to show how the trial court’s
purported comments establish it held a predetermined view of the
case.8 Rather, the court’s supposed editorializing on the evidence
proffered in Dilonell’s opening statement demonstrates only that the
court viewed the evidence as insufficient to prove her claims,
particularly with respect to the existence of a fiduciary duty. The
court’s purported comments merely underscored its conclusion that

8     Dilonell contends the judge’s comments indicate bias or
embroilment, but failed to provide a reporter’s transcript of the
proceedings or a Settled Statement certified by the court to
substantiate her claims; rather, as discussed in footnote 4, ante,
the Joint Settled Statement affirmatively disclaims that it
provides an accurate record of what the judge said. Nuance and
context matter in evaluating Dilonell’s contentions, so
appropriate review requires knowing what was said, rather than
an approximation. But even assuming the Joint Settled
Statement accurately reflects what was said at trial, no bias or
embroilment is shown.

Dilonell’s retention of a key to the house, and continued storage of
her personal property there after moving out, were insufficient to
establish a fiduciary relationship. The judge’s comments do not
constitute the “extreme facts” necessary to establish judicial bias.
Nor do they demonstrate embroilment. Rather, the court merely
appeared to be expressing skepticism that the proffered evidence
supported Dilonell’s claims, which in the context of argument on a
nonsuit motion, seems entirely appropriate. Indeed, as this opinion
makes clear, we share the trial judge’s belief that the proffered
evidence was insufficient.

       The judgment of the superior court is affirmed. Respondent is
to recover costs on appeal.



We concur:



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