Ugly Judge

Plaintiff, Bradford D. Lund Case 2:20-cv-01894

Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 1 of 31 Page ID #:1

1 THE PITET FIRM, PC
2
Joseph Busch III (SBN 70340)
jbusch@octrials.com
3 100 Bayview Circle, Suite 210
Newport Beach, CA 92660
4
Tel: (949) 502-7755
5
HORNE SLATON, PLLC DAVIS GOLDBERG GALPER, PLLC
6
Sandra Slaton (pro hac vice pending) Lanny J. Davis (pro hac vice pending)
7 slaton@horneslaton.com ldavis@dggpllc.com
6720 North Scottsdale Road, Suite 285 1700 K. Street NW, Ste. 825
8 Scottsdale, Arizona 85253 Washington, D.C. 20006
9 Tel: (480) 483-2178 Tel: (202) 899-3834

10 Attorneys for Plaintiff, Bradford D. Lund
11 UNITED STATES DISTRICT COURT
12 CENTRAL DISTRICT OF CALIFORNIA
13
BRADFORD D. LUND, Case No. 2:20-cv-1894
14

15 PLAINTIFF, CIVIL RIGHTS COMPLAINT
PURSUANT TO 42 U.S.C. § 1983
16 v.
17
THE HONORABLE DAVID J.
18 COWAN, Los Angeles County Superior
19 Court Judge, LOS ANGELES COUNTY
SUPERIOR COURT for the State of
20 California
21
DEFENDANTS.

22

23 1. This case involves the Plaintiff, Bradford D. Lund (“Mr. Lund”), the
24
grandson of entertainment tycoon Walt Disney. For the past decade, Mr. Lund has
25

26
been entrapped in the probate division of the Los Angeles County Superior Court

1
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1 fighting against hostile trustees to receive his beneficiary distributions from his trusts.
2
As one of their tactics to keep Mr. Lund from receiving his trust distributions, Mr.
3
Lund’s hostile trustees, in concert with certain of Mr. Lund’s estranged family
4

5 members, alleged that he was incapacitated and needed a guardianship and
6
conservatorship. After seven years of fighting that battle in the Arizona courts, and
7
after a 10-day bench trial, Mr. Lund was victorious in all respects and was found to
8

9 have capacity, resulting in a dismissal of that case. The disgruntled estranged family
10 members appealed the case and the Arizona appellate court unanimously affirmed the
11
trial court’s decision. The Arizona Supreme Court refused review, and a final
12

13 Arizona judgment was filed in August, 2016. Additionally, another California

14 Superior Court judge found that Bradford Lund had capacity to choose successor
15
trustees for one of his other trusts after similar allegations were previously made by
16
Mr. Lund’s hostile trustees. In the face of these specific findings and the decade long
17

18 history of litigation without any guardian ad litem, and without notice or any hearing,
19
the Hon. David J. Cowan, on his own sua sponte Order to Show Cause, appointed a
20
limited purpose guardian ad litem over Mr. Lund without any evidentiary hearing or
21

22 notice. In so doing, Judge Cowan refused to take judicial notice of the Arizona
23 decision in the form of either judicial comity or full faith and credit.
24
2. That imposition of a guardian ad litem has imposed significant
25

26 constraints on Mr. Lund’s liberty and property interests in violation of the 14th

2
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1 Amendment, and his constitutional right to due process of law by not having any
2
hearing. Indeed, his attorneys (3 current and 1 former) have filed affidavits under
3
oath which stated that Mr. Lund is, in fact, competent, and does not need any
4

5 guardian ad litem – consistent with the specific findings of fact made by Judge
6
Oberbillig in Arizona, and Judge Beckloff in California, that were completely ignored
7
by Judge Cowan.
8

9 3. The decision by Judge Cowan to appoint a GAL sua sponte, without a
10 hearing, contradicting the factual and legal findings of Judge Oberbillig after a 10-
11
day bench trial in Phoenix, Arizona, and utterly ignoring constitutional requirements
12

13 of due process of law is all too reminiscent of a perspective where facts do not matter

14 but alternative facts do, where the constitution does not matter and where the rule of
15
law is set aside and replaced by the rule of subjective, fact-free decision-making.
16
4. After a ten-day bench trial in Arizona, as explained above, on a
17

18 guardianship/conservatorship petition, the Honorable Robert Oberbillig determined
19
that Mr. Lund was not “not incapacitated,” not in in need of a guardianship or
20
conservatorship, and that “Although not his burden of proof, Bradford Lund has
21

22 proven that he deserves the freedom in life to make his own choices.” (Exhibit A, p.
23 3-6). Furthermore, the Supreme Court of Arizona specifically determined that Mr.
24
Lund was entitled to his property and lifted all stays in the Arizona probate matter,
25

26 while also denying the petition for review.

3
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1 5. In 2009, the Trustees sought to have a guardian ad litem appointed over
2
Mr. Lund but dismissed that requested relief before it was ruled on when the parties
3
settled. In 2012, the Trustees sought a Cal. Evidence Code § 730 Expert to advise the
4

5 court on Mr. Lund’s competency. The Trustees motion for a § 730 Expert was
6
denied by the Hon. Mitchell L. Beckloff.
7
6. In a 2013 bench trial before the Hon. Mitchell L. Beckloff, in regard to
8

9 an issue of whether Mr. Lund was competent to appoint his successor trustees on one
10 of his trusts, he was found to have capacity. Indeed, there was no guardian ad litem
11
appointed over Mr. Lund at any time during that California probate proceeding, nor
12

13 any of the appeals following that judgment. Specifically, Judge Beckloff determined

14 that: “Evidence presented during the trial did not persuade the court that Mr. Lund
15
lacked capacity to exercise his Trustee Removal Power.” (Exhibit B, p. 32).
16
Additionally, Judge Beckloff found: “The evidence did not rebut the statutory
17

18 presumption that Mr. Lund had capacity to exercise the Trustee Removal Power.”
19
(Exhibit B, p. 32). Regarding the allegations that Mr. Lund was subject to undue
20
influence, Judge Beckloff specifically found: “There is no direct evidence that Mr.
21

22 Lund was unduly influenced to exercise the Trustee Removal Power.” (Exhibit B, p.
23 33). Ultimately, Judge Beckloff specifically found: “The court finds that Mr. Lund’s
24
exercise of the Trustee Removal Power was knowing, voluntary, and intelligent.”
25

26 (Exhibit B, p. 35).

