Petition for Writ of Certiorari — Bradford Disney Lund, Petitioner v. David J. Cowan, Judge, Superior Court of California, Los Angeles County, et al.

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion of the United States Court of Appeals

for the Ninth Circuit (July 15, 2021) ................. 1a

Order of the United States District Court for

the Central District of California Granting

Motion to Dismiss and Denying Motion

to Amend the Complaint (July 27, 2020)......... 17a

REHEARING ORDER

Order of the United States Court of Appeals

for the Ninth Circuit Denying Petition for

Rehearing (August 23, 2021) ........................... 41a

STATUTORY PROVISIONS

Relevant Statutory Provisions ............................... 43a

App.1a

OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

(JULY 15, 2021)

5 F.4th 964 (9th Cir. 2021)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________

BRADFORD D. LUND,

Plaintiff-Appellant,

v.

DAVID J. COWAN, THE HONORABLE, LOS ANGELES

COUNTY SUPERIOR COURT; LOS ANGELES COUNTY

SUPERIOR COURT, FOR THE STATE OF CALIFORNIA,

Defendants-Appellees.

________________________

No. 20-55764

D.C. No. 2:20-CV-01894-SVW-JC

Appeal from the United States District Court for the

Central District of California Stephen V. Wilson,

District Judge, Presiding

Argued and Submitted May 14, 2021

Pasadena, California

Filed July 15, 2021

Before: Ryan D. NELSON and Kenneth K. LEE,

Circuit Judges, and Sidney H. STEIN*, District Judge.

* The Honorable Sidney H. Stein, United States District Judge

for the Southern District of New York, sitting by designation.

App.2a

OPINION

LEE, Circuit Judge:

For over a decade, Bradford Lund — the grandson

of Walt Disney — has languished in perhaps the

Unhappiest Place on Earth: probate court. Embroiled

in a long-running dispute with family members and

trustees, Lund has yet to claim a fortune estimated

to be worth $200 million. In 2019, it appeared that

Lund would finally receive his rightful inheritance

when he reached a proposed settlement. But Judge

David Cowan of the Los Angeles Superior Court

rejected it, suggesting (apparently with questionable

factual basis) that Lund has Down syndrome. Judge

Cowan then appointed a guardian ad litem over Lund

without holding a hearing.

Understandably frustrated at this latest turn of

events, Lund sued Judge Cowan and the Superior

Court, arguing that the appointment of the guardian

without notice or hearing violated his due process

rights under 42 U.S.C. § 1983. Lund also argued that

Judge Cowan’s comment violated the Americans with

Disabilities Act (ADA). The district court dismissed the

complaint, and Lund now appeals both the dismissal

and the denial of leave to amend.

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.

App.3a

BACKGROUND1

Since 2009, Bradford Lund, an heir to the Disney

fortune, has been mired in a protracted and pitched

battle in probate court. As a beneficiary of several

trusts, Lund should have received his inheritance

distributions on his 35th, 40th, and 45th birthdays.

Despite being over 50 years old today, Lund has yet

to receive a distribution because the trust agreements

included a caveat that allowed trustees to withhold

the money if Lund lacked the maturity or financial

acumen to manage the funds.

Lund claims that certain trustees, along with

some “estranged” family members, have stymied his

efforts to receive the distributions by casting him as

mentally incompetent. According to Lund, though, he

has largely prevailed in rebutting these incompetency

allegations. For example, a ten-day bench trial in

Arizona state court ended in a judicial determination

that Lund was “not incapacitated.” Similarly, a California state court determined that Lund had the

capacity to choose new trustees for one of his trusts.

That all changed when Lund ended up in front

of Judge David Cowan in Los Angeles County Superior

Court. Judge Cowan issued a sua sponte order to show

cause whether the court should appoint a guardian

ad litem over Lund. Shortly afterward, Lund and the

trustees engaged in mediation that led to a proposed

global settlement agreement.

1 This factual background is based on the first amended complaint.

At the dismissal stage, we accept all factual allegations as true

and construed in the light most favorable to Lund.

App.4a

The parties appeared before Judge Cowan to seek

approval of the proposed settlement agreement. During

the hearing, Judge Cowan remarked: “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 counsel immediately informed

Judge Cowan that Lund did not have Down syndrome

and asked Judge Cowan to retract his statement. Judge

Cowan refused. Ultimately, Judge Cowan rejected

the settlement.

Judge Cowan then appointed a guardian ad litem

over Lund without holding a hearing. The next month,

Lund filed a statement of objection to Judge Cowan,

seeking to disqualify him for judicial bias because of the

Down syndrome comment. In response, Judge Cowan

filed an order striking Lund’s statement of disqualification under California Code of Civil Procedure

§ 170.4(b), which allows judges to strike statements

that offer “no legal grounds for disqualification.”

Lund sued both Judge Cowan and the Superior

Court in federal court. Lund at first alleged a variety

of constitutional due process claims under 42 U.S.C.

§ 1983, mostly related to the appointment of the

guardian ad litem without notice or hearing. Later,

Lund amended his complaint to add a claim under

the Americans with Disabilities Act based on Judge

Cowan’s in-court statement about Down syndrome.

Lund sought declaratory relief for the Section 1983

violations and money damages for the ADA violations.

The defendants moved to dismiss the complaint, and

the district court granted the motion, dismissing the

case with prejudice. This appeal followed.

In November 2020 — after Lund filed his opening

brief on appeal but before the defendants had filed

App.5a

an answering brief — Judge Cowan issued three

orders. The first order discharged the guardian ad

litem. The second order granted Lund’s motion to

reassign the case to a new judge in the probate

division. Finally, the third was an order to show

cause whether to disqualify Lund’s lawyer for conflicts

of interest. Judge Cowan commented that if Lund’s

lawyer were disqualified, then the new judge might

want to consider reappointing the guardian ad litem

to help deal with the aftermath of the disqualification.

STANDARD OF REVIEW

We review de novo the district court’s order

granting a motion to dismiss for failure to state a

claim. Los Angeles Lakers, Inc. v. Fed. Ins. Co., 869

F.3d 795, 800 (9th Cir. 2017). In doing so, we accept

all factual allegations as true and construe them

in the light most favorable to Lund. Mazurek v. St.

Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031

(9th Cir. 2008). We review for abuse of discretion

the district court’s denial of leave to amend the

complaint. AmerisourceBergen Corp. v. Dialysist W.,

Inc., 465 F.3d 946, 949 (9th Cir. 2006).

ANALYSIS

I.

Lund’s Section 1983 Claims are Moot or

Barred by Sovereign Immunity

The complaint alleges five Section 1983 counts

seeking declaratory relief against Judge Cowan. Counts

1 through 4 relate to the appointment of the guardian

ad litem without notice or hearing, while Count 5

objects to the order striking Lund’s statement of dis-

App.6a

qualification. We affirm the district court’s dismissal of

the Section 1983 claims.

A. Counts 1 Through 4 are Moot

Counts 1 through 4 — all of which challenge the

guardian ad litem appointment — are moot because

Judge Cowan issued an order discharging the guardian.

“A party must maintain a live controversy through

all stages of the litigation process.” Doe v. Madison

Sch. Dist. No. 321, 177 F.3d 789, 797 (9th Cir. 1999)

(cleaned up). “If an action or a claim loses its character

as a live controversy, then the action or claim becomes

moot.” Id. at 797-98 (cleaned up). For a defendant’s

voluntary conduct to moot a case, the standard is more

“stringent: A case might become moot if subsequent

events made it absolutely clear that the allegedly

wrongful behavior could not reasonably be expected

to recur.” Friends of the Earth, Inc. v. Laidlaw Env’t

Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (cleaned

up). Simply put, speculative suppositions, far-fetched

fears, or remote possibilities of recurrence cannot overcome mootness. See Mayfield v. Dalton, 109 F.3d 1423,

1425 (9th Cir. 1997); Dufresne v. Veneman, 114 F.3d

952, 955 (9th Cir. 1997).

