The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
United States District Judge John A. Mendez closed this case on December 14, 2011, after plaintiff's claims were abandoned by the Chapter 7 bankruptcy trustee in plaintiff's bankruptcy action and after the case was referred back to the district court. (See Minute Order, Dec. 14, 2011, Dkt. No. 51.) Nevertheless, two motions filed by an intervening non-party lien claimant, Elena Sadur, are presently before the court (Dkt. Nos. 52-53).*fn1 First, Sadur moves the court to set aside the dismissal of this case on the grounds that plaintiff did not seek Sadur's consent, as a lien claimant, to the dismissal of this case or notice a hearing concerning the dismissal. Thus, she claims that pursuant to California Code of Civil Procedure § 708.440, as incorporated into the Federal Rules of Civil Procedure, Judge Mendez's closure of this case was erroneous. Sadur's apparent, underlying aim had appeared to be to keep this case open long enough for the court to rule on Sadur's second pending motion, which is a motion to declare plaintiff a vexatious litigant and to require, pursuant to the All Writs Act, 28 U.S.C. § 1651(a), that plaintiff obtain approval from the Chief Judge of this court before filing any future cases in this court pursuant to the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101 et seq, and various other federal and California statutes.
The court heard Sadur's motions on its law and motion calendar on March 1, 2012. Attorney David D. Wong appeared by telephone on behalf of Sadur. Plaintiff, who is proceeding without counsel, appeared on his own behalf. None of the defendants in this closed case appeared at the hearing.
The undersigned has considered the briefs, oral arguments, and appropriate portions of the record in this case. For the reasons stated on the record at the hearing, the undersigned denies Sadur's motion to declare plaintiff a vexatious litigant, which Wong conceded at the hearing has absolutely no connection to, and would have no impact on, this case.
In regards to Sadur's motion to set aside Judge Mendez's dismissal of this case pursuant to California Code of Civil Procedure § 708.440,*fn2 Wong represented to the court at the hearing, for the first time, that Sadur's motion is not designed simply to pursue the now-denied motion to declare plaintiff a vexatious litigant. Instead, Wong represented for the first time that his intent is to conduct discovery about the merits of the claims in this case. He conceded that his goal is to reopen the case, step into the shoes of plaintiff, start the entire case over from step one, and conduct discovery -- including taking the deposition of plaintiff and conducting expert and non-expert discovery in regards to defendants' liability.*fn3 Wong cited to no legal authority supporting the proposition that California Code of Civil Procedure § 708.440 permits Sadur to compel the court to grant her such relief. Rather, Wong represented that his plain reading of the statute permits a lien claimant to reopen and restart a case and litigate the case in the plaintiff's shoes, even where the suit originally only resulted in injunctive relief and no money damages.*fn4
In turn, California Code of Civil Procedure § 708.410(c) concerns service of a notice of lien on all parties to an action and provides, in part: "Failure to serve all parties as required by this subdivision does not affect the lien created by the filing under subdivision (b), but the rights of a party are not affected by the lien until the party has notice of the lien."
Sadur relies on Federal Rule of Civil Procedure 64(a) to render California's procedural rules applicable in this court and in this case. However, as the magistrate judge previously assigned to this case noted, it appears that Sadur's motion is more properly premised on Federal Rule of Civil Procedure 69(a)(1) (see Order, Feb. 28, 2011, at 1 n.1, Dkt. No. 23), which provides:
Money Judgment; Applicable Procedure. A money judgment is enforced by a writ of execution, unless the court directs otherwise. The procedure on execution--and in proceedings supplementary to and in aid of judgment or execution--must accord with the procedure of the state where the court is located, but a federal statute governs to the extent it applies.
See also Paul Revere Ins. Group v. United States, 500 F.3d 957, 960 (9th Cir. 2007) (noting that Federal Rule of Civil Procedure 69(a) governs execution proceedings in federal court).
As the undersigned stated at the hearing, if the statute so clearly provides the relief sought by Sadur here, the case reporters are presumably replete with decisions permitting that specific relief. Accordingly, and because Sadur's sparingly supported brief cited no legal authority other than the statute itself, the undersigned orders Sadur to file a supplemental brief citing to specific legal authority supporting Wong's position regarding the specific relief sought for the first time at the hearing.
Accordingly. IT IS HEREBY ORDERED that:
1. Intervening non-party lien claimant Elena Sadur's motion to declare plaintiff a vexatious litigant (Dkt. No. 53) is denied.
2. No later than 5:00 p.m. on March 8, 2012, Sadur shall file a supplemental brief in support of her motion to set aside the dismissal of this case. That supplemental brief must provide legal authority that supports Sadur's position that California Code of Civil Procedure § 708.440 requires the court to permit her to reopen this case, step into the shoes of plaintiff, start the entire case over from scratch, conduct expert and non-expert discovery of plaintiff and defendants, all in an effort to establish defendants' liability for money damages when the case was previously settled solely for injunctive relief. Moreover, it should address how such a result would be consistent with the Law Revision Commission Comments to the 1982 adoption of the statute cited above.
3. The court may, in its discretion, order a response from plaintiff, defendants, or both, and set a hearing if it deems such ...