Coffield v. Hawkins CA2/5

Filed 2/10/21 Coffield v. Hawkins CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

FAYE COFFIELD, B302140

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC710381)
v.

WILBERT HAWKINS et al.,

Defendants and
Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Mel Red Recana, Judge. Affirmed.
Faye Coffield, in pro. per., for Plaintiff and Appellant.
Wilbert Hawkins, in pro. per., for Defendant and
Respondent.
Judith Hawkins, in pro. per., for Defendant and
Respondent.
 B. Ruth Allen, in pro. per., for Defendant and
Respondent.
__________________________

Plaintiff and appellant Faye Coffield appeals from a
judgment after an order sustaining demurrers in favor of
defendants and respondents Wilbert Hawkins, his wife
Judith Hawkins, and real estate broker B. Ruth Allen, in
this action arising out of the sale of real property owned by a
trust.1 Coffield contends: (1) the trial court should have
required the parties to meet and confer under Code of Civil
Procedure section 430.41;2 (2) Coffield did not waive her
right to object to the timeliness of the defendants’ demurrers
by opposing them; (3) the causes of action alleged in the
complaint are not barred by the applicable statutes of
limitation; and (4) the complaint is not barred by the
doctrine of claim preclusion, because it is based on newly
discovered facts. We conclude: (1) an inadequate meet and
confer process is not a basis to appeal the trial court’s ruling
sustaining the demurrers; (2) the trial court did not abuse its
discretion by ruling on the demurrers despite issues with
service of the pleadings; (3) the causes of action are barred

1Because more than one party shares the last name
Hawkins, they will be referred to individually by their first
names for ease of reference.

2 All further statutory references are to the Code of
Civil Procedure, unless otherwise stated.

2
by the applicable statutes of limitation; and (4) Coffield’s
cause of action under the federal Racketeer Influenced and
Corrupt Organizations Act is also barred under the doctrine
of claim preclusion. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND3

The Trust and Coffield I

The Joseph Wade Hawkins and Arthalia Fay Hawkins
Family Trust was established in August 2005. The trust’s
primary asset was a residential property. Wilbert, who is
Joseph’s nephew, and Coffield, who is Arthalia’s niece, are
equal beneficiaries under the trust. Arthalia died in April
2006; Joseph died in June 2007. Wilbert is named as the
successor trustee of the trust. His wife Judith is named as
the second successor trustee, but Wilbert appointed her to
act as a co-trustee.
Coffield received no payments from the trust for three
years. In January 2010, Coffield filed a petition in probate
court for affirmative relief. She sought to remove Wilbert as
the successor trustee, to prevent Judith’s appointment as the
second successor trustee, to appoint an independent trustee,

3 The facts are taken from the allegations of the
operative complaint, as well as documents of which the trial
court took judicial notice.

3
and to have an independent audit of the trust conducted
(Coffield I).4
At a hearing on March 18, 2010, Wilbert’s counsel
stated that the trust had received an offer to purchase the
real property, and escrow was to close on May 1, 2010. The
court continued the matter to June 2010, to allow the
property to close escrow. At the June 2010 hearing, Wilbert
stated that escrow had not closed. He said he needed a court
order authorizing him to sell the property, which the court
issued. The matter was continued to September. On
September 2, 2010, Wilbert’s counsel said escrow would close
the next day. The matter was continued to December 2010.
At the December 2010 hearing, Wilbert’s counsel
stated escrow had closed in September 2010. The court
ordered Wilbert to disburse Coffield’s share of the proceeds
and prepare a final accounting. The matter was scheduled
for trial and final disbursement of the trust assets in April
2013.
At the April 2013 hearing, Wilbert testified that when
the property failed to close escrow on May 1, 2010, he had to
enter into an agreement with the buyer to reimburse

4 The original complaint alleged that Wilbert listed the
property for sale with Allen, who is a licensed real estate
broker, on February 17, 2010. He listed the property in his
own name, rather than as trustee of the trust, even though
the property had been in the name of the trust since 2005.
On February 25, 2010, a purchase contract for $185,000 was
entered into with buyer David Andrews. The sale was
scheduled to close escrow on May 1, 2010.