4
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1 7. In the present California proceedings, Mr. Lund was given no notice or
2
hearing. Instead, without notice Judge Cowan, ordered a limited purpose guardian ad
3
litem over Mr. Lund on the baseless and unproven allegations by the Trustees of the
4

5 Sharon D. Lund Residuary Trust fbo Bradford D. Lund (the “BRT”) that Mr. Lund
6
was incapacitated, in the face of the Arizona decision and previous California
7
decisions otherwise. In his written order appointing the limited guardian ad litem,
8

9 Judge Cowan stated that Mr. Lund had not proven his capacity, despite the statutory
10 presumption that all persons have the capacity to make decisions and to be
11
responsible for those acts and/or decisions. This was not Mr. Lund’s burden to
12

13 overcome. In California, and throughout the country, the statutory presumption is

14 that all individuals have capacity and are competent, the burden is placed on the party
15
challenging competence or capacity. However, Judge Cowan turned that burden on
16
its head and, again, required Mr. Lund to prove that he was competent and had
17

18 capacity.
19
8. The guardian ad litem has complete control over Mr. Lund’s legal
20
decisions and actions, together with interfering with Mr. Lund’s right to choose his
21

22 own attorneys. Specifically, the order appointing the guardian ad litem grants to that
23 position the following powers to: (1) “facilitat[e] a new settlement agreement”; (2)
24
determine “whether the Court can grant Bradford’s request to appoint” a trustee; (3)
25

26 “provide the Court with a report on how to streamline future litigation” if a new

5
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1 settlement is not possible; (4) determine “whether Bradford’s lawyers should be
2
disqualified due to conflict”; (5) determine “whether the Court should remove [the
3
co-trustees of Mr. Lund’s 1992 Trust] pursuant to the OSC re: removal based on their
4

5 refusal to provide information regarding the Nevada Trust or any other reason”; (6)
6
determine “whether the interim stay should be lifted” on the 1992 Trust case; (7)
7
whether approval of the settlement could be conditioned on a court order before
8

9 decanting of assets in the Nevada Trust; and (8) representing Mr. Lund “on any
10 appeal of this order.” (Exhibit C, p. 18-19).
11
9. Despite the lack of evidentiary basis for the deprivation of Mr. Lund’s
12

13 liberty, Mr. Lund was forced into the de facto custody of a guardian ad litem. The

14 statutes enacted in California permitting such a deprivation of liberty are
15
unconstitutional because they have denied Mr. Lund any due process. Specifically,
16
the statutes fail to (1) require a judge to provide a party with any due process, not
17

18 even a hearing, before subjecting him to the losses of liberty by appointing a guardian
19
ad litem; (2) set effective limits for the de facto custody of a guardian ad litem,
20
including limits on the duration; and (3) provide any post-deprivation remedy; and (4)
21

22 fail to provide for a direct appellate remedy to challenge the appointment.
23 10. Mr. Lund remains in the de facto custody of the guardian ad litem
24
wrongly imposed on him pursuant to the unconstitutional State of California statutes.
25

26 Mr. Lund’s constitutional and civil rights have been violated by a public official

6
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1 under color of law and thus, such actions cannot be allowed to stand in a nation of
2
laws, not men; in a nation that cares about the constitution and the rule of law.
3
Therefore, Mr. Lund brings this complaint as follows:
4

5 JURISDICTION
6
11. This action is brought pursuant to 42 U.S.C. § 1983 and Fourteenth
7
Amendment to the United States Constitution. Jurisdiction is proper under 28 U.S.C.
8

9 § 1331 and § 1343(a)(3).
10 12. Pursuant to 42 U.S.C. § 1983, “in any action brought against a judicial
11
officer for an act or omission taken in such officer’s judicial capacity, injunctive
12

13 relief shall not be granted unless a declaratory decree was violated, or declaratory

14 relief was unavailable.” In the present matter, declaratory relief is available and that
15
is the only relief requested. See Yellen v. Hara, No. CV 15-00300 JMS-KSC, 2015
16
WL 8664200 (D. Haw. Dec. 10, 2015).
17

18 In Yellen, the judicial officer was named as a party and the case was not
19
dismissed under the Younger abstention doctrine of the Rooker-Feldman doctrine.1
20
There, the Yellen court stated:
21

22 Applied here, although state proceedings are ongoing, they are not “quasi-
criminal enforcement actions,” nor do they “involve a state’s interest in
23 enforcing the orders and judgments of its courts.” Id. This action involves
24

25 1
The claims against the judge were dismissed because the plaintiff was seeking
26 monetary damages and injunctive relief which are prevented. In the present case,
there are no damages or injunctive relief sought.

7
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1 routine state-court orders appointing individuals to assist the court—
2
guardianship, conservatorship, and Kokua Kanawai appointments. These
are not orders that involve “the process by which a state ‘compels
3 compliance with the judgments of its courts.’” Id. (quoting Potrero Hills
Landfill, Inc. v. Cty. of Solano, 657 F.3d 876, 886 (9th Cir. 2011)). In
4
short, Younger does not apply, and provides no basis for dismissal or
5 abstention.
6 Yellen, 2015 WL 8664200 at * 7. In the present case, this case is not a “quasi-criminal
7
enforcement action” but similarly, involves routine state-court orders appointing an
8

9 individual to assist the court.

