Louie v. Stomer Family 2000 Revocable Trust et al

Filing 117

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/19/13 RECOMMENDING that the 52 Motion to Set Aside Dismissal be denied. Referred to Judge John A. Mendez. Objections due within 14 days. (Manzer, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE S. LOUIE,

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No. 2:11-cv-0108-JAM-KJN PS

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

STOMER FAMILY 2000 REVOCABLE
TRUST, et al.,
Defendants.

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United States District Judge John A. Mendez dismissed and closed this ADA case on

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December 14, 2011, after plaintiff George Louie’s claims were abandoned by the Chapter 7

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bankruptcy trustee in plaintiff’s bankruptcy action and plaintiff had settled his claims with

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defendants. (ECF No. 51.)

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Subsequently, on December 16, 2011, third party lien claimant Elena Sadur filed a motion

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to set aside the dismissal of the action, contending that plaintiff had failed to obtain Sadur’s

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consent to a settlement and dismissal of plaintiff’s claims against defendants. (ECF No. 52.)

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Sadur noted that Federal Rule of Civil Procedure 64 provides that in a federal action, “every

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remedy is available that, under the law of the state where the court is located, provides for seizing

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a person or property to secure satisfaction of the potential judgment.” Fed. R. Civ. P. 64. In turn,

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California Civil Procedure Code section 708.440 states, in part, that “no compromise, dismissal,
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settlement, or satisfaction of the pending action… may be entered into by or on behalf of the

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judgment debtor, without the written consent of the judgment creditor or authorization by order of

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the court….” Cal. Civ. Proc. Code § 708.440(a). Thus, Sadur argued that because Sadur’s

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consent to the settlements and dismissal was not obtained, the district judge’s prior dismissal of

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the action was improper.

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Thereafter, the undersigned permitted several rounds of supplemental briefing, in the

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course of which it was established that plaintiff had settled with most of the defendants for

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injunctive relief, with the exception of three defendants from whom plaintiff had obtained $6,000

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in total on or before January 28, 2011. (See Declaration of George S. Louie, ECF. No. 90, ¶ 3.)

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Specifically, plaintiff represented that he obtained a monetary settlement of $2,000 from each of

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the following sets of defendants: (1) Glines Carpet, Inc., doing business as Carpet Cleaners; (2)

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Balwinder Malhi, Ranjinder Malhi, and Nice Inn Motel; and (3) Kenneth L. Apple, doing

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business as Sunburst Patio & Fireside. (Id.) On June 29, 2012, before Sadur’s motion could be

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resolved, the case was stayed in light of plaintiff’s serious and well-documented metastatic

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squamous cell carcinoma and other health problems. (ECF No. 95.) The stay was again

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continued due to plaintiff’s documented health condition on January 4, 2013. (ECF No. 99.)

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On July 11, 2013, Sadur filed a status report indicating that plaintiff had died. (ECF No.

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116.) The status report indicated that a live dispute remains with respect to Sadur’s motion to set

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aside the dismissal, because plaintiff “has never turned over the $6,000 that he admitted to

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receiving prior to dismissing this case without Sadur’s consent.” (Id.) Sadur requests that the

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court find plaintiff and his estate liable to Sadur for the $6,000. (Id.)

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For the reasons discussed below, the court finds that Sadur’s motion to set aside the
dismissal and closure of the case should be denied.

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As an initial matter, Sadur has not provided any binding authority suggesting that

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California Civil Procedure Code section 708.440, to the extent incorporated by Federal Rule of

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Civil Procedure 64, compels the court to re-open an action that has been closed since 2011,

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thereby allowing Sadur to step into the shoes of plaintiff, start the entire case over from step one,

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conduct discovery, etc. Such a result would be particularly impractical and unfair to the
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defendants, especially given that plaintiff is now deceased.

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Furthermore, to the extent that Sadur desires to have the case re-opened merely to have

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the court issue an order for plaintiff’s estate to pay Sadur $6,000 (i.e., the total amount plaintiff

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received from settlements in this action), Sadur has not shown why this action is the appropriate

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vehicle to seek such relief. The liabilities forming the basis of Sadur’s lien do not derive from

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this case, but instead from judgments in other cases. Given that the only settlement money has

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already been paid to plaintiff, there is for all practical purposes no outstanding money in this

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action to which Sadur’s lien can attach, unless the court were willing to undo all the settlements

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and start the entire action from scratch, which would be inappropriate for the reasons discussed

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above.

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Although Sadur may potentially be able to directly assert some type of claim against

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plaintiff’s estate, this action is not the proper forum for such a claim. Apart from the lien that she

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filed, Sadur has no independent claim in this action, and none of the actual parties to the action

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have requested that the action be re-opened. Even though Sadur is not doubt frustrated with this

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result, the court finds, after considering the interests of all parties, that re-opening the case would

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not be in the interests of justice.
Accordingly, IT IS HEREBY RECOMMENDED that third party lien claimant Sadur’s

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motion to set aside the dismissal of the case (ECF No. 52) be DENIED.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14)

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served on all parties and filed with the court within fourteen (14) days after service of the

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objections. The parties are advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th

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Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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IT IS SO RECOMMENDED.
Dated: July 19, 2013

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