Filed 7/22/24 Chodosh v. Saunders CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

FLOYD CHODOSH et al.,

 Plaintiffs and Appellants,

v.

JOHN SAUNDERS et al.,

 Defendants and Respondents.

 G062591

(Super. Ct. No. 30-2022-

01272270)

 O P I N I O N

Appeal from orders of the Superior Court of Orange County, 

William D. Claster, Judge. Affirmed. Petition for writ of coram vobis, motion 

for discovery and an evidentiary hearing, and motion for taking of new 

evidence. Denied.

Law Office of Patrick J. Evans and Patrick J. Evans for Plaintiffs 

and Appellants.

Callahan & Blaine, Peter S. Bauman and James M. Sabovich for 

Defendants and Respondents John Saunders, Robert Coldren, Diana 

Mantelli, George Fiori, Lisa Salisbury, Edward Susolik, Palm Beach Park 
2

Association, Pacific Current Partners LLC, ICC 35902 LLC, and 3187 Redhill 

LLC.

Thomas Law Firm, Allen L. Thomas and Sivi G. Pederson for 

Defendant and Respondent Allen L. Thomas.

Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Larissa G.

Nefulda and Daniel R. Velladao for Defendant and Respondent Cary Wood.

Fidelity National Law Group and Kevin R. Broersma for 

Defendant and Respondent Fidelity National Title Company.

* * *

This case is the next iteration of nearly a decade and a half of 

litigation between the parties stemming from the sale of a mobilehome park 

property on which plaintiffs used to reside. Frustrated and unhappy with 

certain judicial decisions made relatively early on, plaintiffs have spent 

roughly eight years trying to right the wrongs which they claim resulted from 

fraudulent and conspiratorial conduct of defendants, judicial officers, private 

mediators, elected officials, and others. Having failed to obtain their desired 

relief from a judicial oversight body, government agencies and officials, state 

courts, and federal courts, plaintiffs filed the instant action using the same 

attorney who has represented them throughout. Relying on the Racketeer 

Influenced and Corrupt Organizations Act (18 U.S.C. § 1961 et seq.; RICO), 

as well as fraud and unjust enrichment theories, plaintiffs seek monetary 

damages and declaratory relief reversing the impacts of what they term a 

“judge fix” and “judge crime.”

On appeal, plaintiffs contend the trial court erred in dismissing 

the complaint after sustaining a demurrer without leave to amend on statute 

of limitations and collateral estoppel grounds. Their counsel, Patrick J. 

Evans, also claims the court unwarrantedly imposed almost $89,000 in 
3

sanctions against him pursuant to Code of Civil Procedure section 128.71for 

bringing a frivolous lawsuit. A thorough review of the record and judicially

noticed matters reveals no error. The court properly found plaintiffs’ RICO 

claims to be barred by the applicable statutes of limitations, including wellestablished accrual principles, and plaintiffs have failed to meet their burden 

of demonstrating error as to the other claims. Additionally, given the totality 

of the circumstances, the court did not abuse its discretion in finding this to 

be a rare and exceptional situation in which monetary sanctions against an 

attorney are warranted. Accordingly, we affirm the challenged orders.

FACTS AND PROCEDURAL BACKGROUND2

I.

THE MOBILEHOME PARK LITIGATION

An understanding of the case before us requires an 

understanding of a nearly 15-year litigation history between plaintiffs and 

various parties concerning a San Clemente mobilehome park in which 

1 All further statutory refences are to the Code of Civil Procedure 

unless other wise stated. 

2

In conjunction with the challenged rulings, the trial court took 

judicial notice of a wide variety of documents, including without limitation 

pleadings, briefs, and judicial decisions filed in other trial court and appellate 

court level proceedings in which plaintiffs have been involved. We take 

judicial notice of the existence of those same matters, not the truth of the 

statements made therein. (Evid. Code, §§ 451, subd. (a), 452, subd. (d), 459, 

subd. (a).) Given the procedural posture of this case, the facts and procedural 

background we recite are drawn from, inter alia, those judicially noticed 

matters, the allegations in plaintiffs’ complaint, and an unpublished opinion

from this court. (Chodosh v. Palm Beach Park Assn. (Dec. 17, 2018, 

G053798) [nonpub. opn.].)
4

plaintiffs used to reside, Palm Beach Mobilehome Park (the mobilehome 

park).

In 2007, the homeowners association for the mobilehome park, 

the Palm Beach Park Association (the Association), acted on a right of first 

refusal to purchase the mobilehome park property. A lender loaned most of 

the purchase money to the Association. In turn, the Association’s directors 

voted to assess each of its 126 members, on a per capita basis, the cost of 

buying the park. It amounted to $200,000 per member. Those unable to pay 

the money immediately were allowed to borrow the money from the 

Association pursuant to a promissory note. If a member were to default on 

monthly note payments, the entire remaining balance would become due and 

payable. The note payments later became a condition of each member’s lease, 

making nonpayment a material breach of the lease.

Unable to continue making payments, nine of the Association’s 

residents (the Chodosh plaintiffs) sued the Association in late 2010. 

(Chodosh v. Palm Beach Park Assn., Super. Ct. Orange County, 2010, No. 30-

2010-00423544.) Two years later, the Association filed a verified crosscomplaint seeking unpaid rent and ejectment. We refer to these two actions

and other cases with which they were consolidated in the trial court, 

collectively, as the Original Action.

The Original Action was tried in four phases between 2013 and 

2015. Now retired Judge Nancy Wieben Stock presided over the first phase. 

Judge Robert J. Moss heard the remaining phases after Judge Stock’s 

retirement. Among the determinations made were that the Chodosh 

plaintiffs were not obligated to pay the $200,000 per capita assessment styled 

as a loan from the Association, they were each entitled to restitution for any 

sums already paid toward that amount, they had no real property interest in 
5

any portion of the mobilehome park property, they owed the Association for 

unpaid rent, and the Association was entitled to writs of possession to remove 

plaintiffs from their mobilehome park spaces.

II. 

THE ORIGIN OF PLAINTIFFS’ CONSPIRACY ACCUSATIONS

During the early stages of the Original Action, the Chodosh 

plaintiffs’ counsel, Evans, began questioning the impartiality and integrity of 

judges and others involved in the matter. The accusations have perpetuated 

and explosively multiplied since that time. 

It all started when the matter went to mediation in late 2013

before retired Justice John K. Trotter, a neutral at and cofounder of JAMS, 

Inc., a private provider of alternative dispute resolution (ADR) services. The 

mediation was unsuccessful. Evans claimed Justice Trotter said he would 

tell Judge Stock that the lack of settlement was the Chodosh plaintiffs’ fault.

When the Original Action returned to court after the failed 

mediation, it was reassigned to Judge Moss due to Judge Stock’s retirement. 

A few months later, in May 2014, the Chodosh plaintiffs sought to disqualify 

Judge Moss, claiming there was reason to believe Justice Trotter’s supposed 

communications with Judge Stock about the failed settlement must have 

reached Judge Moss as well, and he would not be fair and impartial as a 

result. Judge Moss struck the statement of disqualification, leading the 

Chodosh plaintiffs to seek a writ of mandate from this court disqualifying 

him. The writ petition was summarily denied, with a concurrence indicating 

one justice would have issued an order to show cause as to why sanctions 

should not be imposed for the filing of a frivolous writ petition.

Around the same time, Evans filed suit against Justice Trotter 

and JAMS on behalf of many of the plaintiffs from the Original Action. 
6

(Chodosh v. Trotter, Super. Ct. Orange County, 2014, No. 30-2014-00722371; 

JAMS Action.) The complaint alleged a variety of contract and tort based 

claims primarily grounded in Justice Trotter’s purported threat to tell Judge 

Stock that the Chodosh plaintiffs prevented settlement, as well as a 

purported failure to disclose that, at the time the mediation events occurred, 

Judge Stock was in discussions with JAMS about joining JAMS after retiring 

from the bench. Justice Trotter and JAMS successfully moved to strike the 

complaint pursuant to section 425.16, the anti-SLAPP (strategic lawsuit 

against public participation) statute, and recover related attorney fees. That 

disposition was affirmed on appeal by the Fourth District Court of Appeal, 

Division One. (Chodosh v. Trotter (Sept. 13, 2017, D070952, D070953) 

[nonpub. opn.].)