10 13. Venue is proper in the United States District Court or the Central District
11
of California pursuant to 28 U.S.C. § 1391(b).
12
14. This is an action for declaratory judgment pursuant to 28 U.S.C. § 2201,
13

14 for the purpose of determining a question of actual controversy between the parties.
15
Mr. Lund seeks a declaration from this Court that the laws of the State of California,
16
as executed, are unconstitutional because Mr. Lund is “in custody” by virtue of the
17

18 appointment of the guardian ad litem without due process of law. This de facto
19 custody of the guardian ad litem continues despite specific findings on previous
20
occasions that Mr. Lund is not incapacitated, not in need of a guardian or a
21

22 conservator, together with under oath declarations from his attorneys that Mr. Lund

23 is, in fact, competent. The ongoing unwillingness to correct the custody of the
24
guardian ad litem that Mr. Lund has been placed in, is a continuing deprivation of Mr.
25
Lund’s due process rights.
26

8
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 9 of 31 Page ID #:9

1 PARTIES
2
15. Plaintiff, Bradford D. Lund, is and was, at all times relevant herein a
3
citizen of the United States, a resident of Clark County, Nevada, and involved in
4

5 ongoing litigation in the Los Angeles County Superior Court.
6
16. Defendant, the Honorable David J. Cowan, is a judge of the Los Angeles
7
County Superior Court for the State of California.
8

9 17. Defendant, the Los Angeles County Superior Court, is a division of the
10 State of California.
11
18. Defendants are named only in their official capacities. Defendants were
12

13 acting and continue to act under color of state law in the deprivation of Mr. Lund’s

14 constitutionally protected rights. Both Defendants, Judge Cowan and the Los
15
Angeles County Superior Court, are hereinafter referred to collectively as “Judge
16
Cowan”.
17

18 19. L. Andrew Gifford, Robert L. Wilson, Douglas Strode, and First
19
Republic Trust Company (“FRTC”) (collectively, the “Trustees”), as Trustees of the
20
Sharon D. Lund Residuary Trust fbo Bradford D. Lund; as Trustees of the Sharon D.
21

22 Lund Residuary Trust fbo Michelle A. Lund, FRTC as former trustee of the Bradford
23 Disney Lund 1992 Trust, and Sharon D. Lund 1986 Irrevocable Trust fbo Bradford
24
D. Lund; and FRTC as a Co-Trustee of the Lillian B. Disney Trust fbo Bradford D.
25

26 Lund are not named as defendants or real parties in interest because there is no

9
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 10 of 31 Page ID #:10

1 pecuniary interest. Mr. Lund is not seeking any damages or any monetary interest at
2
all.
3
STATEMENT OF FACTS
4

5 Background Facts:
6
20. Mr. Lund is a forty-nine-year-old man who is the heir to the fortune of
7
entertainment and media pioneer Walt Disney. The litigation in California began on
8

9 October 20, 2009 and the litigation in Arizona began six days later on October 26,
10 2009.
11
21. Mr. Lund unquestionably prevailed in the Arizona Matter and benefited
12

13 from detailed and specific findings of fact and conclusions of law made by Judge

14 Oberbillig. The contents of those findings are attached as Exhibit A, and specifically
15
incorporated by reference as if set forth in full herein. Judge Oberbillig found in
16
pertinent part:
17

18 1) Petitioners have failed to meet their burden of proof by clear and
convincing evidence or even by a preponderance of the evidence as to the
19
request for a Limited Guardianship.
20
2) Petitioners have failed to meet their burden of proof by a
21 preponderance of the evidence to establish a Limited Conservatorship or
22 other less restrictive alternatives.

23 3) Bradford Lund has established by clear and convincing presently,
in 2016, he is not incapacitated, an appointment of a guardian is not
24
necessary to provide for his demonstrated needs, and Bradford Lund’s
25 needs are currently being properly met by less restrictive means.
26

10
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1 4) The Court-Appointed Independent Neuropsychologist Dr. Daniel
2
Blackwood testified that “Mr. Lund is not in need of a guardian or
conservator as of May 3, 2011.”
3
5) Court Investigator Robert Segelbaum testified that as of June 2011,
4
he had “ambivalent” feelings whether a guardianship and/or
5 conservatorship were warranted. He deferred to Dr. Blackwood, although
he did conclude “there does not appear to be any reason to secure a
6 guardianship at this time,” referring to as of June 2011.
7
6) The Petitioners presented no credible expert testimony that
8 Bradford Lund needs a limited guardian or conservator.
9
7) Bradford Lund’s treating physicians, Dr. Duane and Dr. Chung,
10 were the only neurologists who have examined Bradford Lund since May
2011 and both testified Bradford Lund was not incapacitated and not in
11 need of a guardian or conservator to effectively manage his personal care,
12 medical, or financial matters so long as Bradford Lund continued to rely
on the advice of trusted family members and professional advisors.
13

14
8) Petitioners concede Bradford Lund has the capacity to manage all
of his activities of daily living.
15
9) Michelle Lund testified in the Superior Court of California on
16
December 17, 2013, that Bradford Lund is “competent” and “he ultimately
17 had the capacity to decide what he would want to do in a business sense.”
18 […]
19
12) Bradford Lund is able to effectively manage his medical care,
20 estate, and other affairs. Bradford Lund has consistently demonstrated
that he makes mature and appropriate financial decisions. He properly
21
relies and has relied upon the advice of his father, Sherry Lund, Rachel
22 Schemitsch, Robert Rosepink, Douglas Wiley, and others as any
reasonable person of substantial wealth would do in making important
23
decisions involving his personal affairs, estate, and financial matters.
24
[…]
25
15) Bradford Lund, now 45, has been described by Petitioners and the
26
other witnesses as a very “frugal” man with his money.

