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

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THE PITET FIRM, PC
Joseph Busch III (SBN 70340)
jbusch@octrials.com
100 Bayview Circle, Suite 210
Newport Beach, CA 92660
Tel: (949) 502-7755
HORNE SLATON, PLLC
Sandra Slaton (pro hac vice pending)
slaton@horneslaton.com
6720 North Scottsdale Road, Suite 285
Scottsdale, Arizona 85253
Tel: (480) 483-2178

DAVIS GOLDBERG GALPER, PLLC

Lanny J. Davis (pro hac vice pending)
ldavis@dggpllc.com
1700 K. Street NW, Ste. 825
Washington, D.C. 20006
Tel: (202) 899-3834

Attorneys for Plaintiff, Bradford D. Lund

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CIVIL RIGHTS COMPLAINT
PURSUANT TO 42 U.S.C. § 1983

PLAINTIFF,

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Case No. 2:20-cv-1894

BRADFORD D. LUND,

v.
THE HONORABLE DAVID J.
COWAN, Los Angeles County Superior
Court Judge, LOS ANGELES COUNTY
SUPERIOR COURT for the State of
California
DEFENDANTS.

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1.

This case involves the Plaintiff, Bradford D. Lund (“Mr. Lund”), the

grandson of entertainment tycoon Walt Disney. For the past decade, Mr. Lund has
been entrapped in the probate division of the Los Angeles County Superior Court
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fighting against hostile trustees to receive his beneficiary distributions from his trusts.
As one of their tactics to keep Mr. Lund from receiving his trust distributions, Mr.
Lund’s hostile trustees, in concert with certain of Mr. Lund’s estranged family

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members, alleged that he was incapacitated and needed a guardianship and

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conservatorship. After seven years of fighting that battle in the Arizona courts, and

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after a 10-day bench trial, Mr. Lund was victorious in all respects and was found to

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have capacity, resulting in a dismissal of that case. The disgruntled estranged family

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members appealed the case and the Arizona appellate court unanimously affirmed the

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trial court’s decision. The Arizona Supreme Court refused review, and a final

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

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Superior Court judge found that Bradford Lund had capacity to choose successor

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trustees for one of his other trusts after similar allegations were previously made by
Mr. Lund’s hostile trustees. In the face of these specific findings and the decade long

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history of litigation without any guardian ad litem, and without notice or any hearing,

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the Hon. David J. Cowan, on his own sua sponte Order to Show Cause, appointed a

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limited purpose guardian ad litem over Mr. Lund without any evidentiary hearing or

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notice. In so doing, Judge Cowan refused to take judicial notice of the Arizona

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decision in the form of either judicial comity or full faith and credit.

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2.

That imposition of a guardian ad litem has imposed significant

constraints on Mr. Lund’s liberty and property interests in violation of the 14th
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Amendment, and his constitutional right to due process of law by not having any
hearing. Indeed, his attorneys (3 current and 1 former) have filed affidavits under
oath which stated that Mr. Lund is, in fact, competent, and does not need any

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guardian ad litem – consistent with the specific findings of fact made by Judge

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Oberbillig in Arizona, and Judge Beckloff in California, that were completely ignored

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by Judge Cowan.
3.

The decision by Judge Cowan to appoint a GAL sua sponte, without a

hearing, contradicting the factual and legal findings of Judge Oberbillig after a 10day bench trial in Phoenix, Arizona, and utterly ignoring constitutional requirements

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

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but alternative facts do, where the constitution does not matter and where the rule of

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law is set aside and replaced by the rule of subjective, fact-free decision-making.
4.

After a ten-day bench trial in Arizona, as explained above, on a

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guardianship/conservatorship petition, the Honorable Robert Oberbillig determined

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that Mr. Lund was not “not incapacitated,” not in in need of a guardianship or

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conservatorship, and that “Although not his burden of proof, Bradford Lund has

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proven that he deserves the freedom in life to make his own choices.” (Exhibit A, p.

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3-6). Furthermore, the Supreme Court of Arizona specifically determined that Mr.

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Lund was entitled to his property and lifted all stays in the Arizona probate matter,
while also denying the petition for review.
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5.

In 2009, the Trustees sought to have a guardian ad litem appointed over

Mr. Lund but dismissed that requested relief before it was ruled on when the parties
settled. In 2012, the Trustees sought a Cal. Evidence Code § 730 Expert to advise the

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court on Mr. Lund’s competency. The Trustees motion for a § 730 Expert was

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denied by the Hon. Mitchell L. Beckloff.

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6.

