Filed 2/24/15 Olague v. Klimenko CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


EDWARD H. OLAGUE, SR., as Trustee,                                   B249230
etc.,
                                                                     (Los Angeles County
         Plaintiff and Respondent,                                   Super. Ct. No. BC419984)

         v.

WLADIMIR JOHN KLIMENKO et al.,

         Defendants and Appellants.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael M. Johnson, Judge. Affirmed.
         Law Offices of Robert A. Brown and Robert A. Brown for Defendants and
Appellants.
         Law Offices of Sherri S. Shafizadeh, Sherri S. Shafizadeh; Fasel Law and Thomas
Fasel for Plaintiff and Respondent.
                                             ——————————
         Defendants Wladimir John Klimenko and Ruben Martinez, parties to a sham real
estate transaction in which a naive and trusting landowner was defrauded into
relinquishing ownership of real property, appeal from adverse judgments for fraud and
declaratory relief, respectively. Klimenko contends the fraud judgment against him is
barred by the doctrine of res judicata or, alternatively, that there is insufficient evidence
to support the judgment. Martinez argues there is no basis upon which to award
declaratory relief against him. We affirm.
                               FACTUAL BACKGROUND
         Consistent with the requirement that we construe the facts most favorably to the
judgment, and because the issues on appeal are primarily disputes of law, this court
largely adopts the factual history relayed in the trial court’s considerably useful statement
of decision.
         In 1998, Theodosia Olague (Theodosia) created the Theodosia A. Olague living
trust, dated April 28, 1998 (trust) of which she was trustee. Her home on Tilmont
Avenue in Pico Rivera (Tilmont property) was an asset of the trust. Theodosia’s son,
Edward Olague, Sr., (Olague) was designated as successor trustee upon Theodosia’s
death, resignation or incapacity, and he and his brothers were the beneficiaries of the
trust.
         Sometime before 2005, Theodosia became incapacitated by dementia and, as
successor trustee, Olague assumed management of trust assets. Theodosia continued
living at the Tilmont property, where she was cared for by one of her sons and his wife.
However, by 2005, Theodosia’s family determined that her health and mental state had
deteriorated to the point that she required additional care in an assisted living facility.
Because Theodosia’s social security income was insufficient to fund her care, Olague,
with his brothers’ approval, decided to sell the Tilmont property to generate additional
funds.
         Klimenko is a licensed, experienced real estate agent familiar with the Pico Rivera
area who was a friend of the Olague family. Olague and his brothers trusted Klimenko
and believed he had their best interests in mind.

                                               2
       In February 2005, Klimenko and Olague discussed prices, listing and sales
arrangements in connection with Olague’s desire to sell the Tilmont property. Klimenko
told Olague that he wished to purchase the Tilmont property himself. After discussing
the matter with his siblings, Olague agreed to sell Klimenko the Tilmont property for
$290,000. Olague and his brothers agreed to Klimenko’s terms, which were: the trust
would lend Klimenko the entire purchase price and, in return, receive interest-only
payments through a 30-year promissory note secured by a deed of trust.
       The written agreement between Olague, as successor trustee, and Klimenko, as
buyer, was memorialized in a written agreement dated March 24, 2005, on a standard
California Association of Realtors contract form for residential purchase agreement and
joint escrow instructions. It specifies a purchase price of $290,000, with no deposit or
down payment. The seller was to carry back the full purchase price at 6.5 percent
interest, in exchange for a 30-year promissory note secured by a trust deed.
       The agreement called for Klimenko to make interest only payments ($1,570.84 per
month) through the 30-year term, with the principal due as a balloon payment in 2035.
The note was due and payable in the event of Theodosia’s death or if Olague required
additional funds to cover his mother’s expenses. Klimenko also gave Olague a June 14,
2005 installment note. With the exception of a $0.01 difference in the monthly payment,
that note tracked the terms of the purchase agreement, and contained a provision that the
principal would become due and payable if Klimenko sold or alienated the Tilmont
property. Klimenko provided Olague a first trust deed to secure the promissory note.
Olague gave Klimenko a grant deed for the Tilmont property.1


       1 Olague believed the sales agreement contained a provision permitting him to
raise Klimenko’s payments in the event Theodosia’s expenses increased. It did not (only
a provision requiring payment of the principal if he required additional funds for
Theodosia’s maintenance). Nevertheless, in 2007 Klimenko behaved as though it did
include such provision in order to conceal his sale of the Tilmont property, and agreed to
an increase in his payments at Olague’s request after Theodosia’s health expenses
increased.


