Metropolitan News-Enterprise


Thursday, September 28, 2017


Page 3


Fourth District Court of Appeal Voids the Voiding of a Judgment


By a MetNews Staff Writer


The Fourth District Court of Appeal held yesterday that a judge erred in wiping out a judgment for the defendant upon the post-trial assertion of the plaintiff that the man it named as trustee of a trust does not hold that position.

Justice Cynthia Aaron of Div. One wrote the opinion. It was not certified for publication.

The plaintiff was Del Rayo Estates Homeowners Association. It sued Georg Lingenbrink as trustee of the Petra Krismer Living Trust which owns a house that is subject to the homeowners association rules.

The association sought $498,000 in penalties because the property at which Lingenbrink and Krismer reside allegedly has a “weed-infested, overgrown” lawn that is “turning brown in spots” and the gates are “in dire need of repair and paint.”

San Diego Superior Court Judge Earl H. Maas III granted summary judgment in favor of Lingenbrink after finding that the association did not follow the proper procedures. A week later, the association sought an order vacating the judgment on the ground that Lingenbrick is not the trustee.

It presented a document signed by Krismer giving Lingenbrink a power of attorney. That, it asserted, was inadequate to confer on him the status of a trustee.

Maas discounted a declaration from Krismer as to her intent to designate Lingenbrink as trustee of her trust, and declined to allow her to testify. He granted the motion.

Document Inadequate Proof

In the opinion reversing that order, Aaron pointed out the burden was on the association to prove that Lingenbrink is not the trustee, and the power of attorney, without more, does not establish that.

Assuming he’s not the trustee, the jurist continued, that does not render the judgment void.

While it’s true that every action must be “prosecuted” in the name of the real party, she said, “[t]here is no similar reason or requirement for a defendant to have ‘standing’ to defend against a claim.”

She pointed to the 2011 Court of Appeal opinion in Portico Management Group, LLC v. Harrison containing the “suggestion that judgment against nontrustee could be amended to add trustees as judgment debtors.”

There, the court held that a judgment against a trust is “meaningless and cannot be enforced,” and “[t]o be enforceable against the trust property, the judgment should have been entered against those who held title to such property—the trustees.”

Attorney Fees

The case was remanded to the trial court for a determination of Lingenbrink’s attorney fees, as the prevailing party, and costs on appeal.

The case is Del Rayo Estates Homeowners Assn. v. Lingenbrink, D070175.

On March 22, the San Diego-based panel, in opinions by Aaron, sided with Lingenbrink in his continuing battle with the association. It affirmed an order that the association adhere by its rules and require the trimming of trees that obstruct the view from the property owned by the trust, and affirmed an order granting Lingenbrink $200,000 in attorney fees and $20,621.15 in costs.

Del Rayo Estates is located in the coastal community of Ranch Santa Fe.


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