11
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 12 of 31 Page ID #:12

1 16) There was no credible testimony Bradford Lund has ever wasted or
2
dissipated any property or funds at any time in his life.

3 17) The weight of the credible evidence does not support Petitioners’
claim that Respondents are out to get Bradford Lund’s funds or have
4
wrongfully benefitted from or improperly used his funds.
5
18) There was undisputed evidence Bradford Lund’s father has assisted
6 Bradford Lund and Michelle Lund in making collectively over $100
7 million in profits.

8 19) As stated by estate planning attorney specialist Douglas Wiley, the
Nevada trust is an excellent method for Bradford Lund to protect his assets
9
from both creditors and predators. Further, the trust is set up to preclude
10 Bradford Lund from wasting or dissipating his assets.
11 […]
12
22) Although not his burden of proof, Bradford Lund has proven that
13 he deserves the freedom in life to make his own choices.
14 (Exhibit A, p. 3-6).
15
22. The California Litigation had a thirteen-day bench trial in Los Angeles
16

17 Superior Court Case Nos. BP119205 (In re The Sharon D. Lund Residuary Trust fbo

18 Bradford D. Lund); BP120814 (In re The Bradford Disney Lund 1992 Trust); and
19
BP129815 (In re The Sharon D. Lund 1986 Irrevocable Trust fbo Bradford D. Lund).
20

21
There was no guardian ad litem appointed in any of the California Litigation at all.

22 Ultimately, Judge Beckloff made the following findings on the only issue presented
23
that had anything to do with competence or capacity.
24

25 a. “Evidence presented during the trial did not persuade the court
26 that Mr. Lund Lacked capacity to exercise his Trustee Removal Power.
While there are legal proceedings pending in Arizona to conserve Mr.

12
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 13 of 31 Page ID #:13

1 Lund, such pending litigation alone is insufficient to establish that Mr.
2
Lund lacked mental capacity to exercise his Trustee Removal Power.”
(Exhibit B, p. 32)
3
b. “The evidence did not rebut the statutory presumption that Mr.
4 Lund had capacity to exercise the Trustee Removal Power. While
5 capacity must be considered in the context of the decision being made,
the evidence before the court did not establish that Mr. Lund lacked
6 capacity such that he could not make independent decisions in
7 connection with the Trustee Removal Power or that he did not
understand the rights, duties, responsibilities, risks, benefits, and
8 reasonable alternatives involved in or affected by a decision to exercise
9
the Trustee Removal Power.” (Exhibit B, p. 32).

10 c. “There is no direct evidence that Mr. Lund was unduly influenced
to exercise the Trustee Removal Power.” (Exhibit B, p. 33).
11
23.Ultimately, Judge Beckloff found:
12

13 After having considered the evidence, the court cannot find that Mr.
Lund’s free will was overborne by another. Mr. Lund elected to exercise
14
his Trustee Removal Power with the advice and assistance of his counsel.
15 Mr. Lund’s exercise is not without articulated reasons. While Mr. Lund
is dependent upon those around him, the evidence is insufficient to
16 establish that Mr. Lund is not acting of his own will and desire on the
17 issue. The court finds that Mr. Lund’s exercise of the Trustee Removal
Power was knowing, voluntary, and intelligent.
18
(Exhibit B, p. 35).
19

20 The Current California Litigation:
21
24. The California Litigation continued and now involves five separate case
22
numbers: BP055495 (In re The Lillian B. Disney Trust fbo Bradford D. Lund);
23

24 BP119204 (In re The Sharon D. Lund Residuary Trust fbo Michelle A. Lund);
25 BP119205; BP129814; BP129815 (collectively, the “Lund Trust Matters”).
26

13
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 14 of 31 Page ID #:14

1 25. On December 19, 2018, Judge Cowan, on his own motion, issued two
2
separate orders to show cause. One of those orders to show cause involved whether
3
the court should appoint a guardian ad litem for Mr. Lund (the “OSC”). Judge
4

5 Cowan specifically set a hearing on the order to show cause to be heard on February
6
7, 2019.2 Both Mr. Lund and the opposing party, Mr. Lund’s trustees, filed
7
Responses to Judge Cowan’s OSC on February 28, 2019.
8

9 26. The parties of the Lund Trust Matters all agreed to continue the OSC
10 hearing in order to engage in mediation in an effort to settle the case, or portions of
11
the case. The OSC hearings were continued with Judge Cowan’s blessing pursuant to
12

13 his subsequently issued order for the parties to attend mediation. No guardian ad

14 litem was appointed over Mr. Lund prior to mediation.
15
27. Mr. Lund, without any guardian ad litem or alternate decision-maker,
16
together with the Co-Trustees of the Bradford Disney Lund 1992 Trust, on the one
17

18 hand, and the Trustees, on the other hand, engaged in a two-day in-person mediation
19
on March 25 and 26, 2019, before the Hon. Leslie Green, a retired Los Angeles
20
County Superior Court Probate Judge. Additionally, the parties engaged in another
21

22 approximately two weeks of negotiations, assisted by Judge Green (ret.), which
23 resulted in a complete and total global Settlement Agreement. Mr. Lund signed the
24

25

26
2
That date was continued to a later date given the parties stipulation for extensions of
time for the filing of the briefing, but the hearing on the OSC never actually occurred.