In November 2015, prior to the last phase of the Original Action, 

Evans filed a lawsuit on behalf of another resident of the mobilehome park 

seeking to stop the Association’s sale of the property to a third party 

(Haugen v. Palm Beach Park Assn., Super. Ct. Orange County, 2015, No. 30-

2015-00819837; Haugen Action.) Evans promptly sought to disqualify Judge 

Moss from the Haugen Action pursuant to section 170.6. A minute order 

issued a few days later by a then supervising judge, Judge Charles Margines,

reassigned the case to another judge, Judge Gail A. Andler. 

A few weeks thereafter, in late December 2015, following the 

filing of an objection to the section 170.6 challenge and an opposition to the 

objection, Judge Moss ordered the statement of disqualification stricken and 

the case reassigned back to himself. Days later, he denied an ex parte 

temporary restraining order (TRO) application which sought to stay the

impending sale of the mobilehome park property.
7

Between March and April 2016, Evans sent letters to the 

attorneys representing the defendants in the Haugen Action and filed 

complaints against Judge Moss with both the Commission on Judicial 

Performance (CJP) and Judge Margines, in his capacity as then presiding 

judge of the Orange County Superior Court.

3 The letters to counsel accused 

the Haugen Action defendants and their counsel of being part of a criminal 

conspiracy to obstruct justice so they could financially benefit from the sale of 

the mobilehome park property to the residents’ detriment. Evans believed 

someone acting on behalf of the defendants “improperly contacted Judge 

Moss ex parte for the specific purpose of requesting that Judge Moss take 

over [the case] by reinstating himself as the judge on the case.” (Italics 

omitted.) He further claimed Judge Moss was on vacation when he (1) 

received the ex parte contact, (2) called his clerk to have the case reassigned 

back to him, and (3) continued the ex parte TRO hearing to a few days later. 

According to Evans, the sale of the mobilehome park property closed four 

hours after Judge Moss took these actions. Counsel for the Haugen Action 

defendants responded to Evans in writing denying all the accusations. The 

complaint filed with Judge Margines recited the same factual circumstances,

and it asserted Judge Moss acted unlawfully and committed willful judicial 

misconduct.

The CJP requested further information from Evans, which he 

provided, and it ultimately notified him it “found no basis for action against 

[Judge Moss] or determined not to proceed further [with] the matter.” 

3 The letter sent to CJP indicates the basis for the complaint was 

presented in documents enclosed therewith, contained in four three-ring 

binders. Those documents are not included in the appellate record.
8

In the meantime, Evans sought to disqualify Judge Moss from all

the mobilehome park related cases pending before him pursuant to section 

170.1. He claimed ex parte contacts with Judge Moss led the judge to 

illegally reassume jurisdiction over the Haugen Action so he could enforce 

illegal contracts. Following receipt of an objection, Judge Moss struck the 

statement of disqualification as untimely and lacking legal grounds for 

disqualification. Thereafter, Evans unsuccessfully sought a writ of mandate 

ordering the disqualification of Judge Moss. The 68-page writ petition 

asserted the purported ex parte communications, as well as the December 

2015 unlawful “reassumption of jurisdiction,” were the decisive events giving 

rise to the disqualification, the surrounding circumstances indicated actual 

bias on the part of Judge Moss, and additional facts demonstrated active nondisclosure and concealment of the truth by the court and the Association. 

Early the following year, 2017, Evans turned to the California 

Attorney General’s Office for relief. His seven-page letter detailed his clients’ 

battle with the Association and Judge Moss’ purported actions, and it 

asserted his clients’ loss of their homes “was the direct result of willful, 

purposeful judicial misconduct and wrongdoing” by Judge Moss. The 

Attorney General’s Office responded stating it could not assist and invited

Evans to contact the local district attorney’s office. It explained: “The 

Department of Justice is committed to upholding and enforcing state law, but 

it lacks the resources necessary to review all matters in which improper 

activities are alleged. Ordinarily, local law enforcement authorities have 

primary responsibility for investigating violations of law within their 

jurisdictions.” 
9

III. 

FIRST APPEAL IN THE ORIGINAL ACTION

Seven of the nine plaintiffs in the Original Action (the Chodosh 

appellants) appealed from the judgment entered following the four-phase 

trial.

The introduction of the Chodosh appellants’ opening brief began: 

“Illegal transactions and judicial wrongdoing render the judgment a nullity. 

The judgment is void as it purports to uphold and enforce illegal agreements. 

It is void as the product of judge misconduct, biased judicial officers’ 

intentional and wrongful enforcement of illegal agreements and transactions 

against [a]ppellants in favor of their wrongdoer fiduciary homeowners’ 

association.” 

And it ended: “The evidence and record proves that (i) Judge 

Moss intentionally intervened to aid the fiduciary fraudulent self-dealing 

Palm Beach Park sale; (ii) he and [a]ppellate justices ignored and allowed 

enforcement of [Association] illegal transactions; (iii) . . . the Orange County 

courts, confronted with such wrongdoing, did nothing and acted to uphold it. 

[¶] . . . [¶] More rudimentary, they transgressed Rule of Law No. 1 - that a 

judge follows the law. At Palm Beach Park, and in the Palm Beach Park 

litigation, there has been no Rule of Law.” 

In a December 2018 unpublished opinion, another panel of this 

court affirmed the Original Action judgment, in part, and reversed it, in part. 

(Chodosh, supra, G053798.)

Between addressing the Chodosh appellants’ many contentions, 

the opinion “address[ed] [the opening brief’s] leitmotif that judicial bias 

somehow rendered the entire judgment a ‘nullity.’” It wholly rejected the

allegations of illegality and judicial misconduct. Regarding the former, it 
10

noted Judge Moss could not be faulted for a legally inaccurate ruling when it 

resulted from Evans’ failure to bring the issue to his attention. As for the 

latter, the court found an absence of any evidence of possible bias or 

preconception. It explained: “We’ve been through this record and can only 

compliment Judge Moss for extreme judicial restraint. All Judge Moss did —

besides hold his temper — was to rule against appellants on a number of 

occasions. It is well established that adverse rulings — even many erroneous 

adverse rulings — are no basis for a claim of judicial bias.”

In a similar vein, the opinion addressed what it described as 

Evans’ “pattern of inflammatory accusations against any number of judges 

who have ruled against him, including not only Judge Moss but the Presiding 

Justice of this Division[,]” and Evans’ “practical[] invit[ation] . . . to hold him 

in contempt for accusing Judge Moss of fixing the result.” It continued: 

“Even the fairest judge sometimes cannot make up for poor pleading or poor 

research by a litigant’s counsel. [¶] We choose not to set contempt 

proceedings for Attorney Evans for the calumnies he has casually hurled at 

Judge Moss, nor for those directed at this court. We conclude he craves the 

attention of such a hearing more than he would suffer from its result. We 

choose to deny him that attention and write off his intemperance to an excess 

of zeal on behalf of vulnerable and elderly clients.”

Separately, the opinion analyzed the Chodosh appellants’ 

remaining arguments and found one ground for partial reversal on the issue 

of whether the Chodosh plaintiffs owed the Association for unpaid rent. 

Although it outlined the law and legal standards applicable to a proper

evaluation, the unpaid rent determination ultimately required a remand to 
11

the trial court for an evidentiary hearing and the making of relevant factual 

findings.4

IV. 

FEDERAL AND OTHER ACTIONS

Between 2016 and mid-July 2022, when the instant case was 

filed, Evans filed and represented various combinations of the mobilehome 

park residents in several additional state and federal court actions. Those 

actions were grounded in allegations of a conspiracy or “fix” among judges

and justices who had ruled adversely against Evans’ clients in some manner, 

JAMS, CJP, state elected officials, the Association, various entities that did 

business with or were affiliated with the Association in conjunction with its 

handling of the mobilehome park property, and individuals who represented 

or acted on behalf of such entities. The purported aim of these individuals 

was to ignore and defy the law in order to validate illegal agreements and 

transactions, to deprive the complaining mobilehome park residents of due 

process, including an impartial judiciary, and for the judges and justices to 

secure positions at JAMS upon retirement. Each of these cases was disposed 

of early on, with the outcomes being against Evans’ clients.

