Sundby v. San Diego County Sheriff et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
DALE SUNDBY, Trustee,
Plaintiff,
v.
SAN DIEGO COUNTY
SHERIFF’S DEPARTMENT,
DEPUTY B. PALMER, in her
official sheriff capacity,
DEPUTY R. BERNARDINO, in
his official sheriff capacity,
SERGEANT C. MCCOY, in his
official sheriff capacity, and
DOES 1 through X,
Defendants.
Case No.: 3:24-cv-1535-WQH-BJW
ORDER
HAYES, Judge:
The matters before the Court are the Motion for Mandatory Joinder (ECF No. 40)
and the Motion for Reconsideration (ECF No. 41) filed by Plaintiff Dale Sundby
(“Plaintiff”).
I. 	BACKGROUND
On August 29, 2024, Plaintiff initiated this action by filing a Complaint against
Defendants San Diego County Sheriff’s Department (“San Diego County Sheriff”), Officer
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B. Palmer, Officer R. Bernardino, Officer C. McCoy, and Does 1–10 (collectively,
“Defendants”) asserting claims related to the execution of “a writ of possession at a
property” located at 7740–7746 Eads Avenue, La Jolla, California 92037 (the “Property”)
that “was held in a family trust” (the “Trust”). (Compl., ECF No. 1 at 3; id. ¶ 9.) The
Complaint identifies Plaintiff as “Dale Sundby, Trustee” and states that Plaintiff, who is
proceeding pro se in this action, “is trustee of the Trust.” Id. ¶¶ 1, 10.
Plaintiff alleges, in relevant part, the following. On December 20, 2018, all interest
in the Property was transferred from Dale Sundby and Edith Sundby (“the Sundbys”) to
the Trust. (ECF No. 13 ¶ 9.) On September 11, 2020, a “deed of trust was recorded on the
Property by a defined ‘Lender’ that never made a loan.” Id. ¶ 17. On August 26, 2021, this
third party “nonjudicially foreclosed on the no-loan deed of trust.” Id. ¶ 19. On December
15, 2021, all “interest in the Property was transferred by quitclaim deed” from the Trust
to the Sundbys. Id. ¶ 10. On September 8, 2022, Defendant San Diego County Sheriff’s
Department filed a writ of possession in San Diego Superior Court and, in the same month,
Defendant Officers B. Palmer and R. Bernardino evicted “everyone from the Property.” Id.
¶¶ 22, 46.
On September 19, 2024, the Court issued an Order to Show Cause in this action.
(ECF No. 4.) In the Order to Show Cause, the Court noted that Plaintiff purported to assert
claims on behalf of a trust while proceeding without the aid of counsel. The Court wrote:
“To the extent the Complaint asserts claims on behalf of the Trust, Plaintiff cannot proceed
pro se in this action.” Id. at 2–3 (citing Simon v. Hartford Life, Inc., 546 F.3d 661, 667 (9th
Cir. 2008); C.E. Pope Equity Tr. v. United States, 818 F.2d 696, 698 (9th Cir. 1987)).
The Court stayed this action and instructed Plaintiff to:
(1) retain an attorney and instruct the attorney to enter a notice of appearance in this
action;
(2) file an amended complaint that clearly alleges claims solely on Plaintiff’s
own behalf as an individual; or
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(3) otherwise show cause why this case should not be dismissed pursuant to
the rule articulated in Simon, 546 F.3d at 667.
Id. at 3.
On the same day, Plaintiff filed a Response to the Order to Show Cause. (ECF No.
5.) Plaintiff contended that he should be permitted to proceed pro se in this action because
he is “a sole trustee of a revocable living trust who is also the sole settl[o]r and beneficiary
of the trust assets he is charged to protect.” Id. at 3.
On September 25, 2024, the Court issued an Order Lifting the Stay and wrote: “The
Court concludes, at this stage of the proceedings, Plaintiff has adequately shown cause that
this action should not be dismissed and that the stay should be lifted.” (ECF No. 6 at 4.)
