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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 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. 

_________________________ 
2 

 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 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 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. 
3 

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. 
4 

 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 
5 

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).) 
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 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.) 
7 

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 
8 

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. 
9 

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.