Filed 6/26/26 Graham v. Hammel, Green and Abrahamson CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
JOHN STEVEN GRAHAM,
JR., as Trustee, etc.,
Plaintiff and Appellant, A172119
v. (San Francisco City &
HAMMEL, GREEN AND County
ABRAHAMSON, INC., Super. Ct. No. CGC-22-
598327)
Defendant and
Appellant.
Hammel, Green and Abrahamson, Inc. (HGA) appeals from
the trial court’s order granting a new trial in John Steven
Graham, Jr.’s (Graham) suit against HGA for breach of contract,
negligence, and unjust enrichment based on HGA’s architecture
services for a house remodeling project. The trial court granted a
new trial because it concluded it had erred by instructing the jury
that a written instrument was necessary for Graham, who sued
as the trustee of his revocable trust, to prove that the residential
property at issue was subject to the trust. HGA contends the jury
instruction was correct because Graham needed to establish the
property had been transferred to the trust and Probate Code
section 15206, which is a statute of frauds provision, required
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written evidence for this purpose. HGA further argues that its
motions for nonsuit and directed verdict should have been
granted because no evidence satisfying the statute of frauds was
admitted into evidence. Graham has filed a protective cross-
appeal raising related issues.
The jury instruction was erroneous, and the trial court
appropriately granted Graham’s new trial motion. A revocable
inter vivos trust in which the settlor also serves as trustee is
simply a probate-avoidance device. (Carolina Casualty Ins. Co. v.
L.M. Ross Law Group, LLP (2010) 184 Cal.App.4th 196, 208.)
For most purposes, including this straightforward breach of
contract and negligence suit that somehow became bogged down
in the intricacies of trust law, Graham’s status as a trustee was
legally indistinguishable from his status as an individual.
“ ‘[P]roperty transferred to, or held in, a revocable inter vivos
trust is deemed . . . the property of the settlor.’ ” (Steinhart v.
County of Los Angeles (2010) 47 Cal.4th 1298, 1319, italics
omitted (Steinhart).) When he sued to enforce his rights over the
property, Graham was suing to protect his rights as both settlor
and trustee, and his identification of himself as trustee was
unnecessary and surplusage. (McKoin v. Rosefelt (1944)
66 Cal.App.2d 757, 768–769.) There is no relevant substantive
difference between Graham’s different capacities in this case.
It was also unnecessary for Graham to submit written
evidence to establish his ownership of the property.
Longstanding case law permits the use of oral testimony to prove
property ownership. (Skinner v. City of Los Angeles (1936)
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5 Cal.2d 317, 319.) Probate Code section 15206 does not control
because it only comes into play when a trustee denies the validity
of a trust, and it cannot be raised by third parties. (Cardoza v.
White (1933) 219 Cal. 474, 476.) We will therefore affirm the
trial court’s order granting a new trial and dismiss Graham’s
cross-appeal. (Grobeson v. City of Los Angeles (2010)
190 Cal.App.4th 778, 798–799 [if order granting a new trial is
affirmed, cross-appeal should be dismissed].)
BACKGROUND
Graham hired HGA to perform architectural services for a
renovation and remodel of a property in San Francisco. The
contract with HGA identified Graham only by name and did not
mention a trust.
Graham later sued HGA for breach of contract, negligence,
and unjust enrichment based on HGA’s performance. The
caption and first paragraph of Graham’s complaint identified him
as the trustee of a revocable trust and said he owned the property
at issue in San Francisco, but the complaint did not otherwise
mention the trust.
Leading up to trial, Graham filed a motion in limine to bar
HGA from presenting evidence or argument regarding whether
Graham as trustee was a proper plaintiff, arguing that the
distinction between Graham as an individual and Graham as
trustee was irrelevant. The trial court denied the motion,
explaining that it believed the trust was an independent entity
and it would not allow Graham to shoehorn individual damages
into the damages he was seeking on behalf of the trust. But the
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court allowed Graham to raise the issue again based on the
evidence developed at trial.
At trial, Graham testified that he bought the property as
an individual and transferred it into his trust.1 He did not
present a written instrument documenting this.
At the close of Graham’s case and its own case, HGA moved
for nonsuit and a directed verdict, respectively. Among other
grounds, HGA argued that Graham as trustee lacked standing
because the statute of frauds required him to present a signed
writing to prove the existence of the trust and that the property
at issue was trust property. The trial court denied the motions.
