Filed 4/6/21 Paquette v. Paquette CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

LINDA ELIANA PAQUETTE,

Plaintiff and Appellant,

v.

JEROME VICTOR PAQUETTE,

Defendant and Respondent.

 B304370

 (Los Angeles County

 Super. Ct. No. BC694182)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Malcolm H. Mackey, Judge. Affirmed. 

Linda Eliana Paquette, in pro. per., for Plaintiff and 

Appellant.

Gusdorff Law and Janet Gusdorff; Branson & Branson and 

Uzzell S. Branson for Defendant and Respondent. 
2

Linda Eliana Paquette (Linda) appeals from a judgment 

entered after a bench trial on her breach of oral contract claim 

against her brother, Jerome Victor Paquette (Jerome).1 After an 

approximately three-hour trial, the trial court determined that 

the two-year statute of limitations on oral contract claims found 

in Code of Civil Procedure section 339 (section 339) barred 

Linda’s claim against Jerome. On appeal, Linda argues that the 

trial court erred in finding her claim time barred, and erred in 

declining to find the doctrine of equitable estoppel applicable to 

estop Jerome from asserting the statute of limitations defense. 

We find that the evidence supports the judgment, therefore we 

affirm.

BACKGROUND

Between 2005 and 2008, Linda helped Jerome with various 

expenses, including expenses related to dental work and divorce 

proceedings. During this time, Jerome was doing work on 

Linda’s home, among other things. Linda testified that she 

helped Jerome with his expenses in reliance on his promise to 

pay her back at his death through his will. Linda alleged that 

the medical expenses, legal expenses for Jerome’s divorce, and 

various other amounts she advanced him amounted to 

$61,057.30.2

Linda typed a will that Jerome signed on April 28, 2005. 

At the time, Jerome was still married to his now ex-wife. Linda 

told Jerome to sign the will to protect his assets from his ex-wife 

1 Because the parties share the same last name, we refer to 

them by their first names for clarity.

2 At trial, the parties stipulated that the amount of Linda’s

claim was $49,771.64. 
3

in case anything happened. The will ensured that Jerome’s 

assets would go back to the family. The will provided that upon 

Jerome’s death, his assets would go to his parents, and if they 

predeceased him, to Linda. At the time, Jerome did not know if 

Linda had a will, nor did Linda promise to sign a will if Jerome 

signed the will she drafted. Linda did not promise to make 

Jerome the beneficiary of her will. 

At trial, Jerome and Linda offered conflicting evidence as to 

whether they entered into an oral agreement for Jerome to repay 

Linda for the money she spent on his behalf. Linda testified that 

there was “always” an “understanding and agreement that I 

would be paid back somehow.” Linda insisted that during the 

course of his divorce, Jerome represented to her that she would 

be compensated, and that it was a “continuing conversation” 

between the two of them since that time. Jerome, on the other 

hand, denied ever having entered into an agreement to repay 

Linda. He said the dental work was a gift, since their parents 

had never paid for him to have dental work. He acknowledged 

that Linda helped him with his divorce, but insisted that he 

never promised to pay her back. Jerome testified that Linda told 

him she would “take care of all of it,” and never mentioned 

anything about paying her back. Jerome was never aware of the 

amounts that Linda was paying, and never saw any invoices. 

Jerome denied agreeing to pay Linda back for any of the other 

expenses she claimed to have advanced for him. 

Jerome testified that during the 2013-2014 period, Linda 

asked him three times to sign estate planning documents naming 

her as beneficiary. Jerome declined to sign the documents. 

With a letter dated April 26, 2014, Linda enclosed a joint 

will designed to protect her and Jerome in the event of either’s 
4

death. The letter read, in pertinent part: “Enclosed is a joint will 

wherein we devise our real property to each other. [¶] You have 

until May 10, 2014, to sign the joint will with me. I will 

otherwise assume it is your intent to disinherit me and give my 

real property to others.” 

Linda testified that she and Jerome had an oral agreement 

to give each other their estates, and admitted that her demands 

to her brother dated from 2014. However, Linda asserted that 

although he did not comply with her 2014 demand, Jerome “kept 

continually saying that no, I’ll do it. I’ll do it.” Linda claimed 

that she relied on her brother’s assurances, and was unaware of 

her brother’s breach until she received a letter from his attorney 

dated December 20, 2017, which stated that Jerome was not 

obligated to leave his estate to Linda. 