14
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 15 of 31 Page ID #:15

1 settlement agreement himself, and the Trustees accepted his signature, without any
2
guardian ad litem of any kind appointed over Mr. Lund.
3
28. Pursuant to the Settlement Agreement, the agreement was presented to
4

5 Judge Cowan for approval which would finally put an end to over a decade of
6
litigation between the parties to the Lund Trust Matters. For the first time in a decade
7
all of the parties stood before the Los Angeles County Superior Court, and in a
8

9 unified voice asked for the approval of the Settlement Agreement which would
10 finally end all of the litigation.
11
29. Judge Cowan refused to approve the Settlement Agreement in its
12

13 entirety and only approved portions of the same including the substantial payment of

14 $14.5 million in termination fees to the adverse party, the Trustees.
15
30. On September 27, 2019, without any notice or hearing, Judge Cowan
16
issued an Order appointing a limited purpose guardian ad litem, Margaret Lodise,
17

18 over Mr. Lund.
19
31. In California the appointment of a guardian ad litem is not an appealable
20
order. (See In re Marriage of Caballero, 27 Cal. App. 4th 1139, 1149 (1994), In re
21

22 Hathaway’s Estate, 111 Cal. 270, 271 (1896)). Mr. Lund had no pre-deprivation
23 remedy or any post-deprivation remedy to remove the limited purpose guardian ad
24
litem.
25

26

15
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1 32. On October 17, 2019, Mr. Lund timely filed a Petition for Writ of
2
Mandate with the California Court of Appeal, Second District, regarding the
3
improper appointment of a guardian ad litem. On November 14, 2019, the California
4

5 appellate court summarily denied Mr. Lund’s writ petition. On November 20, 2019,
6
Mr. Lund timely filed a Petition for Review with the Supreme Court of California
7
challenging the summary denial of the writ petition. On November 26, 2019, the
8

9 California high court summarily denied Mr. Lund’s petition for review.
10 33. Mr. Lund exhausted his state court remedies regarding the imposition of
11
a limited purpose guardian ad litem being appointed over him.
12

13 34. The imposition of the limited guardian ad litem without any hearing has

14 resulted in a deprivation of Mr. Lund’s liberty and property interests. Specifically,
15
the limited guardian ad litem, was ordered to do the following:
16
a. “[F]acilitat[e] a new settlement agreement” between the parties of
17

18 the Lund Trust Matters;
19
b. Determine “whether the Court can grant Bradford’s request to
20
appoint” a trustee;
21

22 c. If a new settlement is not reachable, “provide the Court with a
23 report on how to streamline future litigation”;
24
d. Determine “whether Bradford’s lawyers should be disqualified
25

26 due to conflict”;

16
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 17 of 31 Page ID #:17

1 e. Determine “whether the Court should remove [the co-trustees of
2
Mr. Lund’s 1992 Trust] pursuant to the OSC re: removal based on their
3
refusal to provide information regarding the Nevada Trust or any other
4

5 reason”;
6
f. Determine “whether the interim stay should be lifted” on the 1992
7
Trust case;
8

9 g. Determine whether approval of the settlement could be
10 conditioned on a court order before decanting of assets in the Nevada
11
Trust; and
12

13 h. Represent Mr. Lund “on any appeal of this order.”

14 (Exhibit C, p. 18).
15
35. The above actions by the guardian ad litem represent a deprivation of not
16
only Mr. Lund’s liberty interests, but also relegates Mr. Lund into the de facto
17

18 custody of guardian ad litem. Indeed, the guardian ad litem is, in fact, has already
19
begun to engage in renegotiation of the settlement with the Trustees. (Exhibit D, p.
20
3:15-19).
21

22 36. Judge Cowan has deprived Mr. Lund of his liberty and property. The
23 Constitution imposes upon him the State’s concomitant duty to see that no
24
deprivation occurs without adequate procedural protections. In this case, Judge
25

26

17
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 18 of 31 Page ID #:18

1 Cowan failed to assure that Mr. Lund was accorded due process prior to a loss of
2
liberty or property.
3
The 1992 Trust Litigation
4

5 37. On or about, November 5, 1992, Mr. Lund began the Bradford Disney
6
Lund 1992 Trust (the “1992 Trust”).
7
38. Mr. Lund is the settlor of the trust and the trusts sole lifetime
8

9 beneficiary. The 1992 Trust was to pay income to Mr. Lund not less often than
10 quarterly. The 1992 Trust also required mandatory birthday distributions when Mr.
11
Lund achieved the age of 35, 40, and 45.
12

13 39. The 35th Birthday Distribution was for one-third of the trust estate. The

14 40th Birthday Distribution was for one-half of the trust estate. The 45th Birthday
15
Distribution was for the remaining balance of the trust estate. The only exception to
16
the Birthday Distributions was that if the trustees of the trust determined that Mr.
17

18 Lund “has not theretofore demonstrated the maturity and financial ability to manage
19
and utilize such funds in a prudent and responsible manner.”
20
40. When Mr. Lund was 44 years old, and just before he was about to turn
21

22 45 years old, the trustee of the 1992 Trust, Mutual of Omaha Bank, determined that
23 Mr. Lund should receive his 35th and 40th Birthday Distributions. Mutual of Omaha
24
determined in their discretion that the exception, set forth above in paragraph 27, to
25

26 the distribution did not apply.

18
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 19 of 31 Page ID #:19

1 41. At the same time, and in the same petition, Mutual of Omaha indicated
2
that it would make the decision on the 45th birthday distribution after Mr. Lund
3
turned 45, on June 5, 2015.
4

5 42. Michelle Lund (Mr. Lund’s twin sister), the contingent beneficiary of the
6
1992 Trust, filed an objection to Mutual of Omaha’s Petition for Instructions.
7
Michelle’s objection was based on her allegation that Mr. Lund did not meet the
8

9 Distribution Standard, together with the fact that there was, at that time, a protective
10 proceeding pending in Arizona.
11
43. Prior to the decision by the Court on Mutual of Omaha’s petition and
12

13 Michelle’s objection, Mr. Lund removed Mutual of Omaha as trustee, and appointed

14 as replacements, Sherry Lund and James Dew to serve as trustees of the 1992 Trust. 3
15
44. On September 6, 2016, the Hon. Roy L. Paul, among other things,
16
ordered, “The New 1992 Trustees shall hold the Remaining 1992 Trust Assets in
17

18 California and no portion thereof shall be distributed, disbursed, encumbered, or
19
otherwise transferred without further order of the Court, with only the following two
20
exceptions: (a) the New 1992 Trustees shall continue to make all Unitrust payments
21

22 otherwise owing to Brad from the 1992 Trust; and (b) the New 1992 Trustees may
23 use 1992 Trust assets to pay attorneys’ fees and costs, trustees’ fees and costs, and
24

25

26
3
Mr. Lund also appointed himself and then resigned from the role as trustee of the
1992 Trust.