In a 2013 bench trial before the Hon. Mitchell L. Beckloff, in regard to

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

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

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that: “Evidence presented during the trial did not persuade the court that Mr. Lund

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lacked capacity to exercise his Trustee Removal Power.” (Exhibit B, p. 32).
Additionally, Judge Beckloff found: “The evidence did not rebut the statutory

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presumption that Mr. Lund had capacity to exercise the Trustee Removal Power.”

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(Exhibit B, p. 32). Regarding the allegations that Mr. Lund was subject to undue

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influence, Judge Beckloff specifically found: “There is no direct evidence that Mr.

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Lund was unduly influenced to exercise the Trustee Removal Power.” (Exhibit B, p.

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33). Ultimately, Judge Beckloff specifically found: “The court finds that Mr. Lund’s

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exercise of the Trustee Removal Power was knowing, voluntary, and intelligent.”
(Exhibit B, p. 35).
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7.

In the present California proceedings, Mr. Lund was given no notice or

hearing. Instead, without notice Judge Cowan, ordered a limited purpose guardian ad
litem over Mr. Lund on the baseless and unproven allegations by the Trustees of the

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Sharon D. Lund Residuary Trust fbo Bradford D. Lund (the “BRT”) that Mr. Lund

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was incapacitated, in the face of the Arizona decision and previous California

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decisions otherwise. In his written order appointing the limited guardian ad litem,
Judge Cowan stated that Mr. Lund had not proven his capacity, despite the statutory
presumption that all persons have the capacity to make decisions and to be
responsible for those acts and/or decisions. This was not Mr. Lund’s burden to

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

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that all individuals have capacity and are competent, the burden is placed on the party

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challenging competence or capacity. However, Judge Cowan turned that burden on
its head and, again, required Mr. Lund to prove that he was competent and had
capacity.
8.

The guardian ad litem has complete control over Mr. Lund’s legal

decisions and actions, together with interfering with Mr. Lund’s right to choose his

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own attorneys. Specifically, the order appointing the guardian ad litem grants to that

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position the following powers to: (1) “facilitat[e] a new settlement agreement”; (2)

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determine “whether the Court can grant Bradford’s request to appoint” a trustee; (3)
“provide the Court with a report on how to streamline future litigation” if a new
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settlement is not possible; (4) determine “whether Bradford’s lawyers should be
disqualified due to conflict”; (5) determine “whether the Court should remove [the
co-trustees of Mr. Lund’s 1992 Trust] pursuant to the OSC re: removal based on their

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refusal to provide information regarding the Nevada Trust or any other reason”; (6)

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determine “whether the interim stay should be lifted” on the 1992 Trust case; (7)

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whether approval of the settlement could be conditioned on a court order before
decanting of assets in the Nevada Trust; and (8) representing Mr. Lund “on any
appeal of this order.” (Exhibit C, p. 18-19).
9.

Despite the lack of evidentiary basis for the deprivation of Mr. Lund’s

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

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statutes enacted in California permitting such a deprivation of liberty are

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unconstitutional because they have denied Mr. Lund any due process. Specifically,
the statutes fail to (1) require a judge to provide a party with any due process, not

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even a hearing, before subjecting him to the losses of liberty by appointing a guardian

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ad litem; (2) set effective limits for the de facto custody of a guardian ad litem,

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including limits on the duration; and (3) provide any post-deprivation remedy; and (4)
fail to provide for a direct appellate remedy to challenge the appointment.
10.

Mr. Lund remains in the de facto custody of the guardian ad litem

wrongly imposed on him pursuant to the unconstitutional State of California statutes.
Mr. Lund’s constitutional and civil rights have been violated by a public official
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under color of law and thus, such actions cannot be allowed to stand in a nation of
laws, not men; in a nation that cares about the constitution and the rule of law.
Therefore, Mr. Lund brings this complaint as follows:
JURISDICTION

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Amendment to the United States Constitution. Jurisdiction is proper under 28 U.S.C.
§ 1331 and § 1343(a)(3).

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This action is brought pursuant to 42 U.S.C. § 1983 and Fourteenth

12.

Pursuant to 42 U.S.C. § 1983, “in any action brought against a judicial

officer for an act or omission taken in such officer’s judicial capacity, injunctive

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

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relief was unavailable.” In the present matter, declaratory relief is available and that

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is the only relief requested. See Yellen v. Hara, No. CV 15-00300 JMS-KSC, 2015
WL 8664200 (D. Haw. Dec. 10, 2015).