                                             3
       Klimenko testified that Olague agreed to terms that clearly favored Klimenko
(lender financing, interest-only payments and no down payment) in order to ensure
Theodosia maintained her eligibility for Medi-Cal by receiving limited cash transfers.
The trial court gave that explanation no credence. Instead, the court credited Olague’s
testimony that he and his siblings planned to cover their mother’s expenses without
Medi-Cal benefits. The court found Olague agreed to terms that clearly favored
Klimenko because Olague: (1) deferred to Klimenko’s expertise as an experienced real
estate agent, trusted him and regarded him as a loyal family friend; (2) was a retired
mechanic with a high school education, who had very limited experience in real estate
and was naive and unsophisticated; (3) did not fully understand the terms of the sale or
documents he signed; (4) was primarily concerned about securing a source of income to
cover his mother’s expenses, and the idea of a regular income stream for the rest of her
life appealed to him; and (5) was assured by Klimenko that the terms were beneficial for
him and his mother because they needed to limit Theodosia’s income to maintain her
future Medi-Cal eligibility.
       On June 17, 2005, Olague and Klimenko signed the various real estate purchase
documents for the Tilmont property before Elena Vanegas, a notary public. Vanegas had
been an escrow officer since 1992, and operated La Costa Escrow. She rented space in a
commercial building in Downey owned by Klimenko (Downey property). Vanegas had
handled many escrows for Klimenko. She did not open an escrow for Klimenko’s
purchase of the Tilmont property. On June 17, 2005, after Olague provided her a
“‘Statement of lnformation,’” Vanegas notarized the signed deed of trust, grant deed and
certification of trust. Those documents, together with the purchase agreement and
promissory note were delivered to a title company. On June 22, 2005, the title company
processed the documents and recorded the grant and trust deeds without a formal escrow,
concluding the sale.
       Klimenko moved onto the property, and made monthly interest payments of
$1,570.83 to Olague from July through December 2005. Klimenko’s checks each
contained “Tilmont” on the memo line.

                                             4
Klimenko sells the property to Martinez
       In fall 2005, Michael and Susan Claburn, holders of a third trust deed on
Klimenko’s Downey property demanded payment on their note of $50,000, and
threatened to foreclose. Klimenko decided to sell the Tilmont property, in part, to
generate funds to pay off notes and clear secured interests on the Downey property. In
addition to Michael and Susan Claburn, Klimenko owed $183,852.57 to Beuford and
Renata Claburn, who held a second trust deed on the Downey property.
       Klimenko sold the Tilmont property to Martinez. On November 9, 2005, Vanegas
opened an escrow. On November 14, 2005, Vanegas prepared escrow instructions
specifying a purchase price of $360,000, with payment of $288,000 secured by a first
trust deed, and payment of $72,000 secured by a second trust deed. The escrow
instructions do not reflect that Martinez paid any deposit or earnest money.
       On November 22, 2005, on behalf of Klimenko and in order to clear title to the
Tilmont property, Vanegas sent Olague a letter requesting delivery of the June 2005
$290,000 promissory note and deed of trust. The letter did not mention Klimenko’s sale
of the Tilmont property to Martinez.
       On December 27, 2005, Vanegas notarized a second deed of trust by Martinez in
the amount of $72,000 in favor of Countrywide Home Loans Inc. (Countrywide),
securing an interest in the Tilmont property. On December 29, 2005, Vanegas notarized
a grant deed by Klimenko to Martinez for the Tilmont property, and a first deed of trust
by Martinez for $288,000 in favor of Countrywide to secure an interest in the Tilmont
property.
       On January 4, 2006, Vanegas notarized a full reconveyance by Olague, releasing
his first trust deed for the Tilmont property. At Vanegas’s request, Olague also returned
Vanegas’s November 2005 letter requesting the note and reconveyance, and the original
promissory note from Klimenko for his purchase of the Tilmont property in June 2005.
On January 4, 2006, Vanegas notarized a second trust deed, dated June 14, 2005, by
Klimenko in the amount of $290,000 in favor of Olague, ostensibly securing an interest
in Klimenko’s Downey property.

                                            5
       On January 5, 2006, Vanegas caused to be recorded the grant deed, Countrywide’s
first and second deeds of trust and the reconveyance, and closed the escrow for
Klimenko’s sale of the Tilmont property to Martinez. The second deed of trust from
Klimenko in favor of Olague for the Downey property was never recorded. The escrow
settlement statement prepared by Vanegas on January 5, 2006 shows in relevant part that
Martinez paid no money into escrow, and that the lenders paid $360,000 into escrow,
$242,145.33 of which was allocated to Klimenko (consisting of all escrow and closing
fees including Martinez’s share, $183,852.57 to Beuford and Renata Claburn and
$50,000 to Michael and Susan Claburn). Klimenko received the balance of $117,854.67
from the $360,000 in cash.
       At trial, Klimenko and Martinez each testified that Martinez was an independent,
bona fide purchaser of the Tilmont property, that Martinez lacked knowledge of the
transaction between Olague and Klimenko, and that Martinez purchased the Tilmont
property in good faith and planned to live there and pay for the property without
Klimenko’s involvement. The trial court did not find this testimony credible. Instead,
the court found that: (1) Martinez was Klimenko’s pawn, who purchased the Tilmont
property at Klimenko’s direction and obtained financing for the purchase with
Klimenko’s help; (2) Martinez paid no money to purchase the property; (3) Klimenko
remained involved with the Tilmont property after Martinez’s purchase, in that he stored
a vehicle in the garage, lived with Martinez on the property and paid him money, and
assisted Martinez in trying to avoid foreclosure after he defaulted on his loans. The court
found Martinez was not a bona fide purchaser for value.
       Klimenko testified that: (1) he fully advised Olague about the terms of the sale to
Martinez, and gave Olague a new promissory note for $290,000 relating to the Downey
property; (2) Olague willingly and knowingly released his promissory note and security
interest in the Tilmont property by signing and delivering the reconveyance to Vanegas;
(3) knew, understood and willingly agreed that Klimenko would transfer his security
interest from the trust deed for Tilmont property to the second trust deed for the Downey
property; (4) knew, understood and willingly agreed that Klimenko would substitute the

