Filed 8/29/13 Timbol v. Hoffman CA2/3
Opinion following rehearing
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


ADRIAN U. TIMBOL, as Trustee, etc.,                                      B242910

         Plaintiff and Appellant,                                       (Los Angeles County
                                                                         Super. Ct. No. LC093769)
         v.

MELVIN M. HOFFMAN et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Maria E. Stratton, Judge. Affirmed.
         Michael V. Hesse for Plaintiff and Appellant.
         No appearance for Defendants and Respondents Melvin M. Hoffman and
All Counties Trustee Service Company.
         Harris L. Cohen; Alan D. Wilner and Elkanah J. Burns for Defendants and
Respondents Strategic Acquisitions, Inc. and Long Point Properties, LLC.
         Wolfe & Wyman and David M. Chute for Defendant and Respondent
Creative Investment Group, Inc.
                                        _________________________
       Adrian U. Timbol appeals from a judgment entered after the trial court sustained
demurrers to the second amended complaint without leave to amend on the ground that
Timbol lacked standing to pursue this lawsuit on behalf of Milagros T. Manapat. The
second amended complaint seeks to set aside a trustee’s sale of property that Manapat’s
late husband Luis O. Manapat (decedent) owned, alleging the decedent’s signatures on a
promissory note and a deed of trust were forged because the decedent died three years
before he purportedly signed these documents. Manapat apparently authorized Timbol to
prosecute this action on her behalf. On Timbol’s third attempt to plead standing, Timbol
alleged he was the trustee pursuant to a declaration of trust in which Manapat conveyed
the property to him. We affirm, concluding Timbol lacks standing to pursue this action.
             ALLEGATIONS IN THE SECOND AMENDED COMPLAINT1
       1. The Subject Property
       Manapat is alleged to be the decedent’s successor in interest to an undivided one-
half interest in the property. The decedent held title as an unmarried man to real property
located at 4230 Stansbury, #104, Sherman Oaks, California (the Property). The decedent
died on December 22, 2006. Upon his death, the decedent was record owner of the
Property.
       In 2009, someone forged the decedent’s signature to a $165,000 promissory note
secured by a deed of trust on the Property in favor of Melvin Hoffman as beneficiary.2
The deed was recorded.
       It is alleged that the same year, another unknown defendant forged the decedent’s
signature to a $35,000 promissory note secured by a deed of trust on the Property.



1
      Because this is an appeal from a judgment following an order sustaining a
demurrer without leave to amend, we recite the facts as alleged in the second amended
complaint and any exhibits attached thereto. (Blank v. Kirwan (1985) 39 Cal.3d 311,
318.)
2
      Hoffman and All Counties Trustee Service Company (All Counties) filed a
demurrer to the second amended complaint but did not file a respondents’ brief.

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Defendant Creative Investment Group, Inc. (Creative) was the beneficiary named in the
deed of trust. The deed was recorded.
       The Hoffman loan went into default, and a notice of default was recorded and
served. Defendant All Counties was the trustee under the deed of trust. A notice of sale
was recorded, and defendant Strategic Acquisitions, Inc. (Strategic) purchased the
Property at a nonjudicial foreclosure sale. Strategic allegedly altered the trustee’s deed
upon sale, deleted its name as the grantee, and inserted defendant Long Point Properties,
LLC (Long) as grantee. Long sold the Property to a third party.
       Based upon these facts, the second amended complaint alleges causes of action for
fraud (1st, 2nd, 3rd causes of action), cancellation of deeds of trust (4th cause of action),
quiet title (5th cause of action), slander of title (6th cause of action), constructive trust
(7th cause of action), specific performance (8th cause of action), declaratory relief
(9th cause of action), and injunctive relief (10th cause of action). All of these causes of
action are premised on Manapat having “right, title and interest” in the Property.
       2. Standing Allegations
       This is Timbol’s third attempt to bring this action on Manapat’s behalf. The
caption to the second amended complaint still refers to Timbol’s second attempt to allege
standing while acting as a “Trustee for Milagros T. Manapat.” In the second amended
complaint, Timbol alleges that he is the trustee of an inter vivos trust entitled “4230
Stansbury Avenue Trust.” Manapat executed a written declaration of trust in which she
purports to transfer to Timbol, as trustee, “all right, title and interest in the real and
personal property described in Exhibit ‘A’ attached hereto and incorporated herein by
reference . . . .” Exhibit “A” lists the Property, and personal property consisting of all of
Manapat’s claims, rights, and causes of action regarding the Property, along with this
lawsuit.
                             PROCEDURAL BACKGROUND
       Defendants Hoffman, All Counties, Creative, Strategic, and Long filed demurrers
to the second amended complaint on the ground that Timbol lacked standing to pursue
this action.