The Court noted, however, that it was “unclear from the record before the Court whether
Plaintiff is the sole beneficiary of the Trust.” Id. at 3. The Court observed that “the
Complaint appears to contradict Plaintiff’s assertion [] that he possesses the ‘sole beneficial
interest in the trust’” because the Complaint alleges that “[f]rom 2001 to September 2,
2022, multiple Trust beneficiaries were occupants of the Property.” Id. (quoting Compl.
¶ 11). The Court accordingly issued “no ruling as to the issue of Plaintiff’s ability to
represent the Trust pro se.” Id. at 4. The Court found that the issue of Plaintiff’s pro se
representation was “better reserved for full briefing following the appearance of all parties”
and “accordingly defer[red] resolution of this issue pending Defendants’ appearance in this
action.” Id.
On September 25, 2024, Defendant San Diego County Sheriff filed a Motion to
Strike Plaintiff’s Complaint, and to Dismiss Plaintiff’s Complaint (“Motion to Dismiss
Complaint”). (ECF No. 8.)
On October 1, 2024, Plaintiff filed an Ex Parte Motion for Legal Determination of
Threshold Issue (“Ex Parte Motion”) requesting that that “the Court make a final
determination at the earliest date as to the threshold question of whether Plaintiff in his sole
trustee capacity is lawfully representing his sole beneficial interest in the trust.” (ECF No.
9 at 2.)
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On October 6, 2024, Plaintiff filed the First Amended Complaint (“FAC”) pursuant
to Federal Rule of Civil Procedure 15(a)(1)(B). (ECF No. 13.)
On October 11, 2024, the Court denied as moot the Motion to Dismiss Complaint
and wrote that it would address Plaintiff’s Ex Parte Motion “after a response to the First
Amended Complaint is filed.” (ECF No. 15.)
On October 21, 2024, Defendant San Diego County Sheriff filed a Motion to
Dismiss FAC. (ECF No. 17.) On October 25, 2024, Plaintiff filed a Response. (ECF No.
18.) On November 18, 2024, Defendant San Diego County Sheriff filed a Reply. (ECF No.
23.)
On November 4, 2024, Defendant Officer C. McCoy filed a Motion to Dismiss FAC.
(ECF No. 20.) On November 8, 2024, Plaintiff filed a Response. (ECF No. 21.) On
December 2, 2024, Defendant Officer C. McCoy filed a Reply. (ECF No. 30.) On the same
day, Plaintiff filed an Objection to the Reply. (ECF No. 31.)
On December 6, 2024, Defendants Officer B. Palmer and Officer R. Bernardino filed
a Motion to Dismiss FAC. (ECF No. 32.) On December 10, 2024, Plaintiff filed a
Response. (ECF No. 33.)
During the period from January 21, 2025, through May 22, 2025, Plaintiff repeatedly
filed motions requesting that the Court enter an Order with respect to the contentions raised
in his Ex Parte Motion (ECF No. 9) regarding whether he may proceed pro se in his
representation of the Trust. (ECF Nos. 34, 35, 36, 37, 38.)
On June 2, 2025, the Court issued an Order (the “Dismissal Order”) granting the
Motions to Dismiss FAC due to Plaintiff’s impermissible pro se representation of the Trust.
(ECF No. 39 at 13.) In the Order, the Court wrote that it “cannot consider any claims
asserted on behalf of the Trust unless and until the Trust obtains legal representation.” Id.
at 11. The Court dismissed the FAC without prejudice and ordered that counsel enter an
appearance on behalf of the Trust within thirty days. Id. at 15. The Court cautioned that, if
no such appearance was entered, the Court would “dismiss this action without prejudice
for failure to prosecute and failure to comply with” its Dismissal Order. Id.
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On June 11, 2025, Plaintiff filed the pending Motion for Mandatory Joinder. (ECF
No. 40.) On July 7, 2025, Defendants filed a Response. (ECF No. 43.) On July 13, 2025,
Plaintiff filed a Reply. (ECF No. 45.)
On June 11, 2025, Plaintiff filed the pending Motion for Reconsideration. (ECF No.