                                             6
promissory note for the Tilmont property with the new promissory note for the Downey
property; and Olague received valuable consideration for the transaction. The court
rejected this testimony.
       Instead, the court found credible Olague’s testimony that: (1) he had not known
about Klimenko’s sale of the Tilmont property to Martinez; (2) Klimenko did not explain
the content or meaning of the reconveyance to him; (3) he did not knowingly agree to
release the security interest in the Tilmont property; (4) he did not knowingly accept a
security interest in the Downey property; (5) he did not intend to modify the original
agreement with Klimenko as to the Tilmont property; (6) he did not understand the
reconveyance letter from Vanegas or the reconveyance instrument; and (7) he never
received nor was he aware of Klimenko’s promissory note and second trust deed for the
Downey property.
       The trial court found that Klimenko: (1) misrepresented the terms of
reconveyance for the Tilmont property; (2) needed to sell the Tilmont property in order to
generate funds to repay the Claburns who were threatening to foreclose on the Downey
property; (3) never gave the promissory note or second trust deed for the Downey
property to Olague; (4) had two versions of the promissory note for the Downey property,
neither of which was legitimate and neither of which were ever given to Olague; and
(5) never intended to record Olague’s second trust deed for the Downey property. The
court further found that Olague signed the reconveyance and surrendered the promissory
note for the Tilmont property under the mistaken understanding that Klimenko would
continue making payments and that Olague maintained a security interest in the Tilmont
property. Both the purchase agreement and promissory note for the Tilmont property
stated that the entire principal was due upon sale or alienation of the Tilmont property.
The trial court found that Klimenko deliberately defrauded Olague of the benefits of this
provision, and deliberately concealed from Olague his sale of the Tilmont property to
Martinez in order to avoid his obligation to pay the principal.
       Klimenko claimed that he provided Olague valuable consideration in exchange for
Olague’s reconveyance and release of his security interest in the Tilmont property, and

                                             7
that Olague received the promissory note and second trust deed for the Downey property.
However, a couple of days after January 5, 2006, Klimenko was reminded that he had
been enjoined him from encumbering the Downey property by the family court
overseeing his marital dissolution proceeding. Klimenko explained this dilemma to
Olague, who agreed that Klimenko need not record the second trust deed for the Downey
property. Again, the court found Klimenko not credible. The court concluded that the
transaction between Klimenko and Olague regarding the Downey property was a sham,
that Klimenko obtained Olague’s release of his security interest in the Tilmont property
by fraud, and that Klimenko never intended to provide Olague with an enforceable
security interest in the Downey property. Indeed, Klimenko knew a second trust deed on
the Downey property was worthless because of the restraining order in his divorce
proceeding, and knew on January 4, 2006 that he was prohibited from encumbering the
Downey property with a second trust deed in favor of Olague.
      Olague testified that he never signed the reconveyance for the Tilmont property,
and that his signature had been forged. The court rejected this testimony The court also
rejected Olague’s contention that when he signed the reconveyance on January 4, 2006,
he was tricked into signing a completely different document than the one he meant to
sign. However, the court did find that Klimenko made misleading representations about
the documents Olague signed on January 4, 2006 and that he concealed from Olague
important information about his transaction with Martinez. The court also found that
Olague had not understood the import of the reconveyance documents he signed and
delivered to Vanegas on January 4, 2006, and that Vanegas told Olague he was signing
documents relating to the Tilmont property, and that Olague carelessly failed to read or
understand those documents before signing and delivering them to Vanegas. Although
Olague knew the general nature of the documents he signed on January 4, 2006,
Klimenko misled him about their meaning, effect and importance.
Events after Klimenko’s sale of the Tilmont property to Martinez
      Even after he sold the Tilmont property to Martinez, Klimenko continued to make
monthly payments of $1,570.83 to Olague from January 2006 through November 2007.