19
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 20 of 31 Page ID #:20

1 other administrative expenses of the 1992 Trust, without prejudice to any party’s
2
right to challenge such expenses.”
3
45. The reason for Judge Paul’s interim stay was of because of Michelle
4

5 Lund’s objections in the 1992 Trust Case which have since been settled.
6
46. On September 27, 2018, Mr. Lund and Michelle settled all issues in the
7
1992 Trust case. Included in the settlement was that Michelle would not “object to
8

9 the distribution of the proceeds of the 1992 Trust by the Co-Trustees Sherry and Dew
10 to Bradford in accordance with his directives.”
11
47. The settlement between Mr. Lund and Michelle Lund put all issues,
12

13 except objections to accountings to rest. FRTC, as a former trustee, was merely a

14 purported creditor seeking outstanding attorneys’ fees, but have never filed an
15
affirmative pleading seeking any fees. Judge Paul’s order required a holdback of
16
$600,000. Mr. Lund and Mutual of Omaha Bank settled regarding the 1992 Trust On
17

18 February 13, 2019.
19
48. Mr. Lund moved to lift the stay on the 1992 Trust in October, 2019. The
20
Hon. David J. Cowan denied that Motion and required Mr. Lund to submit the issue
21

22 as a petition. The Co-Trustees of the 1992 Trust filed the Petition to Lift Interim Stay
23 on January 8, 2019.
24
49. On September 27, 2019, the court effectively again denied Mr. Lund the
25

26 right to his own personal property even though there are no longer any issues

20
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 21 of 31 Page ID #:21

1 regarding the 1992 Trust except purported creditor issues by FRTC (former trustee of
2
the 1992 Trust) which have a specific holdback.
3
50. Mr. Lund has been denied his due process and access to his own
4

5 personal assets by the California Superior Court. Despite the resolution of all issues
6
in the 1992 Trust except the objections to the accountings filed by FRTC, the
7
California Superior Court refuses to remove its order preventing Mr. Lund from
8

9 receiving his own assets.
10

11
Full Faith And Credit Clause
12

13 51. The Full Faith and Credit Clause of the United States Constitution reads

14 in pertinent part: “Full Faith and Credit shall be given in each State to the public
15
Acts, Records and judicial Proceedings of every other State. And the Congress may
16
by general Laws prescribe the Manner in which such Acts, Records and Proceedings
17

18 shall be proved, and the Effect thereof.”
19
52. Despite the constitutional requirement that Full Faith and Credit shall be
20
given to the judicial acts, records, and proceedings of every other state, Judge Cowan
21

22 ignored the 2016 Arizona Judgment and appointed a limited guardian ad litem over
23 Mr. Lund.
24
53. Judge Cowan specifically ignored the findings made in an Arizona
25

26 Superior Court In & For Maricopa County case involving Mr. Lund. In In re The

21
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 22 of 31 Page ID #:22

1 Guardianship and Conservatorship of Bradford D. Lund, Maricopa County Case No.
2
PB2009-002244, specific and detailed findings of fact and conclusions of law were
3
made, that were unanimously affirmed by the Arizona Court of Appeals, Division
4

5 One. Judge Cowan specifically ignored the findings that Mr. Lund was competent,
6
had capacity, was not in need of any guardian or conservator, and “Although not his
7
burden of proof, Bradford Lund has proven that he deserves the freedom in life to
8

9 make his own choices.”
10 54. As stated above, Mr. Lund incorporates by reference all of the findings
11
of fact and conclusions of law made by Judge Oberbillig in the 2016 Arizona
12

13 Judgment, attached as Exhibit A, as if set forth in its entirety herein.

14 55. The Trustees and the Arizona Petitioners were in privity because they
15
had a common interest agreement between them. The privity between the Trustees
16
and Arizona Petitioners applies because a party is adequately represented for
17

18 purposes of the privity rule “if his or her interests are so similar to a party’s interest
19
that the latter was the former’s virtual representative in the earlier action.” Citizens
20
for Open Access to Sand and Tide, Inc. v. Seadrift Ass’n, 60 Cal. App. 4th 1053, 1070
21

22 (Cal. App. 1998). Having a common interest agreement between the Trustees and
23 Arizona Petitioners required them to have the same legal interest. See OXY Res.
24
California LLC v. Superior Court, 115 Cal. App. 4th 874, 891 (2004) (“For
25

26 the common interest doctrine to attach, most courts seem to insist that the two parties

22
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 23 of 31 Page ID #:23

1 have in common an interest in securing legal advice related to the same matter—and
2
that the communications be made to advance their shared interest in securing legal
3
advice on that common matter.’”). Therefore, the Arizona Petitioners and the
4

5 Trustees were in fact, in privity with each other.
6
56. While the Trustees were not parties to the Arizona Litigation, their
7
interests were represented and advocated for by the Arizona Petitioners’ attorneys.
8

9 One of the Trustees, Andrew Gifford, was a star witness for the Arizona Petitioners,
10 and his counsel, Hayward Kaiser, was present for Gifford’s testimony. Also, it is Mr.
11
Lund’s position Trustees assisted (behind the scenes) with the strategy, planning, and
12