4
expenses in excess of $8,000, which were paid from the
September 1, 2010 escrow proceeds.5
On July 5, 2013, the trial court entered an order after
trial on Coffield’s petition for affirmative relief. The court
denied relief as to the following issues: (1) whether the
successor trustee failed to disburse the trust according to the
trust provisions; (2) whether a tax reassessment and
penalties should be the personal responsibility of the
successor trustee for negligently failing to comply with
certain tax laws; (3) whether the successor trustee was liable
to the trust and to Coffield for losses suffered from his and
his wife’s actions; and (4) whether the trust was responsible

5 The original complaint alleged Wilbert presented
documentation that escrow closed in September 2010,
including an escrow closing sheet. Wilbert could not explain
why he had previously stated in accounting documents
between June 2005 and the date of sale that the property
was worth $369,000. The original complaint also alleged
Allen testified at the hearing as a paid witness with special
knowledge of real estate. She testified that the Los Angeles
County Tax Collector’s appraisal of approximately $415,000
for four tax periods that the property was under Wilbert’s
control was incorrect. Allen had initially valued the
property at $75,000 in June 2007. After lingering on the
market, the property eventually sold for $185,000, with
Allen as the listing and selling broker. She stated that
escrow had not been able to close on May 1, 2010, and
instead closed on September 3, 2010. She presented
documentation, including the escrow closing sheet, to
support her statement about the September 3, 2010 closing.

5
for the payments provided to the purchaser at the escrow
closing for tenant removal or related matters.
The court found the trustee must reimburse Coffield
for attorney fees of $3,500 incurred due to the trustee’s
actions, such as failing to provide Coffield with a copy of the
trust and failing to account for trust assets prior to
instituting a court proceeding. The court found Coffield
must repay the trust for half the amount of $6,277 paid for
property taxes, exclusive of late fees or penalties incurred by
the trust. The court bifurcated issues for trial in October
2013, related to whether Coffield was liable for the trust’s
administration and litigation costs in connection with her
petition.
On July 5, 2013, the trial court entered an order
approving the trustee’s final account. The trustee’s conduct
as reflected in the final account was ratified and approved.
The court found all assets of the trust had been distributed.
On October 21, 2013, after the remaining issues were tried,
the court found no basis to order a surcharge against
Coffield for the trust’s attorney fees.

Coffield II

In April 2014, Coffield filed an action in pro per against
Allen for professional negligence, fraud, and breach of
fiduciary duties (Coffield II). Allen filed a demurrer in pro
per on July 3, 2014. She stated that the property had been
badly damaged, vandalized, and in need of repairs before it

6
could be listed. The property was listed on February 17,
2010, for $175,000, and an offer was received on February
25, 2010, for $185,000, which Wilbert accepted. Allen
asserted, among other arguments, that Coffield’s cause of
action for professional negligence was barred by the statute
of limitations. Allen argued that because Coffield was aware
a realtor assisted with the sale, knew the sale price of the
property, and was aware of her injury because she believed
the value of the property to be higher than the sale price of
$185,000, the statute of limitations began to run when
escrow closed on May 1, 2010. The case summary for
Coffield II reflects that the demurrer was sustained on
September 4, 2014.

Coffield III

On June 13, 2018, Coffield filed the instant complaint
in pro per against Wilbert, Judith, and Allen alleging causes
of action for breach of fiduciary duty, theft by conversion,
and violation of the Racketeer Influenced and Corrupt
Organizations Act (RICO) (18 U.S.C. § 1962(c)) (Coffield III).
On October 16, 2018, Allen, acting in pro per, filed a
demurrer on the grounds that the causes of action were
unintelligible, had been resolved against Coffield in prior
actions, and were barred by the statute of limitations. She
submitted copies of the prior judicial orders. She included
escrow instructions dated August 25, 2010, signed by
Wilbert and Judith, directing the escrow company to hold

7
$6,000 from the seller’s proceeds and credit the buyer with a
per diem of $86 until the tenant vacated the property. If the
tenant remained on the property past seven calendar days
after close of escrow, the eviction process was to be paid from
the seller’s funds. In addition, the buyer’s landlord would
not reimburse his security deposit because he did not move
out as scheduled, so the seller agreed to pay $2,040 toward
buyer’s moving expenses.
The parties agree that Wilbert and Judith served
Coffield with demurrers and motions to strike at a hearing
in court in January 2019. Coffield’s opposition was due on
March 1, 2019.
On March 5, 2019, Coffield filed an amended
complaint, alleging causes of action for breach of fiduciary
duty, fraud, conspiracy to commit fraud, and RICO
violations. In addition to many of the facts above, the
complaint alleged as follows. The defendants conspired to
defraud Coffield of her share of the proceeds of the sale of
the real property. Based on the statements made in Allen’s
demurrer in Coffield II, escrow closed on the trust’s real
property on May 1, 2010. Coffield believes a portion of the
proceeds were disbursed to Wilbert, and Allen was entitled
to a percentage of the proceeds as the listing broker and
agent. Coffield should have received half of the proceeds
after expenses, but when the property was initially sold, the
defendants concealed the proceeds from Coffield and the
probate court. The defendants failed to report the May 1,
2010 escrow closing to Coffield or the probate court in

