Timbol v. Hoffman
Filed 5/23/13 Timbol v. Hoffman CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
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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.,
Plaintiff
and Appellant,
v.
MELVIN M. HOFFMAN et al.,
Defendants
and Respondents.
B242910
(Los
Angeles County
Super. Ct.
No. LC093769)
APPEAL
from a judgment of the Superior Court
of
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, he alleged he was the trustee pursuant to a declaration of
trust in which Manapat conveyed the property to him. We affirm, concluding the second amended
complaint does not sufficiently allege facts to state a cause of action, and
even if it did, Timbol, lacks standing to pursue this action.
ALLEGATIONS IN THE
SECOND AMENDED COMPLAINT
name="_ftnref1" title="">[1]
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.
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. 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.
The trial court sustained the
demurrers without leave to amend, reasoning Timbol’s amendments were
insufficient to allege standing. The
court’s written ruling states: “The
document entitled ‘Declaration of Trust’ is of no help because it is itself
internally inconsistent. The Declaration
purports to create a trust called ‘4230 Stansbury Avenue Trust’ and names Timbol as the trustee. However, the Declaration, at paragraph 2,
names Timbol as the ‘agent and trustee of the Trustor’ Milagros Manapat. The Declaration also appears to transfer
legal title to Adrian Timbol himself, rather than to a trust.†Given these inconsistencies, the court
returned to the allegations that Timbol purported to sue as trustee of
Manapat. Concluding as a matter of law
that there cannot be a trustee of a person, the trial court determined Timbol
lacked standing to pursue this action on Manapat’s behalf.
The court entered judgment of
dismissal. Timbol, as “Trustee for
Milagros T. Manapat,†filed a timely notice
of appeal.
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
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 that may be
judicially noticed.
title="">[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.â€
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. (
died intestate, and she succeeded to a widow’s interest in his equitable
estate. (Id. at p. 578.) Thus,
Manapat’s standing (not Timbol’s) to pursue this action if she sufficiently
alleged how she acquired her interest in the Property.
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 Trust, lacks standing to pursue this action.
3.
The 4230 Stansbury Trust is Invalid
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. (
(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.
To create an express trust there must be a competent trustor,
trust intent, trust property, trust purpose, and a beneficiary.
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 does not own a 100 percent interest in the Property that
she purportedly transferred to the trustee to be held in the 4230 Stansbury
Avenue Trust. Accepting as true the
proposed amendments to the second amended complaint, Manapat owns an undivided
one-half interest in the Property as her intestate share. Thus, Manapat lacked the legal authority to
transfer the Property to the trustee to hold in the 4230 Stansbury Avenue
Trust. Accordingly, the transfer to
Timbol as trustee was invalid, and title to the Property is as it was before
the attempted transfer. (
49 Cal.App.4th 812, 820; Booge v.
Reinicke (1941) 45 Cal.App.2d 260, 265.)
This court cannot modify the trust instrument to confer
standing. It is only under exceptional
circumstances, not present here, that a court has power to modify a trust. (Moxley
v. Title Ins. & Trust Co. (1946) 27 Cal.2d 457, 468;
61 Cal.App.4th 51, 79-82.) In such
a case, the court deals with situations in which modification was necessary in
order to carry out the primary purpose of the trustor as expressed in the trust
instrument. (Moxley v. Title Ins. & Trust Co., supra, at p. 468.) In these
proceedings, however, 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 [court may not
rewrite trust instrument to attach restrictions to a term that the settlor did
not expressly state, especially when the term is not ambiguous].) Thus, because no valid trust was created,
Timbol lacked standing to pursue this action under Code of Civil Procedure
section 369, subdivision (a)(2).
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 her 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 amendment does not cure Timbol’s lack of standing to
pursue this action. (
Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388; see also
Cal.App.4th 1064, 1072.)
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.
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.)
and All Counties Trustee Service Company (All Counties) filed a demurrer to the
second amended complaint but did not file a respondents’ brief.
