Oliver v. Kotenoff / Kotenkoff v. Oliver

(47) Tentative Ruling

Re: Oliver v. Kotenoff Superior Court Case No. 25CECG04793

Kotenkoff v. Oliver Superior Court Case No. 25CECL16849

Hearing Date: May 7, 2026 (Dept. 503)

Motions (x2): Plaintiff Daniel Oliver’s Motion for Consolidation Defendant Nikolay Kotenoff’s Demurrer as to Oliver’s Complaint

Tentative Ruling:

To deny plaintiff Daniel Oliver’s motion for consolidation. (Code Civ. Proc., § 1048, subd. (a).)

To sustain defendant, Nikolay Kotenoff’s demurrer, with leave to amend. (Code Civ. Proc., § 430.10, subd. (e).) Plaintiff Daniel Oliver must file and serve an amended pleading, if any, within 20 days, which shall run from service by the clerk of the minute order. New language must be set in boldface type.

Explanation:

Consolidation

Plaintiff, Daniel Oliver (“Oliver” or “plaintiff”) seeks to consolidate this action with Nikolay N. Kotenoff v. Daniel Oliver Case No. 26CECL02079, which is an unlawful detainer action.

California Code of Civil Procedure section 1048(a) provides that “[w]hen actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”

Code of Civil Procedure section 1048 applies to actions that are pending before the court and is intended as a case management tool to promote efficiency in ongoing proceedings—not to merge a concluded action with a separate case. (See Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147 [the purpose of consolidation is to avoid unnecessary duplication of evidence and procedures and thereby promote judicial efficiency]; Cal Code Civ Proc § 1048 [consolidation applies to actions “pending before the court”].)

Here, the unlawful detainer action, Case No. 26CECL02079, has already proceeded to trial, and judgment has been entered in Kotenoff’s favor, awarding 22

possession, damages, and costs. There is no longer a “pending” action to consolidate. Oliver’s request would require the Court to retroactively merge a concluded proceeding with a separate civil action—relief that Code of Civil Procedure section 1048 does not authorize.

Accordingly, the motion for consolidation is denied.

Demurrer

The function of a demurrer is to test the sufficiency of a pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) As relates to a complaint, the test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff’s possible difficulty or inability in proving the allegations of the complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the sufficiency of the complaint against demurrer, we treat the demurrer as admitting all material facts properly pleaded, bearing in mind the appellate courts’ well established policy of liberality in reviewing a demurrer sustained without leave to amend, liberally construing the allegations with a view to attaining substantial justice among the parties. (Glaire v. LaLanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 918.)

Kotenoff demurs on the following grounds: a) the Complaint fails to state facts sufficient to constitute any cause of action; the Complaint is uncertain, ambiguous, and unintelligible; the fraud claim fails to meet California's heightened pleading standard; the cancellation and quiet title claims are deficient as a matter of law; and the declaratory relief claim is duplicative and not independent.

Quiet Title

An action for quiet title seeks “to establish title against adverse claims to real or personal property or any interest therein.” (Code of Civ. Proc., § 760.020, subd. (a).) In an action for quiet title, a plaintiff must plead (1) “[a] description of the property that is the subject of the action,” specifically the street address or common designation of real property, (2) “[t]he title of the plaintiff as to which a determination under this chapter is sought and the basis of the title,” (3) “[t]he adverse claims to the title of the plaintiff against which a determination is sought,” (4) “[t]he date as of which the determination is sought,” and (5) “[a] prayer for the determination of the title of the plaintiff against the adverse claims.” (Code of Civ. Proc., § 761.020.)

Kotenoff has not established that Oliver lacks standing to pursue a quiet title claim. Absent a legal interest in the property, a party has no standing to ask the court to quiet title in the property. (Chao Fu, Inc. v. Chen (2012) 206 Cal.App.4th 48, 59.) Here, Oliver’s complaint includes a 2016 Grant Deed alleging joint tenancy (Complaint, Exhibit A), and alleges that a subsequent 2025 deed was procured by fraud and undue. (Complaint, Exhibit B.) The Court accepts the allegations as true for purposes of demurrer.

