IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 28, 2011
GEORGE LOUIE, PLAINTIFF,
STOMER FAMILY 2000 REVOCABLE TRUST DBA STOMER REALTY, 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. Compl., Dckt. No. 1. Notices of liens
were filed by judgment creditors of plaintiff. Dckt. Nos. 4, 5.
Noticed for hearing on March 16, 2011 is a motion of one of the
lienholders to set aside the dismissal of various defendants whom
plaintiff had voluntarily dismissed from this action. Dckt. No. 12.
The lienholders contend that under California Code of Civil Procedure
section 708.440 and Federal Rule of Civil Procedure 64,*fn1
plaintiff may not dismiss a defendant absent consent of the
lienholder or by order of the court. Id.; see also Dckt. No 20. Also
noticed for hearing on March
16, 2011 is a motion to sever brought by several of the defendants
named in this action. Dckt. No. 16.
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.*fn2 Dckt. No. 19. 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 set aside dismissals, Dckt. No. 12, is vacated.
2. The March 16, 2011 hearing on the motion to sever, Dckt. No. 16, 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.