IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 28, 2011
GEORGE LOUIE, PLAINTIFF,
KIM SPINELLA, ET AL., DEFENDANTS.
In this action, plaintiff alleges claims arising under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181 et seq., and supplemental state law claims. Notice of liens were filed by judgment creditors of plaintiff. Dckt. Nos. 5, 6. Noticed for hearing on March 16, 2011 is a motion to sever brought by several of the defendants named in this action. Dckt. No. 12. Noticed for hearing on April 27, 2011 is the motion of one of the lienholders to set aside the dismissal of defendant Robert Galligan.*fn1 Dckt. Nos. 8, 15. The lienholders contend that under California Code of Civil Procedure section 708.440 and Federal Rule of Civil Procedure 64,*fn2plaintiff may not dismiss a defendant absent consent of the lienholder or by order of the court.
On February 22, 2011, plaintiff filed a document in which he states all defendants named in this action have settled and that only injunctive relief has been provided under the settlement agreement.*fn3 Dckt. No. 14. The court will construe plaintiff's February 22, 2011 filing as a motion made under California Code of Civil Procedure section 708.440(b). It appears that dismissal of all defendants may be warranted even absent consent of the lienholders since no money judgment shall be had by plaintiff, the judgment debtor, and because the injunctive relief agreed to by the parties furthers the purpose of the ADA. The matter will therefore be set for hearing to afford the lienholders and defendants an opportunity to be heard regarding dismissal of defendants with prejudice. See Oldham v. Cal. Capital Fund, 109 Cal.App.4th 421, 432 (2003).
Accordingly, IT IS HEREBY ORDERED that:
1. The March 16, 2011 hearing on the motion to sever, Dckt. No. 12, is vacated.
2. The April 27, 2011 hearing on the motion to set aside dismissals, Dckt. No. 15, is vacated.
3. This matter is set for hearing on March 30, 2011 at 10:00 a.m. in Courtroom No. 24. Any opposition to plaintiff's request to settle this action for injunctive relief only shall be filed no later than March 16, 2011.
4. Defendants need not file a response to plaintiff's complaint pending resolution of the instant matter.