Furthermore, Kotenoff’s citation to Miller v. Provost (1994) 26 Cal.App.4th 1703, 1707 does not apply here. Miller pertains to a borrower not being able to assert an action to quiet title against a mortgagee without first paying the outstanding debt on the

property. (Moving papers, pgs 2-3, lns. 28, 1-6.) There are no allegations of quiet title by Oliver against a lender.

The Complaint includes a description of the property, located at 6735 N. Farris Avenue, Fresno, California, 93711 ("Subject Property"). (Complaint, ¶ 7.) Plaintiff alleges the basis for his title pursuant to an oral agreement and quit claim deed. (Complaint, Ex. A.) Plaintiff alleges that Defendants’ claims are adverse to his based on allegations of fraud and undue influence. (Complaint, ¶¶ 19-21, 25-28). However, Oliver has not alleged the date as of which determination is sought. (Code Civ. Proc., § 761.020).

Accordingly, the demurrer to the first cause of action is sustained.

Cancellation of Instrument

A claim to cancel instruments is distinct from a quiet title action. The latter is directed at a person who claims an interest adverse to the plaintiff, without right. An action to cancel an instrument to remove a cloud on title is directed at a particular instrument, which a plaintiff contends is invalid. (Wolfe v. Lipsy (1985) 163 Cal.App.3d 633, 638.) It is an equitable claim codified in Civil Code section 3412. It does not seek to hold a defendant liable for damage. Rather it allows a plaintiff to cancel an instrument that creates a cloud on title. (Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 292.)

“To prevail on a claim to cancel an instrument, a plaintiff must prove (1) the instrument is void or voidable due to, for example, fraud; and (2) there is a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alteration of one's position.” (Thompson v. Ioane (2017) 11 Cal. App. 5th 1180, 1193-94.)

Kotenoff argues that “Oliver has not alleged facts supporting the conclusion that the deed is void or voidable. The complaint merely states that [Oliver] was "deceived" or "coerced," but it never explains who made any misrepresentation or when such conduct occurred.” (Moving Papers, pg. 3, lns. 11-14.) The Court agrees with Kotenoff that Oliver’s second cause of action was not pled with specificity, as set forth below.

Accordingly, Kotenoff’s demurrer is sustained with respect to the second cause of action.

Fraud/Undue Influence

Kotenoff contends that the fraud/undue influence claims in the fourth cause of action are insufficiently pled.

Fraud causes of action must be pled with specificity. (Hills Transportation Co. v. Southwest Forest Ind., Inc. (1968) 266 Cal.App.2d 702, 707.) The complaint must allege facts as to “‘how, when, where, to whom, and by what means the representations were tendered.’” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) Undue influence claims similarly require detailed factual allegations showing excessive pressure, vulnerability, or improper persuasion. (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 135.)

The Court agrees with Kotenoff that Oliver’s fourth cause of action was not pled with specificity. Oliver asserts he was “deceived” or “misled,” “but [Oliver] never identifies who made any misrepresentation, what was said, when or where it occurred, or how he allegedly relied on it.” (Moving Papers, pg. 4, lns. 23-25.)

Accordingly, Kotenoff’s demurrer is sustained with respect to the fourth cause of action.

Declaratory Relief

“Any person . . . who desires a declaration of his or her rights or duties with respect to another . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties . . . .” (Code Civ. Proc., § 1060.) “Declaratory relief operates prospectively to declare future rights, rather than to redress past wrongs.” (Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1497.) “The fundamental basis of declaratory relief is an actual, present controversy.” (Tashakori v. Lakis (2011) 196 Cal.App.4th 1003, 1012.)

An action for declaratory relief does not survive if it is wholly derivative of another failed cause of action. (Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 794.)

Because declaratory relief is not an independent ground for relief where it simply duplicates another cause of action, this claim fails as a matter of law. If the quiet title and cancellation claims are defective, the declaratory relief claim necessarily falls with them. There is no separate controversy alleged that would support declaratory relief.

Accordingly, Kotenoff’s demurrer is sustained with respect to the fourth cause of action.

Leave to amend

Leave to amend should be granted where there is a “reasonable possibility the pleading can be cured by amendment.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 444.) Oliver is granted the opportunity to amend his Complaint in order to clarify the circumstances regarding his allegations pertaining to quiet title, cancellation of instrument, and fraud/undue influence.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: JS on 5/5/2026. (Judge’s initials) (Date)

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