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Ellerbee v. County of Los Angeles

August 27, 2010

BOBBY FRANK ELLERBEE, PLAINTIFF AND RESPONDENT,
v.
COUNTY OF LOS ANGELES ET AL., DEFENDANTS AND APPELLANTS.



APPEAL from an order and judgment of the Superior Court of Los Angeles County, Conrad Richard Aragon, Judge. Affirmed in part; reversed in part. (Los Angeles County Super. Ct. No. BC385024).

The opinion of the court was delivered by: Johnson, J.

CERTIFIED FOR PUBLICATION

The County of Los Angeles (County) appeals from a judgment after a jury found it negligent for failing promptly to serve a writ of execution. The County contends the case should never have been tried, and the trial court erred in denying its motion for judgment on the pleadings. We agree. The County and its attorney, Henry Patrick Nelson, also appeal from a pretrial order imposing monetary sanctions against them for failing to participate in a court-ordered mediation. As to that ruling, we find no error and affirm.

BACKGROUND

Ellerbee is the holder of an August 2001 Superior Court judgment against Todd Anthony Shaw, aka "Too Short," arising out of the death of Ellerbee's son, for which Shaw is responsible. The judgment was amended on June 14, 2007*fn1 to add several additional joint debtors. As of June 18 the unpaid principal and accrued interest on the outstanding judgment was $1,091,380.40. On June 18 the Superior Court issued a writ of execution (writ) to, among others, defendant Lee Baca, Sheriff of the County of Los Angeles (Sheriff).*fn2

On June 21, Ellerbee's attorney, Montie Day, delivered the writ to the Sheriff's Department. The writ was accompanied by the payment of appropriate fees and Day's written instructions noting that new debtors had been added to an existing judgment, and that the debtors were "being paid royalties on an ongoing basis." Day "requested that the service of the writ be expedited," and effected "as soon as possible." The Sheriff received the instructions on June 28.

On July 5, Day contacted the Sheriff's Department to confirm its receipt of the writ and instructions. He stressed the importance of prompt service of the writ on Sony BMG, as Sony Records was in the process of making a new release for Shaw (an entertainer/rapper). The Sheriff's Department advised Day the writ would be served forthwith. The Sheriff's Department served the writ on Sony BMG on August 14.

Meanwhile, on July 19, Sony BMG paid $10,000 to Shaw.

On September 5, after learning that Shaw was beginning an appearance on a weekly show on MTV Networks (MTV), Ellerbee sent "supplemental instructions" by overnight mail to the Sheriff's Department. Ellerbee was concerned that Shaw's show, a live "reality show," could be terminated at any time. In his instructions to the Sheriff's Department, Ellerbee's attorney explained the debtor was currently being paid on a weekly basis, and requested the writ be served on MTV, "as soon as possible." The Sheriff's Department received Ellerbee's supplemental instructions on September 6 and, on that day, advised Ellerbee's attorney it would promptly process the levy and garnishment. On September 24 Day wrote to the Sheriff's Department to ascertain the status of the service of the writ. He stressed that "time . . . was . . . of the essence" because monies owed Ellerbee may have been paid to Shaw by third parties, and urged the Sheriff to take "PROMPT" action to ensure that Sony BMG and MTV were served. The Sheriff's Department served MTV on October 12.

Between September 6 and October 16, MTV paid Shaw a total of $56,799.30, of which Ellerbee claims $53,953.82 should have gone to him.

Ellerbee's judgment remains unpaid. Shaw, who owes federal taxes of over $1 million, and has declared bankruptcy, is not able to satisfy the judgment.

After exhausting his administrative remedies, Ellerbee filed this action against the County and the Sheriff for negligence. Ellerbee alleged the Sheriff breached an unspecified statutory duty of care by failing promptly to serve the writ on Sony BMG and MTV and that, as a result, he suffered damages of $65,952.83.

The trial court ordered the parties to participate in a mediation. Prior to that proceeding, the mediator advised the parties that in his experience, "the single most important factor contributing to the success of mediation is the presence of both parties." Accordingly, pursuant to the California Rules of Court, the mediator required that "all parties having authority to settle . . . be present [at] the mediation. Telephonic availability is not an acceptable substitute."

Ellerbee's attorney attended the mediation, as did Ellerbee and Nelson. No representative from the County or the Sheriff's Department was present. Nelson represented that he had client representatives on telephone standby, and the mediation proceeded. Near the conclusion of the mediation, Ellerbee made a settlement offer, and requested that Nelson communicate it to his client. At that point Nelson ...


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