41.) On July 7, 2025, Defendants filed a Response. (ECF No. 42.) On July 13, 2025,
Plaintiff filed a Reply. (ECF No. 44.)
On November 12, 2025, Plaintiff filed a Notice of Assignment of Claims and
Ratification, which states: “Additionally – and solely to address any claim a court might
require to be asserted in the name of the Sole Trustee [] – Dale Sundby, as Sole Trustee
(the ‘Sole Assignor’) makes the alternative assignment below in favor of Dale Sundby,
individually (the ‘Sole Assignee’). . . . The Assignors hereby assign, transfer, and convey
to the Assignees all claims, causes of action, choses in action, and rights to relief the Trust
has or may have against any person or entity . . .” (ECF No. 47.)
On February 25, 2026, Plaintiff filed a Notice requesting that the Court issue an
Order on his pending motions or, in the alternative, hold a status conference. (ECF No. 48.)
On February 25, 2026, Plaintiff also filed a Notice of Supplement Facts requesting
that the Court consider his Notice of Assignment of Claims and Ratification (ECF No. 47)
in its review of his pending motions. (ECF No. 49.)
II. 	CONTENTIONS
a. Mandatory Joinder
In his Motion for Mandatory Joinder, Plaintiff requests that the Court “enter an order
joining Dale Sundby as a plaintiff under Rule 19(a)(1)(B).” (ECF No. 40 at 7.) Plaintiff
contends that “Dale Sundby is a real party in interest resulting from the fractional share
transfer to him on November 21, 2024, from Plaintiff Trustee.” Id. at 2 (citing ECF No.
29). The “fractional share transfer” described by Plaintiff is reflected in his previously filed
Notice of Transfer, which states that, “pursuant to a quitclaim deed executed on November
21, 2024, Plaintiff Dale Sundby, as Trustee . . . has transferred back to Dale Sundby [] one-
half of the fractional interest [] that Dale Sundby transferred to the Trustee by quitclaim
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deed on August 26, 2022.” (ECF No. 29 at 1.) Plaintiff contends that this transfer makes
him a “real party in interest” in this action and seeks joinder “to protect his interests in the
subject matter.” (ECF No. 40 at 2.)
Defendants respond that Plaintiff’s submission “does not constitute a reasonable
memorandum of the points and relevant legal authorities in support of the motion. Instead,
it focuses mainly on Plaintiff’s arguments against the outcome this Court reached when
rulings on defendants’ motions to dismiss Plaintiff’s FAC without prejudice.” (ECF No.
43 at 2 (citation omitted).) Defendants also contend that “Plaintiff as an impermissible pro
se trustee plaintiff cannot move to join additional parties or make arguments concerning
the legal effect of the Trust and any purported transfers of Trust interests, unless and until
counsel appears in this action on behalf of the Trust.” Id. at 3 (citation omitted).
b. Reconsideration
Plaintiff brings his Motion for Reconsideration “pursuant to Federal Rule of Civil
Procedure 54(b).” (ECF No. 41 at 1.) In the Motion for Reconsideration, Plaintiff contends
that the Court dismissed this action “based on a procedurally invalid requirement of legal
counsel,” and that the Court “misapplie[d] binding precedent, and foreclose[d] appellate
review of a live issue, all without affording due process.” (ECF No. 41 at 5.) Plaintiff
contends that the Court lifted its earlier stay of this action and “necessarily treated the
Trustee as a party with standing sufficient to move the case forward,” but “disregard[ed]
that same evidence” in its subsequent dismissal based on his inability to represent the Trust
without legal counsel. Id. at 10–11. Plaintiff contends that the Court also failed to
acknowledge his transfer of fractional shares of the Trust, id. at 11, misrepresented the
holding of Ninth Circuit opinions, id. at 12, 16, failed to distinguish other district court
cases in which courts have stated that sole beneficiaries of trusts may represent the trust
pro se, id. at 13–14, relied on unrelated cases, id. at 14, denied Plaintiff appellate review,
id. at 17, and misapplied a Local Rule, id. at 18–19.