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In Yellen, the judicial officer was named as a party and the case was not

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dismissed under the Younger abstention doctrine of the Rooker-Feldman doctrine.1

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There, the Yellen court stated:
Applied here, although state proceedings are ongoing, they are not “quasicriminal enforcement actions,” nor do they “involve a state's interest in
enforcing the orders and judgments of its courts.” Id. This action involves

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The claims against the judge were dismissed because the plaintiff was seeking
monetary damages and injunctive relief which are prevented. In the present case,
there are no damages or injunctive relief sought.
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routine state-court orders appointing individuals to assist the court—
guardianship, conservatorship, and Kokua Kanawai appointments. These
are not orders that involve “the process by which a state ‘compels
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
short, Younger does not apply, and provides no basis for dismissal or
abstention.
Yellen, 2015 WL 8664200 at * 7. In the present case, this case is not a “quasi-criminal
enforcement action” but similarly, involves routine state-court orders appointing an
individual to assist the court.
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Venue is proper in the United States District Court or the Central District

of California pursuant to 28 U.S.C. § 1391(b).
14.

This is an action for declaratory judgment pursuant to 28 U.S.C. § 2201,

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for the purpose of determining a question of actual controversy between the parties.

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Mr. Lund seeks a declaration from this Court that the laws of the State of California,

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as executed, are unconstitutional because Mr. Lund is “in custody” by virtue of the

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appointment of the guardian ad litem without due process of law. This de facto

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custody of the guardian ad litem continues despite specific findings on previous

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occasions that Mr. Lund is not incapacitated, not in need of a guardian or a

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

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is, in fact, competent. The ongoing unwillingness to correct the custody of the

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guardian ad litem that Mr. Lund has been placed in, is a continuing deprivation of Mr.
Lund’s due process rights.
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PARTIES

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15.

Plaintiff, Bradford D. Lund, is and was, at all times relevant herein a

citizen of the United States, a resident of Clark County, Nevada, and involved in
ongoing litigation in the Los Angeles County Superior Court.
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Defendant, the Honorable David J. Cowan, is a judge of the Los Angeles

County Superior Court for the State of California.
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Defendant, the Los Angeles County Superior Court, is a division of the

State of California.
18.

Defendants are named only in their official capacities. Defendants were

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

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constitutionally protected rights. Both Defendants, Judge Cowan and the Los

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Angeles County Superior Court, are hereinafter referred to collectively as “Judge
Cowan”.
19.

L. Andrew Gifford, Robert L. Wilson, Douglas Strode, and First

Republic Trust Company (“FRTC”) (collectively, the “Trustees”), as Trustees of the
Sharon D. Lund Residuary Trust fbo Bradford D. Lund; as Trustees of the Sharon D.

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Lund Residuary Trust fbo Michelle A. Lund, FRTC as former trustee of the Bradford

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Disney Lund 1992 Trust, and Sharon D. Lund 1986 Irrevocable Trust fbo Bradford

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D. Lund; and FRTC as a Co-Trustee of the Lillian B. Disney Trust fbo Bradford D.
Lund are not named as defendants or real parties in interest because there is no
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pecuniary interest. Mr. Lund is not seeking any damages or any monetary interest at
all.
STATEMENT OF FACTS

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Background Facts:

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Mr. Lund is a forty-nine-year-old man who is the heir to the fortune of

entertainment and media pioneer Walt Disney. The litigation in California began on
October 20, 2009 and the litigation in Arizona began six days later on October 26,
2009.
21.

Mr. Lund unquestionably prevailed in the Arizona Matter and benefited

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

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Oberbillig. The contents of those findings are attached as Exhibit A, and specifically

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incorporated by reference as if set forth in full herein. Judge Oberbillig found in
pertinent part:
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
request for a Limited Guardianship.
2)
Petitioners have failed to meet their burden of proof by a
preponderance of the evidence to establish a Limited Conservatorship or
other less restrictive alternatives.
3)
Bradford Lund has established by clear and convincing presently,
in 2016, he is not incapacitated, an appointment of a guardian is not
necessary to provide for his demonstrated needs, and Bradford Lund’s
needs are currently being properly met by less restrictive means.

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

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9)
Michelle Lund testified in the Superior Court of California on
December 17, 2013, that Bradford Lund is “competent” and “he ultimately
had the capacity to decide what he would want to do in a business sense.”

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[…]

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12) Bradford Lund is able to effectively manage his medical care,
estate, and other affairs. Bradford Lund has consistently demonstrated
that he makes mature and appropriate financial decisions. He properly
relies and has relied upon the advice of his father, Sherry Lund, Rachel
Schemitsch, Robert Rosepink, Douglas Wiley, and others as any
reasonable person of substantial wealth would do in making important
decisions involving his personal affairs, estate, and financial matters.
[…]
15) Bradford Lund, now 45, has been described by Petitioners and the
other witnesses as a very “frugal” man with his money.
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16) There was no credible testimony Bradford Lund has ever wasted or
dissipated any property or funds at any time in his life.
17) The weight of the credible evidence does not support Petitioners’
claim that Respondents are out to get Bradford Lund’s funds or have
wrongfully benefitted from or improperly used his funds.
18) There was undisputed evidence Bradford Lund’s father has assisted
Bradford Lund and Michelle Lund in making collectively over $100
million in profits.