In 2017, a federal district court dismissed a federal civil rights 

action for lack of jurisdiction. (Eicherly v. Moss (C.D.Cal., Mar. 29, 2017, No. 

SACV 16-02233-CJC) 2017 WL 6021426.) It based its determination on the 

4

Following remand, the trial court held additional proceedings 

and entered an amended judgment. The Association appealed from the 

amended judgment and that appeal is separately pending in this court. 

(Chodosh v. Palm Beach Park Assn. (G062202, app. pending).)
12

Rooker-Feldman5doctrine, which bars “cases brought by state-court losers 

complaining of injuries caused by state-court judgments rendered before the 

district court proceedings commenced and inviting district court review and 

rejection of those judgments.” (Exxon Mobil Corp. v. Saudi Basic Indus. 

Corp. (2005) 544 U.S. 280, 284.) The Ninth Circuit Court of Appeals upheld 

that determination, but concluded the dismissal should have been without 

prejudice. (Eicherly v. O’Leary (9th Cir. 2018) 721 Fed.Appx. 625.) 

In 2020, Evans brought claims on behalf of many of the same 

mobilehome park residents and against the same defendants as in this case, 

alleging violations of RICO, a RICO conspiracy, and unjust enrichment, all 

grounded in claims of “a wide-spread conspiracy between [the] [d]efendants 

and members of the state judiciary.” (Chodosh v. Saunders (C.D. Cal., Nov. 

5, 2020, SACV 20-01326-CJC-KES) 2020 U.S.Dist. Lexis 225001.) After 

denying a motion to disqualify the assigned federal judge based on prior 

rulings adverse to Evans’ clients (Chodosh v. Saunders (C.D. Cal., Oct. 8, 

2020, No. SACV 20-01326-CJC-KES) 2020 U.S.Dist. Lexis 225005), the

federal district court dismissed the complaint for lack of jurisdiction. Relying 

again on the Rooker-Feldman doctrine, the court noted that the crux of the 

claims was no different than that asserted in the 2017 dismissed federal case 

despite being stylized as RICO based. (Chodosh, supra, 2020 U.S.Dist. Lexis

225001.) In doing so, it again rejected the notion that the narrow extrinsic 

fraud exception to the doctrine applied.

The Ninth Circuit affirmed the dismissal of the RICO action in 

2021. (Chodosh v. Saunders (9th Cir., Dec. 16, 2021, No. 20-56252) 2021 

5 D.C. Court of Appeals v. Feldman (1983) 460 U.S. 462; Rooker v. 

Fidelity Trust Co. (1923) 263 U.S. 413.
13

U.S.App. LEXIS 37151.) It explained: “Appellants had the opportunity to 

present their claims in state court, and the basis of Appellants’ asserted 

injury and RICO claim is not a wrongful act by the adverse party but rather 

the state court’s purportedly ‘wrongful[ ] adjudicat[ion]’ that they were not 

entitled to damages. [¶] The district court thus properly dismissed 

Appellants’ action for lack of subject-matter jurisdiction under the RookerFeldman doctrine because it was in part a ‘de facto appeal’ of prior statecourt decisions . . . .” (Ibid.) And in closing, it expressed concern about the 

repeated and protracted litigation conduct and warned Evans’ clients: “This 

litigation has dragged on unnecessarily for years and is now perilously close 

to frivolity. [Citation.] Appellants should consider themselves warned that 

any future filings asserting these meritless claims may result in the 

imposition of substantial monetary sanctions.” (Ibid.)

Finally, in mid-July 2022, the Third District Court of Appeal 

affirmed the sustaining of a demurrer without leave to amend in a case 

brought by Evans on behalf of Chodosh. (Chodosh v. Commission on Judicial 

Performance (2022) 81 Cal.App.5th 248, 253-254.) The underlying complaint 

filed against the CJP, the California Department of Justice, and the thenformer California Attorney General, accused Judge Moss of committing 

judicial misconduct by “‘fixing’” the mobilehome park related cases against 

the plaintiffs therein, and “allege[d] the [CJP] and Attorney General 

systematically fail to discharge their ostensible duties to protect the public 

from ‘judge crime.’” (Id. at p. 256, fn. omitted.) The appellate court agreed 

with the trial court that the complaint failed to state a cause of action against 

any of the defendants. (Id. at p. 254.)
14

V. 

THE PRESENT RICO ACTION

A. The Claims and Allegations

In late-July 2022, Evans filed the instant action on behalf of 

plaintiffs, which they admit, is nearly identical to the dismissed federal RICO 

action. The 157-page complaint, appended with nearly 300 pages of exhibits, 

ostensibly sets forth four causes of action: (1) violations of 18 U.S.C. section 

1962(c); (2) violations of 18 U.S.C. section 1962(d); (3) set aside of the 

Original Action judgment due to fraud on the court; and (4) unjust 

enrichment.

The relevant players consist of plaintiffs, defendants, and nondefendant coconspirators. Plaintiffs are all former mobilehome park 

residents who were plaintiffs in the Original Action and in various of the 

other mobilehome park related cases. Defendants fall into four categories: 

the mobilehome park buyer defendants (John Saunders, Robert Coldren, ICC 

35902 LLC, 3187 Redhill LLC, and Pacific Current Partners); the HOA 

related defendants (the Association, Diana Mantelli, and George Fiori); the 

title policy defendant (Fidelity National Title Company); and the attorney 

defendants (Lisa Salisbury, Allen Thomas, Cary Wood, and Edward Susolik). 

The non-defendant coconspirators consist of current and former judges, 

justices, ADR providers and neutrals, and state elected officials, agencies, 

and their representatives, each of whom is alleged to have had some 

involvement in something that touched on the underlying disputes between

the mobilehome park residents and others, and/or the legal or ADR

proceedings concerning the same.

The following allegations from the complaint convey the big 

picture story set forth by plaintiffs: “The [Association] [b]oard [p]resident, 
15

[d]irectors and attorneys lured, misled, and betrayed the HOA seniors into 

voting to sell the [mobilehome] [p]ark to the [p]resident’s undisclosed 

affiliates at an exceptionally low price”; “[p]laintiffs tried to stop the sale, but 

a judge ‘fixed’ the case, enabling the fraudulent sale and taking of seniors’ 

homes and millions in real estate equity”; “[t]he wrongdoer judge concocted 

‘self-re-qualification’ as the device to ‘fix’ the case so he could enable the 

fiduciary fraudulent sale that stole millions from the seniors”; “[t]he 

wrongdoer [d]efendants, by a judge they bribed to fix the sale, acquired the 

rare coastal parcel at millions of dollars less than its market value”; “[t]he 

racketeering enterprise injured [p]laintiffs by carrying out HOA taking of 

their homes without compensation”; “the [‘fix’] judge was part of a 

racketeering judge crime enterprise . . . where judges and justices, retired 

judges and justices practicing as ‘neutrals’ . . . , alternative dispute 

resolution . . . vendor companies, attorneys and clients, the judge oversight 

disciplinary agency Commission on Judicial Performance . . . , and the 

California attorney general . . . act and conspire to enable judge ‘fixes’ to 

benefit favored clients and customers, attorneys, and themselves”; “[h]iding 

behind immunity and secrecy, with judges judging judges, they all disregard 

their oaths to law, ethics, and the people in order to give the green light to 

judge crime”; and “[t]he presiding judge, the appellate court, the judge 

commission, and the attorney general did and will do nothing about the judge 

‘fix.’” 