8
Coffield I. These actions were designed to defraud Coffield
of her rightful share of the trust. The defendants denied the
existence of the May 1, 2010 escrow closing in pleadings,
statements, correspondence, and accountings filed with the
probate court and Coffield between May 1, 2010, and July 3,
2014. The property was then sold on another occasion for
“the exact amount.”
Wilbert, Judith, and Allen constituted an “association
in fact enterprise.” The defendants formed and operated an
unlawful conspiracy, agreeing to conceal the real estate
closing and the proceeds from Coffield and the court.
Coffield was injured, because she was prevented from
receiving her designated fair distribution of the trust assets.
Her economic injuries include the diminished value of her
share of the trust assets and her costs incurred in connection
with litigation.
A case management conference, including a hearing on
the defendants’ demurrers, was held on March 14, 2019.
The timeliness of Coffield’s amended complaint in opposition
to the demurrers was addressed. The court concluded that
Coffield made an attempt to timely file the amended
complaint electronically, which was rejected. The court
allowed the amended complaint to stand. The court reserved
a new hearing date of June 6, 2019, and instructed the
defendants to file an answer or demurrer within 30 days.
Coffield’s opposition was to be filed nine court days before
the hearing, and the replies were to be filed five court days
before the hearing.

9
 On April 11, 2019, Allen filed a demurrer to the
amended complaint on the grounds that the complaint failed
to state an intelligible cause of action, was barred by the
applicable statutes of limitations, and was barred by the
doctrine of claim preclusion. The matter arose out of the
probate matter in Coffield I that was finalized on April 22,
2013, and Coffield had filed a complaint on April 17, 2014, in
Coffield II based on the same facts, which had been resolved
against her. That same day, Judith and Wilbert, acting in
pro per, filed a demurrer on the same grounds as Allen had.
On April 30, 2019, Coffield filed a notice with the court
that although the case summary showed demurrers had
been filed, she had not received copies of the demurrers. She
had sent letters to the defendants by express mail requesting
copies of the demurrers, which were received by the
defendants on April 24, 2019, but she had not received any
response. In addition, the defendants had not made any
attempt to meet and confer prior to filing the demurrers.
Coffield requested that the court deem the demurrers to be
untimely filed and served, and to enter the default of each
defendant. In her appellate briefs, Coffield states that the
defendants mailed copies of the demurrers to her on May 1,
2019, without proofs of service.
On May 23, 2019, Coffield filed oppositions to each
demurrer. She argued that the demurrers were untimely,
not properly served, and incomplete, because exhibits were
not included. In addition, the defendants refused to meet
and confer as required under Code of Civil Procedure section

10
430.31, subdivision (a), and the demurrers were not
supported by law or the facts alleged in the complaint. The
defendants filed replies.
On June 6, 2019, the trial court sustained the
demurrers without leave to amend. No reporter’s transcript
has been made part of the appellate record. The court took
judicial notice of the July 5, 2013 order after trial in Coffield
I, as well as the July 5, 2013 order approving the trustee’s
final accounting, and the September 4, 2014 ruling on the
demurrer in Coffield II. The court noted the fact that the
defendants failed to engage in the meet and confer process
was not a ground on which the court could overrule or
sustain the demurrer. Although the defendants had failed to
file meet-and-confer declarations, considering the totality of
the circumstances and in the interests of judicial economy,
the court exercised its discretion to rule on the merits. By
opposing the demurrer, the court found Coffield had waived
any defects or irregularities in the service. In addition,
although Coffield argued that the demurrers were untimely,
the court exercised its discretion to consider the merits. The
court concluded that Coffield could have raised the causes of
action alleged in the amended complaint in Coffield I, and
therefore, the complaint was barred by the doctrine of claim
preclusion. Defendants had established a final judgment on
the merits in the first lawsuit. The court sustained the
demurrer as to each of the counts of the complaint for failure
to state a cause of action.