Nonetheless, over Graham’s objection, the trial court
agreed to give five special jury instructions related to Graham’s
standing. The first four stated that Graham needed to prove the
existence and validity of the trust and that Graham as trustee
had the authority to bring the action on behalf of the trust.
Special jury instruction number five said that Graham was
required to prove the trust’s interest in the property via a written
instrument introduced into evidence.
1 We summarize the parties’ statements or positions using
their own language. The parties, like many courts, frequently
use a shorthand of referring to trusts as though they are entities
or own property. (See, e.g., Portico Management Group, LLC v.
Harrison (2011) 202 Cal.App.4th 464, 474–475; Boshernitsan v.
Bach (2021) 61 Cal.App.5th 883, 892.) As a technical matter, a
trust is a fiduciary relationship with respect to property and not
a legal entity or person, so it cannot own property.
(Boshernitsan, at p. 891.) Instead, the trustee holds the legal
title to property. (Ibid.)
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The trial court allowed Graham to reopen his case to admit
into evidence a written certificate of his trust. Graham also
asked to be allowed to admit a copy of a property deed when he
reopened his case. The trial court said that Graham would not be
able to have the copy of the deed admitted into evidence because
it was not certified, but the court later said that it would admit
“the evidence that’s within the Evidence Code” and “it’s up to
[Graham]” whether he wanted to try to have the uncertified deed
admitted. Graham then took the stand to authenticate a
certificate of his trust, and his counsel moved it into evidence, but
his counsel did not examine him about the uncertified copy of the
deed.
A majority of the jury found in a special verdict that the
trust did not own the property and, as the verdict forms
instructed, answered no other questions. Believing itself bound
by the jury’s verdict, the trial court found for HGA on the unjust
enrichment claim and entered judgment for HGA.
Graham moved for a new trial, arguing, as relevant here,
that special instruction number five was an incorrect statement
of law. The trial court granted the motion. It concluded the
special instruction was erroneous because ownership can be
proven by oral testimony, citing Bender v. Schneider (1957)
149 Cal.App.2d 195, 197.
DISCUSSION
The issue in this case is whether the trial court correctly
instructed the jury that Graham needed to prove via a written
instrument that he owned the property as a trustee. We review
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the propriety of jury instructions de novo. (Drury v. Ryan (2025)
109 Cal.App.5th 1102, 1108.)
I. Necessity of Proof of Ownership of Property as
Trustee
“In general terms, in order to have standing, the plaintiff
must be able to allege injury—that is, some ‘invasion of the
plaintiff’s legally protected interests.’ ” (Angelucci v. Century
Supper Club (2007) 41 Cal.4th 160, 175.) “Standing is related to
the requirement contained in Code of Civil Procedure section 367
that ‘[e]very action must be prosecuted in the name of the real
party in interest, except as otherwise provided by statute.’ (Code
Civ. Proc., § 367.) The real party in interest is generally the
person who has the right to sue under the substantive law.
[Citation.] ‘A party who is not the real party in interest lacks
standing to sue because the claim belongs to someone else.’ ”
(River’s Side at Washington Square Homeowners Assn. v.
Superior Court (2023) 88 Cal.App.5th 1209, 1225–1226.)
HGA contends that Graham had to establish his standing
to bring suit as the trustee of his revocable trust by pleading and
proving via a written instrument that he owned the property as a
trustee when the negligence claim accrued and that he, as a
trustee, was a party to the contract with HGA for the breach of
contract claim. The main premise of HGA’s argument is that
there is some legal distinction for the purposes of standing
between Graham as an individual and Graham as trustee of his
revocable trust. This is wrong.
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“ ‘Under California law, a revocable inter vivos trust is
recognized as simply “a probate avoidance device . . . .” (Carolina
Casualty Ins. Co. v. L.M. Ross Law Group, LLP, supra,
184 Cal.App.4th at p. 208.) “[A]t least for most purposes ‘[t]here
is no distinction in California law between property owned by the
revocable trust and property owned by the settlor of such a
revocable trust during the lifetime of the settlor.’ ” (Ibid.) “[A]
settlor with the power to revoke a living trust effectively retains
full ownership and control over any property transferred to that
trust.” (Arluk Medical Center Industrial Group, Inc. v. Dobler
(2004) 116 Cal.App.4th 1324, 1331–1332; accord, Steinhart,
supra, 47 Cal.4th at p. 1319 [quoting this passage in Arluk].)
