Dilonell v. Bua

FRIDA DILONELL, Plaintiff and Appellant, v. SHANE DAVID BUA, Defendant and Respondent.

B298212

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

September 21, 2020

(Los Angeles County Super. Ct. No. BC657879)

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARINGNO CHANGE IN JUDGMENT

THE COURT*:

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.

/s/_________

MANELLA, P.J.

/s/_________

WILLHITE, J.

/s/_________

CURREY, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

(Los Angeles County Super. Ct. No. BC 657879)

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.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

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 Inreviewing 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.

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 upsetwhen 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 healthproblems 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 value).

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...