Filed 8/29/13 Timbol v. Hoffman CA2/3 Opinion following rehearing NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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 Su perior Court of Los Angeles County, Maria E. Stratton, Judge. Affirmed.
Michael V. Hesse for Plaintiff and Appellant. No appearance for Defendants and Re spondents Melvin M. Hoffman and All Counties Trustee Service Company. Harris L. Cohen; Alan D. Wilner a nd Elkanah J. Burns for Defendants and Respondents Strategic Acqu isitions, Inc. and Long Po int Properties, LLC. Wolfe & Wyman and David M. Ch ute for Defendant and Respondent Creative Investment Group, Inc.

_____________ ____________2 Adrian U. Timbol appeals from a judgment entered after the trial court sustained
demurrers to the second ame nded complaint without leave to amend on the ground that Timbol lacked standing to pu rsue 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) ow ned, alleging the decedent’s signatures on a promissory note and a deed of trust were fo rged because the decedent died three years before he purportedly signed th ese documents. Manapat appare ntly authorized Timbol to prosecute this action on her behalf. On Timb ol’s third attempt to plead standing, Timbol alleged he was the trustee pursuant to a decl aration of trust in which Manapat conveyed the property to him. We affi rm, concluding Timbol lacks standi ng to pursue this action.
ALLEGATIONS IN THE SECOND AMENDED COMPLAINT 1

1. The Subject Property Manapat is alleged to be the decedent’s su ccessor in interest to an undivided onehalf 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 th e 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, anothe r unknown defendant fo rged the decedent’s signature to a $35,000 promi ssory note secured by a deed of trust on the Property.

1 Because this is an appeal from a ju dgment 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 Se rvice Company (All Counties) filed a demurrer to the second amended complaint bu t did not file a respondents’ brief.3 Defendant Creative Investment Group, Inc. (C reative) was the beneficiary named in the
deed of trust. The deed was recorded.
The Hoffman loan went in to 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 Acqu isitions, 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 amende d complaint alleges causes of action for fraud (1st, 2nd, 3rd causes of action), cancellati on 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), specifi c performance (8th cause of action), declaratory relief (9th cause of action), and inju nctive 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 brin g this action on Manapat’s behalf. The caption to the second amended co mplaint still refers to Timbol ’s second attempt to allege standing while acting as a “Trustee for Milagr os 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 decl aration of trust in which she purports to transfer to Timbol, as trustee, “all right, title and intere st in the real and personal property described in Exhibit ‘A’ attached hereto and incorporated herein by reference . . . .” Exhibit “A” lists the Proper ty, and personal property consisting of all of Manapat’s claims, rights, and causes of acti on 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.4 The trial court sustained the demurrers without leave to amend, reasoning the Declaration of Trust did not sufficiently conf er standing on Timbol to pursue this action
as trustee of the 4230 Stansb ury Avenue Trust. The tria l court entered judgment of dismissal. Timbol, as “Trustee for Milagros T. Manapat,” filed a timely notice of appeal. We filed an opinion affirming the judgme nt of dismissal. We concluded that
Timbol did not have st anding as a trustee because the alle gations 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 leav e to amend, the trust in strument attached as
an exhibit to the second ame nded 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 reheari ng to consider his ar guments related to the validity of the transfer of Manapat’s inte rest 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 rais ed for the first time in his petition that he sought leave to amend to substitu te Manapat as the plaintiff in this action. In opposition, respondents argued the proposed amendment was improperly ra ised 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 c ourt’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 assu me the truth of properly pleaded factual allegations, facts that reasonably can be infe rred from those expressly pleaded, and facts5 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 sustai ned 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 po ssibility 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 reas onable 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 contro lling issue in this appeal is standing: The issue, however, requires an initial dete rmination of whethe r Timbol, acting in any capacity, has stated a valid cause of action arising from Mana pat’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, attach ed as an exhibit to the second amended complaint, conveys the Proper ty to the deceden t, “an unmarried man.” The Property remained in the decedent’s name, as an unmarried man, and there is no grant deed attached to th e second amended complaint conveying any interest in the Property to Manapat after the decedent’s death in 2006. Tim bol 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 gi ves Manapat the alleged ownershi p interest in the Property. We disregard allegations inconsis tent 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 seek s to cancel a deed obta ined 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 submitte d are official records of wh ich we may take judicial notice. (Evid. Code, § 452, subds. (c).)6 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 intere st in the Property. No such allegations appear in the second amended complaint. During argument on appeal, Timbol’s couns el represented that he could amend the second amended complaint to allege that th e 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 Av enue 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 ever y action must be prosecuted by the real party in interest, except as otherwise provide d by statute. Section 369, subdivision (a)(2)
of the Code of Civil Procedure creates an ex ception for a trustee of an express trust. When a claim is prosecuted on the trust’s behal f, 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 concer n 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 author ize 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.)7 Heggstad (1993) 16 Cal.App.4th 943, 947-948 .) The trustor, sometimes called a “settlor,” can manifest his or her intentio n to create a trust in a number of ways, including, executing a “declaration by the owne r of property that the owner holds the property as trustee,” or by transferring “p roperty by the owner during the owner’s lifetime to another person as trustee.” (Prob. Code, § 15200, subds. (a), (b).) Manapat purported to transf er into the 4230 Stansbury Avenue Trust “ ‘all right, title and interest in the real and personal pr operty described in Exhibit “A,” ’ ” which listed the Property. The second amended comp laint, however, did not sufficiently allege that Manapat had acquired an interest in the Pr operty. Likewise, the chose in action, that is, the personal property transf erred 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 tr ustee. Accordingly, the transfer to Timbol as trustee was invalid, and title to the Proper ty 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 a llege 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 ther e is a possibility of conferring standing by amending a trust instrument attach ed to the complaint. Accordingly, the8 attached exhibits to th e complaint do not estab lish that Timbol has standing to pursue this
action under Code of Civil Proced ure 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, 37 7.20, 377.32.) A decedent’s successor
in interest succeeds to the deced ent’s cause of action. (Code Civ. Proc., § 377.30.) Code
of Civil Procedure section 377. 11, as pertinent here, define s “ ‘decedent’s successor in interest’ ” as “the beneficiary of the decede nt’s estate,” which in turn means the sole beneficiary under the decedent’s will, if th e 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 woul d have standing if he were acting on Manapat’s behalf to pursue the decedent’s ca uses of action asserting his rights to the Property. But the second amen ded complaint seeks to protec t 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 Pa cific 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 pe tition for rehearing that, if given leave, he would amend to substitute Manapat as the plain tiff 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, howe ver, on the viability of any claims Manapat may subsequently assert in her own right.9 DISPOSITION The judgment of dismissal is affirm ed. No costs are awarded on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.
We concur:

KLEIN, P. J.

KITCHING, J.