                                            8
Just as he had done before the sale to Martinez, Klimenko continued writing “Tilmont”
on the memo line of each check. The trial court found that by concealing his sale of the
Tilmont property and giving Olague the false impression that Klimenko was abiding by
the original agreement, Klimenko avoided the obligation to pay the principal balance due
upon sale.
       In 2007, Theodosia’s health worsened and it became necessary to move her to a
skilled nursing facility. In ostensible accordance with the terms of the Tilmont property
purchase agreement, which Olague mistakenly believed gave him the right to increase
payments if Theodosia’s expenses increased, he asked Klimenko to increase his monthly
payments. Klimenko agreed and, in December 2007, began paying Olague $2,600 per
month. Olague and Klimenko agreed that $1,029.17 (the amount in excess of the
interest-only payment of $1,570.83) would be applied to the principal due on the note.
Klimenko agreed to this arrangement even though no obligation for the increased
payments existed under the $290,000 promissory note for the Downey property.
Klimenko paid Olague $2,600 per month from December 2007 through September 2008.
Klimenko continued to include the notation “Tilmont” on his checks to Olague. Again,
the trial court found that by giving Olague the false impression that he continued to abide
by the original Tilmont agreement, and by agreeing to increase his monthly payments
after Theodosia’s expenses increased, Klimenko concealed the sale of the Tilmont
property and avoided his obligation to pay the principal balance.
       In summer 2008, Klimenko began having difficulty paying $2,600 per month and
fell behind in his payments to Olague. From October through December 2008, Klimenko
resumed paying Olague interest-only monthly payments of $1,525.38. Because of the
financial strain caused by Theodosia’s increased expenses, and Klimenko’s financial
troubles, Olague applied for Medi-Cal benefits for Theodosia. That application was
approved in November 2008. After receiving the Medi-Cal approval, Olague agreed to
resume accepting interest-only payments on Klimenko’s obligation under the promissory
note for the Tilmont property. After discussing the matter, Olague and Klimenko agreed
the principal balance was $280,534.24, and that Klimenko’s interest-only payment on

                                             9
that balance would be $1,519.56 per month. Klimenko made monthly interest-only
payments of $1,519.56 from January through July 2009, and continued noting “Tilmont”
on each check. The trial court found this constituted further evidence that Klimenko
concealed his sale of the Tilmont Property to Martinez and avoided his obligation to pay
the principal upon sale, by giving Olague the false impression that he was still abiding by
the original Tilmont agreement.
       Theodosia passed away in February 2009. On April 20, 2009, Olague notified
Klimenko of her death and demanded payment of the remaining principal due under the
note and deed of trust for the Tilmont property. In response, Klimenko did not disclose
his sale of the Tilmont property to Martinez. Rather, in letters written in May, June and
July 2009, Klimenko observed that real estate values had declined, enclosed comparable
sales data for the Tilmont property and asked Olague to modify the original agreement.
Olague refused that request. Klimenko made his last payment to Olague on July 7, 2009.
       By early August 2009, Olague had consulted an attorney regarding the transaction
with Klimenko. Only then did Olague learn that in January 2006 Klimenko had
transferred the Tilmont property to Martinez and had obtained Olague’s signature on a
reconveyance releasing his secured interest in the Tilmont property.
Martinez defaults on the Tilmont property
       In 2009, Martinez fell behind on his loan payments for the Tilmont property. A
notice of default was served on Martinez and recorded against the Tilmont property on
June 30, 2009. On October 14, 2009, Martinez was served with a notice of trustee’s
foreclosure sale which was recorded against the Tilmont property. To avoid foreclosure
Martinez executed and recorded grant deeds, conveying a one-eighth interest in the
Tilmont property to five fictitious individuals. Both Martinez and Klimenko testified that
Klimenko was not involved in the transfers, which Martinez claimed he made at the
direction of a paralegal. The court did not find this testimony credible. The court found
“compelling evidence” that Klimenko and Martinez worked together to make and record
these fictitious transfers, in part because Klimenko had employed the same ruse for a
property he owned. To avoid foreclosure of a property in Compton, Klimenko had

                                            10
executed and recorded grant deeds, conveying a one-eighth interest to four fictitious
individuals. The deeds from Martinez and Klimenko shared key things in common: all
the deeds conveyed a one-eighth interest; three deeds were prepared on the same date and
used the same grantees; and the same notary was used for all of Klimenko’s deeds and
three of Martinez’s deeds. Further, at trial, neither Martinez or Klimenko could identify
the paralegal they claimed to have used. When asked by the court to explain the multiple
common features of the two sets of deeds, Klimenko responded that the commonalities
were merely “coinciden[tal].” The court found the testimony by Klimenko and Martinez
was “false and deliberately misleading,” reflected “consciousness of guilt by Klimenko”
and constituted “evidence that Martinez was not a bona fide purchaser for the Tilmont
property.”2
                           PROCEDURAL BACKGROUND
       Olague, in his capacity as successor trustee of the trust, filed the instant action on
August 17, 2009. In pertinent part, the second amended complaint (SAC) alleged four
causes of action jointly against Klimenko and Martinez for quiet title, declaratory relief,
cancelation of instrument and injunctive relief. The SAC also alleged causes of action
against Klimenko alone for breach of contract, breach of fiduciary duty and fraud. In
September 2010, the trial court overruled a demurrer on grounds of uncertainty by
Klimenko to all causes of action except the claim for breach of fiduciary duty, which the
court sustained and gave Olague leave to amend. Olague did not amend the claim.
Instead he voluntarily dismissed that claim in October 2010.
       After receiving leave of court to do so, Olague filed the operative third amended
complaint (TAC). As relevant here, the TAC realleges causes of action against Klimenko
and Martinez for declaratory relief, and a cause of action for fraud against Klimenko.



