Dismissal Was Proper Based on Mootness, Judicial and Sovereign Immunity, Opinion Declares
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed the dismissal with prejudice of an action by a grandson of entertainment magnate Walt Disney against Los Angeles Superior Court Judge David J. Cowan who, at a Probate Department hearing on a settlement agreement observed that the man might be afflicted with Down syndrome and later, without providing notice or a hearing, appointed a guardian ad litem for him.
Circuit Judge Kenneth Kiyul Lee authored the opinion affirming orders by District Court Judge Stephen V. Wilson of the Central District of California dismissing the complaint brought against Cowan by Bradford D. Lund and denying leave to amend. He wrote:
“We affirm because most of Lund’s claims are now moot after Judge Cowan removed the guardian ad litem and relinquished this case to another judge. And while Judge Cowan’s statement may have been inaccurate and inappropriate, any claim challenging it is barred by judicial immunity which shields judges from liability for conduct or speech arising from their judicial duties.”
Reciting the facts, Lee said that “[f]or over a decade,” Lund “has languished in perhaps The Unhappiest Place on Earth: probate court.” He noted that Lund has been “[e]mbroiled in a long-running dispute with family members and trustees,” unable to obtain his share of the Disney fortune, estimated at $200 million.
What Cowan said at a hearing on June 25, 2019 was:
“Do I want to give 200 million dollars, effectively, to someone who may suffer, on some level, from Down syndrome? The answer is no.”
Lund’s lead attorney, Sandra Slaton of Scottsdale, Arizona, pointed out that it had been judicially established that his client did not suffer from that disease and sought a retraction of the remark. Cowan responded:
He later formally disapproved a settlement that had been reached following mediation. On Sept. 27, 2019, in the absence of notice or hearing, Cowan appointed attorney Margaret Lodise of the downtown Los Angeles firm of Sacks, Glazier, Franklin & Lodise as Lund’s guardian ad litem.
Lund sought to disqualify Cowan for cause, but the judge, acting pursuant to Code of Civil Procedure §170.4, struck the statement of disqualification on the ground that it did not set forth a cognizable basis for recusal.
In November 2020, Cowan discharged the guardian ad litem, ordered Slaton to show cause why she should not be disqualified himself based on a conflict of interest, then recused himself, commenting that if the lawyer were ejected from the case, the successor judge should consider reappointing the guardian ad litem.
Lund’s first amended complaint in the District Court sought declaratory judgment as to federal constitutional violations by Cowan, as well as an award of damages against the judge and the Los Angeles Superior Court under the Americans With Disabilities Act. In his opinion affirming Wilson’s orders, Lee said:
“Counts 1 through 4—all of which challenge the guardian ad litem appointment—are moot because Judge Cowan issued an order discharging the guardian.”
Lund argued that the issue was not moot because Cowan had prescribed a reappointment of the guardian ad litem if his lawyer were disqualified. Lee responded that Cowan had merely made a suggestion, with the decision being in the hands of another judge.
“It may have been more prudent for Judge Cowan to simply transfer the case without including this extra commentary,” Lee wrote, adding:
“But nothing in any of the orders suggests that Judge Cowan affirmatively ordered the reappointment of the guardian in any binding way. Unfounded fears cannot save the claims from the mootness challenge….”
Striking of Statement
The complaint also alleges:
“…Judge Cowan’s striking of Mr. Lund’s Verified Statement objecting to him on the grounds of bias and prejudice is a violation of Mr. Lund’s…right to due process pursuant to the 14th Amendment to the Constitution.
“…Mr. Lund is entitled to a declaratory judgment holding the California Code of Civil Procedure. § 170.4(b) is unconstitutional and violates due process.”
Lee said dismissal of the claim—Count 5—was proper in light of the Eleventh Amendment. It provides:
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
The circuit judge commented:
“We agree with Judge Cowan that Count 5 seeks purely retrospective relief and Thus cannot survive sovereign immunity. Count 5 amounts to an as-applied challenge of California Code of Civil Procedure § 170.4(b). and Lund does not allege any continuing violation or harm stemming from Judge Cowan’s past conduct….Not only does this claim involve past conduct and past harm, but Judge Cowan has since reassigned the case to a new judge and. indeed, he no longer serves in the probate division. So Judge Cowan cannot handle Lund’s probate matter again at any point in the future, and an opinion declaring that Judge Cowan acted unconstitutionally would be advisory.”
Wilson dismissed Lund’s claim against Cowan and the Superior Court based on judicial immunity. Lund argued on appeal that the judge erred because his utterance of the observation that Lund might be suffering from Down syndrome was not a judicial act.
Lee disagreed, saying:
“Judge Cowan’s in-court statement easily falls within the purview of a judicial act. Judge Cowan did not comment on Lund’s perceived disability out of the blue in the courtroom or (thankfully) on Twitter. Rather, Judge Cowan made the statement from the bench during an official settlement approval hearing in a probate case. The comment directly related to Judge Cowan’s efforts to decide whether to approve a proposed settlement agreement that would have given Lund access to a large sum of monetary distributions. It was thus not unreasonable for Judge Cowan to comment on Lund’s capacity to manage money: indeed, Lund’s competency was central to the litigation.
“To be clear, we find Judge Cowan’s comment troubling. That someone has Down syndrome does hot necessarily preclude the ability to manage one’s own financial affairs, hi any event, the record suggests That Lund does not have Down syndrome. But judicial immunity shields even incorrect or inappropriate statements if they were made during the performance of a judge’s official duties.”
Leave to amend was appropriately denied, Lee said, because “all of Lund’s proposed amendments were futile.”
The case is Lund v. Cowan, 20-55764.
Disney died in 1966, leaving his estate to his two daughters, Diane Disney and Sharon Disney. By her second husband, Bill Lund, Sharon Disney Lund gave birth on June 5, 1970, to twins, Bradford and Michelle Lund.
Sharon Disney Lund died in 1993. Bradford Lund’s receipt of his share of share of his mother’s trust has been held up in light of the trustees’ concerns over his mental health.
(The trust was set up to benefit the twins as well as a daughter she and her first husband had adopted, but she died in 2002.)
Litigation has taken place in Arizona and here.
After 10 days of trial in Phoenix, Maricopa Superior Court Judge Robert Oberbillig found that Lund was “not incapacitated.” The judgment became final in 2016 after the Arizona Supreme Court denied review.
In 2013, Los Angeles Superior Court Judge Mitchell L. Beckloff found that Lund was competent to appoint his successor trustees.
In December, Lund publicly announced that he had called upon the Commission on Judicial Performance to discipline Cowan based on his conduct in the case. The commission has taken no public action in response.
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