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       The trial court sustained the demurrers without leave to amend, reasoning the
Declaration of Trust did not sufficiently confer standing on Timbol to pursue this action
as trustee of the 4230 Stansbury Avenue Trust. The trial court entered judgment of
dismissal. Timbol, as “Trustee for Milagros T. Manapat,” filed a timely notice of appeal.
       We filed an opinion affirming the judgment of dismissal. We concluded that
Timbol did not have standing as a trustee because the allegations and exhibits attached to
the second amended complaint did not allege how Manapat acquired any right, title, or
interest to the Property, and even if given leave to amend, the trust instrument attached as
an exhibit to the second amended complaint was not valid as it purported to transfer the
Property, not Manapat’s interest in the Property, into the 4230 Stansbury Avenue Trust.
       We granted Timbol’s petition for rehearing to consider his arguments related to
the validity of the transfer of Manapat’s interest in the Property into the 4230 Stansbury
Avenue Trust, assuming the second amended complaint was amended to indicate how
she acquired that interest. Timbol also raised for the first time in his petition that he
sought leave to amend to substitute Manapat as the plaintiff in this action. In opposition,
respondents argued the proposed amendment was improperly raised for the first time in
the petition. As shall be discussed, we affirm the judgment of dismissal.
                                       DISCUSSION
       1. Standard of Review
       A demurrer tests the legal sufficiency of the complaint, and the granting of leave
to amend involves the trial court’s discretion. Therefore, appellate courts employ two
separate standards of review on appeal. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
The complaint is reviewed de novo to determine whether it contains sufficient facts to
state a cause of action as a matter of law. (Schifando v. City of Los Angeles (2003)
31 Cal.4th 1074, 1081.) As noted, we assume the truth of properly pleaded factual
allegations, facts that reasonably can be inferred from those expressly pleaded, and facts




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that may be judicially noticed.3 (Ibid.) Allegations inconsistent with annexed
documentary exhibits may be disregarded. (Hoffman v. Smithwoods RV Park, LLC
(2009) 179 Cal.App.4th 390, 400.)
       When the demurrer is sustained without leave to amend, we determine whether the
trial court abused its discretion. On review of a trial court’s refusal to grant leave to
amend, we reverse for abuse of discretion if there is a reasonable possibility the pleading
can be cured by amendment. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) The burden is
on the plaintiff to prove that there is a reasonable possibility the defect can be cured by
amendment. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
       2. Allegations of Ownership Interest in the Property are Insufficient
       We recognize that the controlling issue in this appeal is standing: The issue,
however, requires an initial determination of whether Timbol, acting in any capacity, has
stated a valid cause of action arising from Manapat’s interest in the Property. Timbol has
alleged in every version of the complaint that the decedent, not Manapat, was the record
owner of the Property at the time of his death. The grant deed, attached as an exhibit to
the second amended complaint, conveys the Property to the decedent, “an unmarried
man.” The Property remained in the decedent’s name, as an unmarried man, and there is
no grant deed attached to the second amended complaint conveying any interest in the
Property to Manapat after the decedent’s death in 2006. Timbol does not allege that title
to the Property passed to Manapat upon the decedent’s death in 2006 (Prob. Code,
§ 7000), or any other devise gives Manapat the alleged ownership interest in the Property.
We disregard allegations inconsistent with attached exhibits.
       Citing a 1905 case, Page v. Garver (1905) 146 Cal. 577, 578, Timbol argues that
he has standing to represent an heir who seeks to cancel a deed obtained by fraud. Unlike
Page v. Garver, where the heir sued to protect her own interest in the property, Timbol
has alleged no rights or interest in the Property. (Id. at p. 579.) Moreover, the heir
3
       It does not appear that the trial court ruled on Hoffman’s request for judicial
notice. The documents submitted are official records of which we may take judicial
notice. (Evid. Code, § 452, subds. (c).)

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asserting the claims in Page v. Garver alleged that her husband died intestate, and she
succeeded to a widow’s interest in his equitable estate. (Id. at p. 578.) Thus, Page v.
Garver would only support Manapat’s standing (not Timbol’s) to pursue this action if she
sufficiently alleged how she acquired her interest in the Property. No such allegations
appear in the second amended complaint.
          During argument on appeal, Timbol’s counsel represented that he could amend the
second amended complaint to allege that the decedent died intestate, and based upon
intestate secession, Manapat succeeded to a one-half interest in the Property. (See
Prob. Code, § 6401, subd. (c).) As shall be explained, even if amended as suggested,
Timbol, as trustee of the 4230 Stansbury Avenue Trust, lacks standing to pursue this
action.
          3. The 4230 Stansbury Avenue Trust Does Not Confer Standing
          Timbol contends that as a trustee he has standing to pursue this action. Code of
Civil Procedure section 367 provides that every action must be prosecuted by the real
party in interest, except as otherwise provided by statute. Section 369, subdivision (a)(2)
of the Code of Civil Procedure creates an exception for a trustee of an express trust.
When a claim is prosecuted on the trust’s behalf, the trustee is the real party in interest.
(Wolf v. Mitchell, Silberberg & Knupp (1999) 76 Cal.App.4th 1030, 1036.) The standing
issue presented here, however, does not concern Timbol’s authority. The issue here is
whether a valid trust has been established.4
          To create an express trust there must be a competent trustor, trust intent, trust
property, trust purpose, and a beneficiary.5 (Prob. Code, §§ 15201-15205; Estate of

4
       The declaration of trust is inartfully drafted, and states “it was the express
intention of Trustor to authorize Adrian U. Timbol to act as the agent and trustee of
Trustor as to the recovery, maintenance, ownership, title, legal action and disposition of
the Trust Estate described in Exhibit ‘A’ attached hereto.” As the trial court noted,
Timbol appears to be pursuing this action on Manapat’s behalf, not as a trustee of the
4230 Stansbury Avenue Trust.
5
      The question of whether a trust conforms to statutory requirements is a question of
law. (Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212-213.)