       2Countrywide’s interest was transferred to its successor in interest, defendant
Bank of New York Mellon (Mellon, not a party to this appeal). The court found Mellon
was a bona fide encumbrancer for value, a conclusion not at issue here.


                                              11
       After a bench trial, the trial court found in favor of Olague on the fraud claim.
The court awarded damages of $280,534.24, plus prejudgment interest, punitive damages
of $70,000, and costs and attorney fees. The court also found in favor of Olague on the
cause of action for declaratory relief, declaring that Martinez was not a bona fide
purchaser of the Tilmont property and that Olague’s interest in that property was superior
to Martinez’s interest, but inferior to Mellon’s. All remaining claims were dismissed.
Klimenko and Martinez filed this timely appeal.
                                       DISCUSSION
1.     Klimenko’s appeal
       a.     Res judicata/collateral estoppel
       Klimenko argues the judgment in favor of Olague as to the TAC’s fraud cause of
action is barred by res judicata or collateral estoppel by virtue of the trial court’s
sustaining of his demurrer to, and Olague’s subsequent dismissal of, the cause of action
for breach of fiduciary duty in the SAC. Klimenko is mistaken.
       Res judicata prohibits the relitigation of claims and issues adjudicated in an earlier
proceeding. The doctrine has two components. In its primary aspect res judicata (claim
preclusion), operates to bar “relitigation of the same cause of action in a second suit
between the same parties or parties in privity with them.” (Mycogen Corp. v. Monsanto
Co. (2002) 28 Cal.4th 888, 896.) The secondary aspect of collateral estoppel (issue
preclusion), does not operate to bar a second action. Rather, it “‘precludes relitigation of
issues argued and decided in prior proceedings.’ [Citation.]” (Ibid.; Kelly v. Vons
Companies, Inc. (1998) 67 Cal.App.4th 1329, 1335.) Whereas res judicata bars a claim
that could have been raised in earlier litigation, whether or not the claim actually was
raised (Mycogen Corp., at pp. 896–897; Torrey Pines Bank v. Superior Court (1989) 216
Cal.App.3d 813, 821), collateral estoppel bars only those issues actually and necessarily




                                              12
decided in prior litigation.3 (People v. Garcia (2006) 39 Cal.4th 1070, 1076–1077; Kelly
v. Vons Companies, Inc., at p. 1339.) Neither doctrine applies here.
       Res judicata applies only if the cause of action in the subsequent litigation is
identical to that in the first. (Rice v. Crow (2000) 81 Cal.App.4th 725, 734.) The fraud
claim asserted in both the SAC and TAC is a separate and distinct tort from the claim for
breach of fiduciary duty that Olague unsuccessfully attempted to plead in the SAC, and
then chose to abandon.4 (Mata v. City of Los Angeles (1993) 20 Cal.App.4th 141, 149.)
Klimenko demurred to the fiduciary duty count on the ground of uncertainty. (Code Civ.
Proc., § 430.10, subd. (f).) In overruling Klimenko’s demurrer as to all claims except the


       3  Specifically, “Collateral estoppel precludes the relitigation of an issue only if
(1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was
actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior
proceeding is final and on the merits; and (5) the party against whom collateral estoppel
is asserted was a party to the prior proceeding or in privity with a party to the prior
proceeding. [Citation.]” (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82.) An
issue is actually litigated “‘“[w]hen [it] is properly raised, by the pleadings or otherwise,
and is submitted for determination, and is determined . . . .”’” (People v. Carter (2005)
36 Cal.4th 1215, 1240, italics omitted.)
       4 The elements of a cause of action for fraud “‘“are (a) misrepresentation (false
representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’);
(c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting
damage.”’ [Citation.]” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173.)
        In contrast, a claim for breach of fiduciary duty does not require the elements of
representation, falsity or intent to deceive. To plead a cause of action for breach of
fiduciary duty, a plaintiff need only show the existence of a fiduciary relationship, breach
of a duty encompassed by that relationship, and damage caused by the breach. (Pierce v.
Lyman (1991) 1 Cal.App.4th 1093, 1101; Apollo Capital Fund, LLC v. Roth Capital
Partners, LLC (2007) 158 Cal.App.4th 226, 244.) A fiduciary relationship is one in
which one person reposes trust and confidence in another person to act in the utmost
good faith on his or her behalf, and the other person solicits or accepts that role. (Herbert
v. Lankershim (1937) 9 Cal.2d 409, 483; Wolf v. Superior Court (2003) 107 Cal.App.4th
25, 29–30.) “‘[B]efore a person can be charged with a fiduciary obligation, he must
either knowingly undertake to act on behalf and for the benefit of another, or must enter
into a relationship which imposes that undertaking as a matter of law.’” (Apollo Capital
Fund, at p. 246.)