11
 A hearing was held on August 29, 2019, on an order to
show cause regarding dismissal. The trial court ordered the
amended complaint dismissed. Coffield filed a timely notice
of appeal on October 28, 2019.

DISCUSSION

Standard of Review

“A demurrer tests the legal sufficiency of the factual
allegations in a complaint. We independently review the
superior court’s ruling on a demurrer and determine de novo
whether the complaint alleges facts sufficient to state a
cause of action or discloses a complete defense. [Citations.]
We assume the truth of the properly pleaded factual
allegations, facts that reasonably can be inferred from those
expressly pleaded and matters of which judicial notice has
been taken. [Citations.] We liberally construe the pleading
with a view to substantial justice between the parties (Code
Civ. Proc., § 452; Gilkyson v. Disney Enterprises, Inc. (2016)
244 Cal.App.4th 1336, 1340; see Schifando [v. City of Los
Angeles (2003) 31 Cal.4th 1074,] 1081 [complaint must be
read in context and given a reasonable interpretation]); but,
‘[u]nder the doctrine of truthful pleading, the courts “will not
close their eyes to situations where a complaint contains
allegations of fact inconsistent with attached documents, or
allegations contrary to facts which are judicially noticed.”’
(Hoffman v. Smithwoods RV Park, LLC (2009) 179

12
Cal.App.4th 390, 400; see Brakke v. Economic Concepts, Inc.
(2013) 213 Cal.App.4th 761, 767 [‘[w]hile the “allegations [of
a complaint] must be accepted as true for purposes of
demurer,” the “facts appearing in exhibits attached to the
complaint will also be accepted as true and, if contrary to the
allegations in the pleading, will be given precedence”’]; SC
Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th
68, 83 [‘[i]f the allegations in the complaint conflict with the
exhibits, we rely on and accept as true the contents of the
exhibits’].)” (Ivanoff v. Bank of America, N.A. (2017) 9
Cal.App.5th 719, 725–726 (Ivanoff).)

Meet and Confer Requirements

Coffield contends the trial court erred by failing to
require the demurring parties to meet and confer under
section 430.41. We conclude the trial court did not abuse its
discretion in ruling on the demurrer.
“Under section 430.41, before filing a demurrer, the
demurring party must meet and confer with the party who
filed the challenged pleading ‘in person or by telephone’ to
determine if the demurring party’s objections can be resolved
by agreement. (§ 430.41, subd. (a)(1).) If the parties are
unable to meet and confer at least five days before the
responsive pleading is due, the demurring party must file a
declaration stating that a good faith attempt to meet and
confer was made and explaining the reasons the parties
could not meet and confer. (Id., subd. (a)(2).) This

13
declaration results in an automatic 30-day extension of the
time to file the responsive pleading. (Ibid.) However, under
section 430.41, subsection (a)(4), ‘[a]ny determination by the
court that the meet and confer process was insufficient shall
not be grounds to overrule or sustain a demurrer.’ (Ibid.; see
also Olson v. Hornbrook Community Services Dist. (2019) 33
Cal.App.5th 502, 515 (Olson) [relying on § 430.41, subd.
(a)(4), in rejecting claim that party’s failure to meet and
confer deprived trial court of jurisdiction over pleadings];
Weil & Brown, Cal. Practice Guide: Civil Procedure Before
Trial (The Rutter Group 2019) ¶ 7:97.27, p. 7(l)-48 [‘failure to
sufficiently meet and confer is not grounds to overrule or
sustain a demurrer’].)” (Dumas v. Los Angeles County Bd. of
Supervisors (2020) 45 Cal.App.5th 348, 355 (Dumas).)
Although the meet and confer requirements greatly
assist the trial court in managing its caseload efficiently, an
inadequate effort to meet and confer is not a basis to reverse
the trial court’s ruling on the demurrer. (See Dumas, supra,
45 Cal.App.5th at p. 355 [declining to address the adequacy
of the moving party’s effort to meet and confer, “as any
insufficiency in the process would not undermine the trial
court’s ruling on the County’s demurrer”].) In this case, we
find the trial court did not abuse its discretion by proceeding
to rule on the demurrers. None of the parties were
represented by counsel, they were required to communicate
with each other directly, and they had a history of
communication difficulties, including issues with service and
receipt of documents. Moreover, Coffield has not shown that

14
the claim preclusion bar could have been resolved through
the meet and confer process. The trial court did not err in
ruling on the demurrer, despite the defendants’ lack of
compliance with the statutory meet and confer provisions.