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Plaintiff requests that the Court vacate its dismissal of the FAC (ECF No. 39) and
either “[r]esolve the threshold representation issue on the merits” or “enter an appealable
order preserving [Plaintiff’s] rights.” (ECF No. 41 at 20.)
Defendants contend, in response, that Plaintiff continues to attempt to represent the
Trust without legal counsel in violation of the Court’s Order. (ECF No. 42 at 	2–6.)
Defendants also contend that Plaintiff fails to make a showing that reconsideration is
warranted. Id. at 7.
III. 	LEGAL STANDARD
a. Mandatory Joinder
In federal court, every “action must be prosecuted in the name of the real party in
interest.” Fed. R. Civ. P. 17(a)(1). “The court may not dismiss an action for failure to
prosecute in the name of the real party in interest until, after an objection, a reasonable time
has been allowed for the real party in interest to ratify, join, or be substituted into the
action.” Id. at (a)(3).
Federal Rule of Civil Procedure 19 provides:
A person who is subject to service of process and whose joinder will not
deprive the court of subject-matter jurisdiction must be joined as a party if:
(A) in that person’s absence, the court cannot accord complete relief among
existing parties; or (B) that person claims an interest relating to the subject of
the action and is so situated that disposing of the action in the person’s absence
may: (i) as a practical matter impair or impede the person’s ability to protect
the interest[.]
Fed. R. Civ. P. 19(a)(1)(B)(i). Federal Rule of Civil Procedure 21 provides that a federal
district “court may at any time, on just terms, add or drop a party.” Fed. R. Civ. P. 21.
b. Rule 54(b)
Under Federal Rule of Civil Procedure 54, “[w]hen an action presents more than one
claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or
when multiple parties are involved, the court may direct entry of a final judgment as to one
or more, but fewer than all, claims or parties only if the court expressly determines that
there is no just reason for delay.” Fed. R. Civ. P. 54(b). In analyzing a motion brought
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under Rule 54(b) seeking reconsideration of a prior order, district courts “look to the
standard on motions for reconsideration under Rule 59 and Rule 60(b).” Staniforth v.
United States, No. 23CV449-JM-MMP, 2024 WL 3463650, at *2 (S.D. Cal. July 18, 2024)
(quotations and citations omitted). “Reconsideration is appropriate if the district court (1)
is presented with newly discovered evidence, (2) committed clear error or the initial
decision was manifestly unjust, or (3) if there is an intervening change in controlling law.”
Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993)
(citation omitted).
IV. 	DISCUSSION
a. Mandatory Joinder
Judge Mark C. Scarsi of the Central District of California recently considered the
question of joinder in a separate action initiated by Plaintiff related to the same Property at
issue in this case. See Sundby v. Landau, No. 2:24-CV-07276-MCS-BFM, 2025 WL
1090165 (C.D. Cal. Mar. 14, 2025), reconsideration denied, No. 2:24-CV-07276-MCS-
BFM, 2025 WL 2374824 (C.D. Cal. May 19, 2025), and reconsideration denied, No. 2:24-
CV-07276-MCS-BFM, 2025 WL 2374825 (C.D. Cal. July 2, 2025).1 As relevant here,
Judge Scarsi considered Plaintiff’s request to be joined pursuant to the same “lawful
quitclaim transfers” at issue in this action that purportedly made Plaintiff “the real party in
interest.” Landau, 2025 WL 1090165 at *1, *3 (describing Plaintiff’s alleged transfer by
quitclaim deed on December 20, 2018); ECF No. 13 at 6 (describing the same alleged
transfer by quitclaim deed on December 20, 2018 in this action).
Judge Scarsi wrote:
Despite Plaintiffs’ conclusory argument, the allegations in their complaint
undermine their position. Per the complaint, on December 20, 2018, the
1 The Court takes notice of this judicial opinion “not for the truth of the facts recited therein,” but for the
existence of Plaintiff’s similar pleadings and the opinion itself. Lee v. City of Los Angeles, 250 F.3d 668,
690 (9th Cir. 2001) (quoting Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group
Ltd., 181 F.3d 410, 426–27 (3rd Cir. 1999) (overruled on other grounds by Galbraith v. County of Santa
Clara, 307 F.3d 1119 (9th Cir. 2002)).
