Judge Jill Feeney, Case 20STCV47543 2023-03-09 Tentative Ruling

This is an action for negligence arising from a vehicle collision which took place in December 2018. Plaintiff Lynette Ranasinghe filed her Complaint against Defendants Suren Vazgennovich Ginosyan and Adalberto Esteban Lopez Garcia on December 11, 2020.

Garcia moves for orders approving settlement, authorizing disposition of settlement funds, determining lien amount, and entering dismissal with prejudice under Code Civ. Proc., section 708.440. Garcia argues that the parties have settled for $15,000 and there is a lien against the recovery of Plaintiff’s counsel by Kabateck LLP. Kabateck obtained judgment against Plaintiff’s counsel in a separate, unrelated proceeding, Jones v. City of LA, Case No. BC577267.

Plaintiff argues that there is no evidence of a settlement with Garcia. Plaintiff also argues that BC577267 is currently on appeal, the Court has no authority to compel a settlement, there is no evidence Jones or Kabateck had any involvement in the instant case, there is no evidence the Court can distribute funds in this case to Kabateck, and Kabateck’s notice of lien is illegal.

C.C.P. §708.410 provides that, “[a] judgment creditor who has a money judgment against a judgment debtor who is a party to a pending action or special proceeding may obtain a lien under this article, to the extent required to satisfy the judgment creditor’s money judgment, on… [t]he rights of such judgment debtor to money or property under any judgment subsequently procured in the action or proceeding… [by] fil[ing] a notice of lien and an abstract or certified copy of the judgment creditor’s money judgment in the pending action… An action… is pending until the time for appeal from the judgment has expired or, if an appeal is filed, until the appeal has been finally determined.”

C.C.P. §708.440(a) provides that, “unless the judgment creditor’s money judgment is first satisfied or the lien is released, the judgment recovered in the action or special proceeding in favor of the judgment debtor may not be enforced by a writ or otherwise, and no compromise, dismissal, settlement, or satisfaction of the pending action or special proceeding or the judgment procured therein may be entered into by or on behalf of the judgment debtor, without the written consent of the judgment creditor or authorization by order of the court obtained under subdivision (b).” (Emphasis added.)

C.C.P. §708.440(b) provides that, “Upon application by a judgment debtor, the court in which the action… is pending or the judgment procured therein is entered may, in its discretion, after a hearing, make an order described in subdivision (a) that may include such terms and conditions as the court deems necessary.”

The provision in C.C.P. §708.440 allowing for court authorization of a settlement, even where a judgment creditor’s money judgment has not been satisfied, is based on the understanding that the “court has continuing jurisdiction to approve a settlement even though the settlement may not fully satisfy the lien [and] the inherent power of a court to retain control over pending litigation.” (Abatti v. Eldridge (1980) 110 Cal.App.3d 633, 415.)

Under C.C.P. §708.440, “the trial court may order an action subject to a judgment creditor’s lien compromised on such terms as it thinks are necessary. [Citations.] However, its power to impose terms is limited by the fact that it is an abuse of discretion for a trial court to make an order that deprives any party of the legal rights to which it is entitled in terms of the priority of its lien, in the absence of appropriate equitable considerations.” (Casa Eva I Homeowners Assn. v. Ani Construction & Tile, Inc. (2005) 134 Cal.App.4th 771, 778.)

Garcia moves for orders approving settlement, authorizing disposition of settlement funds, determining lien amount, and entering dismissal with prejudice under Code Civ. Proc., section 708.440.

On February 8, 2022, Kabateck filed a notice of lien in this matter against any fees Plaintiff’s Counsel, Michael J. Libman, may obtain in this case. The notice is based on a March 4, 2021 judgment Kabateck obtained against Libman in an unrelated case, Jones v. City of LA, Case No. BC577267. The Jones Class, which includes Kabateck, obtained an order assigning the class all rights to payments from all civil cases Libman is a party to as a legal representative, counselor, attorney or record, or referring attorney. (Motion, Exh. B.)

Garcia references a settlement agreement for $15,000 between Plaintiff and Garcia. Although Plaintiff and Ginosyan settled for $15,000, the terms described in Ginosyan’s application for good faith settlement filed September 20, 2021 did not include Garcia. Moreover, Ginosyan’s settlement was granted and Ginosyan was dismissed on January 20, 2022, before Kabateck filed its notice of lien. The provisions Code Civ. Proc., section 410 and subsequent sections do not apply because judgment is already final as to Ginosyan. Because there does not appear to be any settlement agreement between Plaintiff and Garcia, the Court finds that orders under Code Civ. Proc., section 708.440 are premature. Moreover, Garcia is not the judgment debtor in the judgment involving Libman and Kabateck. Garcia thus does not have standing to bring a motion under Code Civ. Proc., section 708.440. The motion is denied.