Sundby v. San Diego County Sheriff et al

Filing 6

ORDER LIFTING STAY. Signed by District Judge William Q. Hayes on 09/25/2024.(stn)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DALE SUNDBY, Trustee,

Case No.: 3:24-cv-1535-WQH-MSB
Plaintiff,

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v.

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SAN DIEGO COUNTY
SHERIFF, OFFICER B.
PALMER, in her official sheriff
capacity, OFFICER R.
BERNARDINO, in his official
sheriff capacity, OFFICER C.
MCCOY, in his official sheriff
capacity, and DOES 1 through X,

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Defendants.

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ORDER

HAYES, Judge:
The matter before the Court is Plaintiff Dale Sundby’s Response to ECF No. 4 Order

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to Show Cause (“Response”) (ECF No. 5).

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I.

BACKGROUND

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On August 29, 2024, Plaintiff, proceeding pro se, filed the Complaint (ECF No. 1,

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Compl.), asserting claims against Defendants for violations of the Fourth and Fourteenth

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Amendments to the United States Constitution, as well as various violations of the

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California Constitution and California Civil Code § 52.1. In particular, the Complaint
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alleges claims arising from Defendants’ alleged execution of “a writ of possession at a

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property” located at 7740-7746 Eads Avenue, La Jolla, California 92307 (the “Property”)

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that “was held in a family trust” (the “Trust”). (Compl. at 3, ¶ 9.) The Complaint identifies

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the plaintiff as “Dale Sundby, Trustee” and alleges that “Plaintiff is trustee of the Trust.”

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Id. ¶¶ 1, 10. The docket reflects that Defendants have not yet been served.

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On September 19, 2024, the Court issued an Order to Show Cause. (ECF No. 4.)

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Specifically, the Court stated: “To the extent the Complaint asserts claims on behalf of the

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Trust, Plaintiff cannot proceed pro se in this action.” Id. at 2 (citing Simon v. Hartford Life,

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Inc., 546 F.3d 661, 667 (9th Cir. 2008); C.E. Pope Equity Tr. v. United States, 818 F.2d

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696, 698 (9th Cir. 1987)). The Court accordingly instructed Plaintiff to:

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(1) retain an attorney and instruct the attorney to enter a notice of appearance in this

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action;

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(2) file an amended complaint that clearly alleges claims solely on Plaintiff’s own

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behalf as an individual; or

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(3) otherwise show cause why this case should not be dismissed pursuant to the rule

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articulated in Simon, 546 F.3d at 667.

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Id. at 3. The Court stayed the case pending Plaintiff’s response to the Order to Show Cause.

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Id.

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On September 19, 2024, Plaintiff filed a Response to ECF No. 4 Order to Show

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Cause. (ECF No. 5.) Plaintiff asserts that he may proceed pro se in this action because he

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is “a sole trustee of a revocable living trust who is also the sole settl[o]r and beneficiary of

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the trust assets he is charged to protect.” Id. at 3. To support his assertion that “[h]e is

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representing no other person’s or entity’s interest” in this action, Plaintiff explains the

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history of transfers of interest in the Property among himself as an individual (“Dale”),

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Edith Sundby (“Edith”), and the Trust. Id.

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On December 20, 2018, Dale and Edith “transferred all of the community property

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interest they had” in the Property “to their family trust.” Id. at 2. On December 15, 2021,

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the Trust “transferred all interest back to Dale and Edith.” Id. On August 24, 2022, Dale
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and Edith executed a fifth amendment to the agreement governing the Trust (the “Trust

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Agreement”). Id. In relevant part, the Trust Agreement provides: “As to any portion of the

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husband’s or wife’s undivided one-half interest in community property transferred to the

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trust, the transferring husband or wife will be the sole beneficiary[.]” Id. at 19 ¶ 2.1. Two

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days after Dale and Edith executed this amendment to the Trust Agreement, “Dale as a sole

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settlor transferred one-half of his undivided one-half interest back to the trust pursuant to

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the Agreement.” Id. at 2.

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Plaintiff asserts that “his Partial Interest is all that is in the trust.” Id. at 3.

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Accordingly, Plaintiff requests that the Court “(1) find that Plaintiff has the right to

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self-represent his sole beneficial interest in the trust; and (2) immediately lift the stay so

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the case proceeds without delay.” Id.

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II.

PLAINTIFF HAS SHOWN ADEQUATE CAUSE TO LIFT THE STAY

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District courts within the Ninth Circuit have held that the sole beneficiary of a trust

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may represent the trust pro se. See Fuller Fam. Tr. v. Nationstar Mortg. LLC, No. 2:23-cv-

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00091-MMD-DJA, 2023 WL 3865005, at *2 (D. Nev. June 6, 2023) (“[A] nonlawyer

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trustee, proceeding pro se, may not bring claims on behalf of a trust, unless he is the sole

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beneficiary of the trust.”); Bagdasaryan v. City of Los Angeles, No. CV 15-1008-JLS

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(KES), 2016 WL 3661520, at *5 (C.D. Cal. Mar. 9, 2016) (“A trust’s ‘beneficial owner’

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may appear pro se on the trust’s behalf.”); Becker v. Wells Fargo Bank, N.A., No. CIV.

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S-10-2799 LKK/KJN, 2010 WL 5169009, at *6 (E.D. Cal. Dec. 14, 2010) (“The

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Court … finds that because [the plaintiff] is the sole beneficiary of the [ ] Trust, he may

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represent the trust pro se.”).

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The Court observes, however, that the Complaint appears to contradict Plaintiff’s

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assertion in his Response that he possesses the “sole beneficial interest in the trust.” (ECF

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No. 5 at 3.) Specifically, the Complaint alleges that “[f]rom 2001 to September 2, 2022,

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multiple Trust beneficiaries were occupants of the Property.” (Compl. ¶ 11 (emphasis

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added).) It is therefore unclear from the record before the Court whether Plaintiff is the

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sole beneficiary of the Trust.
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The Court concludes that, at this stage of the proceedings, Plaintiff has adequately

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shown cause that this action should not be dismissed and that the stay should be lifted.

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However, the Court makes no ruling as to the issue of Plaintiff’s ability to represent the

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Trust pro se. The Court finds that this issue is better reserved for full briefing following the

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appearance of all parties. The Court accordingly defers resolution of this issue pending

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Defendants’ appearance in this action.

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III.

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CONCLUSION
IT IS HEREBY ORDERED that the stay in this case is lifted.

Dated: September 25, 2024

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