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Sundbys transferred their individual interests in their property to their trust, of
which they were each a trustee. The foreclosure then took place on August 25,
2021, 	and 	the 	foreclosing 	parties 	recorded 	a 	deed 	of 	sale. 	After 	the
foreclosure, to the extent any interest remained in the property, Plaintiffs
allege that they transferred the interest back to themselves, and then Mr.
Sundby transferred one-half of his one-half interest in the property back to the
trust. Based on these allegations, the Court presumes that Plaintiffs take the
position that each Plaintiff has standing since each of them holds a portion of
the interest in the foreclosed property.
The Court disagrees. The allegations are only sufficient to confer standing on
all Plaintiffs if the pleading gives rise to a reasonable inference that the post-
foreclosure transfers were legitimate. However, the allegations in this case
indicate the subsequent transfers were improper. . . . Here, Plaintiffs'
complaint states that the trust held all the interest in the property at
foreclosure, 	that 	the 	foreclosure 	was 	recorded, 	and 	that 	another 	court
authorized the Sundbys’ eviction. These allegations, taken together, are only
reasonably susceptible to a conclusion that the post-foreclosure conveyances
were ineffective because the trust did not have any interest to convey after the
foreclosure. In their opposition briefs, Plaintiffs provide no compelling
argument or case law to the contrary.
Landau, 2025 WL 1090165 at *3–4 (citations omitted); see also ECF No. 359, Sundby v.
Marquee Funding Grp., No. 19-cv-0390-GPC-AHG, at 16 (S.D. Cal June 29, 2023)
(denying Plaintiff’s motion for mandatory joinder in another substantially similar action
arising from the same facts).
Here, Plaintiff raises the same argument that he raised before Judge Scarsi. In this
action, Plaintiff alleges that he and his wife, Edith Sundby, transferred “all interest in [the
Property]” to the Trust by quitclaim deed on December 20, 2018. (ECF No. 13 ¶ 9.)
However, Plaintiff also alleges that the Property was foreclosed upon on August 6, 2021.
Id. ¶ 19. Plaintiff alleges that, subsequently, “all Trust interest in the Property was
transferred by quitclaim deed back to Dale Sundby and Edith Sundby” on December 15,
2021. Id. ¶ 10. Plaintiff alleges that he then “quitclaimed one-half of his undivided one-
half interest in the Property to the Trust” on August 26, 2022. Id. ¶ 16. Plaintiff now moves
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for joinder on the basis that he—in addition to the Trust—is a real party in interest in this
action. (ECF No. 40 at 2.)
Plaintiff does not present enough information to conclude that he is a real party in
interest in this action. “[S]ubsequent attempts to transfer property previously conveyed are
ineffective because the grantor no longer owns the property.” Shetty v. JPMorgan Chase
Bank, 	No. 	CV168986MWFJPRX, 	2017 	WL 	4685547, 	at 	*4 	(C.D. 	Cal. 	June 	23,
2017), aff’d sub nom. Shetty v. JPMorgan Chase Bank, N.A., 735 F. App’x 398 (9th Cir.
2018) (quoting Blume v. MacGregor, 64 Cal. App. 2d 244, 256 (Cal Ct. App. 1944)). A
debtor may not quitclaim the deed to a property after that property has been foreclosed
upon. See id. (“The Property was foreclosed when it was in Borrower’s possession.
Borrower had no right to quitclaim the deed to Plaintiff, and therefore Plaintiff did not
obtain and could not have obtained title to the deed as alleged.”). Here, Plaintiff alleges
that the relevant interest in the Property was transferred approximately four months after
foreclosure. (FAC ¶¶ 10, 19.) This Court, like Judge Scarsi in the Central District of
California, concludes that the allegations in the FAC do not support a reasonable inference
that “the post-foreclosure transfers were legitimate.” Landau, 2025 WL 1090165, at *3.