Lund no longer faces any harm from the appointment of the guardian ad litem because Judge Cowan

has lifted the order appointing her. And any possibility

of future harm sounds only in speculation, especially

because Judge Cowan has transferred this case to

another judge (and, indeed, he no longer serves in

probate court). Lund, however, protests that a possibility still exists that the new judge may reimpose a

guardian ad litem. Under Lund’s reading of Judge

Cowan’s orders, he “has specifically instructed the next

App.7a

judge to reappoint the GAL if the OSC were to be

granted” and has effectively “directed” the reappointment of the guardian ad litem.

But Lund overstates the court’s orders. Judge

Cowan only wrote that if the new judge disqualifies

Lund’s counsel for conflict of interest, he or she “may

wish to consider re-appointing the GAL (Ms. Lodise)

to investigate whether the attorney’s fees received by

Ms. Slaton were in Brad’s best interests.” But even

then, the ultimate decision to reappoint the guardian

ad litem remains within the sole discretion of the

new judge. Given all that, the possibility that the

new judge would first disqualify Lund’s counsel and

then appoint a guardian ad litem without notice or

hearing rests in the realm of speculation. In our

view, the reappointment of the guardian ad litem

“could happen only at some indefinite time in the future

and then only upon the occurrence of future events

now unforeseeable.” Mayfield, 109 F.3d at 1425.

It may have been more prudent for Judge Cowan

to simply transfer the case without including this extra

commentary. 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, so we affirm the dismissal of Counts 1 through

4 as moot.

B. Sovereign Immunity Bars Count 5

That just leaves one remaining claim under Section 1983: Count 5 challenging Judge Cowan’s order

striking Lund’s statement of disqualification against

him. Lund seeks a declaratory judgment holding that

California Code of Civil Procedure § 170.4(b) — the

App.8a

statute giving Judge Cowan the authority to strike a

statement of disqualification “if on its face it discloses

no legal grounds for disqualification” — is unconstitutional.

Sovereign immunity bars this claim because it

impermissibly seeks retrospective relief against Judge

Cowan. “The Eleventh Amendment bars individuals

from bringing lawsuits against a state for money

damages or other retrospective relief.” Arizona Students’

Ass’n v. Arizona Bd. of Regents, 824 F.3d 858, 864 (9th

Cir. 2016) (cleaned up). State officials sued in their

official capacities are generally entitled to Eleventh

Amendment immunity. Flint v. Dennison, 488 F.3d

816, 825 (9th Cir. 2007). The Eleventh Amendment

thus applies to Judge Cowan, who serves as a state

court judge and is being sued in his official capacity.

See Simmons v. Sacramento Cty. Superior Ct., 318 F.3d

1156, 1161 (9th Cir. 2003) (“Plaintiff cannot state a

claim against the Sacramento County Superior Court

(or its employees), because such suits are barred by

the Eleventh Amendment.”).

The Eleventh Amendment does not permit retrospective declaratory relief. Arizona Students’ Ass’n,

824 F.3d. at 865. To get around this bar, Lund characterizes his declaratory relief as prospective. Admittedly,

the line between retrospective relief and prospective

relief can blur. See Edelman v. Jordan, 415 U.S. 651,

667 (1974). But in general, “relief that in essence serves

to compensate a party injured in the past by an action

of a state official in his official capacity that was illegal

under federal law is barred even when the state

official is the named defendant,” while “relief that

serves directly to bring an end to a present violation

of federal law is not barred by the Eleventh Amend-

App.9a

ment even though accompanied by a substantial

ancillary effect on the state treasury.” Papasan v.

Allain, 478 U.S. 265, 278 (1986) (cleaned up).

We agree with Judge Cowan that Count 5 seeks

purely retrospective relief and thus cannot survive

sovereign immunity. Count 5 amounts to an asapplied 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. See Six Star Holdings, LLC v. City of

Milwaukee, 821 F.3d 795, 803 (7th Cir. 2016) (observing that “an as-applied challenge invites narrower,

retrospective relief, such as damages”). 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. See McQuillion v.

Schwarzenegger, 369 F.3d 1091, 1095 (9th Cir. 2004).

Thus, we hold that Count 5 is barred by the Eleventh

Amendment.

****

Because we hold that the Section 1983 claims are

either moot or barred by sovereign immunity, there

is no need to address the other issues raised by

Lund, including whether Section 1983 bars prospective

declaratory relief,2 as well as whether Lund must

2 Section 1983 states that “in any action brought against a judicial

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

capacity, injunctive relief shall not be granted unless a declaratory

decree was violated or declaratory relief was unavailable.” 42

App.10a

exhaust state appellate remedies before he can seek

declaratory relief.

II. Judicial Immunity Bars Lund’s ADA Claim

Relying on Title II of the ADA, Lund seeks money

damages against both Judge Cowan and the Superior

Court based on Judge Cowan’s in-court comment

that he would not give money to someone who “may

suffer, on some level, from Down syndrome.” The district court dismissed the ADA claims, citing judicial

immunity. We affirm.

A. Claim Against Judge Cowan

“It is well settled that judges are generally

immune from suit for money damages.” Duvall v.

Cnty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001).

The question here is whether judicial immunity shields

Judge Cowan for his questionable in-court comment.

Judicial immunity only applies to judicial acts,

and not to “the administrative, legislative, or executive

functions that judges may on occasion be assigned by

law to perform.” Forrester v. White, 484 U.S. 219, 227

(1988). To determine whether an act is judicial, we

consider these factors: whether “(1) the precise act is

U.S.C. § 1983. This language was added to the statute in 1996

as part of the Federal Courts Improvement Act. Other circuits

have held that prospective declaratory relief is still available

under this statutory amendment because the text only explicitly

bars injunctive relief. See Just. Network Inc. v. Craighead Cty.,

931 F.3d 753, 763 (8th Cir. 2019) (“Currently, most courts hold

that the amendment to § 1983 does not bar declaratory relief

against judges.”). Our court has not yet explicitly answered

whether the statutory amendment bars declaratory relief, so

Lund urges us to hold that it does not. But we leave that

question for another day.

App.11a

a normal judicial function; (2) the events occurred in

the judge’s chambers; (3) the controversy centered

around a case then pending before the judge; and (4)

the events at issue arose directly and immediately

out of a confrontation with the judge in his or her

official capacity.” Duvall, 260 F.3d at 1133 (cleaned up).

Lund points out that this case differs from Duvall

because the statement here was not specifically made

in the context of ruling on a motion. See 260 F.3d at

1133 (“Ruling on a motion is a normal judicial function,

as is exercising control over the courtroom while

court is in session.”). Rather, Judge Cowan uttered it

during a settlement hearing. But Lund does not

identify any caselaw suggesting that judicial statements are protected only when they are embedded in

an official judicial ruling, rather than made during a

court hearing more generally.3 We reject a cramped

and illogical reading of a judicial act that would

include only instances when a judge expressly decides

3 None of the cases cited by Lund apply. For instance, Lund relies

on Jordan v. City of Union City, Ga., 94 F. Supp. 3d 1328 (N.D.

Ga. 2015) and Donaldson v. Trae-Fuels, LLC, 399 F. Supp. 3d

555 (W.D. Va. 2019), for the proposition that statements or

comments by decision-makers can support ADA liability. But

those cases involve employers, not judges acting in their judicial

capacity. Nor does Grant v. Comm’r, Soc. Sec. Admin., 111 F.

Supp. 2d 556, 559 (M.D. Pa. 2000), bear on this case. That case

involved comments by an administrative law judge in the

context of a Social Security appeal, but the plaintiffs did not

seek money damages against the judge. And the same goes for

the judicial recusal cases cited by Lund. Again, the dispute here

is not whether judicial statements can be biased (they can), but

whether judicial immunity bars claims for money damages

based on judicial statements made from the bench during a

hearing.

App.12a

a formal motion or request. Indeed, the Supreme

Court has remarked that even when a proceeding is

“informal and ex parte,” that does not necessarily

deprive “an act otherwise within a judge’s lawful

jurisdiction . . . of its judicial character.” Forrester, 484

U.S. at 227.