Timeliness of Service

Coffield also contends the trial court abused its
discretion by finding she waived any defect in the notice of
motion by opposing the demurrers. We find no abuse of
discretion.
Section 430.40, subdivision (a), provides that a person
against whom a complaint has been filed may demur to the
complaint within 30 days after being served with the
complaint. (§ 430.40, subd. (a).) The trial court has
discretion to consider an untimely demurrer. (Jackson v.
Doe (2011) 192 Cal.App.4th 742, 749 (Jackson); McAllister v.
County of Monterey (2007) 147 Cal.App.4th 253, 280
(McAllister); § 473, subd. (a)(1) [“[t]he court may, in
furtherance of justice, and on any terms as may be proper
. . . enlarge the time for answer or demurrer”].)
In McAllister, the appellant contended that a demurrer
should have been denied, “because ‘a demurrer must be filed
and served within 30 days after service of the complaint . . .’
pursuant to section 430.40, subdivision (a). (McAllister,
supra, 147 Cal.App.4th at p. 279, original italics.) The
McAllister court rejected this argument for two reasons.
First the court noted that section 430.40 is permissive, not

15
mandatory, because it uses the term ‘may’ rather than
‘must.’ (McAllister, supra, at p. 280.) Second, the court held
that ‘“[t]here is no absolute right to have a pleading stricken
for lack of timeliness in filing where no question of
jurisdiction is involved, and where, as here, the late filing
was a mere irregularity [citation]; the granting or denial of
the motion is a matter which lies within the discretion of the
court.” [Citations.] [¶] . . . The trial court may exercise this
discretion so long as its action does ‘not affect the substantial
rights of the parties.” [Citations].’ (Id. at pp. 281–282.)”
(Jackson, supra, 192 Cal.App.4th at p. 750.)
In this case, the trial court authorized the filing of the
amended complaint on March 14, 2019, and provided 30
days for the defendants to file demurrers. Coffield was
aware from reviewing the case summary that demurrers had
been filed before she filed a request to enter defendants’
defaults. Coffield also admitted the demurrers were served
on her on May 1, 2019, several weeks before her opposition
was due. The trial court’s consideration of the demurrers
filed within 30 days as previously ordered by the court,
although not served until weeks later, did not affect
Coffield’s “substantial rights,” because she was aware the
demurrers had been filed with the court prior to requesting
entry of defendants’ defaults and she did not demonstrate
any prejudice from the delay. (McAllister, supra, 147
Cal.App.4th at p. 282; see also § 475 [requiring the court to
“disregard any error . . . or defect, in the pleadings” that does
not affect the substantial rights of the parties].) We

16
conclude the trial court acted within its broad discretion by
considering defendants’ demurrers, although Coffield
claimed that service was untimely. (McAllister, supra, at
p. 282.)
In addition, “‘It is well settled that the appearance of a
party at the hearing of a motion and his or her opposition to
the motion on its merits is a waiver of any defects or
irregularities in the notice of motion. [Citations.] This rule
applies even when no notice was given at all. [Citations.]
Accordingly, a party who appears and contests a motion in
the court below cannot object on appeal or by seeking
extraordinary relief in the appellate court that he had no
notice of the motion or that the notice was insufficient or
defective.’ (Tate v. Superior Court (1975) 45 Cal.App.3d 925,
930; see also Alliance Bank v. Murray (1984) 161 Cal.App.3d
1, 7–8.)” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.)
Although Coffield raised the issue of improper service,
she filed timely oppositions to the demurrers. She was
aware of the hearing date and the fact that demurrers had
been filed. She did not request a continuance of the hearing
or argue that she was prejudiced by inadequate notice or
service. The trial court’s finding that Coffield waived her
objection to defective service by opposing the demurrers is
supported by the record, and the court did not abuse its
discretion by ruling on the demurrers.