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19) As stated by estate planning attorney specialist Douglas Wiley, the
Nevada trust is an excellent method for Bradford Lund to protect his assets
from both creditors and predators. Further, the trust is set up to preclude
Bradford Lund from wasting or dissipating his assets.

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[…]

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22) Although not his burden of proof, Bradford Lund has proven that
he deserves the freedom in life to make his own choices.
(Exhibit A, p. 3-6).
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The California Litigation had a thirteen-day bench trial in Los Angeles

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

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Bradford D. Lund); BP120814 (In re The Bradford Disney Lund 1992 Trust); and

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BP129815 (In re The Sharon D. Lund 1986 Irrevocable Trust fbo Bradford D. Lund).

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

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Ultimately, Judge Beckloff made the following findings on the only issue presented

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that had anything to do with competence or capacity.
a.
“Evidence presented during the trial did not persuade the court
that Mr. Lund Lacked capacity to exercise his Trustee Removal Power.
While there are legal proceedings pending in Arizona to conserve Mr.
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Lund, such pending litigation alone is insufficient to establish that Mr.
Lund lacked mental capacity to exercise his Trustee Removal Power.”
(Exhibit B, p. 32)

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

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c.
“There is no direct evidence that Mr. Lund was unduly influenced
to exercise the Trustee Removal Power.” (Exhibit B, p. 33).

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23.Ultimately, Judge Beckloff found:
After having considered the evidence, the court cannot find that Mr.
Lund’s free will was overborne by another. Mr. Lund elected to exercise
his Trustee Removal Power with the advice and assistance of his counsel.
Mr. Lund’s exercise is not without articulated reasons. While Mr. Lund
is dependent upon those around him, the evidence is insufficient to
establish that Mr. Lund is not acting of his own will and desire on the
issue. The court finds that Mr. Lund’s exercise of the Trustee Removal
Power was knowing, voluntary, and intelligent.
(Exhibit B, p. 35).
The Current California Litigation:
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The California Litigation continued and now involves five separate case

numbers: BP055495 (In re The Lillian B. Disney Trust fbo Bradford D. Lund);

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BP119204 (In re The Sharon D. Lund Residuary Trust fbo Michelle A. Lund);

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BP119205; BP129814; BP129815 (collectively, the “Lund Trust Matters”).

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25.

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On December 19, 2018, Judge Cowan, on his own motion, issued two

separate orders to show cause. One of those orders to show cause involved whether
the court should appoint a guardian ad litem for Mr. Lund (the “OSC”). Judge

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Cowan specifically set a hearing on the order to show cause to be heard on February

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7, 2019.2 Both Mr. Lund and the opposing party, Mr. Lund’s trustees, filed

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Responses to Judge Cowan’s OSC on February 28, 2019.
26.

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The parties of the Lund Trust Matters all agreed to continue the OSC

hearing in order to engage in mediation in an effort to settle the case, or portions of
the case. The OSC hearings were continued with Judge Cowan’s blessing pursuant to

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

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litem was appointed over Mr. Lund prior to mediation.

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27.

Mr. Lund, without any guardian ad litem or alternate decision-maker,

together with the Co-Trustees of the Bradford Disney Lund 1992 Trust, on the one

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hand, and the Trustees, on the other hand, engaged in a two-day in-person mediation

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on March 25 and 26, 2019, before the Hon. Leslie Green, a retired Los Angeles

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County Superior Court Probate Judge. Additionally, the parties engaged in another

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approximately two weeks of negotiations, assisted by Judge Green (ret.), which

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resulted in a complete and total global Settlement Agreement. Mr. Lund signed the

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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.
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settlement agreement himself, and the Trustees accepted his signature, without any
guardian ad litem of any kind appointed over Mr. Lund.
28.

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Pursuant to the Settlement Agreement, the agreement was presented to

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Judge Cowan for approval which would finally put an end to over a decade of

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litigation between the parties to the Lund Trust Matters. For the first time in a decade

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all of the parties stood before the Los Angeles County Superior Court, and in a
unified voice asked for the approval of the Settlement Agreement which would
finally end all of the litigation.

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29.

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Judge Cowan refused to approve the Settlement Agreement in its

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

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$14.5 million in termination fees to the adverse party, the Trustees.

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30.

On September 27, 2019, without any notice or hearing, Judge Cowan

issued an Order appointing a limited purpose guardian ad litem, Margaret Lodise,

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over Mr. Lund.

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31.