This broad conception of what constitutes a judicial act makes sense, given the history and purposes of

the judicial immunity doctrine. For one, judicial

immunity ensures that challenges to judicial rulings

are funneled through more efficient channels for

review like the appellate process. “Judicial immunity

apparently originated, in medieval times, as a device

for discouraging collateral attacks and thereby helping

to establish appellate procedures as the standard

system for correcting judicial error.” Id. at 225.

Judicial immunity also serves the goal of judicial

independence. As the Supreme Court has noted, “it is

a general principle of the highest importance to the

proper administration of justice that a judicial officer,

in exercising the authority vested in him, shall be free

to act upon his own convictions, without apprehension

of personal consequences to himself.” Bradley v.

Fisher, 80 U.S. 335, 347 (1871). Subjecting judges to

liability for the grievances of litigants “would destroy

that independence without which no judiciary can be

either respectable or useful.” Id. In some cases, this

commitment to judicial independence might result

in unfairness to individual litigants. See Stump v.

Sparkman, 435 U.S. 349, 363 (1978). But it is precisely

in those types of unfair or controversial situations

that judicial immunity may be more necessary to

preserve judicial independence. Id. at 364.

App.13a

With that background in mind, Judge Cowan’s incourt 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 not

necessarily preclude the ability to manage one’s own

financial affairs. In 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. Indeed, a judicial act does

not stop being a judicial act even if the judge acted

with “malice or corruption of motive.” Forrester, 484

U.S. at 227. Rather, the relevant inquiry focuses on

“the particular act’s relation to a general function

normally performed by a judge,” not necessarily the

judicial act itself. Mireles v. Waco, 502 U.S. 9, 13 (1991).

“If only the particular act in question were to be

scrutinized, then any mistake of a judge in excess of

his authority would become a ‘nonjudicial’ act, because an improper or erroneous act cannot be said to

be normally performed by a judge.” Id. at 12 (cleaned

up).

App.14a

Congressional representatives enjoy immunity

for comments made on the congressional floor. See

Gov’t of Virgin Islands v. Lee, 775 F.2d 514, 520 (3d

Cir. 1985). Lawyers have immunity for comments made

during litigation. See Robinson v. Volkswagenwerk

AG, 940 F.2d 1369, 1372 (10th Cir. 1991), cert. denied,

502 U.S. 1091 (1992). We see no reason to treat differently a judge making a comment from the bench

during a judicial proceeding. Thus, we hold that judicial immunity applies when a judge makes a statement

from the bench during an in-court proceeding in a

case before the judge. We affirm the district court’s

dismissal of the ADA claim against Judge Cowan.

B. Claim Against Superior Court

Lund also seeks to hold the Superior Court liable

based on the same in-court statement by Judge Cowan.

Because judicial immunity bars the ADA claim against

Judge Cowan, that claim against the Superior Court

must also fail.

Under Duvall, Title II of the ADA allows respondeat superior liability. Duvall, 260 F.3d at 1141. But

as a general matter, there can be no respondeat

superior liability where there is no underlying wrong

by the employee, which includes situations in which

the employee is immune to suit. Because judicial

immunity bars any finding of individual liability

against Judge Cowan, the Superior Court similarly

cannot be held liable for Judge Cowan’s conduct.

Thus, we affirm the district court’s dismissal of the

ADA claim against the Superior Court based on judicial immunity.

App.15a

III. The District Court Did Not Err in Denying

Leave to Amend

Finally, we hold that the district court did not

abuse its discretion when it denied Lund’s motion for

leave to file a second amended complaint. “Dismissal

without leave to amend is proper if it is clear that

the complaint could not be saved by amendment.”

Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th

Cir. 2008) (cleaned up). Here, all of Lund’s proposed

amendments were futile.

First, Lund tries to save his lawsuit by reasserting the ADA claim against the Superior Court

only, not Judge Cowan, to try to plead around judicial immunity. But in the end, the factual basis for

the ADA claim remains the same, so any liability

against the Superior Court would still stem from the

conduct of Judge Cowan, who enjoys judicial immunity.

Simply removing Judge Cowan as a defendant does

not change the respondeat superior analysis. Lund

also proposes adding disability discrimination claims

under Section 504 of the Rehabilitation Act, based on

the same in-court statement by Judge Cowan as the

ADA claim. But if the Rehabilitation Act claims seek

money damages, though, they are barred by judicial

immunity. See Duvall, 260 F.3d at 1133. Finally, Lund

tries to plead around judicial immunity by adding

requests for injunctive relief and declaratory relief

under both the ADA and Rehabilitation Act. But like

with the Section 1983 claims, Lund seeks retrospective,

not prospective, relief.

We thus affirm the district court’s order denying

leave to file a second amended complaint.

App.16a

CONCLUSION

The district court’s orders granting Cowan’s

motion to dismiss and denying Lund’s motion for leave

to file a second amended complaint are AFFIRMED.4

4 The motion for judicial notice (Dkt. No. 19) is GRANTED.

App.17a

ORDER OF THE UNITED STATES DISTRICT

COURT FOR THE CENTRAL DISTRICT OF

CALIFORNIA GRANTING MOTION

TO DISMISS AND DENYING MOTION

TO AMEND THE COMPLAINT

(JULY 27, 2020)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

________________________

BRADFORD LUND

v.

DAVID J. COWAN ET AL

________________________

Case No. 2:20-cv-01894-SVW-JC

Proceedings:

Order Granting Defendants’ Motion

to Dismiss Without Leave to Amend

and Denying Plaintiff’s Motion for

Leave to Amend the First Amended

Complaint [27] [31]

Before:

The Honorable Stephen V.

WILSON, U.S. District Judge.

I.

Introduction

Before the Court are both a motion to dismiss

filed by Defendants David J. Cowan (“Judge Cowan”)

and the Los Angeles Superior Court (collectively

“Defendants”), and a motion to amend the First

Amended Complaint filed by Plaintiff Bradford J.

Lund (“Plaintiff”). For the reasons articulated below,

App.18a

the Court GRANTS the motion to dismiss and DENIES

the motion to amend the complaint. Because the Court

finds that the nature of the relief Plaintiff seeks

renders further amendment of the complaint futile,

the Court’s dismissal is without leave to amend.

II. Procedural Background

Plaintiff initially filed this lawsuit on February

27, 2020. Dkt. 1. Plaintiff then filed a First Amended

Complaint (“FAC”) on March 17, 2020. Dkt. 22. On

March 31, 2020, Defendants filed a motion to dismiss

the FAC. Dkt. 27. On April 10, 2020, Plaintiff filed a

motion for leave to file a Second Amended Complaint

(“SAC”). Dkt. 31. Defendant also opposes that motion.

Dkt. 33.

III. Factual Background

The Court relates the following factual background

from Plaintiff’s FAC and the exhibits attached to it.

Dkt. 22. Because the arguments raised by Defendants

in their motion to dismiss do not require this Court

to make factual determinations regarding the issues

in dispute, the Court does not address other exhibits

presented by Plaintiff in detail.

a. General Background

Plaintiff Bradford Lund is a grandson of Walt

Disney. Dkt. 22 at 1. Plaintiff has a twin sister named

Michelle Lund. Id. at 20. Plaintiff is the beneficiary

of a variety of different trusts that have been the

subject of substantial litigation in both California

and Arizona probate court. See id. at 1-3. Andrew

Gifford, Robert L. Wilson, Douglas Strode, and the

First Republic Trust Company (“FRTC”) are trustees

App.19a

of several of these trusts. Id. at 10. Plaintiff’s stepmother, Sherry Lund, is also a trustee of one of these

trusts. Id. at 20.

b. Plaintiff’s FAC

Plaintiff alleges that he has been “entrapped” in

the probate division of the Los Angeles County Superior

Court for the past decade. Dkt. 22 at 1-2. Plaintiff

alleges that in order to receive beneficiary distributions

from certain trusts he is a beneficiary to (the “Nevada

Trusts”), he has been required to litigate the issue of

his mental capacity (and need for a guardianship and

conservatorship) in both Arizona probate court and

the California probate court system over a similar

period of time. Id. at 2. Plaintiff alleges that after a

10-day bench trial in the Arizona probate proceeding

during 2016, that probate judge found Plaintiff had

sufficient mental capacity to manage his own affairs.