17
Limitation Statutes

Coffield contends the limitations period begin to run
until July 3, 2014, but even accepting that date, her
complaint for fraud, breach of fiduciary duty, conspiracy to
commit fraud, and RICO violations is barred by the
applicable statutes of limitations.
“‘Section 338, subdivision (d) provides for a three-year
statute for “[a]n action for relief on the ground of fraud or
mistake.” This statute applies to any action for conspiracy
based upon fraud. [Citation.]’ [Citations.]” (Stueve Bros.
Farms, LLC v. Berger Kahn (2013) 222 Cal.App.4th 303,
321.) To pursue an action based on fraud and conspiracy to
commit fraud that accrued on July 3, 2014, Coffield was
required to file her complaint by July 3, 2017. Her
complaint filed almost a year later on June 13, 2018, is
barred by the statute of limitations for fraud.
The Code of Civil Procedure does not specify a statute
of limitations for breach of fiduciary duty, so the cause of
action is generally governed by the four-year catchall statute
of limitations in section 343. (Thomson v. Canyon (2011) 198
Cal.App.4th 594, 606 (Thomson).) However, “[i]t is widely
understood that a plaintiff is not permitted to evade a
statute of limitations by artful pleading that labels a cause
of action one thing while actually stating another. California
courts therefore look to the gravamen of the cause of action.
‘To determine the statute of limitations which applies to a
cause of action it is necessary to identify the nature of the

18
cause of action, i.e., the “gravamen” of the cause of action.
[Citations.] “[T]he nature of the right sued upon and not the
form of action nor the relief demanded determines the
applicability of the statute of limitations under our code.”’
(Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22–23.)
Accordingly, ‘[w]here the gravamen of the complaint is that
defendant’s acts constituted actual or constructive fraud, the
applicable statute of limitations is the [Code of Civil
Procedure section 338, subdivision (d) three-year] limitations
period,’ governing fraud even though the cause of action is
designated by the plaintiff as a claim for breach of fiduciary
duty. [Citation.]” (Thomson, supra, 198 Cal.App.4th at
pp. 606–607; see American Master Lease LLC v. Idanta
Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1479 [“The
statute of limitations for breach of fiduciary duty is three
years or four years, depending on whether the breach is
fraudulent or nonfraudulent”].) In this case, Coffield’s action
for breach of fiduciary duty is based on alleged fraudulent
acts, and therefore is governed, and barred by the three-year
statute of limitations.
RICO does not contain a statute of limitations for
actions brought under its civil enforcement provision.
(Agency Holding Corp. v. Malley-Duff & Associates, Inc.
(1987) 483 U.S. 143, 146 (Agency Holding).) A civil RICO
action filed in federal court borrows the four-year statute of
limitations from an analogous federal law. (Id. at pp. 148–
150.) When an action is brought in state court under a
federal statute that does not contain a statute of limitations,

19
however, the state limitations period governs. (Bunnell v.
Department of Corrections (1998) 64 Cal.App.4th 1360,
1368–1371 (Bunnell).) The gravaman of Coffield’s RICO
allegations is that the defendants concealed facts about the
escrow closing in order to defraud Coffield and the court. We
conclude the three-year period of section 338, subdivision (d),
applies to Coffield’s RICO causes of action as well, and all of
the counts of the complaint are barred by the statute of
limitations.

Claim Preclusion

Even if we were to find a federal four-year statute of
limitations applies to Coffield’s RICO counts, we would
conclude that the RICO counts are barred by the doctrine of
claim preclusion.

A. General Law

“The law of preclusion helps to ensure that a dispute
resolved in one case is not relitigated in a later case.”
(Samara v. Matar (2018) 5 Cal.5th 322, 326 (Samara).) “We
now refer to ‘claim preclusion’ rather than ‘res judicata’
(Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896–
897 (Mycogen)), and use ‘issue preclusion’ in place of ‘direct
or collateral estoppel’ (Migra v. Warren City School Dist. Bd.
of Ed. (1984) 465 U.S. 75, 77, fn. 1; see Vandenberg v.