“Any interest that beneficiaries of a revocable trust have in trust
property is ‘merely potential’ and can ‘evaporate in a moment at
the whim of the [settlor],’ ” as a number of statutes recognize.
(Steinhart, at p. 1319.) One such statute is Probate Code section
18200, which allows a settlor’s creditors to reach a settlor’s
revocable trust property during the settlor’s lifetime to the extent
of the revocation power. (Id. at p. 1319, fn. 14.) Another is
Probate Code section 15800, subdivision (a), which states that
generally the holder of the revocation power of a trust has the
rights of a beneficiary and is owed the duties of the trustee.
(Steinhart, at p. 1319.) Thus, as noted previously, “ ‘[p]roperty
transferred to, or held in, a revocable inter vivos trust is
deemed . . . the property of the settlor.’ ” (Id. at p. 1319, italics
omitted; see id. at p. 1320 [transfer of legal title to property from
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the owner to herself as trustee is not considered a change of
ownership for purposes of property taxation].)
In view of these principles, to establish his standing there
was no need for Graham to prove that he owned his property as a
trustee of a revocable trust rather than an individual. For most
purposes, including the need to establish that he suffered some
invasion of his legally protected interests and had the right to sue
under substantive law, his capacities as an individual and trustee
were effectively identical. If HGA damaged the property,
Graham suffered the injury as both settlor and trustee. HGA and
Graham owed each other the same duties under the contract
whether Graham was a party to it as an individual or as trustee
of his revocable trust.
HGA asserts that courts often distinguish between trustees
asserting claims on behalf of themselves personally and on behalf
of the trust. It cites a passage from a treatise that states, “A debt
that a beneficiary owes to a trustee as a private individual does
not run between the same parties as the beneficiary’s claim
against the trustee as a trustee. In other words, A, as trustee,
and A, as an individual outside the trusteeship, constitute two
separate legal persons.” (Bogert et al., The Law of Trusts and
Trustees (2025) § 17.) As it pertains to California law, this
statement must concern a trust in which trustee, settlor, and
beneficiary are different people, since it assumes that the trustee
owes duties to the beneficiary rather than the settlor. This is not
the case for revocable trusts like Graham’s, where the trustee
generally owes duties to the settlor, not the beneficiary, while the
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trust is revocable. (Prob. Code, § 15800, subd. (a).) Whatever the
merits of this statement as a general matter, it does not answer
the question of whether there is a meaningful distinction between
Graham’s status as an individual and trustee of a revocable trust
for the purposes of standing in this case.
HGA also argues that the distinction between Graham as
an individual and a trustee matters because Graham chose to
identify himself in his complaint as a trustee and not an
individual and sought damages on behalf of the trust. But Code
of Civil Procedure section 367 has long permitted a trustee of an
express trust to bring suit without mentioning his status as
trustee at all. As McKoin v. Rosefelt, supra, 66 Cal.App.2d at
page 769 explained more than 80 years ago in rejecting an
argument that a trustee should have identified himself as such in
a quiet title action, “it is unnecessary for the trustee in the
pleadings or other proceedings to describe himself as trustee. He
can proceed in the action as though he were the owner of the
claim which he is enforcing. If he does describe himself as
trustee the description is treated as surplusage.’ ” More recently,
Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal.App.4th 153,
171, disapproved on other grounds by People v. Rogers (2013)
57 Cal.4th 296, 330–331, applied this principle and held that
property owners had standing to bring an action for trespass in
their own names even though they owned a property as trustees
and were beneficiaries of the trust. Graham’s identification of
himself as a trustee was extraneous and unnecessary, and it did
not limit the scope of his standing to assert the claims in the
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complaint given that he effectively retained full ownership and
control over the trust property and it is deemed to be his as
settlor. (Steinhart, supra, 47 Cal.4th at p. 1319.)
