Del Poza v. Lemke CA4/1

Filed 7/19/22 Del Poza v. Lemke CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ELIZABETH S. DEL POZO, as Trustee, D078673 etc. et al.

Plaintiffs and Respondents, (Super. Ct. No. 37-2017- v. 00000227-PR-TR-CTL)

RICHARD G. LEMKE,

Defendant and Appellant.

APPEAL from orders of the Superior Court of San Diego County, Jeffrey S. Bostwick, Judge. Affirmed. Richard G. Lemke, in pro. per., for Defendant and Appellant. Brierton, Jones & Jones, Gary D. Jander and Ricsie M. Hernandez for Plaintiff and Respondent.

Richard G. Lemke, former trustee of the Moore Family Trust, appeals minute orders of the probate court denying his ex parte applications seeking to remove the current trustee. Lemke has not shown the probate court erred in denying his petitions. Accordingly, the orders are affirmed.

FACTUAL AND PROCEDURAL BACKGROUND In 2004, Marvin G. Moore and Lorraine L. Moore executed the Moore Family Trust. Lorraine had four children, including Chas Moore Rundberg and Diane Marie Ferguson Bosio. Marvin had two children. In 2015, Marvin and Lorraine executed an amendment to the trust appointing Lorraine’s daughter Bosio as first successor trustee and her son Rundberg as second successor trustee. Shortly after Lorraine’s death, on November 23, 2015, Marvin executed an amendment to the trust, and appointed Lemke as successor trustee. The following year, on November 29, 2016, Marvin passed away. Bosio and Rundberg initiated the underlying probate case on January 4, 2017 by filing a petition to remove Lemke as trustee. The petition alleged that Lemke, who Bosio and Rundberg had no former knowledge of, was not qualified to serve as trustee and that he was hostile to them as beneficiaries of the trust. On February 2, 2017, Bosio and Rundberg filed an ex parte application seeking the appointment of an independent fiduciary to serve as trustee and to restrain Lemke from transferring title or managing the trust property. Bosio and Rundberg’s application asserted that after filing their petition, Lemke responded that he did not believe they were beneficiaries of the trust and “made clear his intent to deal with the Trust as his own and … informed Petitioners that they may not have any dealings with him or the Trust.” On February 7, 2017, the probate court issued a minute order precluding Lemke from taking any action pertaining to trust assets without the court’s permission. Thereafter, Bosio and Rundberg’s counsel discovered that Lemke had transferred title to two real properties from the trust to himself, in his individual name, in January 2017. As a result, they brought another ex parte application requesting that the court remove Lemke as