Plaintiff has failed to establish that he, instead of the Trust, is the real party in interest in
this action. No basis exists to conclude that, within the meaning of Federal Rules of Civil
Procedure 17 and 19, Plaintiff must be joined in his individual capacity to avoid impairing
or impeding his ability to protect his interests. Accordingly, Plaintiff’s Motion for
Mandatory Joinder (ECF No. 40) is denied.
b. Reconsideration
In its Dismissal Order on June 2, 2025, the Court wrote that “a pro se litigant
generally may not pursue claims on behalf of others in a representative capacity. . . . The
Ninth Circuit has explicitly held that a non-attorney trustee may not represent a trust pro
se in federal court.” (ECF No. 39 at 7 (citation omitted).) The Court described Plaintiff’s
attempts to represent the Trust without the aid of counsel, id. at 8–11, and wrote that “the
Court cannot consider claims asserted on behalf of the Trust unless and until the Trust
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obtains legal representation.” Id. at 11. The Court also cited an order issued by Judge
Gonzalo P. Curiel in Sundby v. Marquee Funding Group—another substantially similar
case in this district concerning the Property and the Trust—that dismissed the action with
prejudice for Plaintiff’s failure to comply with Judge Curiel’s orders directing Plaintiff to
obtain legal counsel on behalf of the Trust. No-19-cv-0390-GPC-AHG, No. 21-cv-2013-
GPC-AHG, 2023 WL 4686445 (S.D. Cal. July 21, 2023).
On June 30, 2025—following this Court’s Dismissal Order—the Ninth Circuit
issued a memorandum opinion affirming Judge Curiel’s dismissal of Plaintiff’s claims. In
re Sundby, No. 23-55659, No. 24-865, No. 24-1027, 2025 WL 1794429 (9th Cir. June 30,
2025). The Ninth Circuit wrote that “[t]he district court did not abuse its discretion in
dismissing Case No. 19-cv-00390 as to Dale Sundby as trustee because Dale Sundby failed
to comply with the district court’s orders to obtain legal representation for the Trust despite
multiple warnings that failure to do so would result in dismissal.” Id. at *1 (citing Ferdik
v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992); Sundby v. Marquee Funding Grp.,
Inc., No. 21-55504, 2022 WL 4826445, at *1 (9th Cir. Oct. 3, 2022)).
Here, Plaintiff has similarly refused to obtain legal counsel despite the Court’s
instructions that he do so. Plaintiff states, in the pending motion:
To the extent the Court continues to require legal counsel representation, and
denies Trustee his due process right to prosecute the case pro se, Trustee states
unequivocally that no appearance of counsel for the Trust will be filed within
the 30-day period set forth in ECF No. 39, not out of disrespect, abandonment,
or delay, but to preserve the right to appellate review of the Court’s refusal to
decide the threshold issue. Trustee respectfully declines to moot the question
by involuntarily complying with an order that remains legally contested and
unresolved.
(ECF No. 41 at 19.)
The Court does not find cause to reach a different conclusion than it did in its
Dismissal Order in which it wrote that, if counsel for the Trust did not timely file an
appearance, the Court would “dismiss this action without prejudice for failure to prosecute
and failure to comply with a Court order pursuant to Federal Rule of Civil Procedure
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41(b).” (ECF No. 39 at 15.) Plaintiff has failed to comply with the Court’s instructions.
Accordingly, Plaintiff’s Motion for Reconsideration (ECF No. 41) is denied. Given
Plaintiff’s assertion that he refuses to comply with the Court’s Order and his desire for
appellate review, (ECF No. 41 at 19), the Court will direct that judgment be issued.
V. 	CONCLUSION
IT IS HEREBY ORDERED that the Motion for Mandatory Joinder (ECF No. 40)
and Motion for Reconsideration (ECF No. 41) are denied. The above-captioned case shall
remain dismissed without prejudice. The Clerk of the Court shall issue judgment stating
that this action is dismissed without prejudice for failure to prosecute and failure to comply
with a Court order.
Dated: March 10, 2026
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