Plaintiffs’ requested relief includes both monetary and 

nonmonetary relief. On the monetary side, they request, inter alia, treble 

damages on their RICO claims, compensation for the value of their homes, 

and attorney fees and costs. On the nonmonetary side, they seek a 

declaration that the judgment in the Original Action was and is “void for 
16

fraud on the court because [they] were deprived of an impartial court, such 

that [they] are entitled to a new trial before an impartial court where the 

judicial officers are not bribed and not subject to JAMS’ influence.” 

B. Trial Court Proceedings

A group of defendants, referred to by the trial court and the 

parties as the Callahan defendants, demurred to the complaint and moved for

monetary and nonmonetary sanctions against plaintiffs and Evans.

6

 The 

demurrer asserted, inter alia, plaintiffs’ claims are barred by the applicable 

statutes of limitations, res judicata, collateral estoppel, the litigation 

privilege (Civ. Code, § 47, subd. (b)), and the Noerr-Pennington7doctrine. 

The sanctions motion, brought pursuant to sections 128.5 and 128.7, 

subdivisions (c) and (d), asserted the complaint was frivolous, it was filed “to 

turn the machinery of justice against itself and to intimidate and harass the 

judiciary and [d]efendants,” and sanctions were appropriate and necessary 

given the lengthy history of conduct by plaintiffs and Evans. Submitted in 

support of the sanctions request were a few litigation related documents; the 

moving defendants requested the court take judicial notice of them. 

After receiving an opposition from plaintiffs, declarations,

requests for judicial notice, and additional briefing, the court held a hearing. 

It ultimately confirmed its tentative decision to sustain the demurrer without 

leave to amend as its final decision. In a written order, the court explained

6 Various groups of defendants also filed other motions. The trial 

court did not rule on most of those other motions due to its ruling on the 

Callahan defendants’ demurrer, and none of the other motions are at issue or 

relevant to this appeal.

7 United Mine Workers v. Pennington (1965) 381 U.S. 657; 

Eastern R. Conf. v. Noerr Motors (1961) 365 U.S. 127.
17

its reasoning: (1) the two RICO causes of action were barred by a four-year 

statute of limitations which began to run no later than April 2016; (2) the set 

aside cause of action was barred by a three-year statute of limitations, a 

reasonable time filing limitation, and collateral estoppel; (3) the unjust 

enrichment claim was barred by a three-year statute of limitations; and (4) 

plaintiffs did not request leave to amend the complaint and the court could 

not envision how any of the identified defects could be remedied through 

amendment.

In light of the trial court’s demurrer ruling, and without waiving 

the right to contest the court’s determinations, the parties stipulated, in 

relevant part, to the following: that the court would sustain a demurrer 

without leave to amend as to all other defendants based on the same grounds 

set forth in its ruling concerning the Callahan defendants; that the complaint 

should be dismissed; and that plaintiffs and the Callahan defendants would 

be permitted to submit supplemental briefing on the pending sanctions 

motion. The court issued an order consistent with the stipulation.

Following issuance of a lengthy written tentative decision and a 

hearing at which all sides argued the sanctions matter, the trial court issued 

an order granting sanctions requested pursuant to section 128.7 and denying 

those requested pursuant to section 128.5.8 With respect to the latter, the 

court found the moving defendants failed to provide any evidence of 

subjective bad faith by plaintiffs or Evans. Regarding the former, the court 

concluded: (1) the moving defendants complied with all procedural 

8 Because the Association was not listed as a party on the 

prefiling notice provided to plaintiffs in accordance with statutory 

requirements, the court found it was not among the moving parties to whom 

relief could be accorded.
18

requirements; (2) despite three prior judicial decisions rejecting various 

aspects of plaintiffs’ conspiracy theory, they repackaged all those aspects 

together into a RICO action, which is sanctionable conduct; and (3) plaintiffs’ 

responses to the sanctions motion were irrelevant or legally or factually 

unsupported.

In determining the appropriate sanctions, the court deemed the 

request for nonmonetary sanctions moot because of the demurrer ruling and 

concluded monetary sanctions were necessary to deter repetition of the 

concerning conduct. From its perspective, the single sale of a mobilehome 

park had resulted in a slew of state and federal court litigation through 

which Evans “‘engaged in a pattern of inflammatory accusations against any 

number of judges who have ruled against him.’” And despite multiple 

appellate court warnings about the possibility of sanctions, Evans continued 

undeterred and filed what the court considered a frivolous RICO action in 

state court. Based on the entirety of the circumstances, the court ordered 

sanctions against Evans only, not against plaintiffs. Among other things, it

noted plaintiffs are “‘vulnerable and elderly,’” and though it was unclear how 

much control they had over litigation related decisions, some evidence gave 

the impression Evans controlled matters. 

As for the amount, the court found reasonable the $88,855 

requested by the moving defendants, consisting of that which they incurred 

in defending the action. Hourly billing rates ranged from $265 to $510. 

Clerical work and work concerning a separate dispositive motion filed by the 

Callahan defendants which was later withdrawn was not included.

Plaintiffs timely appealed.
19

DISCUSSION

Plaintiffs contend the trial court erred in finding their claims to 

be barred by the applicable statutes of limitations and collateral estoppel. 

Evans also argues the section 128.7 sanctions were unwarranted.9 Pervading 

their briefing are continued accusations of “judge crime,” a “fix,” and the 

private ADR industry’s undermining of judicial integrity. Focusing on the 

law, we find no error.

I. 

PRELIMINARY MATTERS

Before turning to the substance of the appeal, we first address 

three requests filed by plaintiffs: a petition for a writ of coram vobis; a 

motion for discovery and an evidentiary hearing; and a motion to take new 

evidence pursuant to section 909.10 As we explain, each is defective or 

inappropriate under the circumstances.

A. Writ of Error Coram Vobis

A writ of error coram vobis “direct[s] the trial court to reconsider 

its decision based on new evidence discovered after its decision that would 

have been grounds for granting reconsideration.” (In re Rachel M. (2003) 113 

Cal.App.4th 1289, 1295-1296.) It is “‘a drastic remedy’” (Daniels v. Robbins

(2010) 182 Cal.App.4th 204, 228), and its use in civil proceedings in 

California is rare (Chaganti v. Superior Court (2021) 73 Cal.App.5th 237, 

9 Although Evans is not listed as an appealing party on the notice 

of appeal, we construe the notice to include him because, inter alia, the 

sanctions were imposed against him only. (See K.J. v. Los Angeles Unified 

School Dist. (2020) 8 Cal.5th 875, 888-890.)

10 Plaintiffs’ three requests are filed in a single 65-page pleading, 

accompanied by a 21-page declaration made by Evans and 200 pages of 

exhibits.
20

243). Among the requirements for its issuance are that proffered new 

evidence (1) “will either compel or make probable a different result in the 

trial court,” (2) “was not presented to the trial court for reasons other than 

the fault or negligence of the petitioner,” and (3) “was unknown to the 

petitioner at any time substantially earlier than filing the petition for the 

writ.” (In re Rachel M., at p. 1296.)

Included in the matters plaintiffs categorize as “new evidence” 

are the following: (1) in June 2022, Judge Moss retired and became a private 

neutral at Judicate West, another private ADR service provider; (2) three of 

the justices involved in decisions related to the Original Action and the 

Haugen Action have since retired and become neutrals at JAMS; (3) Callahan 

& Blaine has settled cases at Judicate West and one of the firm’s attorneys 

previously worked at Judicate West; (4) Callahan & Blaine’s retainer 

agreements with clients designate JAMS and Judicate West as ADR 

providers; and (5) various documents related to a lease involving a different 

mobilehome park owned by defendant Saunders designate JAMS and 

Judicate West as ADR providers. They contend this “new evidence” shows 

“‘quid pro quo’ bribery bargains made between and among 

[defendants], . . . JAMS, Judicate West, and the Orange County [j]udges and

[j]ustices that decided this case and [plaintiffs’] underlying cases and appeals, 

including [the Original Action].” Evans separately contends defendants’ 

concealment of this evidence requires reversal of the sanctions order. 