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In California the appointment of a guardian ad litem is not an appealable

order. (See In re Marriage of Caballero, 27 Cal. App. 4th 1139, 1149 (1994), In re

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Hathaway’s Estate, 111 Cal. 270, 271 (1896)). Mr. Lund had no pre-deprivation

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remedy or any post-deprivation remedy to remove the limited purpose guardian ad

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litem.

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32.

On October 17, 2019, Mr. Lund timely filed a Petition for Writ of

Mandate with the California Court of Appeal, Second District, regarding the
improper appointment of a guardian ad litem. On November 14, 2019, the California

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appellate court summarily denied Mr. Lund’s writ petition. On November 20, 2019,

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Mr. Lund timely filed a Petition for Review with the Supreme Court of California

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challenging the summary denial of the writ petition. On November 26, 2019, the
California high court summarily denied Mr. Lund’s petition for review.
33.

Mr. Lund exhausted his state court remedies regarding the imposition of

a limited purpose guardian ad litem being appointed over him.
34.

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

resulted in a deprivation of Mr. Lund’s liberty and property interests. Specifically,
the limited guardian ad litem, was ordered to do the following:
a.

“[F]acilitat[e] a new settlement agreement” between the parties of

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the Lund Trust Matters;

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b.

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Determine “whether the Court can grant Bradford’s request to

appoint” a trustee;

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c.

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report on how to streamline future litigation”;

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d.

If a new settlement is not reachable, “provide the Court with a

Determine “whether Bradford’s lawyers should be disqualified

due to conflict”;
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e.

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Determine “whether the Court should remove [the co-trustees of

Mr. Lund’s 1992 Trust] pursuant to the OSC re: removal based on their

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refusal to provide information regarding the Nevada Trust or any other

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reason”;

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f.

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Trust case;

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g.

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Trust; and

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h.

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Determine whether approval of the settlement could be

conditioned on a court order before decanting of assets in the Nevada

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Determine “whether the interim stay should be lifted” on the 1992

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

(Exhibit C, p. 18).
35.

The above actions by the guardian ad litem represent a deprivation of not

only Mr. Lund’s liberty interests, but also relegates Mr. Lund into the de facto

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custody of guardian ad litem. Indeed, the guardian ad litem is, in fact, has already

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begun to engage in renegotiation of the settlement with the Trustees. (Exhibit D, p.

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3:15-19).
36.

Judge Cowan has deprived Mr. Lund of his liberty and property. The

Constitution imposes upon him the State’s concomitant duty to see that no
deprivation occurs without adequate procedural protections. In this case, Judge

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Cowan failed to assure that Mr. Lund was accorded due process prior to a loss of
liberty or property.
The 1992 Trust Litigation
37.

On or about, November 5, 1992, Mr. Lund began the Bradford Disney

Lund 1992 Trust (the “1992 Trust”).
38.

Mr. Lund is the settlor of the trust and the trusts sole lifetime

beneficiary. The 1992 Trust was to pay income to Mr. Lund not less often than
quarterly. The 1992 Trust also required mandatory birthday distributions when Mr.
Lund achieved the age of 35, 40, and 45.
39.

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

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

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Lund “has not theretofore demonstrated the maturity and financial ability to manage

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and utilize such funds in a prudent and responsible manner.”

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40.

When Mr. Lund was 44 years old, and just before he was about to turn

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45 years old, the trustee of the 1992 Trust, Mutual of Omaha Bank, determined that

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Mr. Lund should receive his 35th and 40th Birthday Distributions. Mutual of Omaha

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determined in their discretion that the exception, set forth above in paragraph 27, to
the distribution did not apply.
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41.

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that it would make the decision on the 45th birthday distribution after Mr. Lund
turned 45, on June 5, 2015.
42.

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At the same time, and in the same petition, Mutual of Omaha indicated

Michelle Lund (Mr. Lund’s twin sister), the contingent beneficiary of the

1992 Trust, filed an objection to Mutual of Omaha’s Petition for Instructions.
Michelle’s objection was based on her allegation that Mr. Lund did not meet the
Distribution Standard, together with the fact that there was, at that time, a protective
proceeding pending in Arizona.

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43.

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Prior to the decision by the Court on Mutual of Omaha’s petition and

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

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as replacements, Sherry Lund and James Dew to serve as trustees of the 1992 Trust. 3

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44.

On September 6, 2016, the Hon. Roy L. Paul, among other things,

ordered, “The New 1992 Trustees shall hold the Remaining 1992 Trust Assets in

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California and no portion thereof shall be distributed, disbursed, encumbered, or

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otherwise transferred without further order of the Court, with only the following two

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exceptions: (a) the New 1992 Trustees shall continue to make all Unitrust payments

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otherwise owing to Brad from the 1992 Trust; and (b) the New 1992 Trustees may

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use 1992 Trust assets to pay attorneys’ fees and costs, trustees’ fees and costs, and

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

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other administrative expenses of the 1992 Trust, without prejudice to any party’s
right to challenge such expenses.”
45.