II. Written Evidence of Property Ownership
It does not appear from the record that there was any
dispute that Graham owned in some capacity the property
underlying his suit, but to the extent Graham needed to establish
his ownership, written proof was unnecessary. Our Supreme
Court held 90 years ago that a plaintiff’s oral testimony sufficed
to support a finding that the plaintiff owned a property for which
he claimed damages from a city’s street grading. (Skinner v. City
of Los Angeles, supra, 5 Cal.2d at pp. 318–319.) As the Supreme
Court explained, “the ownership of property is, as a general rule,
a fact to which a witness may testify.” (Id. at p. 319.) Diamond
v. Grath (1941) 46 Cal.App.2d 443, 444–446 applied Skinner a
few years later and held that a trustee properly proved his
ownership of property by oral testimony alone, without the
introduction into evidence of the written trust agreement. In the
same vein, Bender v. Schneider, supra, 149 Cal.App.2d at page
197, which the trial court here cited, held that oral testimony was
sufficient to prove property ownership in a premises liability suit.
In the absence of other evidence, ownership of real property can
also be established in other ways, such as by proving acts of
ownership over it. (Evid. Code, § 638 [“A person who exercises
acts of ownership over property is presumed to be the owner of
it.”]; Davis v. Crump (1912) 162 Cal. 513, 518 [“As against an
entire stranger to the title, actual possession of land has
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uniformly been held, both in ejectment and actions to quiet title,
to make out a prima facie case, sufficient to sustain a conclusion
of ownership.”].) Written evidence is not necessary to prove
property ownership.
HGA relies on Probate Code section 15206, which states, “A
trust in relation to real property is not valid unless evidenced by
one of the following methods: [¶] (a) By a written instrument
signed by the trustee, or by the trustee’s agent if authorized in
writing to do so. [¶] (b) By a written instrument conveying the
trust property signed by the settlor, or by the settlor’s agent if
authorized in writing to do so. [¶] (c) By operation of law.” This
provision, which is considered an incarnation of the statute of
frauds, has existed in some form in California for well over a
century. (Civ. Code, former § 852, as enacted Mar. 21, 1872;
Recommendation: Proposing the Trust Law (Dec. 1985) 18 Cal.
Law Revision Com. Rep. (1985) pp. 524–525 & fn. 39; 1 Witkin,
Summary of Cal. Law (11th ed. 2026) Contracts § 343 [“The
statute of frauds is a collective term describing the various
statutory provisions that deny enforcement to certain
enumerated classes of contracts unless they are reduced to
writing and signed by the party to be charged.”].)
While Probate Code section 15206 does require written
evidence of a trust in real property for some purposes, it is
inapplicable here. As explained in another provision of the
treatise that HGA itself cited, “The Statute of Frauds was
enacted to prevent obligations of trusteeship from being imposed
on the holder of record title to real property on the basis of oral
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testimony because such testimony is subject to fraud, perjury,
misunderstanding and mistake. The trustee is the party that the
Statute intends to protect, as imposing a trust would not only
divest someone who appears of record to be an outright owner of
property, but would also impose fiduciary duties on them with
regard to the property.” (Bogert et al., supra, § 70.) “Creditors of
the trustee generally do not have the right to plead the Statute of
Frauds unless and until they acquire liens against the property
by obtaining judgments against the trustee and placing them on
record, levy an execution, or purchase the property at a judicial
sale.” (Ibid.) Moreover, “[a]s a general rule, strangers to the
trust cannot attack the validity of the trust by raising the Statute
of Frauds.” (Ibid.)
The California Supreme Court applied this rule long ago in
Cardoza v. White, supra, 219 Cal.at p. 476. As the court
explained, “[A]n oral trust in real property cannot be held wholly
void; it is merely unenforceable when, in an action brought to
compel performance of its terms, the party to be charged asserts
its invalidity.” (Ibid.) The court therefore rejected a creditor’s
invocation of the predecessor to Probate Code section 15206 to
invalidate the transfer of the property from the trustee to the
beneficiary. (Ibid.; see 13 Witkin, Summary of Cal. Law (11th ed.