Id.

Plaintiff then alleges that Judge Cowan, in his

capacity as probate judge in the ongoing California

probate proceeding, issued a sua sponte Order to Show

Cause (“OSC”) on December 19, 2018, to determine

whether a limited purpose guardian ad litem should

be appointed for Plaintiff. Id. at 2, 14. On March 25

and 26, 2019, Plaintiff alleges that he (alongside certain

co-trustees of one of the Nevada Trusts) engaged in a

two-day in-person mediation of the California probate

proceedings, which ultimately resulted in a global

settlement agreement that was presented to Judge

Cowan for approval. Id. at 15. At a June 25, 2019

status conference regarding approval of the global

settlement, Plaintiff alleges that Judge Cowan stated

“Do I want to give 200 million dollars, effectively, to

App.20a

someone who may suffer, on some level from Down

Syndrome? The answer is no.” Id. at 15-16. Judge

Cowan ultimately declined to approve the global settlement in its entirety, and on September 27, 2019, issued

an Order appointing a limited purpose guardian ad

litem (“GAL”) for Plaintiff. See Dkt. 22-3 (Judge

Cowan’s Order, attached to Plaintiff’s FAC).

Judge Cowan instructed the appointed GAL to

facilitate a new settlement, review Plaintiff’s requests

to appoint new trustees, advise the Court on how

to streamline future litigation, determine whether

Plaintiff’s lawyers should be disqualified due to conflict,

and consider whether current co-trustees of Plaintiff’s

trusts may need to be removed. Id. at 17-18. Following

issuance of Judge Cowan’s Order, Plaintiff alleges

that he filed an objection to Judge Cowan under Cal.

Code Civ. Proc. § 170.1. Id. at 26. On October 24, 2019,

Judge Cowan struck this statement pursuant to Cal.

Code Civ. Proc. § 170.4(b). Id.

Plaintiff alleges that the decisions to appoint a

GAL and strike Plaintiff’s objection to Judge Cowan:

(1) were made in violation of the Full Faith and Credit

Clause of the Constitution (because Judge Cowan

failed to reach the same conclusion as the Arizona

probate court), (2) violated his Due Process rights

under the Fourteenth Amendment to the Constitution by subjecting him to de facto custody and taking

away his liberty and property, and (3) violated Plaintiff’s rights under Title II of the Americans with

Disabilities Act (“ADA”) by discriminating against him

based upon a false perception that Plaintiff suffered

from a mental disability, specifically Down Syndrome.

Id. at 27-34.

App.21a

Plaintiff’s FAC includes four separate causes of

action titled “Declaratory Judgment.” Dkt. 22 at 28-30.

These four causes of action appear to allege the same

variety of constitutional violations, but expressly seek

a declaratory judgment that Judge Cowan’s conduct

as alleged was unconstitutional. Id. at 28–31. Plaintiff

seeks both damages for his ADA claim and declaratory

relief finding that Defendants’ conduct has been and

“continues” to be unconstitutional. Id. at 35.

c. Judge Cowan’s Order in the State Court

Probate Proceeding.

Plaintiff attaches, as an exhibit to his FAC, Judge

Cowan’s Order dated September 27, 2019, appointing

a limited purpose GAL for Plaintiff (“the Order”).

Dkt. 22-3.1 The Order is 42 pages long and discusses

in great detail various probate proceedings and trust

litigation relevant to Plaintiff’s current circumstances.

See generally id. The Court will summarize relevant

portions of the Order to provide context for its

following analysis.

The Order first summarizes prior litigation

involving planned distributions from Plaintiff’s trusts

that were denied by trustees to Plaintiff, and the

prospect of continuing litigation regarding the duties

and obligations of the trustees with regard to those

distributions. Id. at 9-10. Judge Cowan states that

his primary concern with regard to the proposed

global settlement of the trust litigation is whether

undue influence is being exerted over Plaintiff and

1 The Court may take judicial notice of attachments to the complaint in considering a motion to dismiss. Koala v. Khosla, 931

F.3d 887, 894 (9th Cir. 2019)

App.22a

whether he understands the consequences that may

result from the distribution and movement of assets

proposed in the global settlement. Id. at 12. The Order

states that prior probate proceedings in California,

particularly a decision issued by Judge Beckloff in

June 2014, concluded that “substantial evidence” raised

by certain trustees showed that “Mr. Lund does not

have the maturity and financial ability to manage

and utilize a substantial trust distribution.” Id. at 5.

The Order then expresses concern that provisions

in the proposed global settlement “improperly interfere[] with the administration of justice” because they

prevent the probate court from hearing any objections

to the settlement other than those raised by Plaintiff

and a limited number of his trustees, including

Plaintiff’s step-mother. Id. at 13-14. The provisions

of the global settlement found objectionable required

the Court to vacate the Order to Show Cause regarding

appoint of a GAL in order to approve the settlement,

and barred both prior trustees and other beneficiaries

of the trust (including Plaintiff’s sister, Michelle)

from voicing their support or opposition for the pending

petitions to appoint new trustees for Plaintiff. Id. at

13-14. Judge Cowan notes that because his approval

of the settlement is required by California law, and

that his interpretation of California public policy

bars the Court from approving a settlement agreement that restricts the ability of trustees, or other

independent parties such as a GAL, from offering the

Court their views on the settlement agreement and

the appointment of new trustees. Id. at 14-16.

The Order also addresses the decision to appoint

a limited purpose GAL, Margaret Lodise, for Plaintiff.

Id. at 18. It states that Judge Cowan intends to have

App.23a

the GAL provide the probate court with a report on

the following issues: “whether Bradford’s lawyers

should be disqualified due to conflict; if Bradford has

potentially meritorious claims related to the accountings and/or claims relating to trustee/attorney fees;

whether the Court should remove Sherry and/or Dew

as trustees pursuant to the OSC re: removal based on

their refusal to provide information regarding the

Nevada trust or any other reason; whether the interim

stay should be lifted on movement of trust assets

from the 1992 trust; and whether approval of the

Settlement should be conditioned on a requirement for

a court order before decanting of assets in the Nevada

Trust.” Id. at 18-19.

The Order also specifically addresses the argument

raised by Plaintiff that the prior Arizona probate

court judgment has a binding effect on the California probate court’s assessment of Plaintiff’s mental

capacity. Id. at 19. Judge Cowan concludes that res

judicata does not apply when additional parties like

the trustees in the California probate action did not

participate in the prior proceeding, and that the specific issues raised in the Arizona probate proceeding

and its appeal did not mirror the proceeding before

Judge Cowan— there is no assertion that Plaintiff

requires a guardianship or conservatorship, Judge

Cowan simply seeks to appoint “an independent

person to state what, in her view, is in Bradford’s

best interests” with regard to the proposed settlement

agreement. Id. at 20-21. Judge Cowan then emphasizes

the distinction between the level of capacity in dispute

in the Arizona proceedings (which focuses on Plaintiff’s ability to look after himself and manage his

routine affairs on a daily basis) and the capacity

App.24a

necessary to manage a substantial trust distribution

as contemplated by the global settlement. Id. at 21.

The Order then states that the Arizona probate

proceedings were sealed by Plaintiff, that it is unclear

what evidence was presented in the Arizona proceedings, and that the Arizona judgment in 2016 did not

acknowledge the existence of Judge Beckloff’s 2014

Order (finding that Plaintiff had a limited capacity to

manage substantial trust distribution). Id. at 21-22.

Judge Cowan then discussed the substantial evidence

of reduced mental capacity already before the Court

and Plaintiff’s failure to present any contradictory

medical evidence in response to the probate court’s

OSC, or medical evidence showing improvements in

his condition since Judge Beckloff’s 2014 findings. Id.

at 24. Judge Cowan concludes that comity between

states “cannot require a court to ignore its own prior

findings and comply with the later judgment of

another state’s court that apparently did not consider

those findings— that course of action would ‘be prejudicial to . . . the general interests of the citizens’ of

California. (Biewend v. Biewend (1941) 17 Cal.2d 108,

113; Severn v. Adidas Sportschufabriken (1973) 33

Cal.App.3d 754, 763 (public policy exception to

comity)).” Id. at 25.