The reason for Judge Paul’s interim stay was of because of Michelle

Lund’s objections in the 1992 Trust Case which have since been settled.
46.

On September 27, 2018, Mr. Lund and Michelle settled all issues in the

1992 Trust case. Included in the settlement was that Michelle would not “object to
the distribution of the proceeds of the 1992 Trust by the Co-Trustees Sherry and Dew
to Bradford in accordance with his directives.”
47.

The settlement between Mr. Lund and Michelle Lund put all issues,

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

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purported creditor seeking outstanding attorneys’ fees, but have never filed an

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affirmative pleading seeking any fees. Judge Paul’s order required a holdback of
$600,000. Mr. Lund and Mutual of Omaha Bank settled regarding the 1992 Trust On
February 13, 2019.
48.

Mr. Lund moved to lift the stay on the 1992 Trust in October, 2019. The

Hon. David J. Cowan denied that Motion and required Mr. Lund to submit the issue

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as a petition. The Co-Trustees of the 1992 Trust filed the Petition to Lift Interim Stay

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on January 8, 2019.

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49.

On September 27, 2019, the court effectively again denied Mr. Lund the

right to his own personal property even though there are no longer any issues
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regarding the 1992 Trust except purported creditor issues by FRTC (former trustee of
the 1992 Trust) which have a specific holdback.
50.

Mr. Lund has been denied his due process and access to his own

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personal assets by the California Superior Court. Despite the resolution of all issues

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in the 1992 Trust except the objections to the accountings filed by FRTC, the

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California Superior Court refuses to remove its order preventing Mr. Lund from
receiving his own assets.

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Full Faith And Credit Clause
51.

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

in pertinent part: “Full Faith and Credit shall be given in each State to the public
Acts, Records and judicial Proceedings of every other State. And the Congress may
by general Laws prescribe the Manner in which such Acts, Records and Proceedings
shall be proved, and the Effect thereof.”
52.

Despite the constitutional requirement that Full Faith and Credit shall be

given to the judicial acts, records, and proceedings of every other state, Judge Cowan

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ignored the 2016 Arizona Judgment and appointed a limited guardian ad litem over

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Mr. Lund.

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53.

Judge Cowan specifically ignored the findings made in an Arizona

Superior Court In & For Maricopa County case involving Mr. Lund. In In re The
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Guardianship and Conservatorship of Bradford D. Lund, Maricopa County Case No.
PB2009-002244, specific and detailed findings of fact and conclusions of law were
made, that were unanimously affirmed by the Arizona Court of Appeals, Division

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One. Judge Cowan specifically ignored the findings that Mr. Lund was competent,

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had capacity, was not in need of any guardian or conservator, and “Although not his

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burden of proof, Bradford Lund has proven that he deserves the freedom in life to
make his own choices.”
54.

As stated above, Mr. Lund incorporates by reference all of the findings

of fact and conclusions of law made by Judge Oberbillig in the 2016 Arizona
Judgment, attached as Exhibit A, as if set forth in its entirety herein.
55.

The Trustees and the Arizona Petitioners were in privity because they

had a common interest agreement between them. The privity between the Trustees
and Arizona Petitioners applies because a party is adequately represented for

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purposes of the privity rule “if his or her interests are so similar to a party’s interest

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that the latter was the former’s virtual representative in the earlier action.” Citizens

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for Open Access to Sand and Tide, Inc. v. Seadrift Ass’n, 60 Cal. App. 4th 1053, 1070

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(Cal. App. 1998). Having a common interest agreement between the Trustees and

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Arizona Petitioners required them to have the same legal interest. See OXY Res.

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California LLC v. Superior Court, 115 Cal. App. 4th 874, 891 (2004) (“For
the common interest doctrine to attach, most courts seem to insist that the two parties
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have in common an interest in securing legal advice related to the same matter—and
that the communications be made to advance their shared interest in securing legal
advice on that common matter.’”). Therefore, the Arizona Petitioners and the
Trustees were in fact, in privity with each other.

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56.

While the Trustees were not parties to the Arizona Litigation, their

interests were represented and advocated for by the Arizona Petitioners’ attorneys.
One of the Trustees, Andrew Gifford, was a star witness for the Arizona Petitioners,
and his counsel, Hayward Kaiser, was present for Gifford’s testimony. Also, it is Mr.
Lund’s position Trustees assisted (behind the scenes) with the strategy, planning, and

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

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taken verbatim from the 2013 California trial.

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57.

that Mr. Lund had capacity and was not in need of a guardian or conservator, as
quoted above in paragraph 21. (Exhibit A, p. 3-6).