PROCEDURAL HISTORY

On February 15, 2018, Linda brought this lawsuit against 

Jerome. She alleged breach of an oral contract that the two had 

allegedly made in 2005. Linda alleged that the breach arose in 

2017 when she received the letter from Jerome’s attorney stating 

“whether he decides to include you in his estate plan is his 

decision.” 

A bench trial went forward on October 16, 2019. After 

Linda’s case in chief, Jerome moved for judgment for the defense 

on statute of limitations grounds. After hearing the arguments of 

the parties, the court found that the statute of limitations applied 

to bar Linda’s claims and rendered judgment in favor of Jerome. 

On December 24, 2019, the court filed a statement of 

decision. The court noted that Linda brought a single cause of 

action for breach of oral contract, and that on April 26, 2014, 

Linda made a written demand that Jerome sign, on or before 
5

May 30, 2014, a joint will she had prepared pursuant to the oral 

agreement. Jerome did not sign the will, and Linda did not file 

her lawsuit until February 15, 2018, more than two years later. 

Pursuant to section 339, Linda’s claim was therefore barred. 

On February 18, 2020, Linda filed her notice of appeal from 

the judgment. 

DISCUSSION

I. Standard of review

Linda presents two issues on appeal. First, she argues that 

the trial court erroneously ignored her evidence that 

December 20, 2017 was the first date she learned that Jerome 

would not honor his oral promise to pay her back at his death 

through his will. Second, she argues that the trial court erred in 

declining to apply the doctrine of equitable estoppel to extend the 

two-year statute of limitations.

Both of the issues set forth above were decided by the trial 

court after hearing conflicting evidence regarding the events 

leading up to this lawsuit. When a trial court resolves disputed 

facts concerning the application of the statute of limitations, the 

standard of review is substantial evidence. (Winograd v. 

American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632; Jolly 

v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 [“resolution of the 

statute of limitations is normally a question of fact”].) Under this 

standard, “[i]f the trial court’s resolution of the factual issue is 

supported by substantial evidence, it must be affirmed.” 

(Winograd v. American Broadcasting Co., supra, at p. 632.) The 

trial court’s decision as to whether equitable estoppel applies is 

also a factual question. (Cuadros v. Superior Court (1992) 

6 Cal.App.4th 671, 675.) “The issue is whether, viewing the 

evidence and all the inferences therefrom in the light most 
6

favorable to the defendants, there was substantial evidence upon 

which the court could reasonably have found as it did.” (Ibid.) 

“[W]e defer to the trier of fact on issues of credibility.” 

(Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) 

“‘“‘[I]t is the exclusive province of the [trier of fact] to determine 

the credibility of a witness and the truth or falsity of the facts 

upon which a determination depends.’”’” (Ibid.)

II. Substantial evidence supported the decision that the 

statute of limitations barred Linda’s claim

There is no dispute that the applicable statute of 

limitations is two years pursuant to section 339. After hearing 

testimony and taking evidence from the parties, the trial court 

made the factual determination that Linda knew of her claim for 

breach of oral contract more than two years prior to the date she 

filed her complaint. Specifically, in a letter dated April 26, 2014, 

Linda demanded that Jerome sign, on or before May 30, 2014, a 

joint will that she had prepared pursuant to the alleged 

agreement. The letter specified that if Jerome did not sign the 

will, Linda would presume he had breached the alleged 

agreement. Jerome did not sign the will. However, Linda did not 

file her complaint until February 15, 2018, more than two years 

later. 

Linda asks that we revisit the facts and interpret them

favorably to her. She states that she and Jerome entered into an 

oral agreement in 2005, whereby in exchange for Linda providing 

health care costs and legal fees, among other things, Jerome 

would leave Linda his entire estate. Although she admits 

sending Jerome a letter and joint will on April 26, 2014, and 

admits that Jerome did not sign that will, she insists that he 

provided continued assurances that he would pay her back 
7

through his will. Linda asserts that she believed these continued 

assurances. By letter dated December 20, 2017, Jerome’s 

attorney made it clear that Jerome had no obligation to pay her 

back though his will. Linda claims that this was the first time

that she learned of her brother’s breach.

There was contrary evidence presented to the court at trial. 

Jerome testified that despite Linda’s demands that he sign joint 

wills in 2013 and 2014, he refused to do so. Linda’s ultimatum in 

April 2014 specified that if Jerome did not sign and return the 

joint will by May 30, 2014, she would assume he was refusing to 

include her in his will. Jerome never signed the will. In contrast 

to Linda’s evidence, Jerome testified that he never said that he 

would pay her back any of the money she loaned him in the past. 