The Order then considers the substantive issues

of the need for a limited purpose GAL to analyze the

settlement agreement and provide the court an independent opinion on Plaintiff’s best interests. Id. at

26-28. Judge Cowan found that substantial evidence

previously presented to the probate court suggested

that Plaintiff had a limited understanding of the

nature and assets of the relevant trusts, and that

Plaintiff is incapable of independently directing counsel

App.25a

to defend his interests. Id. at 28. Judge Cowan also

expressed substantial concerns regarding the continued

role of Plaintiff’s step-mother, Sherry Lund, in acting

as both a trustee of the trusts established for Plaintiff

and a successor beneficiary, in holding multiple powers

of attorney which give her control over Plaintiff’s

finances, litigation, and living arrangements, and in

frequently exercising that power to direct aggressive

litigation in Plaintiff’s name. Id. at 34. After explaining

in detail certain concerns regarding the other proposed

trustees included in the proposed global settlement,

the Order approved the settlement only in part,

dividing trust assets between Plaintiff and his sister,

approving the termination fees for certain trustees

and their resignation, and continuing the approval

hearing so that the probate court could review the

report provided by the newly-appointed GAL. Id. at

40-41.

d. Plaintiff’s

Remedies

Pursuit

of

Other

Legal

Plaintiff alleges that following Judge Cowan’s

appointment of a GAL, he filed a petition for writ of

mandate with the California Court of Appeal, which

was denied. Dkt. 22 at 16-17. Plaintiff then sought

review of this denial with the California Supreme

Court, which also summarily denied his petition for

review. Id. at 17; see also Dkt. 41, Ex. N, Ex. Q.

IV. Defendant’s Motion to Dismiss

a. Legal Standard

A motion to dismiss under Rule 12(b)(6) challenges

the legal sufficiency of the claims stated in the

App.26a

complaint. See Fed. R. Civ. P. 12(b)(6). To survive a

motion to dismiss, the plaintiff’s complaint “must

contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. at 678. A complaint that offers mere “labels and conclusions” or “a

formulaic recitation of the elements of a cause of

action will not do.” Id.; see also Moss v. U.S. Secret

Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing Iqbal,

556 U.S. at 678).

In reviewing a Rule 12(b)(6) motion, a court “must

accept as true all factual allegations in the complaint

and draw all reasonable inferences in favor of the

nonmoving party.” Retail Prop. Trust v. United Bhd.

of Carpenters & Joiners of Am., 768 F.3d 938, 945

(9th Cir. 2014). Thus, “[w]hile legal conclusions can

provide the complaint’s framework, they must be supported by factual allegations. When there are wellpleaded factual allegations, a court should assume

their veracity and then determine whether they

plausibly give rise to an entitlement to relief.” Iqbal,

556 U.S. at 679. When evaluating the sufficiency of a

pleading under Fed. R. Civ. P. 12(b)(6), a court may

consider only the allegations in the complaint and

any attachments or documents incorporated by reference. Koala v. Khosla, 931 F.3d 887, 894 (9th Cir.

2019); see also United States v. Ritchie, 342 F.3d 903,

907-08 (9th Cir. 2003).

App.27a

b. Analysis

In their motion to dismiss, Defendants argue that

Plaintiff’s claims are barred on a variety of grounds,

including (1) the probate exception to federal jurisdiction2, (2) judicial immunity, (3) Younger abstention, (4) the Rooker-Feldman doctrine, and (5) the

Colorado River doctrine. While the Court agrees in

many respects that Plaintiff’s claims cannot properly be

asserted here, it will only address in its analysis a

subset of the arguments raised by Defendants.

i. Judge Cowan Has Judicial Immunity from Plaintiff’s 42 U.S.C. § 1983

Claims and Declaratory Relief

Sought By Plaintiff Is Not Available

Plaintiff brings his constitutional claims under 42

U.S.C. § 1983. Dkt. 22 at 7. Defendants assert that

Judge Cowan has absolute judicial immunity from

2 The Court acknowledges that even after the Supreme Court

narrowed the probate exception in Marshall v. Marshall, 547

U.S. 293 (2006), there is some possibility that Plaintiff’s lawsuit

may still be limited by the “prior exclusive jurisdiction” doctrine

that the Ninth Circuit held remains viable in the probate context.

See Goncalves By & Through Goncalves v. Rady Children’s

Hosp. San Diego, 865 F.3d 1237, 1252-53 (9th Cir. 2017). Because

the prior exclusive jurisdiction doctrine requires the Court to

consider the gravamen of a complaint and not “exalt form over

necessity,” the Court might possibly view the claims asserted by

Plaintiff, given the context of the probate court proceedings, as

an attempt to wrest control of the trust assets subject to Judge

Cowan’s jurisdiction. State Eng’r of State of Nev. v. S. Fork

Band of Te-Moak Tribe of W. Shoshone Indians of Nev., 339

F.3d 804, 810 (9th Cir. 2003). However, the fact that Plaintiff’s

lawsuit expressly seeks only declaratory relief for his constitutional claims and damages under the ADA leads the Court to

analyze the motion primarily through other doctrines.

App.28a

claims under § 1983, and that because any liability

of the Los Angeles Superior Court (“LASC”) would

necessarily arise from Judge Cowan’s conduct, his

immunity applies to LASC as well. Plaintiff argues

that his FAC seeks only declaratory relief, and that

the language of § 1983 permits his action solely for

declaratory relief. Section 1983 states that:

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or

other person within the jurisdiction thereof

to the deprivation of any rights, privileges,

or immunities secured by the Constitution

and laws, shall be liable to the party

injured in an action at law, suit in equity,

or other proper proceeding for redress,

except that in any action brought against

a judicial officer for an act or omission

taken in such officer’s judicial capacity,

injunctive relief shall not be granted

unless a declaratory decree was violated

or declaratory relief was unavailable.

42 U.S.C. § 1983 (emphasis added). This language was

added to § 1983 via the Federal Courts Improvement Act of 1996 (“FCIA”), Pub. L. No. 104-317,

§ 309(c), 110 Stat. 3847, 3853 (codified at 42 U.S.C.

§ 1983). See Moore v. Urquhart, 899 F.3d 1094, 1104

(9th Cir. 2018). Congress expressly broadened the

reach of judicial immunity from § 1983 in response to

the Supreme Court’s decision in Pulliam v. Allen, 466

U.S. 522 (1984), in an attempt to “restore[] the doctrine

of judicial immunity to the status it occupied prior to

App.29a

the Supreme Court’s decision in [Pulliam].” See Moore,

899 F.3d at 1104 (quoting S. Rep. No. 104-366, at 36

(1996)). In Pulliam, the Court had held that common

law “judicial immunity is not a bar to prospective

injunctive relief against a judicial officer acting in

her judicial capacity.” 466 U.S. at 541-42.

The Ninth Circuit has not clearly indicated how

the amendment to § 1983 impacts the availability of

declaratory relief, because the amended statute does

not even expressly mention declaratory relief. In

Moore, the Ninth Circuit considered claims seeking

both injunctive and declaratory relief under § 1983

collectively, and found that even if the limitations

on injunctive relief Congress imposed in the FCIA

barred such relief with respect to judicial officers,

the defendant in Moore (a sheriff) was not acting as

a “judicial officer in a judicial capacity,” and therefore

any judicial immunity from injunctive relief did not

apply. See 899 F.3d at 1104 (quoting Pulliam, 466

U.S. at 541-542). The Ninth Circuit in Moore did not

distinguish between that plaintiff’s claims for injunctive

relief and declaratory relief, perhaps indicating that

it viewed claims for declaratory relief to be similarly

restricted by the FCIA’s limiting language.