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Judge Oberbillig made detailed findings of fact and conclusions of law

58.

Based upon the Judgment entered by Judge Oberbillig, the Arizona

litigation was dismissed and there was no guardian or conservator appointed over Mr.
Lund.
59.

The Arizona Petitioners (Kristen Olson and Michelle Lund) appealed the

trial court’s findings of fact and conclusions of law. On December 26, 2017, the
Arizona Court of Appeals unanimously affirmed the 2016 Arizona Judgment and
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issued a 17-page memorandum decision. Included in the Arizona appellate court’s
discussion of the evidence is the following statement:
Andrew Gifford, one of the trustees of the Sharon D. Lund Residuary
Trust for the benefit of Bradford, testified that Bradford had the capacity
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
an increase in the compensation for the management of his personal
accounts in 2005.
(Exhibit E, p. 11 ¶ 25). The detailed memorandum decision includes specific analysis
of the guardianship, conservatorship, assessment of Mr. Lund, and guardian ad litem

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

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affirm the superior court’s judgment denying Olson’s petition for guardianship and

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conservatorship.” (Exhibit E, p. 29 ¶ 82).
60.

The Arizona appellate court in determining the guardian ad litem issue

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stated: “Substantial support exists in the record showing Bradford’s interests were

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being represented by independent counsel and his representation was adequate under

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A.R.S. § 14-1408(A). Substantial evidence also exists demonstrating that Bradford is

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

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the record shows he understood the nature of the proceedings and was able to assist in

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the presentation of his case. Therefore, the substantial evidence shows Bradford was

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

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Civil Procedure, we find no abuse of discretion in the court’s dismissal of the GAL.”

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(Exhibit E, p. 28 ¶ 79).
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61.

On January 25, 2018, the Arizona Petitioners filed a petition for review

in the Supreme Court of Arizona together with an emergency motion to stay the
distribution of assets from the Walt Disney Trust. On February 9, 2018, the Arizona

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high court denied the emergency motion to stay. On August 29, 2018, the Supreme

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Court of Arizona denied the petition for review.

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62.

On September 27, 2019, Judge Cowan appointed a limited purpose

guardian ad litem over Mr. Lund and ignored the findings made in California. Judge
Cowan ignoring the findings made in the Arizona Superior Court violated the Full
Faith and Credit clause of the United States Constitution.
The Striking Of The Objection To The Judge
63.

On October 17, 2019, Mr. Lund filed a Verified Statement Objecting To

Judge David Cowan Pursuant To Code of Civil Procedure § 170.1. See Exhibit F,
incorporated herein. Throughout the hearings in this case, Judge Cowan prejudged

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and predetermined the issues. As one example only, Judge Cowan stated: “Do I want

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to give 200 million dollars, effectively, to someone who may suffer, on some level,

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from Down syndrome? The answer is no.” Judge Cowan would not retract that

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statement even after on of Mr. Lund’s counsel indicated that there was an

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indisputable DNA test proving that Mr. Lund did not have Down syndrome.

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64.

On October 24, 2019, Judge Cowan, the very same judge that Mr. Lund

objected to, filed an order striking his Statement of Disqualification pursuant to Code
of Civil Procedure § 170.4(b).
65.

Mr. Lund was denied his due process through the allowance of the

California Code of Civil Procedure § 170.4(b) which allowed Judge Cowan to strike
the objection from the record.

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Count One

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(Due Process Violation of the Fourteenth Amendment to the United States

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Constitution)

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66.

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set forth herein.

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67.

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

The guardian ad litem statutes of the State of California are

unconstitutional in that they (1) vest unlimited discretion in the trial judge to subject a

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person to a long term, indefinite, de facto custody; (2) fail to provide Mr. Lund with

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procedural due process prior to taking away his liberty and property; (3) fail to

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provide Mr. Lund with any procedural safeguards, including but not limited to, a

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means to have the trial court’s decisions reviewed in a timely manner; and (4) fail to

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provide Mr. Lund with any post-deprivation rights of direct appeal to remove the

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appointment.

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68.

The Defendants’ failure to give Full Faith and Credit to the 2016

Arizona Judgment is a violation of Mr. Lund’s due process.
69.

The Defendants’ acts through Judge Cowan in appointing the guardian

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ad litem and refusing to release Mr. Lund from the appointment constitute violations

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of Mr. Lund’s rights pursuant to the Fourteenth Amendment to the United States

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Constitution not to be deprived of Life, Liberty, or Property without due process of
law and to enjoy the equal protection of the laws of the State of California.
70.

The Defendants’ acts through Judge Cowan in ignoring the 2016

Arizona Judgment constitute violations of Mr. Lund’s constitutional right to Full

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

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Amendment to the United States Constitution not to be deprived of Life, Liberty, or

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Property without due process of law.
Count Two

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(Declaratory Judgment)

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71.