Instead, Linda represented that she would take care of these 

things for him, and never asked that he promise to pay her back.

We must defer to the trial court’s resolution of these 

disputed facts regarding Linda’s claims, and view the conflicting 

evidence in the light most favorable to the respondent. 

(Winograd v. American Broadcasting Co., supra, 68 Cal.App.4th

at p. 632; Cuadros v. Superior Court, supra, 6 Cal.App.4th at 

p. 675.) Jerome’s testimony constituted substantial evidence 

from which the trial court could have reasonably found that the 

statute of limitations began to run as early as 2014. To the 

extent that Linda provided conflicting testimony, we must 

assume that the trial court made a credibility determination that 

Jerome presented more credible evidence. We must defer to the 

trier of fact on the issue of credibility. (Lenk v. Total-Western, 

Inc., supra, 89 Cal.App.4th at p. 968.) 

Substantial evidence supports the trial court’s 

determination that the statute of limitations on Linda’s breach of 
8

oral contract claim began to run in 2014. Thus, her complaint, 

filed in 2018, was barred by the two-year statute of limitations 

found in section 339.

III. Substantial evidence supported the determination 

that the doctrine of equitable estoppel was not applicable

Linda next argues that even if the statute of limitations 

started to run in 2014, the trial court should have found the 

doctrine of equitable estoppel applicable to extend the time for 

filing her complaint. Linda claims that the trial court ignored the

evidence that in spite of refusing to sign the joint will, Jerome 

provided continued assurances that his estate would repay her. 

Linda insists that it was not until she received the December 20, 

2017 letter from Jerome’s attorney that she first learned that 

Jerome had no intention of honoring their agreement. 

Again, Linda asks us to revisit the evidence and interpret it

favorably to her. Conflicting evidence in the record, which the 

trial court was permitted to believe, showed that Jerome never 

promised to repay Linda for any of the money that she expended 

on his behalf. The trial court resolved this conflicting evidence 

against Linda, apparently finding unpersuasive her assertion 

that she relied on repeated assurances from Jerome. Because 

substantial evidence in the record supports the trial court’s 

factual determination regarding the applicability of equitable 

estoppel, we defer to this factual finding. (Cuadros v. Superior 

Court, supra, 6 Cal.App.4th at p 675.)

The cases cited by Linda are distinguishable. Linda first 

cites Bacon v. Kessel (1939) 31 Cal.App.2d 245 (Bacon). Bacon 

presents an example of a case where equitable estoppel was 

appropriate. However, the case is distinguishable from this 

matter. In Bacon, a brother and sister were beneficiaries of their 
9

father’s will. The brother intended to contest the will unless 

some arrangement was made whereby he received his proper 

share of the estate. The sister assured him that if he did not 

contest the will, she would provide him with a portion of her 

share. When the estate was distributed, she repudiated her 

agreement and the brother commenced his lawsuit. The key 

difference is that the court resolved the “direct and hopeless[ly]” 

conflicting evidence in favor of the brother. (Id. at p. 246.) The 

court found that the “‘defendant promised and assured plaintiff 

that if he would not contest the will that she would pay him oneeighth of what she would receive from the estate or its equivalent 

value; that plaintiff relied implicitly in defendant and trusted her 

completely and fully believed that she would keep her word in 

said matters and in consideration thereof and solely by reason 

thereof plaintiff did forbear filing a contest of said Will and 

probate proceedings.’” (Id. at p. 248.) Under these factual 

circumstances, as found by the lower court, the court of appeal 

determined that the doctrine of equitable estoppel should apply. 

We must, like the Bacon court, give deference to the trial court’s 

findings. However, in this case, the trial court determined that 

Jerome did not provide any such assurances and Linda was not 

wrongfully persuaded to forbear from pursuing her claim.

Bautello v. Bautello (1998) 64 Cal.App.4th 842 (Bautello)

also does not help Linda’s position. In Bautello, the trial court 

sustained a demurrer on statute of limitations grounds on a son’s 

lawsuit against his parents’ trust for failure to convey a property 

as promised. The matter was reversed because the son “alleged 

sufficient facts to come within the doctrine” of equitable estoppel. 