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Heggstad (1993) 16 Cal.App.4th 943, 947-948.) The trustor, sometimes called a
“settlor,” can manifest his or her intention to create a trust in a number of ways,
including, executing a “declaration by the owner of property that the owner holds the
property as trustee,” or by transferring “property by the owner during the owner’s
lifetime to another person as trustee.” (Prob. Code, § 15200, subds. (a), (b).)
       Manapat purported to transfer into the 4230 Stansbury Avenue Trust “ ‘all right,
title and interest in the real and personal property described in Exhibit “A,” ’ ” which
listed the Property. The second amended complaint, however, did not sufficiently allege
that Manapat had acquired an interest in the Property. Likewise, the chose in action, that
is, the personal property transferred into the 4230 Stansbury Avenue Trust, is based upon
the Property, which she does not own. Thus, Manapat lacked the legal authority to
transfer the real and personal property to the trustee. Accordingly, the transfer to Timbol
as trustee was invalid, and title to the Property is as alleged in the exhibit attached
thereto, which takes precedence. (See Osswald v. Anderson (1996) 49 Cal.App.4th 812,
820; Booge v. Reinicke (1941) 45 Cal.App.2d 260, 265.)
       If given leave to amend, Timbol would allege that Manapat acquired a one-half
interest in the Property by intestate succession. Timbol asks this court to read the trust
instrument, along with the proposed amendment, to state that Manapat transferred into
the 4230 Stansbury Avenue Trust, all right, title and interest in real and personal property
described in Exhibit “A,” “whatever that is.” (Italics added.) In these proceedings, we
are not at liberty to rewrite the declaration of trust attached as an exhibit to the second
amended complaint. (See Citizens Business Bank v. Carrano (2010) 189 Cal.App.4th
1200, 1207.) Alternatively, Timbol asks this court to grant leave to permit Manapat to
amend the trust instrument. In ruling on a demurrer, our focus is on whether there is a
possibility of amending the complaint, not on whether there is a possibility of conferring
standing by amending a trust instrument attached to the complaint. Accordingly, the




                                               7
attached exhibits to the complaint do not establish that Timbol has standing to pursue this
action under Code of Civil Procedure section 369, subdivision (a)(2).6
       4. Timbol Does Not Have Standing Under the Survivor Statutes
       Timbol also appears to contend that he has standing under the survivor statutes
because Manapat is the decedent’s successor in interest, and he is authorized to act on
Manapat’s behalf. (Code Civ. Proc., §§ 377.11, 377.20, 377.32.) A decedent’s successor
in interest succeeds to the decedent’s cause of action. (Code Civ. Proc., § 377.30.) Code
of Civil Procedure section 377.11, as pertinent here, defines “ ‘decedent’s successor in
interest’ ” as “the beneficiary of the decedent’s estate,” which in turn means the sole
beneficiary under the decedent’s will, if the decedent died leaving a will (Code Civ.
Proc., § 377.10, subd. (a)) or if the decedent died without leaving a will “the sole person
or all of the persons who succeed to a cause of action” (id., subd. (b)). The statute
permits a decedent’s successor in interest to authorize someone to act on his or her
behalf. (Code Civ. Proc., § 377.32, subd. (a)(5)(B).)
       Under the survivor statutes, Timbol would have standing if he were acting on
Manapat’s behalf to pursue the decedent’s causes of action asserting his rights to the
Property. But the second amended complaint seeks to protect Manapat’s interest in the
Property. Because Timbol is not bringing a survivor action, he lacks standing.
       5. Leave to Amend
       The proposed amendments do not cure Timbol’s lack of standing to pursue this
action. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d
1371, 1388; see also Mercury Ins. Co. v. Pearson (2008) 169 Cal.App.4th 1064, 1072.)




6
        Timbol raised for the first time in a petition for rehearing that, if given leave, he
would amend to substitute Manapat as the plaintiff in this action. This argument has been
forfeited. (Midland Pacific Building Corp. v. King (2007) 157 Cal.App.4th 264, 276.)
We express no opinion, however, on the viability of any claims Manapat may
subsequently assert in her own right.

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                                  DISPOSITION
     The judgment of dismissal is affirmed. No costs are awarded on appeal.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                             ALDRICH, J.
We concur:




             KLEIN, P. J.




             KITCHING, J.




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