20
Superior Court (1999) 21 Cal.4th 815, 824 (Vandenberg)).”
(Samara, supra, 5 Cal.5th at p. 326.)
“Claim and issue preclusion have different
requirements and effects. Claim preclusion prevents
relitigation of entire causes of action. (Mycogen, supra‚ 28
Cal.4th at p. 896; see also id., at p. 904 [discussing ‘primary
right theory,’ which defines the scope of a cause of action].)
Claim preclusion applies only when ‘a second suit involves
(1) the same cause of action (2) between the same parties [or
their privies] (3) after a final judgment on the merits in the
first suit.’ (DKN Holdings [LLC. v. Faerber (2015)] 61
Cal.4th [813,] 824 [(DKN Holdings)].)” (Samara, supra, 5
Cal.5th at pp. 326–327.)
“‘If claim preclusion is established, it operates to bar
relitigation of the claim altogether.’ (DKN Holdings, at
p. 824; accord, Mycogen Corp. v. Monsanto Co. (2002) 28
Cal.4th 888, 896; Johnson v. GlaxoSmithKline, Inc. (2008)
166 Cal.App.4th 1497, 1507.) The bar applies if the cause of
action could have been brought, whether or not it was
actually asserted or decided in the first lawsuit. (Busick v.
Workmen’s Comp. Appeals Bd. (1972) 7 Cal.3d 967, 974;
Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82.)
The doctrine promotes judicial economy and avoids
piecemeal litigation by preventing a plaintiff from ‘“‘splitting
a single cause of action or relitigat[ing] the same cause of
action on a different legal theory or for different relief.’”’
(Mycogen, at p. 897.)” (Ivanoff, supra, 9 Cal.App.5th at
p. 727.)

21
 “Issue preclusion, by contrast, prevents ‘relitigation of
previously decided issues,’ rather than causes of action as a
whole. [Citation.]” (Samara, supra, 5 Cal.5th at p. 326.)
“The doctrine applies ‘(1) after final adjudication (2) of an
identical issue (3) actually litigated and necessarily decided
in the first suit and (4) asserted against one who was a party
in the first suit or one in privity with that party.’ (DKN
Holdings, at p. 825.)” (Ivanoff, supra, 9 Cal.App.5th at
pp. 727–728.)
“Here, we are concerned with the claim preclusion
aspect of res judicata. To determine whether two
proceedings involve identical causes of action for purposes of
claim preclusion, California courts have ‘consistently applied
the “primary rights” theory.’ (Slater v. Blackwood (1975) 15
Cal.3d 791, 795.)” (Boeken v. Philip Morris USA, Inc. (2010)
48 Cal.4th 788, 797 (Boeken).) “In this context, the term
‘cause of action’ is defined in terms of a primary right and a
breach of the corresponding duty; the primary right and the
breach together constitute the cause of action.” (Id. at
p. 792.)
“‘In California the phrase “cause of action” is often used
indiscriminately . . . to mean counts which state [according
to different legal theories] the same cause of action . . . .’
(Eichler Homes of San Mateo, Inc. v. Superior Court (1961)
55 Cal.2d 845, 847–848.) But for purposes of applying the
doctrine of res judicata, the phrase ‘cause of action’ has a
more precise meaning: The cause of action is the right to
obtain redress for a harm suffered, regardless of the specific

22
remedy sought or the legal theory (common law or statutory)
advanced. [Citation.] As we explained in Slater v.
Blackwood, supra, 15 Cal.3d at page 795: ‘[T]he “cause of
action” is based upon the harm suffered, as opposed to the
particular theory asserted by the litigant. [Citation.] Even
where there are multiple legal theories upon which recovery
might be predicated, one injury gives rise to only one claim
for relief. “Hence a judgment for the defendant is a bar to a
subsequent action by the plaintiff based on the same injury
to the same right, even though he presents a different legal
ground for relief.” [Citations.]’ Thus, under the primary
rights theory, the determinative factor is the harm suffered.
When two actions involving the same parties seek
compensation for the same harm, they generally involve the
same primary right. (Agarwal v. Johnson (1979) 25 Cal.3d
932, 954.)” (Boeken, supra, 48 Cal.4th at p. 798.)

B. RICO

RICO provides a private civil action to recover treble
damages for injuries arising “by reason of a violation of” its
substantive provisions. (18 U.S.C. § 1964(c).) A RICO
violation requires that the defendants, among other things,
engaged in “a pattern of racketeering activity” in one of four
categories of activity. (18 U.S.C. § 1962.) The elements of a
RICO violation differ based on the prohibited activity, but in
general, “the plaintiff must prove that the defendant caused
injury to the plaintiff's business or property by engaging in a