                                              13
fiduciary duty claim, the trial court aptly observed that the difficulty with Olague’s
breach of fiduciary duty claim was his failure to plead facts giving rise to a confidential
relationship or continuing duty on the part of Klimenko. Although a real estate agent
typically stands in a fiduciary relationship to his client, that was not the case here.
According to their written agreement, Klimenko never stood in a representative capacity
to Olague. Rather, the parties expressly agreed the Klimenko was the buyer in the sale of
the Tilmont property. Olague relied on Klimenko and trusted him as a family friend. But
“[t]he mere placing of a trust in another person does not create a fiduciary relationship.”
(Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 13; Ampuero v.
Luce (1945) 68 Cal.App.2d 811, 819.) The claim for intentional fraud adjudicated at
trial, does not require that a confidential relationship or continuing duty be shown, was
not barred by res judicata. (Cf., Rice v. Crow, at p. 734.) For the same reasons we also
find the fraud claim was similarly not barred by collateral estoppel.
       Further, collateral estoppel would apply only if issues resolved by the trial court’s
ruling on the demurrer were identical to those raised at trial. (See Zevnik v. Superior
Court, supra, 159 Cal.App.4th at p. 82.) If it applied here the doctrine would relate only
to issues related to Olague’s claim that Klimenko acted as his fiduciary in connection
with the reconveyance, and breached that duty by misrepresenting the import of
documents he had Olague sign in order to avoid his obligation to pay on the installment
note. When it sustained the demurrer to the fiduciary duty claim in the SAC, the court
observed that it “[had] no idea on what basis [Olague was] claiming some fiduciary duty
on behalf of Mr. Klimenko for a reconveyance that was executed one year after the
property was sold. You have to have some sort of continuing duty or something like that,
and [the court didn’t] see it.” Given that no fiduciary duty existed as to the initial sales
transaction, the court was hard-pressed to ascertain how such a duty could later attach to
Klimenko. Nevertheless, Olague was given leave to amend to attempt to plead a viable
claim. Because Olague then chose to dismiss rather than to amend the fiduciary duty
claim, no answer was filed and no affirmative defenses regarding the existence, if any, of
Klimenko’s duty as a fiduciary were ever pleaded. Accordingly, no issue raised in the

                                              14
SAC related to Klimenko’s alleged breach of fiduciary duty was actually litigated or
necessarily decided. The doctrine of collateral estoppel is therefore not applicable.
(Ibid.) Res judicata did not bar the fraud claim.
2.     Fraud judgment
       Klimenko also argues the judgment for fraud must be vacated because there is no
evidence that he gave Olague any information at all regarding the reconveyance
transaction, let alone that he made intentionally false representations.
       To establish a claim of intentional misrepresentation, the plaintiff must provide
proof of knowingly false representations by the defendant, the defendant’s intent to
deceive the plaintiff, the defendant’s intent for the plaintiff to rely on the representations,
reasonable reliance by the plaintiff, and damages resulting from plaintiff’s reliance on the
false representations. (Engalla v. Permanente Medical Group (1997) 15 Cal.4th 951,
974; CACI No. 1900; Civ. Code, §§ 1709–1710.) Here, the court found each of these
“elements . . . clearly established by the evidence.” Specifically, the record reflects and
the court found that:
       “ . . . Following the sale of the Tilmont Property in June 2005, Olague had
valuable property: a $290,000 promissory note from Klimenko and a trust deed in the
Tilmont Property which secured this debt. In January 2006 Klimenko defrauded Olague
into surrendering the note and releasing the secured interest. Klimenko misrepresented
the terms of the reconveyance for the Tilmont Property and concealed his sale of the
Tilmont Property to Martinez. Olague was entitled to the principal of the promissory
note upon sale of the Tilmont Property, but he received nothing. After Olague demanded
payment of the note upon the death of his mother, Klimenko revealed in July 2009 that he
had sold the Tilmont Property and produced a promissory note and second trust deed for
his Downey Property—which were never legitimate instruments and never had any value
because of a marital dissolution order that prevented Klimenko from encumbering the
Downey Property.
       “Klimenko has argued that the evidence does not establish reasonable reliance,
because Olague carelessly signed the reconveyance for the Tilmont Property and was told