Setting aside any procedural deficiencies, which we do not 

address, plaintiffs’ petition is substantively problematic. The trial court 

sustained the demurrer on statute of limitations and collateral estoppel 

grounds. None of the purported facts proffered by plaintiffs would have any 

likelihood of changing the result of the demurrer in those regards. At best, 
21

they are an attempt to enlarge and lend credence to the same conspiracy they 

have attempted to articulate all along. Further, most of what plaintiffs offer 

has long been public information; it is not new. And, contrary to plaintiffs’ 

assertions, that defendants deny the existence of a conspiracy and any 

bribery or other nefarious conduct does not demonstrate concealment of the 

alleged new evidence.

B. Motions for Discovery, Evidentiary Hearing, and Taking of New Evidence

Equally misguided are plaintiffs’ request for discovery and an 

evidentiary hearing, and the section 909 request for the taking of additional 

evidence. Citing California Rules of Court, rules 8.54 and 8.155, they ask we 

remand the case “for discovery to supplement the record with new evidence of 

judge and ADR company and attorney bribery ‘quid pro quos.’” Alternatively, 

in reliance on section 909, they request we receive new evidence in the first 

instance. But, nowhere in the California Rules of Court is there a provision 

which speaks to the requested remand, and plaintiffs provide us with no 

other support for our authority to so act. In addition, discovery and the 

consideration of additional evidence, in the trial court or on appeal, is not 

warranted under the circumstances. This appeal concerns a demurrer, the 

disposition of which does not involve the consideration of facts or the making 

of factual findings. And, not only do plaintiffs fail to articulate any relevance

to the challenged sanctions motion, but the applicable standard of review 

does not allow us to engage in fact finding. Finally, plaintiffs seek to use the 

additional evidence to allow the RICO action to move forward, an outcome for 

which section 909 is not to be used. (See Bombardier Recreational Products, 

Inc. v. Dow Chemical Canada ULC (2013) 216 Cal.App.4th 591, 605.)

The petition for a writ of coram vobis and the two evidentiary 

related motions are denied.
22

II. 

DEMURRER GENERAL PRINCIPLES AND STANDARD OF REVIEW

“‘[I]n reviewing a trial court’s order sustaining a demurrer 

without leave to amend[,] “[w]e independently review the ruling . . . and 

determine de novo whether the complaint alleges facts sufficient to state a 

cause of action. [Citation.] 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.”’” (Hagey v. 

Solar Service Experts, Inc. (2023) 94 Cal.App.5th 1303, 1308.) That 

assumption of truth does not extend to contentions, deductions, or 

conclusions of law or fact. (C.R. v. Tenet Healthcare Corp. (2009) 169 

Cal.App.4th 1094, 1102.) In addition, although “‘“[w]e construe the pleading 

in a reasonable manner and read the allegations in context”’” (Hagey, at p. 

1308), “any allegations that are contrary to the law or to a fact of which 

judicial notice may be taken will be treated as a nullity.” (C.R., at p. 1102.)

When a demurrer is grounded in an affirmative defense, such as 

a statute of limitations, it is properly sustained if “‘the complaint “has 

included allegations that clearly disclose some defense or bar to recovery.”’” 

(Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 191; 

see Committee for Green Foothills v. Santa Clara County Bd. of Supervisors

(2010) 48 Cal.4th 32, 42 [statute of limitations defect clearly and 

affirmatively appearing on fact of complaint is grounds for general 

demurrer].) Stated differently, “‘a demurrer based on an affirmative defense 

will be sustained only where the face of the complaint discloses that the 

action is necessarily barred by the defense.’” (Stella, at p. 191.)
23

III. 

STATUTES OF LIMITATIONS

The trial court determined each of plaintiffs’ claims is barred by 

the applicable statute of limitations. Except for the set aside claim, the 

parties generally agree about which statutes of limitations apply. Their 

biggest point of contention is the time at which the RICO cause of action 

accrued. Resolution of this issue is critical because “statutes of limitation do 

not begin to run until a cause of action accrues.” (Fox v. Ethicon EndoSurgery, Inc. (2005) 35 Cal.4th 797, 806.)

A. RICO

RICO, founded on the concept of racketeering, “created 

four . . . criminal offenses involving the activities of organized criminal 

groups in relation to an enterprise. [Citation.] [It] also created a . . . civil 

cause of action for ‘[a]ny person injured in his business or property by reason 

of a violation’ of those prohibitions.” (RJR Nabisco, Inc. v. European 

Community (2016) 579 U.S. 325, 329 (RJR Nabisco).)

Relevant here are sections 1962(c) and 1962(d) of title 18 of the 

United States Code, the portions of the statute on which plaintiffs’ claims are 

based. The former “makes it unlawful for a person employed by or associated 

with an enterprise to conduct the enterprise’s affairs through a pattern of 

racketeering activity.” (RJR Nabisco, supra, 579 U.S. at p. 330; see 18 U.S.C. 

§ 1962(c).) The latter makes it unlawful to conspire to, inter alia, commit 

such a violation. (18 U.S.C. § 1962(d); RJR Nabisco, at p. 330.) “The statute 

defines ‘racketeering activity’ to encompass dozens of state and federal 

offenses, known in RICO parlance as predicates. These predicates include 

any act ‘indictable’ under specified federal statutes, . . . as well as certain 

crimes ‘chargeable’ under state law . . . and any offense involving bankruptcy 
24

or securities fraud or drug-related activity that is ‘punishable’ under federal 

law . . . . A predicate offense implicates RICO when it is part of a ‘pattern of 

racketeering activity’ — a series of related predicates that together 

demonstrate the existence or threat of continued criminal activity.” (RJR 

Nabisco, at pp. 329-330.)

The statute of limitations for a RICO claim is four years. (Rotella 

v. Wood (2000) 528 U.S. 549, 552 (Rotella).) Although that aspect of the 

statute of limitations became clear in the late 1980s (Agency Holding Corp. v. 

Malley-Duff & Associates, Inc. (1987) 483 U.S. 143, 156), the United States 

Supreme Court did not provide guidance on the accrual of a RICO claim until 

10 years later. Up until that time, lower courts took varying positions, with 

three distinct approaches emerging. Some federal appeals courts “applied an 

injury discovery accrual rule starting the clock when a plaintiff knew or 

should have known of his injury.” (Rotella, at p. 553.) “Some applied [an] 

injury and pattern discovery rule . . . , under which a civil RICO claim 

accrue[d] only when the claimant discover[ed], or should [have] discover[ed], 

both an injury and a pattern of RICO activity.” (Ibid.) And, one appeals 

court used a “‘last predicate act’ rule,” under which “the period began to run 

as soon as the plaintiff knew or should have known of the injury and the 

pattern of racketeering activity, but began to run anew upon each predicate 

act forming part of the same pattern.” (Id. at p. 554.)

Between Klehr v. A.O. Smith Corporation (1997) 521 U.S. 179 

(Klehr), and Rotella, the high court disposed of two of these approaches — the

last predicate act rule, and the injury and pattern discovery rule. Among 

other things, Klehr recognized that a pattern of predicate acts can continue 

indefinitely, meaning the last predicate act rule could extend the limitations 

period over many decades and beyond any limit conceivably contemplated by 
25

Congress. (Klehr, at p. 187.) And in Rotella, the high court explained that 

“tying the start of the limitations period to a plaintiff’s reasonable discovery 

of a pattern[,] rather than to the point of injury or its reasonable 

discovery, . . . would extend the potential limitations period for most civil 

RICO cases well beyond the time when a plaintiff’s cause of action is 

complete.” (Rotella, supra, 528 U.S. at p. 558, fn. omitted.) Such a result is 

inimical to “the basic policies of all limitations provisions: repose, 

elimination of stale claims, and certainty about a plaintiff’s opportunity for 

recovery and a defendant’s potential liabilities.” (Id. at p. 555.) 

Though Klehr and Rotella limited the possibilities, the Supreme 

Court made clear it was not settling upon a final rule. (Rotella, supra, 528 

U.S. at p. 554, fn. 2.) Among the remaining options it identified are an injury 

discovery rule and a straight injury occurrence rule, with the latter stemming 

from a concurring opinion in Klehr. (See id. at pp. 553-554 & fn. 4.)