(Id. at p. 848.) Here, Linda was permitted to move beyond the 

demurrer stage of the proceedings to a trial on the merits of her 
10

claims. The trial court did not credit her evidence that Jerome 

provided her with assurances of payment such that the doctrine 

of equitable estoppel should apply. Because substantial evidence 

in the record supported the trial court’s decision, we do not revisit 

it.3

IV. Linda’s argument that she was not permitted to fully 

present her case was forfeited

After the trial court announced its judgment, and directed 

Jerome’s counsel to prepare a judgment for the defense, Linda 

asserted that she would like a statement of decision and also 

“would like for us to put together the dollar amounts” that she 

and counsel had agreed upon. Jerome’s counsel objected that it 

was inappropriate to adduce more evidence, but that he was 

happy to stipulate “as to the numbers we agreed were contained 

in her demand.” At that time, Linda asked that it be noted for 

the record that she was not permitted to give such additional 

testimony.

The trial court inquired, “What testimony are you talking 

about?” Linda responded, “Everything that you just denied, your 

honor.” The trial court noted that testimony relevant to the 

statute of limitations was all that was necessary. 

On this record, Linda argues that she was denied the right 

to fully present her case. Linda cites one case, Jorgensen v. 

Jorgensen (1948) 32 Cal.2d 13, 18, for the proposition that “a 

3 Juran v. Epstein (1994) 23 Cal.App.4th 882, is irrelevant. 

The issue was whether an oral contract to make a will was 

enforceable despite a former Probate Code section placing strict 

limits on such contracts. The Juran court found that in enacting 

the statute, the Legislature did not intend to abrogate equitable 

principles such as equitable estoppel. (Id. at p. 896.)
11

party shall not be deprived of a fair adversary proceeding in 

which fully to present his case.” Linda presents no other 

authority, or reasoned argument, as to why she should have been 

permitted to present the additional testimony. When a party 

asserts a point but fails to support it with reasoned argument 

and citations to authority, we may treat the point as forfeited. 

(People v. Stanley (1995) 10 Cal.4th 764, 793.)

Further, Linda makes no effort to show how her additional 

testimony or evidence would have changed the outcome of this 

case. “A judgment may not be reversed on appeal . . . unless 

‘after an examination of the entire cause, including the evidence,’ 

it appears the error caused a ‘miscarriage of justice.’ (Cal. Const.,

art. VI, § 13.).” (Soule v. General Motors Corp. (1994) 8 Cal.4th

548, 574.) Generally, errors do not require reversal “unless there 

is a reasonable probability that in the absence of the error, a 

result more favorable to the appealing party would have been 

reached.” (Ibid.) 

Linda has failed to present adequate authority and 

reasoned argument as to why she should have been permitted to 

present additional evidence after judgment had been rendered at 

trial. Further, Linda has failed to show that any purported error 

was prejudicial. We deem the issue forfeited and decline to 

address it further.

V. Jerome’s motion for sanctions

Jerome has filed a motion for appellate sanctions pursuant 

to Code of Civil Procedure section 907 (section 907) and Rule 

8.276, subdivision (e) of the California Rules of Court. Section 

907 permits a reviewing court to add damages to the costs on 

appeal when it appears that the appeal was “frivolous or taken 

solely for delay.”
12

The standards for determining frivolous appeals fall into 

two general categories, subjective and objective. (In re Marriage 

of Flaherty (1982) 31 Cal.3d 637, 649 (Flaherty).) “The subjective 

standard looks to the motives of the appellant and his or her 

counsel.” (Ibid.) “The objective standard looks at the merits of 

the appeal from a reasonable person’s perspective.” (Ibid.) “The 

two standards are often used together, with one providing 

evidence of the other.” (Ibid.) However, both tests are relevant 

to the determination that an appeal is frivolous. (Id. at p. 650.)

Jerome argues that Linda’s appeal meets the definition of 

frivolous under both standards. He argues generally that Linda 

skewed the facts in her favor, ignored the standard of review, and 

therefore we may infer that the appeal was taken solely to drain 

Jerome’s resources.

However, the Flaherty court noted that counsel and parties 

have “a right to present issues that are arguably correct, even if 

it is extremely unlikely that they will win on appeal.” (Flaherty, 

supra, 31 Cal.3d at p. 650.) “An appeal that is simply without 

merit is not by definition frivolous and should not incur 

sanctions.” (Ibid.) The borderline between a frivolous appeal and 

one which simply has no merit is vague, thus “the punishment 

should be used most sparingly to deter only the most egregious 

conduct.” (Id. at p. 651.) As Linda’s appeal does not demonstrate 

egregious conduct, we therefore deny Jerome’s motion for 

sanctions.
13

DISPOSITION

The judgment is affirmed. Appellant shall pay the costs of 

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, Acting P. J.

ASHMANN-GERST

__________________________, J.

HOFFSTADT