Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tom Jones Enterprises, Ltd., et al v. County of Los Angeles

January 17, 2013

TOM JONES ENTERPRISES, LTD., ET AL., PLAINTIFFS AND APPELLANTS,
v.
COUNTY OF LOS ANGELES, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of the State of California, Ruth Ann Kwan, Judge. (Los Angeles County Super. Ct. No. BC475676)

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

CERTIFIED FOR PUBLICATION

Affirmed.

INTRODUCTION

Plaintiffs and appellants Tom Jones Enterprises, Ltd., a United Kingdom Corporation, and Thomas Woodward, a professional known as Tom Jones,*fn1 appeal from a judgment in favor of defendant and respondent County of Los Angeles (defendant), following the trial court's granting of defendant's demurrer to the first amended complaint (FAC) without leave to amend and dismissal of the action. Plaintiffs' claim against defendant is for the alleged negligence of a Los Angeles County Sheriff's Department*fn2 employee for causing the release of funds subject to a writ of execution contrary to the instructions of plaintiffs. We hold that although the FAC was not deficient for failing to identify the employee whose conduct is attributed to defendant, the claim is nevertheless barred by the litigation privilege provided in Civil Code section 47, subdivision (b). We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs filed the FAC for damages against defendant, and the Sheriff's Department, alleging one cause of action for negligence. Plaintiffs alleged that in June 2009, in a separate action, they obtained a judgment in their favor and against "Barbara S. Rosen, as Trustee of the Rosen Family Trust, successor in interest to Alexander B. Rosen, Deceased" (judgment debtor) in the sum of $9,203,857.07. The trial court issued a writ of execution in plaintiffs' favor and against the judgment debtor. The writ of execution attached to the FAC described the judgment debtor as, inter alia, "BARBARA S. ROSEN, as Trustee of the Rosen Family Trust, successor-in-inter est [sic] to Alexander B. Rosen, deceased."

Plaintiffs alleged that they prepared and delivered to the Sheriff's Department instructions to levy the writ of execution against all moneys, accounts, certificates of deposit, "standing in the name of judgment debtor," at Wells Fargo Bank at a specified location. The written instructions attached to the FAC stated, "YOU ARE HEREBY INSTRUCTED TO EXECUTE THE ACCOMPANYING PROCESS AS FOLLOWS: [¶] . . . [¶] Please levy Writ of Execution against all sums of money, accounts, certificates of deposit [at Wells Fargo Bank at the specified location], standing in the name of the judgment debtor: BARBARA S. ROSEN, SOCIAL SECURITY NO. . . . ."

Plaintiffs alleged that Rosen "forwarded a fax" to plaintiffs' attorney "demanding a retraction of any and all levies made against property 'other than the judgment debtor.'" The "fax" correspondence from Rosen to plaintiffs' counsel attached to the FAC stated, "There is a clear distinction between Barbara S. Rosen, an individual, and, Barbara S. Rosen, Trustee, of the Rosen Family Trust. The judgment names Barbara S. Rosen, Trustee, Rosen Family Trust. [¶] I demand that you immediately contact Wells Fargo Bank and the Los Angeles County Sheriff's Department and withdraw your notice of levy under writ of execution against Barbara S. Rosen." Rosen's correspondence indicated copies were sent to the Sheriff's Department and Wells Fargo Bank.

Plaintiffs alleged that plaintiffs' counsel transmitted to the Sheriff's Department written instructions "directing the Sheriff to, 'Please make arrangements to have any property not in the name of "Barbara S. Rosen, as Trustee of the Rosen Family Trust" released forthwith.'" A copy of these written instructions attached to the FAC stated, "On December 3, 2010, you were directed to Levy a writ of execution against the property of the judgment debtor, identified in the writ of execution as Barbara S. Rosen, as trustee to the Rosen family trust. [¶] I have been advised that properties belonging to other than the judgment debtor have been levied upon by Wells Fargo Bank. Please make arrangements to have any property not in the name of 'Barbara S. Rosen, as trustee to the Rosen family trust' released forth with [sic]." Plaintiffs alleged that the Sheriff's Department acknowledged receipt of instructions for a "partial release" of funds by indicating it on the Sheriff Department's "'Case Summary Report,'" a copy of which was attached to the FAC.

Plaintiffs further alleged that, "On and/or between January 21, 2011, and February 25, 2011, . . . [the] Sheriff's Department, through its employees, Does 1 through 3, negligently and carelessly conducted the performance of their duty by ignoring the express instructions of the partial release and issued instructions to fully release all funds taken by the Sheriff's office in connection with the execution garnishment, which included, the sum of $193,350 on deposit, standing in the bank account, in the name of judgment debtor, Barbara S. Rosen, as Trustee of the Rosen Family Trust. As a proximate result of the negligence and carelessness of the defendants . . . , plaintiff[s have] been injured [in the sum of] $198,350.00 . . . [because that sum] was released from levy, and returned to the judgment debtor's account at Wells Fargo Bank and immediately thereafter, was removed from Wells Fargo Bank and placed in an unknown located [sic], beyond the execution abilities of the plaintiff[s], thereby preventing plaintiff[s] from recovering upon its outstanding judgment and reaping the benefit from the execution levy for which the plaintiff[s] had paid in exchange for the services to be rendered by the defendants and each of them."

Defendant demurred to the FAC contending that plaintiffs did not state facts sufficient to constitute a cause of action for negligence because plaintiffs failed to allege the existence of a duty owed to plaintiffs and did not identify defendant's employee upon whose conduct defendant's alleged liability was based. Defendant also argued that the litigation privilege set forth in Civil Code section 47, subdivision (b), barred plaintiffs' claim. Defendant requested that the demurrer be sustained without leave to amend.

Plaintiffs, in opposing the demurrer, pointed out that pursuant to Government Code section 820, subdivision (a),*fn3 "[A] public employee is liable for injury caused by his act or omission to the same extent as a private person," and that pursuant to section 815.2, defendant was vicariously liable for the injuries proximately caused by its employee's act or omission, acting within the scope of his or her employment, if that act or omission would have given rise to a cause of action against that employee. Plaintiffs contended that defendant was liable for its employee's negligence and that the litigation privilege did not apply.

The trial court issued a tentative ruling sustaining defendant's demurrer without leave to amend. The trial court's tentative ruling, which became its final ruling,*fn4 states, inter alia, "Plaintiffs failed to allege sufficient facts to constitute a cause of action against Defendant. Specifically, Plaintiffs failed to allege facts showing Defendant is liable for their damages. Plaintiffs did not identify a statute imposing direct liability on Defendant. Instead, Plaintiffs alleged Defendant is vicariously liable, via Government Code ยงยง 815.2 and 820, for the . . . Sheriff's Department's employee's act of fully releasing the funds taken by the Sheriff's Office in connection with the execution garnishment, when the express instructions only authorized a partial release of funds. [Citations.] However, the newly added allegations [in the FAC citing to sections 815.2 and 820] are insufficient because Plaintiffs failed to identify the allegedly negligent employee in the [FAC]. See Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1113 (noting the doctrine of vicarious liability 'clearly ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.