The Ninth Circuit has long followed the more plaintiff friendly

injury discovery rule, which has two aspects. (See Kurtz v. Goodyear Tire & 

Rubber Co. (9th Cir. 2021) 859 Fed.Appx. 22, 24 [noting Supreme Court has 

not disturbed injury discovery rule]; Grimmett v. Brown (9th Cir. 1996) 75 

F.3d 506, 511 (Grimmett).) The first aspect is the general rule: the civil 

RICO limitations period begins to run “when the plaintiff knows or should 

know that [they have] been injured.” (Grimmett, at p. 512.) “The plaintiff 

need not discover that the injury is a part of a ‘pattern of racketeering’ for the 

period to begin to run.” (Ibid.) The second aspect, referred to as the separate 

accrual rule, concerns the impact of additional injuries that postdate the 

initial injury. “[A] new cause of action accrues for each new and independent 

injury.” (Id. at p. 510.) As Grimmett explained, two elements are required to 

trigger a new, separate accrual: (1) there must “be a new and independent 
26

act that is not merely a reaffirmation of a previous act”; and (2) the new and 

independent act “must inflict new and accumulating injury on the plaintiff.” 

(Id. at p. 513, italics omitted.)

Turning to this case, the complaint alleges more than one dozen 

times, using slight variations of wording, that the purported racketeering 

activity “injur[ed] [them] in their property by causing loss of their homes.” 

This is consistent with RICO’s civil action requirement of an injury to a 

person’s business or property.11 (18 U.S.C. § 1962(c); Sedima, S.P.R.L. v. 

Imrex Co., Inc. (1985) 473 U.S. 479, 496-497.)

Other allegations tie that loss to two sets of purported actions 

taken by Judge Moss, referred to by plaintiffs as “the judge ‘fix.’” The first 

set concern the Original Action. The complaint alleges: “Starting in 2014, 

[Judge Moss] routinely ruled against [p]laintiffs and the law and facts. He 

engaged in willful judicial misconduct by intentionally disregarding the law 

to cause [p]laintiffs to lose their case.” It further states that in October 2014,

“Judge Moss reversed Judge Stock, declaring that [p]laintiffs had no ‘real 

property interest consisting of their [Association] membership and 

membership lease,’” and by doing so “Judge Moss permitted the [Association] 

to take a senior’s home with only a Board of Directors vote; he permitted 

11 For the first time in their reply brief, plaintiffs claim their 

injury was a “denial of due process.” This belated assertion contradicts the 

allegations in the complaint, and plaintiffs do not provide any authority for 

the proposition that a due process violation, alone, can amount to a 

cognizable RICO injury. And for good reason; the right to due process, itself,

is not a property or business interest. (See Phillips v. Washington Legal 

Foundation (1998) 524 U.S. 156, 164 [due process clause protects rather than 

creates property interests].) At best, plaintiffs’ argument could be construed 

to claim the purported due process violation resulted in the wrongful taking 

of their property without just compensation. This brings us back to the loss 

of home property related injury. 
27

illegal strict foreclosure.” That determination was later incorporated into the 

March 2016 Original Action judgment. 

The second set of purported actions taken by Judge Moss relate 

to the Haugen Action. According to the complaint, in December 2015, Judge 

Moss engaged in ex parte communications with certain coconspirators, he

“‘self-re-qualifi[ed],’” reassigning the Haugen Action back to himself, and he 

continued the ex parte hearing on the TRO which sought to immediately stop 

the impending sale of the mobilehome park property. A deed making the sale 

official allegedly was recorded four hours after Judge Moss took those actions. 

These allegations demonstrate the RICO claims are barred by the 

four-year statute of limitations. They reveal plaintiffs arguably knew or 

should have known of their alleged property injury no later than October 

2014 or December 2015, but certainly no later than March 2016. Thus, the 

RICO claims needed to be filed by March 2020. But plaintiffs did not file the 

complaint until more than two years later, in July 2022.

Plaintiffs contend they did not sustain injury for RICO purposes 

until rehearing was denied on appeal in the Original Action in January 2019 

after issuance of the 2018 appellate decision. From their perspective, because 

an appealed judgment is not final, injury did not occur until the appellate 

court affirmed the lower court judgment.

We are not persuaded. First, plaintiffs do not provide any legal 

authority to support their position. (See In re S.C. (2006) 138 Cal.App.4th 

396, 408 [appellant has burden of demonstrating reversible error with 

citation to legal authority].) Contrary to their assertions, that an appealed 

judgment is not final for res judicata purposes under California law until the 

appeal is resolved (Agarwal v. Johnson (1979) 25 Cal.3d 932, 954, fn. 11, 

disapproved on another ground in White v. Ultramar, Inc. (1999) 21 Cal.4th 
28

563, 574, fn. 4), is not determinative of when a RICO injury occurs. (See

Laird v. Blacker (1992) 2 Cal.4th 606, 618 (Laird) [injury is concept distinct 

from finality of judgment]; Diaz v. Gates (9th Cir. 2005) 420 F.3d 897, 900 [en 

banc] [RICO injury determined by reference to state law principles 

concerning cognizable business or property interest].)

Second, as the trial court noted, although an appellate decision in 

the Chodosh plaintiffs’ favor might have lessened the damage caused by the 

Original Action judgment, the injury nonetheless existed once the claimed 

property interference occurred by way of the judgment. (See Grimmet, supra, 

75 F.3d at pp. 516-517 [mere fact that extent of injury may be uncertain does 

not impact RICO cause of action accrual].)

We find analogous a situation involving legal malpractice which 

leads to an adverse trial court judgment. Our state high court and other 

state courts have rejected the argument that the statute of limitations on the 

legal malpractice claim would not begin to run until final resolution of an 

appeal. (See, e.g., Laird, supra, 2 Cal.4th 609; Seed Co. Limited v. 

Westerman (D.C. Cir. 2016) 832 F.3d 325, 334; Beesley v. Van Doren (Alaska 

1994) 873 P.2d 1280, 1282 & fn. 1 [accumulating state cases]; Zimmie v. 

Calfee, Halter & Griswold (Ohio 1989) 538 N.E.2d 398, 402.) In that context, 

the injury occurs no later than “when a client suffers an adverse judgment or 

[upon] order of dismissal in the underlying action” (Laird, at p. 609), and

“[t]he ‘lingering hope’ that an appellate ruling might lead to a different 

outcome on remand is ‘irrelevant for purposes of determining’ the date the 

statute of limitations begins to run” (Seed Co. Limited, at p. 334). Among 

other things, “the only difference between affirmance and reversal is the 

amount of damage sustained,” not the fact of damage. (Belden v. Emmerman

(Ill.Ct.App. 1990) 560 N.E.2d 1180, 1183.) And, an exhaustion of appeals rule 
29

would “allow clients, with knowledge that they have suffered actual injury, 

unilaterally to control the commencement of the statute of limitations” and 

thereby undermine the statute of limitations goal of “resolving cases while 

the evidence is fresh, witnesses are available, and memories have not faded.” 

(Laird, at p. 618.) The same is true with a RICO action, like the present, in 

which the alleged injury is a result of purported actions by judges and others 

involved in trial court proceedings.

Third, even assuming arguendo the Original Action appeal 

precluded the Original Action judgment from being a RICO injury while the 

appeal was pending, the injury linked to the sale of the mobilehome property 

in December 2015 which allegedly resulted from wrongful actions by 

defendants and Judge Moss in the Haugen Action still stood. The pendency 

of the appeal in the Original Action had no impact on the Haugen Action.

For the first time in their reply brief, plaintiffs claim “‘new 

evidence’” impacts the RICO statute of limitations in two ways. First, they 

contend defendants’ supposed concealment of the new evidence tolled the 

limitations period. Second, they argue the new evidence shows new injury, 

which triggers a new statute of limitations under the separate accrual rule. 