District and circuit courts outside the Ninth

Circuit have wrestled with the availability of declaratory relief under § 1983 post-FCIA. See Ray v. Judicial

Corr. Servs., Inc., 2014 WL 5090723, at *3-5 (N.D.

Ala. Oct. 9, 2014) (“[O]ne might argue Congress did

not feel the need to explicitly bar claims for declaratory

relief because no such exemption from judicial immunity had ever previously been recognized.”); Just.

Network Inc. v. Craighead Cnty., 931 F.3d 753, 763

(8th Cir. 2019) (collecting cases and concluding that

App.30a

most circuit courts have held that the FCIA amendment does not expressly bar prospective declaratory

relief against judges); but see Guerin v. Higgins, 8 F.

App’x 31, 32 (2d Cir. 2001) (finding that plaintiff

could not seek declaratory relief based on Pulliam

because its holding “with respect to such relief has

been effectively overruled by Congress”).

The Court finds that regardless of whether declaratory relief can still be granted post-FCIA despite

Pulliam’s abrogation, Plaintiff’s declaratory judgment

claims are not prospective in nature. While Plaintiff

alleges that Judge Cowan “continues to” violate his

constitutional rights through the ongoing proceedings,

the Court finds that in reality, each of the requests

for declaratory relief squarely seek to litigate the

propriety of Judge Cowan’s past conduct (as previously described), rather than “define the legal rights and

obligations of the parties in anticipation of some future

conduct.” Just. Network, 931 F.3d at 764 (quoting

Lawrence v. Kuenhold, 271 F. App’x 763, 766 (10th

Cir. 2008)). Moreover, the Eleventh Amendment does

not permit retrospective declaratory relief against state

officials such as Judge Cowan. See Hubbart v. Haw.

Off. of Consumer Prot., 362 F. App’x 857 (9th Cir. 2010).

To the extent that Plaintiff argues that he is

seeking prospective declaratory relief based on the

fact that Judge Cowan’s past conduct continues to

affect him and therefore violates his constitutional

rights, the Court cannot find that the ongoing effect

of these past rulings suffices to transform Plaintiff’s

claim into one for prospective declaratory relief. See

Weldon v. Kapetan, 2018 WL 1725606, at *4 (E.D. Cal.

Apr. 10, 2018) (citing Wilkinson v. Dotson, 544 U.S.

74, 80 (2005)). The conclusion Plaintiff urges would

App.31a

permit a party to litigate the constitutionality of any

prior judicial ruling by a state judicial officer under

§ 1983, so long as they could allege a continuing effect

of that past conduct. The Court declines to interpret

the very narrow exception to judicial immunity from

§ 1983 claims (to the extent that it exists) in that

manner. The Court GRANTS Defendants’ motion to

dismiss the constitutional claims asserted by Plaintiff against Judge Cowan and derivatively against

LASC.

The Court notes in the alternative that if it

were to conclude that declaratory relief against a

judicial officer was limited by the FCIA in the same

manner as injunctive relief, it would not find that

Plaintiff could qualify for such relief on that basis

as well. See 42 U.S.C. § 1983 (“injunctive relief [against

a judicial officer] shall not be granted unless a

declaratory decree was violated or declaratory relief

was unavailable”) (emphasis added). Plaintiff has

not alleged that a declaratory decree has been violated,

and the phrase “declaratory relief [] unavailable” has

been interpreted by the overwhelming majority of

district courts in the Ninth Circuit to refer to circumstances where there is no ability to appeal a

state court’s order. See Profita v. Andersen, 2018

WL 4199214, at *5 (C.D. Cal. Aug. 8, 2018); Owens

v. Cowan, 2018 WL 1002313, at *7 (C.D. Cal. Jan.

17, 2018); Yellen v. Hara, 2015 WL 8664200, at *11

(D. Haw. Dec. 10, 2015); Hill v. Ponner, 2019 WL

1643235, at *2 (E.D. Cal. Apr. 16, 2019).

Plaintiff argues (in the event that the restriction

on injunctive relief against judicial officers applies to

Plaintiff’s declaratory relief claims) that he has no

ability to appeal Judge Cowan’s order because his

App.32a

writ appealing the appointment of the GAL has been

denied and is not otherwise immediately appealable.

Dkt. 34 at 24. The California Court of Appeals and

Supreme Court have reviewed and declined to grant

immediate relief to Plaintiff from Judge Cowan’s Order.

Dkt. 22 at 16-17. Plaintiff will again have an opportunity to litigate the issue following the entry of a

final dispositional order. See In re Joann E., 128 Cal.

Rptr. 2d 189, 193 (Ct. App. 2002) (appointment of GAL

reversed on appeal). Declaratory relief is not “unavailable” for the purposes of § 1983 simply because Plaintiff’s writ requests have been reviewed and denied and

no other right of appeal is immediately available.

ii. Plaintiff Cannot

Under the ADA.

Seek

Damages

Plaintiff’s claim for damages based on an alleged

violation of the ADA by Judge Cowan while acting as

a judicial officer is barred by Ninth Circuit caselaw

holding that judicial immunity against damages was

not waived by Congress’ passage of the ADA. See

Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1133 (9th

Cir. 2001). Defendants’ motion to dismiss is GRANTED

on this cause of action.

iii. In the Alternative, the Court

Would Exercise Younger Abstention in These Circumstances,

Because Plaintiff’s Lawsuit Seeks

to Interfere with the Orders

Issued by Judge Cowan in the

Underlying Probate Matter.

Even if Judge Cowan was not immune to liability

for both damages under the ADA and the form of

App.33a

retrospective declaratory relief Plaintiff seeks under

§ 1983, the Court would find that Younger abstention

bars him from asserting claims in this Court.

Younger abstention is grounded in a “longstanding

public policy against federal court interference with

state court proceedings.” Younger v. Harris, 401 U.S.

37, 43 (1971). The Supreme Court has “identified two

sources for this policy: the constraints of equity jurisdiction and the concern for comity in our federal

system.” Gilbertson v. Albright, 381 F.3d 965, 970

(9th Cir. 2004). Most importantly, Younger abstention

permits federal courts to “preserve respect for state

functions such that the national government protects

federal rights and interests in a way that will not

‘unduly interfere with the legitimate activities of the

States.’” Id. (quoting Younger, 401 U.S. at 44).

A federal court may abstain under Younger in

three categories of cases: “(1) parallel, pending state

criminal proceedings, (2) state civil proceedings that

are akin to criminal prosecutions, and (3) state civil

proceedings that implicate a State’s interest in enforcing

the orders and judgments of its courts.” Herrera v.

City of Palmdale, 918 F.3d 1037, 1043-44 (9th Cir.

2019) (internal quotation marks and citations omitted).

First identified in New Orleans Pub. Serv., Inc. v.

Council of New Orleans (“NOPSI”), 491 U.S. 350

(1989), these three categories are known as the NOPSI

categories. See Sprint Commc’ns, Inc. v. Jacobs, 571

U.S. 69, 72-73 (2013). To warrant Younger abstention,

a state civil action must fall into one of the NOPSI

categories, and must also satisfy a three-part inquiry:

the state proceeding must be (1) “ongoing,” (2) “implicate important state interests,” and (3) provide

“an adequate opportunity . . . to raise constitutional

App.34a

challenges.” Herrera, 918 F.3d at 1044 (9th Cir.

2019) (internal quotations and citations omitted).3

The parties agree that neither the first nor the

second NOPSI category apply to this lawsuit. But

Defendants argue that the third category, “state civil

proceedings that implicate a State’s interest in enforcing

the orders and judgments of its courts” includes the

underlying probate proceeding Plaintiff’s claims arise

out of, Dkt. 27-1 at 24-26, while Plaintiff argues that

his lawsuit does not implicate these interests. Dkt.

34 at 19.

The probate proceedings ongoing before Judge

Cowan “implicate [California’s] interest in enforcing

the orders and judgments of its courts.” Herrera, 918

F.3d at 1043-44. Judge Cowan’s Orders appointing a

GAL and striking Plaintiff’s motion to disqualify

Judge Cowan are decisions central to the ultimate

resolution of the probate proceeding in question.