Mr. Lund hereby incorporates paragraphs 1 through 70 above as if fully

set forth herein.
72.

The above facts demonstrate that Defendants have acted in violation of

Mr. Lund’s constitutional rights pursuant to the Fourteenth Amendment to the
Constitution.

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73.

Mr. Lund is entitled to declaratory judgment holding that Defendants’

actions placing Mr. Lund in long term, indefinite custody of the guardian ad litem,
without a hearing and in the face of Judge Beckloff’s ruling, Judge Oberbillig’s

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ruling, the Arizona Court of Appeals affirmation of Judge Oberbillig’s ruling, and the

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sworn declarations from Mr. Lund’s counsel that they have “directly observed that

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[Mr. Lund] was able to understand the nature and consequences of proceedings and to
assist [them] in [their] representation of him at all times.”
74.

Mr. Lund is further entitled to a declaratory judgment holding that the

laws of the State of California that permit the appointment of a guardian ad litem over

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

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Weaver by Weaver v. New York City Employees' Ret. Sys., 717 F. Supp. 1039, 1044

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(S.D.N.Y. 1989); Thomas v. Humfield, 916 F.2d 1032, 1034 (5th Cir. 1990).

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Count Three

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(Declaratory Judgment)
75.

Mr. Lund hereby incorporates paragraphs 1 through 74 above as if fully

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set forth herein.

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76.

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In California the burden of proof is on the party asserting that someone

is incompetent and needs a guardian ad litem.
77.

Judge Cowan reversed the burden of proof and required Mr. Lund to

prove that he was not incompetent. (Exhibit C, p. 19-28).
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78.

Mr. Lund is entitled to declaratory judgment holding that the above

actions by Judge Cowan, forcing Mr. Lund to prove his competency, violated Mr.
Lund’s due process. See Weaver by Weaver, 717 F. Supp. at 1044.

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Count Four

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(Declaratory Judgment)

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79.

Mr. Lund hereby incorporates paragraphs 1 through 78 above as if fully

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set forth herein

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80.

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The above facts demonstrate the Defendants have acted in violation of

Mr. Lund’s constitutional rights pursuant to the Full Faith and Credit Clause found in
Article IV, § 1 of the United States Constitution.
81.

Mr. Lund is entitled to declaratory judgment holding that Defendants’

actions in ignoring the findings of fact and conclusions of law on Mr. Lund’s
competence and capacity are binding on all courts in all states.
82.

Mr. Lund is further entitled to a declaratory judgment holding that Full

Faith and Credit Clause applies to the Arizona Judgment.

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Count Five

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(Declaratory Judgment)

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83.

Mr. Lund hereby incorporates paragraphs 1 through 82 above as if fully

set forth herein.

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84.

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detached decision maker preside over their litigation. Judge Cowan, the subject of
the objection, ordered those objections stricken from the record. It is obvious that
Judge Cowan is not neutral and detached regarding this issue.

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85.

violation of Mr. Lund’s his right to due process pursuant to the 14th Amendment to
the Constitution.
86.

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Mr. Lund is entitled to a declaratory judgment holding the California

Code of Civil Procedure, § 170.4(b) is unconstitutional and violates due process.
WHEREFORE, Plaintiff, Bradford D. Lund respectfully requests this Court

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The above facts demonstrate that Judge Cowan’s striking of Mr. Lund’s

Verified Statement objecting to him on the grounds of bias and prejudice is a

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Pursuant to 14th Amendment all parties are entitled to have a neutral and

to:
1.

Issue a declaratory judgment finding that the conduct of Defendants, as

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described above, has violated and continues to violate Mr. Lund’s rights pursuant to

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the Fourteenth Amendment to the Constitution and the Civil Rights Act of 1871, 42

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U.S.C. § 1983.
2.

Issue a declaratory judgment finding that the statutes of the State of

California which allow a court to appoint a guardian ad litem over Mr. Lund, without
notice or a hearing, deprives him of his liberty and property in violation of the 14th
Amendment.
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3.

Issue a declaratory judgment finding that Judge Cowan ignoring the

findings of fact and conclusions of law included in the 2016 Arizona Judgment is
unconstitutional and a violation of the Full Faith and Credit Clause of the United
States Constitution.
4.

Issue a declaratory judgment finding that Judge Cowan refusing to lift

the stay on the 1992 Trust is an unconstitutional deprivation of property to Mr. Lund
without due process of law.
5.

Award Mr. Lund any and all other relief that is just and appropriate

under the circumstances.
Respectfully submitted this 27th day of February, 2020.

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THE PITET FIRM, PC

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

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