13 initiation of the case. Indeed, most of the exhibits submitted by the Petitioners were

14 taken verbatim from the 2013 California trial.
15
57. Judge Oberbillig made detailed findings of fact and conclusions of law
16
that Mr. Lund had capacity and was not in need of a guardian or conservator, as
17

18 quoted above in paragraph 21. (Exhibit A, p. 3-6).
19
58. Based upon the Judgment entered by Judge Oberbillig, the Arizona
20
litigation was dismissed and there was no guardian or conservator appointed over Mr.
21

22 Lund.
23 59. The Arizona Petitioners (Kristen Olson and Michelle Lund) appealed the
24
trial court’s findings of fact and conclusions of law. On December 26, 2017, the
25

26 Arizona Court of Appeals unanimously affirmed the 2016 Arizona Judgment and

23
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 24 of 31 Page ID #:24

1 issued a 17-page memorandum decision. Included in the Arizona appellate court’s
2
discussion of the evidence is the following statement:
3
Andrew Gifford, one of the trustees of the Sharon D. Lund Residuary
4
Trust for the benefit of Bradford, testified that Bradford had the capacity
5 to sign documents in 2005 and 2007 establishing, among other things, a
fee arrangement to appoint a successor trustee in 2007, and to consent to
6
an increase in the compensation for the management of his personal
7 accounts in 2005.
8 (Exhibit E, p. 11 ¶ 25). The detailed memorandum decision includes specific analysis
9
of the guardianship, conservatorship, assessment of Mr. Lund, and guardian ad litem
10

11
issues, among other things. Ultimately, the Arizona Court of Appeals found: “We

12 affirm the superior court’s judgment denying Olson’s petition for guardianship and
13
conservatorship.” (Exhibit E, p. 29 ¶ 82).
14
60. The Arizona appellate court in determining the guardian ad litem issue
15

16 stated: “Substantial support exists in the record showing Bradford’s interests were
17
being represented by independent counsel and his representation was adequate under
18
A.R.S. § 14-1408(A). Substantial evidence also exists demonstrating that Bradford is
19

20 not incompetent. Consistent with the court’s findings of fact and conclusion of law,

21 the record shows he understood the nature of the proceedings and was able to assist in
22
the presentation of his case. Therefore, the substantial evidence shows Bradford was
23

24 not in need of a GAL under A.R.S. § 14-1408 or Rule 17 of the Arizona Rules of

25 Civil Procedure, we find no abuse of discretion in the court’s dismissal of the GAL.”
26
(Exhibit E, p. 28 ¶ 79).

24
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 25 of 31 Page ID #:25

1 61. On January 25, 2018, the Arizona Petitioners filed a petition for review
2
in the Supreme Court of Arizona together with an emergency motion to stay the
3
distribution of assets from the Walt Disney Trust. On February 9, 2018, the Arizona
4

5 high court denied the emergency motion to stay. On August 29, 2018, the Supreme
6
Court of Arizona denied the petition for review.
7
62. On September 27, 2019, Judge Cowan appointed a limited purpose
8

9 guardian ad litem over Mr. Lund and ignored the findings made in California. Judge
10 Cowan ignoring the findings made in the Arizona Superior Court violated the Full
11
Faith and Credit clause of the United States Constitution.
12

13 The Striking Of The Objection To The Judge

14 63. On October 17, 2019, Mr. Lund filed a Verified Statement Objecting To
15
Judge David Cowan Pursuant To Code of Civil Procedure § 170.1. See Exhibit F,
16
incorporated herein. Throughout the hearings in this case, Judge Cowan prejudged
17

18 and predetermined the issues. As one example only, Judge Cowan stated: “Do I want
19
to give 200 million dollars, effectively, to someone who may suffer, on some level,
20
from Down syndrome? The answer is no.” Judge Cowan would not retract that
21

22 statement even after on of Mr. Lund’s counsel indicated that there was an
23 indisputable DNA test proving that Mr. Lund did not have Down syndrome.
24

25

26

25
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 26 of 31 Page ID #:26

1 64. On October 24, 2019, Judge Cowan, the very same judge that Mr. Lund
2
objected to, filed an order striking his Statement of Disqualification pursuant to Code
3
of Civil Procedure § 170.4(b).
4

5 65. Mr. Lund was denied his due process through the allowance of the
6
California Code of Civil Procedure § 170.4(b) which allowed Judge Cowan to strike
7
the objection from the record.
8

9 Count One
10 (Due Process Violation of the Fourteenth Amendment to the United States
11
Constitution)
12

13 66. Mr. Lund hereby incorporates paragraphs 1 through 65 above as if fully

14 set forth herein.
15
67. The guardian ad litem statutes of the State of California are
16
unconstitutional in that they (1) vest unlimited discretion in the trial judge to subject a
17

18 person to a long term, indefinite, de facto custody; (2) fail to provide Mr. Lund with
19
procedural due process prior to taking away his liberty and property; (3) fail to
20
provide Mr. Lund with any procedural safeguards, including but not limited to, a
21

22 means to have the trial court’s decisions reviewed in a timely manner; and (4) fail to
23 provide Mr. Lund with any post-deprivation rights of direct appeal to remove the
24
appointment.
25

26

26
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 27 of 31 Page ID #:27

1 68. The Defendants’ failure to give Full Faith and Credit to the 2016
2
Arizona Judgment is a violation of Mr. Lund’s due process.
3
69. The Defendants’ acts through Judge Cowan in appointing the guardian
4

5 ad litem and refusing to release Mr. Lund from the appointment constitute violations
6
of Mr. Lund’s rights pursuant to the Fourteenth Amendment to the United States
7
Constitution not to be deprived of Life, Liberty, or Property without due process of
8