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by Vanegas that he would not receive any money before he did so. The court does not
accept this argument; as it ignores Olague’s naiveté, his misplaced confidence in
Klimenko, and the law. Olague had never sold any real property before June 2005, and
his only experience with real property transactions were the purchase of his own home in
1964 and the refinancing of his home over the years—all of which involved the direction
and assistance of an agent or mortgage broker. Olague viewed Klimenko as a trusted
friend of his family, who had guided him through the sale of his mother’s home in June
2005, and was reliably paying interest that supported his mother.
       “Under these circumstances, Olague’s reliance upon Klimenko was reasonable.
Klimenko engaged in willful and intentional fraud, and as the Supreme Court held in
Seeger v. Odell (1941) 18 Cal.2d 409, 414–415, ‘Negligence on the part of the plaintiff in
failing to discover the falsity of a statement is no defense when the misrepresentation was
intentional rather than negligent. As a general rule negligence of the plaintiff is no
defense to an intentional tort. The fact that an investigation would have revealed the
falsity of the misrepresentation will not alone bar his recovery . . . .’ (citations omitted).
Accord Smith v. Williams (1961) 55 Cal.2d 617, 620 (‘Even negligence on the part of
plaintiff in failing to discover the falsity of a statement is no defense when the
misrepresentation was intentional, as alleged here, rather than negligent.’); Manderville v.
PCG & S Group[, Inc.] (2007) 146 Cal.App.4th 1486, 1503 (‘It is well established in
California that in an action for fraud or deceit, negligence on the part of the plaintiff in
failing to discover the falsity of the defendant’s statement is no defense when the
misrepresentation was intentional.’).”
       Klimenko maintains here, as he did at trial, that there is no evidence he gave
Olague any information regarding the deed of reconveyance, let alone that he made direct
or false representations in connection with that transaction. The trial court specifically
rejected this argument, as well as all testimony presented by Klimenko and Martinez.
The court acknowledged that “Olague . . . could not remember what Klimenko said to
him during that transaction.” That, however, did not end the inquiry. The court found



                                              16
that Olague’s naive and misplaced reliance was easily inferred from circumstances
surrounding his dealings with Klimenko. Specifically, the court found that:
       “ . . . [T]here is ample evidence from which to infer that Klimenko made
deliberately false representations that caused Olague to sign the reconveyance and deliver
the promissory note for the Tilmont property. It is well established that circumstantial
evidence may support a finding of fraud. (Vasquez v. Superior Court (1971) 4 Cal.3d
800, 814 (‘The rule in this state and elsewhere is that it is not necessary to show reliance
upon false representations by direct evidence. Reliance may be inferred from the
circumstances attending the transaction which oftentimes afford much stronger and more
satisfactory evidence of the inducement which prompted the party defrauded to enter into
the contract than his direct testimony to the same effect’); Palmquist v. Mercer (1954) 43
Cal.2d 92, 100 (‘Actual fraud is a question of fact (Civ. Code, § 1574); and like any other
fact, it may be proved by circumstantial evidence.’); McNulty v. Copp (1949) 91
Cal.App.2d 484, 490 (same).)”
       We reject Klimenko’s assertion that the court erred in concluding that Olague
reasonably relied on Klimenko’s representations, because “there is no evidence,
circumstantial or otherwise, that . . . Klimenko, made false statements to [Olague] about
the ‘content and meaning’ of the Deed of Reconveyance.” The record reflects otherwise.
The court rejected Olague’s contention that he did not know the nature of the documents
he signed in connection with the reconveyance, and was tricked into signing a document
other than the one he meant to sign. However, although “Olague knew the general nature
of what he signed on January 4, 2006, . . . Klimenko misled him about the meaning,
effect and importance of the documents . . . .” Specifically, based on facts presented at
trial, the court found “that Klimenko made misleading statements about the
[reconveyance] documents signed on January 4, 2006 and concealed important facts
about his transaction with Martinez; that Olague did not understand the meaning and
effect of the reconveyance . . . and reconveyance letter . . . that he signed and delivered to
Vanegas on January 4, 2006; that on January 4, 2006 Vanegas advised Olague that he
was signing documents which related to the Tilmont Property, which is particularly