Having failed to raise these arguments in their opening brief, plaintiffs have 

waived them. (Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 

266, 296, fn. 7 (Aptos Council) [“Issues not raised in the appellant’s opening 

brief are deemed waived or abandoned”]; Jones v. Superior Court (1994) 26 

Cal.App.4th 92, 99 (Jones) [“Issues do not have a life of their own: if they are 

not raised or supported by argument or citation to authority, we consider the 

issues waived”].) And, plaintiffs would be no better off had they been 

properly raised. There is no legal authority to support the tolling of the 

limitations period where the complaint, along with judicial noticed matters,
30

demonstrates plaintiffs knew or had reason to know of the claimed RICO 

injury prior to being aware of the purported new facts. Further, even under 

plaintiffs’ claimed sequence of events, there would be no new RICO injury. 

The suggested new evidence concerns additional conspiratorial actions, but 

the argument is that those additional actions failed to remedy the original 

property deprivation. Put another way, plaintiffs claim those additional 

actions reaffirmed the underlying property related injury; the injury is the 

same. (See 18 U.S.C. § 1962(c) [RICO injury is to business or property].)

In sum, the trial court did not err in concluding plaintiffs’ RICO 

claims are barred by the statute of limitations.

B. Set Aside of the Prior Judgment

Plaintiffs’ cause of action to set aside a prior judgment concerns 

the Original Action. It alleges plaintiffs, who were among the Chodosh 

plaintiffs, were denied a fair trial in the Original Action due to extrinsic fraud 

and, therefore, they are entitled to “a new trial with impartial jurists.” The 

associated relief requested is “[a] declaration that the judgment entered by 

Judge Moss and affirmed on appeal . . . [is] and [was] void for fraud on the 

court because [p]laintiffs were deprived of an impartial court, such that 

[p]laintiffs are entitled to a new trial before an impartial court where the 

judicial officers are not bribed and not subject to JAMS’ influence.” 

Courts possess the inherent equitable power to set aside a 

judgment obtained through extrinsic fraud; “‘[a] showing of fraud practiced in 

the trial of the original action will not suffice.’” (Estate of Sanders (1985) 40 

Cal.3d 607, 614.) An action seeking such a set aside is either subject to the 

three-year statute of limitations set forth in section 338, or simply subject to 

the principles of unreasonable delay and/or laches. (Hudson v. Foster (2021) 
31

68 Cal.App.5th 640, 668, fn. 5 [identifying split of authority and listing cases 

on each side].)

Plaintiffs contend “there can be no three-year limit on [their] 

claim to overturn the JAMS driven judgment.” We need not decide whether a 

three-year statute of limitations is appropriate. The trial court applied both 

possible timeliness standards, giving plaintiffs the benefit of the doubt by 

assuming the set aside cause of action did not accrue until the denial of 

appellate rehearing in the Original Action in January 2019. Assuming a 

three-year limitations period, the attempt to set aside the judgment was at 

least six months too late. And instead assuming the unreasonable delay 

standard governs, plaintiffs do not challenge the court’s untimeliness 

conclusion and, thus, have forfeited the issue. (Aptos Council, supra, 10 

Cal.App.5th at p. 296, fn. 7; Jones, supra, 26 Cal.App.4th at p. 99.)

C. Unjust Enrichment

“Unjust enrichment is not a cause of action . . . or even a remedy, 

but rather ‘“‘a general principle, underlying various legal doctrines and 

remedies’”. . . . [Citation.] It is synonymous with restitution.’” [Citation.] 

Unjust enrichment has also been characterized as describing ‘“the result of a 

failure to make restitution . . . .”’” (McBride v. Boughton (2004) 123 

Cal.App.4th 379, 387 (McBride).)

In reviewing whether the complaint pleads facts which would 

entitle plaintiffs to relief, we look to the actual gravamen of the complaint 

and ignore erroneous or confusing labels. (McBride, supra, 123 Cal.App.4th 

at p. 387.) Although not expressly stated, given the remainder of the 

complaint’s allegations, we construe plaintiffs’ unjust enrichment claim to be 

grounded in fraud. (See id. at p. 388 [construing noncontract based unjust 

enrichment allegations to be quasi-contract claim for restitution due to 
32

fraud].) As such, it is subject to a three-year statute of limitations, with 

accrual occurring upon plaintiffs’ discovery “of the facts constituting the 

fraud.” (§ 338, subd. (d); Federal Deposit Ins. Corp. v. Dintino (2008) 167 

Cal.App.4th 333, 338.)

Plaintiffs do not argue the trial court should have used a 

different statute of limitations, and their opening brief does not articulate 

any claimed error in its application to their unjust enrichment allegations.12 

The attempt in their reply brief to tie in the same new evidence tolling 

argument asserted in the RICO context is of no avail, as the failure to raise it 

earlier amounts to waiver of the issue. (Aptos Council, supra, 10 Cal.App.5th 

at p. 296, fn. 7; Jones, supra, 26 Cal.App.4th at p. 99.)

IV. 

COLLATERAL ESTOPPEL

The trial court found collateral estoppel to be an independent 

basis for sustaining the demurrer to plaintiffs’ claim for a set aside of the 

Original Action judgment. In doing so, it relied on the appellate decision in 

the Original Action, as well as the Ninth Circuit’s dismissal of the federal 

RICO complaint which rejected an extrinsic fraud argument made by 

plaintiffs. Plaintiffs appear to misunderstand the trial court’s collateral 

estoppel determination as applying to their RICO claims, arguing the 

appellate decision in the Original Action did not consider a RICO conspiracy. 

Even so, our determination the trial court did not err in sustaining the 

12 Even assuming arguendo, as plaintiffs generally advocate, the 

unjust enrichment resulted from the 2018 appellate decision in the Original 

Action and the January 2019 denial of rehearing, the unjust enrichment 

allegations would be time barred because the limitations period would have 

expired in January 2022, six months before the filing of the complaint.
33

demurrer as to each cause of action on statute of limitations grounds 

precludes the need to reach the question of collateral estoppel.13

V. 

LEAVE TO AMEND

“In the case of . . . a demurrer . . . , leave to amend should be 

granted if there is any reasonable possibility that the plaintiff can state a 

good cause of action.” (Virginia G. v. ABC Unified School Dist. (1993) 15 

Cal.App.4th 1848, 1852.) “The burden of proving such reasonable possibility 

is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

Plaintiffs do not request leave to amend or address the court’s denial thereof. 

Accordingly, they have forfeited the issue and we do not consider the 

propriety of the trial court’s denial of leave to amend.

VI. 

SECTION 128.7 SANCTIONS

Evans’ challenge to the sanctions order does not concern the

propriety of the type or amount of sanctions; rather, it only challenges the 

trial court’s imposition of sanctions against him. Among other things, he 

contends the lack of a contempt holding against him in the Original Action 

proves the Judge Moss “fix” is true, the various lawsuits in which plaintiffs 

were involved were not repetitive and had disparate purposes, the federal 

lawsuit dismissals are of no import as they did not go to the merits of the 

underlying allegations in those cases, and the instant RICO action is not 

13 For the same reason, we also do not reach the alternative 

grounds for sustaining the demurrer offered on appeal by defendants 

Fidelity, Thomas, and Wood.
34

factually or legally frivolous. On the record before us, we do not find the 

imposition of sanctions to be an abuse of discretion.

Section 128.7 “authorizes trial courts to impose sanctions to 

check abuses in the filing of pleadings, petitions, written notices of motions or 

similar papers.” (Musaelian v. Adams (2009) 45 Cal.4th 512, 514

(Musaelian).) Specifically, subdivision (b) states that an attorney or 

unrepresented party who signs, files, submits, or advocates regarding, a 

pleading or other written matter, thereby “certify[ies] that to the best of the 

person’s knowledge, information, and belief, formed after an inquiry 

reasonable under the circumstances, all of the following conditions are met:

[¶] (1) [i]t is not being presented primarily for an improper purpose, such as 

to harass or to cause unnecessary delay or needless increase in the cost of 

litigation[;] [¶] (2) [t]he claims, defenses, and other legal contentions therein 

are warranted by existing law or by a nonfrivolous argument for the 

extension, modification, or reversal of existing law or the establishment of 

new law[;] [¶] (3) [t]he allegations and other factual contentions have 

evidentiary support or, if specifically so identified, are likely to have 

evidentiary support after a reasonable opportunity for further investigation 

or discovery[;] [¶] [and] (4) [t]he denials of factual contentions are warranted 

on the evidence or, if specifically so identified, are reasonably based on a lack 

of information or belief.” (§ 128.7, subd. (b).)