23
pattern of racketeering activity in connection with an
enterprise which affects interstate commerce. [¶] For an act
or omission to qualify as racketeering activity, it must be
included in the list of activities set forth in title 18 United
States Code section 1961(1).” (Gervase v. Superior Court
(1995) 31 Cal.App.4th 1218, 1232 (Gervase).) “In addition, a
common element of all actions included in the list is a
requirement that the action be criminal in nature, that is,
that it be chargeable, indictable, or punishable as a crime.”
(Ibid.)
“To support a claim under RICO, it is not enough that
the defendant engaged in a racketeering activity; rather, the
plaintiff must also establish a pattern, of racketeering
activity. In this respect RICO is vague, stating only that a
pattern requires at least two predicate acts of racketeering
activity. (18 U.S.C. § 1961(5).)” (Gervase, supra, 31
Cal.App.4th at p. 1232.) “[T]he mere commission of two or
more predicate acts within ten years of one another does not
automatically constitute a pattern of racketeering activity.”
(Morgan v. Bank of Waukegan (7th Cir. 1986) 804 F.2d 970,
975 (Morgan).) “The acts must demonstrate both a
continuity and a relationship in order to constitute a pattern
of racketeering activity.” (Ibid.) “In order to be sufficiently
continuous to constitute a pattern of racketeering activity,
the predicate acts must be ongoing over an identified period
of time so that they can fairly be viewed as constituting
separate transactions, i.e., ‘transactions “somewhat
separated in time and place.”’ [Citations.]” (Ibid.)

24
 C. Analysis

As an initial matter, we note that Allen’s statement in
her demurrer that escrow closed on May 1, 2010, does not
lead to the additional facts that Coffield extrapolates. Allen
argued in her demurrer that the statute of limitations began
to run on May 1, 2010, because Coffield was aware of the
sale price, her belief that the property was worth more, and
Allen’s involvement in the sale. Viewed in the light most
favorable to the complaint, Allen stated that escrow closed
on a particular date, which was earlier than the date that
the defendants had previously represented. The additional
facts alleged in Coffield III that the defendants must have
held two escrow closings with the same buyer for the same
amount are not reasonable to infer from Allen’s statement
that escrow closed on May 1, 2010. Coffield’s speculation
about two escrow closings is untethered to her factual
allegations.
Even accepting Coffield’s allegations for purposes of
demurrer, the instant action is barred under the doctrine of
claim preclusion, because the allegations involve the same
primary right and breach of duty as Coffield I and Coffield
II. All three actions arise from the same set of facts and
seek compensation for the same harm. The primary right at
issue is the same—Coffield’s right to distribution of her
share of the trust assets in accordance with the trust
provisions. Coffield litigated the value of the property and
the proper amount of her share of the trust assets against

25
Wilbert and Judith in Coffield I. Coffield believed the value
of the residential real property was greater than the
purported sale price and her share of the trust assets had
been improperly reduced through fraud or negligence. She
had the opportunity to present evidence and litigate these
issues at trial. After a trial, the court found that the
successor trustee disbursed the trust property according to
the trust provisions. On July 5, 2013, the trial court entered
an order approving the trustee’s final account, ratifying the
trustee’s conduct, and finding all assets of the trust had been
distributed.
Allen’s statement in subsequent litigation that escrow
closed on May 1, 2010, was a fact relevant to the claim that
Coffield presented in Coffield I, not the basis of a new and
different claim that Coffield was not aware of until July 3,
2014. When Coffield filed Coffield I, she had not received
any distribution from the trust. During the course of the
litigation, although she may have been unaware of certain
details of the scheme, she suspected her share of the trust
assets had been reduced through fraud or negligence, she
litigated the value of the trust property, and she obtained
disbursement of her share of the trust proceeds as
determined by the trial court. She had the opportunity to
present evidence as to the value of the property, including
evidence from the buyer or the escrow company. The RICO
counts alleged in Coffield III, although they contain
additional details, constitute the same claim under a

26
different theory of relief, and therefore, are precluded under
the doctrine of claim preclusion.
Our conclusion that the RICO counts are barred by the
prior litigation applies even more so to Allen. Coffield III
arises out of the same set of facts and the same harm as
alleged in Coffield II. Allen’s statement about escrow closing
on May 1, 2010, was made within the context of the ongoing
litigation in Coffield II. Coffield could have sought leave to
amend her complaint in Coffield II to add the RICO counts,
or raised the issue for the first time on appeal in Coffield II.
Coffield had the opportunity to bring her claim for RICO
violations in Coffield II, and is now precluded from filing a
new lawsuit against Allen based on the same harm. We
conclude that the trial court properly sustained both
demurrers without leave to amend.

27
 DISPOSITION

The judgment is affirmed. Respondents Wilbert
Hawkins, Judith Hawkins, and B. Ruth Allen are awarded
their costs on appeal.

MOOR, J.

We concur:

RUBIN, P. J.

BAKER, J.

28