                                             17
evident from the reconveyance letter . . . ; and that Olague was careless in failing to read
and understand the reconveyance . . . and reconveyance letter . . . before he signed and
delivered them to Vanegas.” Viewed in its entirety, the record provides ample evidence
to support the court’s conclusion that Klimenko intentionally misled Olague to participate
in a sham transaction, and that under the circumstances, Olague’s misplaced reliance on
Klimenko’s misrepresentations was reasonable, and that Olague’s own negligence in
failing to discover the falsity of Klimenko’s representations did not provide Klimenko a
defense for his own intentional misdeeds.5 (Manderville v. PCG & S Group, Inc., supra,
146 Cal.App.4th at pp. 1502–1503.)
3.     Martinez’s appeal
       a.     Declaratory relief was appropriate
       Martinez maintains there is no legitimate basis for liability against him because
“[t]here was no evidence that [he] and [Klimenko] ever communicated with each other or
ever new [sic] of each other’s existence,” and the “uncontroverted evidence and finding
by the trial court was that Martinez bought [the Tilmont property] with his own financing
from Mellon Bank.” Martinez must have other litigation in mind; the evidentiary record
from this trial is completely at odds with both these statements.
       First, the trial court found the evidence at trial showed Martinez was not a bona
fide purchaser for value. On the contrary, acting at Klimenko’s direction and with his
help, Martinez “purchased the Tilmont Property . . . [and] . . . obtained financing for the
purchase,” for which Martinez “paid no money.” Second, Martinez and Klimenko were



       5  Klimenko also argues that he had no duty to explain the “legal effect” of the
reconveyance to Olague and that, had he done so, he would have been engaging in the
unauthorized practice of law. Even if we assume this is correct, it would not excuse
Klimenko from purposefully and for his own gain tricking Olague into participating in a
transaction in which Klimenko never intended to provide him the promised security
interest, and in which he knew the second trust deed he provided but never meant to
record was worthless (because of his divorce litigation), but concealed important facts so
Olague believed he signed documents related to the Tilmont property.


                                             18
clearly in close communication. After Martinez’s sham purchase of the Tilmont property
was completed, “Klimenko continued to be involved with the Tilmont Property . . . by
storing his vehicle in the garage, living at the property with Martinez, paying money to
Martinez, and assisting Martinez in attempting to avoid foreclosure after he defaulted on
his loans.” The trial court found that Olague demonstrated an entitlement to declaratory
relief against Martinez. The trial court noted, however, that the issue may have become
moot by the time of trial because Martinez had defaulted on the loan and was facing
imminent foreclosure. Nevertheless, as a protective measure for Mellon, a bona fide
encumbrancer, the court granted declaratory relief against Martinez.
       Declaratory relief actions promote judicial economy, proving litigants a quick,
efficient means to resolve disputed issues. Under the declaratory judgment act (Code
Civ. Proc., § 1060 et seq.), a party may seek a declaration of rights or duties and the court
may make a binding declaration of these rights. Unlike coercive relief (such as damages,
specific performance, or an injunction) which requires a party to do or to refrain from
doing something, a declaratory judgment merely declares the parties’ legal relationship.
A party may seek declaratory relief to establish his or her rights once a conflict had
arisen, or as a prophylactic measure before a breach occurs. As explained in Lortz v.
Connell (1969) 273 Cal.App.2d 286, 301, “[t]he salutary purpose of the declaratory relief
provisions is to permit a prompt adjudication of the respective rights and obligations of
the parties in order to relieve them from uncertainty and insecurity with respect to rights,
status and other legal relations. [Citation.] It enables a party to get a prompt adjudication
without a dispute over the damages suffered.”
       Courts are vested with broad latitude in formulating declaratory judgments. (City
of L.A. v. City of Glendale (1943) 23 Cal.2d 68, 81; Fowler v. Ross (1983) 142
Cal.App.3d 472, 478.) That is because the purpose of a judicial declaration is to “enable
the parties to shape their conduct to avoid” a prospective breach, not merely to redress
past wrongs. (Babb v. Superior Court (1971) 3 Cal.3d 841, 848.) We review a grant of
declaratory relief for abuse of discretion. (Orloff v. Metropolitan Trust Co. (1941) 17
Cal.2d 484, 489.)

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       Here the trial court appropriately found that Olague was entitled to declaratory
relief to clarify his interest, if any, in the Tilmont property vis-à-vis Martinez. Although
this issue may have become moot because of Martinez’s default and an impending
foreclosure, the court properly granted relief to clarify its conclusion that “Martinez [was]
not a bona fide purchaser of the Tilmont Property and that Olague’s interest in the
property [was] superior to Martinez but inferior to Mellon.”
       b.     Attorney fees
       Martinez also argues that “there is no basis for recovery of attorney’s fees against”
him. He is correct. In all likelihood, that is why the trial court did not make an attorney
fees award against him. Rather, the court ordered that as a losing party, Martinez was
responsible for court costs. Code of Civil Procedure section 1033.5 allows attorney fees
to be awarded as costs in certain actions. (See Code Civ. Proc., § 1033.5,
subd. (a)(10)(A)-(C) [authorizing attorney fees award as costs if authorized by statute,
contract or law]; see also subd. (c)(5).) That statute does not apply here. Court costs
were properly assessed against Martinez, who did not prevail in this action.




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                                      DISPOSITION
       The judgment is affirmed. Edward H. Olague, Sr., as trustee, is awarded costs on
appeal.
       NOT TO BE PUBLISHED.


                                                   JOHNSON, J.


We concur:


              CHANEY, Acting P. J.


              BENDIX, J.*




       * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.


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