2026) Trusts, § 35.) This rule is in accord with the more
commonly invoked statutes of frauds concerning contracts in
Civil Code section 1624, subdivision (a)(3) and Code of Civil
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Procedure section 1971, which HGA also mentions.2 “The rule is
elementary that the statute of frauds can be invoked only by the
parties to the unwritten contract, and is not available to third
persons who are not parties to it” (Demeter v. Annenson (1947)
80 Cal.App.2d 48, 57) or a successor to a contracting party
(O’Banion v. Paradiso (1964) 61 Cal.2d 559, 562). HGA is a third
party to Graham’s trust, not a trustee or a successor to a trustee,
and cannot complain that the trust does not satisfy the statute of
frauds.
HGA relies on Ukkestad v. RBS Asset Finance, Inc. (2015)
235 Cal.App.4th 156, 161–164, in which a Court of Appeal held a
trust document complied with the statute of frauds, and Osswald
v. Anderson (1996) 49 Cal.App.4th 812, 818, 820, in which a
Court of Appeal held that two trust documents did not. Neither
case considered whether a third party could raise the statute of
frauds, so they do not control here. (California Building Industry
Assn. v. State Water Resources Control Bd (2018) 4 Cal.5th 1032,
2 Civil Code section 1624, subdivision (a)(3) states, as
relevant here, “The following contracts are invalid, unless they,
or some note or memorandum thereof, are in writing and
subscribed by the party to be charged or by the party’s agent:
[¶] . . . [¶] . . . An agreement . . . for the sale of real property, or of
an interest therein . . . .” Section 1971 of the Code of Civil
Procedure states, “No estate or interest in real property, other
than for leases for a term not exceeding one year, nor any power
over or concerning it, or in any manner relating thereto, can be
created, granted, assigned, surrendered, or declared, otherwise
than by operation of law, or a conveyance or other instrument in
writing, subscribed by the party creating, granting, assigning,
surrendering, or declaring the same, or by the party’s lawful
agent thereunto authorized by writing.”
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1043 [“It is axiomatic that cases are not authority for propositions
that are not considered.”].) Nor could either Court of Appeal
decision overrule the California Supreme Court’s decision in
Cardoza v. White, which we must follow.3
Graham did not need to prove his trust’s ownership of the
property via a written instrument, so the trial court erred when it
instructed the jury that he did. We therefore affirm the trial
court’s grant of a new trial on this basis. Conversely, because
Graham’s oral testimony about his ownership of the property was
sufficient, the trial court correctly denied HGA’s motions for
nonsuit and directed verdict to the extent HGA argued that
Graham lacked evidence of his ownership of the property as
3 The petitioner in Osswald v. Anderson, supra,
49 Cal.App.4th at pages 814–815, 818, was the beneficiary of one
of the purported trusts, and the respondent was the alleged
trustee at that point. This is precisely the situation the statute of
frauds was designed to govern, so it is understandable that the
Court of Appeal did not discuss whether a third party could
enforce the statute of frauds. The petitioner in the alternative
sought to enforce a second purported trust that named himself as
trustee and the respondent as the successor trustee. (Id. at
pp. 816, 820.) But the beneficiary had refused to accept the
position of trustee at the time it was allegedly created. (Id. at
p. 816.) The opinion’s application of the statute in these
circumstances could be read as implicitly accepting that the
beneficiary was seeking to enforce this second trust against the
respondent as successor trustee. (See Prob. Code, § 15660,
subd. (b) [if a trust has no trustee and the trust “names the
person to fill the vacancy, the vacancy shall be filled as provided
in the trust instrument.”].) In any event, the facts of Osswald are
distinguishable from the situation here, in which HGA, a
complete stranger to Graham’s trust, argues it is invalid as to the
property at issue.
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trustee. (Bell v. State of California (1998) 63 Cal.App.4th 919,
927 [order denying motion for directed verdict is reviewable in
appeal from order granting a new trial].)
Because a new trial is warranted, “ ‘the effect is that there
is no longer a final judgment. Hence, the merits of the cross-
appeal will not be considered, and the appropriate order is a
dismissal of that appeal.’ ” (Grobeson v. City of Los Angeles,
supra, 190 Cal.App.4that pp. 798–799.)
DISPOSITION
The trial court’s order is affirmed. Graham’s protective
cross-appeal is dismissed. Graham shall recover his costs on
appeal.
BROWN, P. J.
WE CONCUR:
GOLDMAN, J.
SWEET, J.
Graham v. Hammel, Green & Abrahamson (A172119)
Judge of the Superior Court of Marin County, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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