“Subdivision (c) authorizes sanctions for a violation of subdivision 

(b)” (Musaelian, supra, 45 Cal.4th, at p. 516), with a focus on whether the 

person’s conduct was objectively, not subjectively, unreasonable (Guillemin v. 

Stein (2002) 104 Cal.App.4th 156, 167 (Guillemin)). Based on the statutory 

language, sanctionable matters generally fall into three categories: “factually 

frivolous (not well grounded in fact); legally frivolous (not warranted by 
35

existing law or a good faith argument for the extension, modification, or 

reversal of existing law); and papers interposed for an improper purpose.” 

(Ibid.) In deciding whether to impose sanctions, a court must also consider 

“whether the party seeking sanctions exercised due diligence.” (McCluskey v. 

Henry (2020) 56 Cal.App.5th 1197, 1205.) “Subdivision (d) limits the sanction 

‘to what is sufficient to deter repetition of this conduct or comparable conduct 

by others similarly situated’ and provides that a sanction may include 

payment ‘of some or all of the reasonable attorney’s fees and other expenses 

incurred as a direct result of the violation.’ Finally, subdivision (e) requires 

the court to describe the conduct determined to constitute a violation of [the]

section and explain the basis for the sanction imposed.” (Ibid.)

“We review a section 128.7 sanctions award under the abuse of 

discretion standard. [Citation.] We presume the trial court’s order is correct 

and do not substitute our judgment for that of the trial court. [Citation.] To 

be entitled to relief on appeal, the court’s action must be sufficiently grave to 

amount to a manifest miscarriage of justice.” (Bucur v. Ahmad (2016) 244 

Cal.App.4th 175, 190 (Bucur).) “[W]e may affirm the court’s sanctions order 

on any ground supported by the record.” (In re Marriage of Corona (2009) 

172 Cal.App.4th 1205, 1225.) Because section 128.7 is modeled on, and 

almost identical to, rule 11 of the Federal Rules of Civil Procedure (rule 11), 

federal case law construing rule 11 is persuasive in evaluating a sanctions 

decision made pursuant to section 128.7. (Guillemin, supra, 104 Cal.App.4th 

at p. 167.)

Here, the trial court imposed sanctions based on a statement in 

Bucur: “Filing a new complaint based on the same facts to evade a ruling 

made in a previous litigation constitutes sanctionable conduct under section 

128.7.” (Bucur, supra, 244 Cal.App.4th at p. 191.) In its written order, the 
36

court provided three primary bases for concluding that “is exactly what 

[p]laintiffs’ have done here.” It explained: “The [c]ourt of [a]ppeal rejected 

[plaintiffs] allegations about Justice Trotter in [the JAMS Action], holding 

they had no admissible evidence of the scheme to force a settlement by 

threatening to tell Judge Stock what happened at mediation”; “[t]he [c]ourt of 

[a]ppeal similarly rejected their allegations about Judge Moss and the ‘fix’ in 

the [Original Action] opinion”; and “the [c]ourt of [a]ppeal rejected [p]laintiffs’ 

allegations about the function of the Commission on Judicial Performance.” 

And, as the court put it: “Having been thrice rejected, [p]laintiffs combined 

all three sets of allegations into a single RICO conspiracy. This is exactly the 

sort of frivolous litigation Bucur holds sanctionable. Plaintiffs cannot evade 

the [c]ourt of [a]ppeal’s prior rulings by repackaging their rejected allegations 

with new labels and insisting that every judge who previously ruled against 

them was part of a conspiracy.” 

The principle expressed in Bucur stems from a combination of all 

three categories of sanctionable matters previously mentioned — factual 

frivolousness, legal frivolousness, and improper purpose. (See Bucur, supra, 

244 Cal.App.4th at pp. 189-191.) When an attorney files a lawsuit grounded 

in allegations that were factually or legally dispelled or disposed of in prior 

litigation related proceedings in which they were involved, a reasonable 

conclusion to draw is that the attorney has buried their head in the sand and 

failed to make an objectively reasonable inquiry into the factual and legal 

basis for the allegations. Another objectively reasonable conclusion that 

follows is that the lawsuit has been brought for an improper purpose.

Having thoroughly reviewed the record, including judicially 

noticed matters, we cannot say there was a manifest miscarriage of justice. 

Rather, justice appears to have been served.
37

Over the course of nearly a decade, and in the context of no less 

than one dozen lawsuits, Evans has filed a veritable mountain of pleadings, 

declarations, briefs, and other documents, and made oral assertions, 

expounding grand conspiracy theories involving defendants and nearly any 

judicial officer, neutral, and government official who has failed to give his 

clients the relief he feels is due. With each new decision or response received, 

and each new judicial officer retirement, the conspiracy grows. And upon 

each legal dead-end reached, there is an attempt to pivot to get around the 

roadblock.

Under these circumstances, it is virtually inevitable that what 

arguably may have been objectively reasonable actions at their origin, at 

some point will turn and evolve into objectively unreasonable conduct — i.e., 

something that “‘any reasonable attorney would agree . . . is totally and 

completely without merit.’” (Bucur, supra, 244 Cal.App.4th at p. 189.) The 

trial court implicitly concluded that point was reached, a conclusion which we 

find reasonable. Every substantive response provided by an individual, 

government entity, or law firm at which fraud and conspiracy allegations 

have been hurled has been a resounding denial. And, whenever a court has 

had the opportunity to review the accusations in some manner, the common 

threads articulated have been that the accusations are pure speculation, they

improperly rely on irrelevant material or silence as an admission of 

wrongdoing, no evidence of a conspiracy has been produced, and the persons

or entities who purportedly failed to follow the law in order to harm Evans’ 

clients have not erred.

There is no doubt Evans has been at the forefront of it all, aware 

of each response and each judicial decision. Yet he has marched on in state 

court, federal court, and back again. Along the way, courts of review have 
38

cautioned him three times regarding the possibility of sanctions for frivolous 

claims or contemptuous acts. The most recent came from the Ninth Circuit 

in 2021 and warned “this litigation . . . is now perilously close to frivolity.” 

(Chodosh, supra, 2021 U.S.App. Lexis 37151.)

This case, the most recent in the seemingly endless parade, rests 

on the same purported wrongdoing and claimed injury raised, in part or in 

full, at some point in those other contexts. And, a reasonable attorney in 

Evans’ shoes, performing a reasonable prefiling inquiry into the claims 

alleged in the complaint, would have determined the claims were time barred 

under well-established law and there was no available “nonfrivolous 

argument for the extension, modification, or reversal of existing law or the 

establishment of new law.” (§ 128.7, subd. (b)(2).)

We recognize section 128.7 “should be utilized only in ‘the rare 

and exceptional case where the action is clearly frivolous, legally 

unreasonable or without legal foundation, or brought for an improper 

purpose.’” (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1121.) Indeed, it

“‘“must not be construed so as to conflict with the primary duty of an attorney 

to represent his or her client zealously,”’” which may include “‘“read[ing] a 

case or an agreement in an innovative though sensible way.”’” (Id. at p. 1121, 

fn. 9.) Effective representation sometimes compels attorneys to take the lead 

in evolution of the law, and the sanctions statute should not be transformed 

into a bar to such progress. (Guillemin, supra, 104 Cal.App.4th at p. 168, 

citing Operating Engineers Pension Trust v. A-C Co. (9th Cir. 1988) 859 F.2d 

1336 [regarding rule 11].)

But, on this record, those concerns are not extant. The trial court 

sensibly concluded this is one of the rare and exceptional situations in which 

section 128.7 sanctions are warranted.
39

DISPOSITION

The challenged orders are affirmed. Respondents are entitled to 

costs on appeal.

DELANEY, J.

WE CONCUR:

SANCHEZ, ACTING P. J.

GOODING, J.