“Core orders involve the administration of the state

judicial process—for example, an appeal bond requirement, a civil contempt order, or an appointment of a

receiver.” ReadyLink Healthcare, Inc. v. State Comp.

Ins. Fund, 754 F.3d 754, 759 (9th Cir. 2014) (internal

3 Perhaps because the parties both recognize what the Ninth

Circuit has clearly articulated, they do not discuss the fourth

requirement for Younger abstention— that the requested relief

have the practical effect of enjoining ongoing state court proceedings. ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754

F.3d 754, 758 (9th Cir. 2014). The Court finds, consistent with

Ninth Circuit precedent, that a declaratory judgment by this Court

finding Judge Cowan’s rulings unconstitutional “would have the

same practical impact as injunctive relief on a pending state

proceeding as a result of the preclusive effect of the federal court

judgment . . .” Herrera, 918 F.3d at 1048 (quotations omitted).

App.35a

quotations and citations omitted). The Court finds

that Judge Cowan’s appointment of a limited purpose

GAL and striking Plaintiff’s objection are similarly

central to the ongoing probate proceedings. In similar

circumstances, other courts have agreed that § 1983

challenges to the constitutionality of orders issued in

state court proceedings qualify for Younger abstention.

See Falco v. Justices of the Matrimonial Parts of

Supreme Court of Suffolk Cnty., 805 F.3d 425, 428

(2d Cir. 2015) (holding Younger abstention warranted

when § 1983 claim “challenge[d] the State court’s

order that he pay half the fees of the attorney

appointed to represent his children in the divorce

proceeding.”). Plaintiff relies on Cook v. Harding, 879

F.3d 1035 (9th Cir. 2018), but that opinion stands

only for the proposition that a district court cannot

abstain from hearing a § 1983 claim challenging the

constitutionality of a state statute based solely on

similar claims also challenging the statute’s constitutionality pending in state court. Id. at 1041. Here,

Plaintiff seeks declaratory relief that would declare

Judge Cowan’s prior conduct unconstitutional, and

that he has been deprived of his liberty and property

in violation of the Fourteenth Amendment. See Dkt.

22 at 35-36. These claims all seek to litigate the

propriety of Judge Cowan’s prior orders in the probate

proceeding, and therefore fall into the third NOPSI

category.

The Court also finds that the three other requirements necessary to raise the possibility of Younger

abstention are also met here. The probate proceeding

is ongoing, and California clearly has an “important

state interest” in the orderly administration of its

probate proceedings as well as in the ability of probate

App.36a

court judicial officers, like Judge Cowan, to assess

settlement proposals based on independent guidance

they regard as necessary to complete their duties. See,

e.g. H.C. ex rel. Gordon v. Koppel, 203 F.3d 610, 613

(9th Cir. 2000) (finding that important state interests

are implicated by areas of the law that are the

exclusive reserve of the state judicial system).

Finally, Plaintiff has an adequate venue to litigate

his federal claims, both upon final disposition of the

probate proceeding, and additionally the process for

writ petition that he has already exhausted. As with

the Court’s discussion of judicial immunity and the

§ 1983 claims above, the Court does not find that the

fact that the California Court of Appeal denied Plaintiff’s writ “on the ground [Plaintiff] has not stated

facts or provided evidence or legal authorities sufficient to demonstrate entitlement to extraordinary

relief” means that Plaintiff will not ultimately have

an adequate venue to litigate these claims. Dkt. 41,

Ex. N. Plaintiff’s argument that a further opportunity

to appeal Judge Cowan’s decision may not be available

for a substantial period of time does not preclude

Younger abstention. See Baffert v. Cal. Horse Racing

Bd., 332 F.3d 613, 619 (9th Cir. 2003) (allegations

of “redundancy and delay” not sufficient to create

procedural bar to federal claims).

V.

Plaintiff’s Motion to Amend the FAC

Plaintiff has also filed a motion to amend the FAC

and file a Second Amended Complaint (“SAC”). Dkt.

31. Plaintiff’s SAC makes limited alterations to the

FAC, adding additional allegations that Judge Cowan

and LASC intentionally discriminated against Plaintiff

and denied him “effective communication and mean-

App.37a

ingful participation” in the state court system through

the appointment of a GAL, and adding a second

disability-related cause of action pursuant to § 504 of

the Rehabilitation Act of 1973, 29 U.S.C. § 794. See

Dkt. 31-2 (redlined version of proposed SAC).

Leave to amend a pleading is properly denied

where the amendment is futile. Carrico v. City & Cnty.

of S.F., 656 F.3d 1002, 1008 (9th Cir. 2011). “Whether

an amendment is ‘futile’ is measured by the same

standards that govern a motion to dismiss.” Hofstetter

v. Chase Home Fin., 751 F.Supp.2d 1116, 1123 (N.D.

Cal. 2010); see also Krainski v. Nev. ex rel. Bd. of

Regents of Nev. Sys. of Higher Ed., 616 F.3d 963, 972

(9th Cir. 2010).

a. Amendment of the FAC as Plaintiff

Proposes Would Be Futile.

Plaintiff argues that permitting him to seek

injunctive and declaratory relief4 under the ADA

rather than damages cures the deficiencies in that

claim and should be permitted by the Court at this

early stage in the litigation. Plaintiff cites primarily

to Hiramanek v. Clark, 2014 WL 107634 (N.D. Cal.

Jan. 10, 2014), for the proposition that “there is no

provision in the ADA that bars injunctive relief with

4 Plaintiff’s damages claim for intentional discrimination is alleged

solely against LASC in the proposed SAC. See Dkt. 31-2 at 38.

Because Plaintiff’s allegations fail to state a claim for violation

of the ADA as explained above, any claim for damages based on

intentional discrimination by a public entity also necessarily

fails. See also Phiffer v. Oregon, 586 F. App’x 425, 426 (9th Cir.

2014) (when liability is premised solely on respondeat superior,

immunity of the underlying actors bars liability against the

employer).

App.38a

respect to judicial officers.” Hiramanek, 2014 WL

107634 at *6. But that case involved claims by a

state court litigant that certain court employees and

judicial officers had denied plaintiff’s repeated requests

for accommodation in the course of several family

law and civil cases. Id. at *2. The district court found

that judicial officers had immunity from damages,

but that prospective injunctive relief ordering the

court to make reasonable accommodations for plaintiff

was still a viable avenue of relief for that plaintiff

under the ADA. Id. at *7.

The Court rejects Plaintiff’s argument that the

allegations giving rise to the alleged ADA violations

do not constitute performance of a “normal judicial

function,” but instead discrimination by Judge Cowan

against Plaintiff based on a false perception that

Plaintiff suffers from Down Syndrome. See Dkt. 34 at

26 (raising this argument in the motion to dismiss

briefing); Dkt. 35 at 9 n.2 (raising it again in a Reply

brief regarding the motion to amend the FAC). A

judicial officer speaking from the bench during the

course of a court proceeding, regarding an issue that

was later the subject of a substantial portion of the

42-page order, is clearly performing a normal judicial

function.

The Court agrees with the analysis in Hiramenek,

to the extent that it holds that a waiver of judicial

immunity exists for prospective injunctive relief against

certain actions taken by judicial officers with respect

to disabilities and accommodations in the course of

judicial proceedings. 2014 WL 107634 at *7-8. But it

wholly rejects the notion that statements made by a

judicial officer in the course of a court hearing can

give rise to a violation of the ADA. No binding or

App.39a

persuasive authority suggests that an ADA violation

is cognizable based on decisions rendered by judicial

officers, or statements made from the bench during

a hearing. Plaintiff’s citations to cases discussing

the availability of ADA injunctive relief based on

access to courtrooms or requests for accommodations

for disability are clearly distinct from Judge Cowan’s

conduct here. See Tennessee v. Lane, 541 U.S. 509,

513-14, 532-33 (2004) (paraplegic plaintiffs unable to

access second floor courtrooms); Hiramanek, 2014

WL 107634, at *6.