9 law and to enjoy the equal protection of the laws of the State of California.
10 70. The Defendants’ acts through Judge Cowan in ignoring the 2016
11
Arizona Judgment constitute violations of Mr. Lund’s constitutional right to Full
12

13 Faith and Credit together with violations of his rights pursuant to the Fourteenth

14 Amendment to the United States Constitution not to be deprived of Life, Liberty, or
15
Property without due process of law.
16
Count Two
17

18 (Declaratory Judgment)
19
71. Mr. Lund hereby incorporates paragraphs 1 through 70 above as if fully
20
set forth herein.
21

22 72. The above facts demonstrate that Defendants have acted in violation of
23 Mr. Lund’s constitutional rights pursuant to the Fourteenth Amendment to the
24
Constitution.
25

26

27
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 28 of 31 Page ID #:28

1 73. Mr. Lund is entitled to declaratory judgment holding that Defendants’
2
actions placing Mr. Lund in long term, indefinite custody of the guardian ad litem,
3
without a hearing and in the face of Judge Beckloff’s ruling, Judge Oberbillig’s
4

5 ruling, the Arizona Court of Appeals affirmation of Judge Oberbillig’s ruling, and the
6
sworn declarations from Mr. Lund’s counsel that they have “directly observed that
7
[Mr. Lund] was able to understand the nature and consequences of proceedings and to
8

9 assist [them] in [their] representation of him at all times.”
10 74. Mr. Lund is further entitled to a declaratory judgment holding that the
11
laws of the State of California that permit the appointment of a guardian ad litem over
12

13 a competent adult for any period of time without a hearing are unconstitutional. See

14 Weaver by Weaver v. New York City Employees’ Ret. Sys., 717 F. Supp. 1039, 1044
15
(S.D.N.Y. 1989); Thomas v. Humfield, 916 F.2d 1032, 1034 (5th Cir. 1990).
16

17 Count Three
18
(Declaratory Judgment)
19
75. Mr. Lund hereby incorporates paragraphs 1 through 74 above as if fully
20

21 set forth herein.
22
76. In California the burden of proof is on the party asserting that someone
23
is incompetent and needs a guardian ad litem.
24

25 77. Judge Cowan reversed the burden of proof and required Mr. Lund to
26 prove that he was not incompetent. (Exhibit C, p. 19-28).

28
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 29 of 31 Page ID #:29

1 78. Mr. Lund is entitled to declaratory judgment holding that the above
2
actions by Judge Cowan, forcing Mr. Lund to prove his competency, violated Mr.
3
Lund’s due process. See Weaver by Weaver, 717 F. Supp. at 1044.
4

5 Count Four
6
(Declaratory Judgment)
7
79. Mr. Lund hereby incorporates paragraphs 1 through 78 above as if fully
8

9 set forth herein
10 80. The above facts demonstrate the Defendants have acted in violation of
11
Mr. Lund’s constitutional rights pursuant to the Full Faith and Credit Clause found in
12

13 Article IV, § 1 of the United States Constitution.

14 81. Mr. Lund is entitled to declaratory judgment holding that Defendants’
15
actions in ignoring the findings of fact and conclusions of law on Mr. Lund’s
16
competence and capacity are binding on all courts in all states.
17

18 82. Mr. Lund is further entitled to a declaratory judgment holding that Full
19
Faith and Credit Clause applies to the Arizona Judgment.
20
Count Five
21

22 (Declaratory Judgment)
23 83. Mr. Lund hereby incorporates paragraphs 1 through 82 above as if fully
24
set forth herein.
25

26

29
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 30 of 31 Page ID #:30

1 84. Pursuant to 14th Amendment all parties are entitled to have a neutral and
2
detached decision maker preside over their litigation. Judge Cowan, the subject of
3
the objection, ordered those objections stricken from the record. It is obvious that
4

5 Judge Cowan is not neutral and detached regarding this issue.
6
85. The above facts demonstrate that Judge Cowan’s striking of Mr. Lund’s
7
Verified Statement objecting to him on the grounds of bias and prejudice is a
8

9 violation of Mr. Lund’s his right to due process pursuant to the 14th Amendment to
10 the Constitution.
11
86. Mr. Lund is entitled to a declaratory judgment holding the California
12

13 Code of Civil Procedure, § 170.4(b) is unconstitutional and violates due process.

14 WHEREFORE, Plaintiff, Bradford D. Lund respectfully requests this Court
15
to:
16
1. Issue a declaratory judgment finding that the conduct of Defendants, as
17

18 described above, has violated and continues to violate Mr. Lund’s rights pursuant to
19
the Fourteenth Amendment to the Constitution and the Civil Rights Act of 1871, 42
20
U.S.C. § 1983.
21

22 2. Issue a declaratory judgment finding that the statutes of the State of
23 California which allow a court to appoint a guardian ad litem over Mr. Lund, without
24
notice or a hearing, deprives him of his liberty and property in violation of the 14th
25

26 Amendment.

30
Case 2:20-cv-01894 Document 1 Filed 02/27/20 Page 31 of 31 Page ID #:31

1 3. Issue a declaratory judgment finding that Judge Cowan ignoring the
2
findings of fact and conclusions of law included in the 2016 Arizona Judgment is
3
unconstitutional and a violation of the Full Faith and Credit Clause of the United
4

5 States Constitution.
6
4. Issue a declaratory judgment finding that Judge Cowan refusing to lift
7
the stay on the 1992 Trust is an unconstitutional deprivation of property to Mr. Lund
8

9 without due process of law.
10 5. Award Mr. Lund any and all other relief that is just and appropriate
11
under the circumstances.
12

13 Respectfully submitted this 27th day of February, 2020.

14 THE PITET FIRM, PC
15

16 By:/s/ Joseph P. Busch, III
Joseph P. Busch, III, Esq.
17
Attorney for Plaintiff
18 Bradford D. Lund
19

20

21

22

23

24

25

26

31

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