As Defendants also note, Plaintiff has continued

to be represented by counsel in the California probate

proceeding and continues to actively litigate his position. See, e.g. Dkt. 27-4. Ex. T.5 Neither Judge Cowan’s

statements during the course of the probate court

proceedings, nor his decision to appoint a GAL to

provide an independent assessment of the global

settlement agreement and related issues, constitute

a denial of access to the court system that is cognizable under the ADA. Because Plaintiff’s proposed

amendment would be futile, the Court DENIES the

motion to amend the FAC.

5 The Court takes judicial notice of these documents because

they constitute public records of the probate court. See Reyn’s

Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th

Cir. 2006) (“We may take judicial notice of court filings and other

matters of public record.”). The Court does not consider any of

the disputed factual issues raised in these documents, only the

fact of their existence as evidence that Plaintiff continues to

actively participate in the California probate proceedings through

counsel.

App.40a

VI. Dismissal of Plaintiff’s Claims Is Without

Leave to Amend.

Dismissal of a complaint without leave to amend

is appropriate where further amendment of the claims

would be futile. See Chappel v. Lab. Corp. of Am.,

232 F.3d 719, 725-26 (9th Cir. 2000). Plaintiff has

amended his complaint once, the Court has denied

a second attempt to amend the FAC on the basis of

futility, and as explained above, the Court does not

find that Plaintiff can litigate the issues he raises

before this Court under either § 1983 or the ADA.

Because the Court finds that further amendment of

the operative complaint would be futile, the Court’s

dismissal of Plaintiff’s lawsuit is without leave to

amend.

App.41a

ORDER OF THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

DENYING PETITION FOR REHEARING

(AUGUST 23, 2021)

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________

BRADFORD D. LUND,

Plaintiff-Appellant,

v.

DAVID J. COWAN, THE HONORABLE, LOS ANGELES

COUNTY SUPERIOR COURT; LOS ANGELES COUNTY

SUPERIOR COURT, FOR THE STATE OF CALIFORNIA,

Defendants-Appellees.

________________________

No. 20-55764

D.C. No. 2:20-CV-01894-SVW-JC

Before: R. NELSON and LEE, Circuit Judges,

and STEIN*, District Judge.

ORDER

The panel has voted to deny the petition for panel

rehearing. Judges Nelson and Lee have voted to deny

the petitions for rehearing en banc, and Judge Stein

* The Honorable Sidney H. Stein, United States District Judge

for the Southern District of New York, sitting by designation.

App.42a

has recommended denying the petition. The full court

has been advised of the petition for rehearing en

banc, and no judge has requested a vote on whether

to rehear the matter en banc. Fed. R. App. P. 35. The

petition for panel rehearing and the petition for rehearing en banc are DENIED.

App.43a

RELEVANT STATUTORY PROVISIONS

42 U.S.C. § 12101–Findings and purpose

(a) Findings

The Congress finds that—

(1) physical or mental disabilities in no way

diminish a person’s right to fully participate

in all aspects of society, yet many people with

physical or mental disabilities have been

precluded from doing so because of discrimination; others who have a record of a disability or are regarded as having a disability

also have been subjected to discrimination;

(2) historically, society has tended to isolate and

segregate individuals with disabilities, and,

despite some improvements, such forms of

discrimination against individuals with disabilities continue to be a serious and pervasive

social problem;

(3) discrimination against individuals with

disabilities persists in such critical areas as

employment, housing, public accommodations,

education, transportation, communication,

recreation, institutionalization, health services,

voting, and access to public services;

(4) unlike individuals who have experienced

discrimination on the basis of race, color, sex,

national origin, religion, or age, individuals

who have experienced discrimination on the

basis of disability have often had no legal

recourse to redress such discrimination;

App.44a

(5) individuals with disabilities continually encounter various forms of discrimination,

including outright intentional exclusion, the

discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make

modifications to existing facilities and practices, exclusionary qualification standards

and criteria, segregation, and relegation to

lesser services, programs, activities, benefits,

jobs, or other opportunities;

(6) census data, national polls, and other studies

have documented that people with disabilities,

as a group, occupy an inferior status in our

society, and are severely disadvantaged socially,

vocationally, economically, and educationally;

(7) the Nation’s proper goals regarding individuals with disabilities are to assure equality

of opportunity, full participation, independent

living, and economic self-sufficiency for such

individuals; and

(8) the continuing existence of unfair and

unnecessary discrimination and prejudice

denies people with disabilities the opportunity

to compete on an equal basis and to pursue

those opportunities for which our free society

is justifiably famous, and costs the United

States billions of dollars in unnecessary

expenses resulting from dependency and nonproductivity.

(b) Purpose

It is the purpose of this chapter—

App.45a

(1) to provide a clear and comprehensive national

mandate for the elimination of discrimination

against individuals with disabilities;

(2) to provide clear, strong, consistent, enforceable

standards addressing discrimination against

individuals with disabilities;

(3) to ensure that the Federal Government plays

a central role in enforcing the standards

established in this chapter on behalf of individuals with disabilities; and

(4) to invoke the sweep of congressional

authority, including the power to enforce

the fourteenth amendment and to regulate

commerce, in order to address the major areas

of discrimination faced day-to-day by people

with disabilities.

42 U.S.C. § 12102–Definition of disability

(1) Disability

The term “disability” means, with respect to an

individual—

(A) a physical or mental impairment that substantially limits one or more major life

activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment

(as described in paragraph (3)).

(2) Major life activities

(A) In general

App.46a

For purposes of paragraph (1), major life activities

include, but are not limited to, caring for oneself,

performing manual tasks, seeing, hearing, eating,

sleeping, walking, standing, lifting, bending,

speaking, breathing, learning, reading, concentrating,

thinking, communicating, and working.

(B) Major bodily functions

For purposes of paragraph (1), a major life

activity also includes the operation of a major

bodily function, including but not limited to,

functions of the immune system, normal cell

growth, digestive, bowel, bladder, neurological,

brain, respiratory, circulatory, endocrine, and

reproductive functions.

(3) Regarded as having such an impairment

For purposes of paragraph (1)(C):

(A) An individual meets the requirement of “being

regarded as having such an impairment” if

the individual establishes that he or she

has been subjected to an action prohibited

under this chapter because of an actual or

perceived physical or mental impairment

whether or not the impairment limits or is

perceived to limit a major life activity.

(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A

transitory impairment is an impairment

with an actual or expected duration of 6

months or less.

(4) Rules of construction regarding the definition of

disability

App.47a

The definition of “disability” in paragraph (1)

shall be construed in accordance with the following:

(A) The definition of disability in this chapter

shall be construed in favor of broad coverage

of individuals under this chapter, to the

maximum extent permitted by the terms of

this chapter.

(B) The term “substantially limits” shall be

interpreted consistently with the findings

and purposes of the ADA Amendments Act

of 2008.

(C) An impairment that substantially limits one

major life activity need not limit other

major life activities in order to be considered

a disability.

(D) An impairment that is episodic or in remission

is a disability if it would substantially limit

a major life activity when active.

(E)(i) The determination of whether an impairment

substantially limits a major life activity

shall be made without regard to the ameliorative effects of mitigating measures such

as—

(I)

medication, medical supplies, equipment,

or appliances, low-vision devices (which

do not include ordinary eyeglasses or

contact lenses), prosthetics including

limbs and devices, hearing aids and

cochlear implants or other implantable

hearing devices, mobility devices, or

oxygen therapy equipment and supplies;

(II) use of assistive technology;

App.48a

(III) reasonable accommodations or auxiliary

aids or services; or

(IV) learned behavioral or adaptive neurological modifications.

(ii) The ameliorative effects of the mitigating

measures of ordinary eyeglasses or contact

lenses shall be considered in determining

whether an impairment substantially limits

a major life activity.

(iii) As used in this subparagraph—

(I)

the term “ordinary eyeglasses or contact

lenses” means lenses that are intended

to fully correct visual acuity or eliminate

refractive error; and

(II) the term “low-vision devices” means

devices that magnify, enhance, or otherwise augment a visual image.