Monday, August 30, 2010
C.A. Tosses Judgment Against County Over Writ Service Timing
But Panel Upholds Sanctions Against County’s Attorney, Ex-Judge Henry Patrick Nelson
By STEVEN M. ELLIS, Staff Writer
This district’s Court of Appeal on Friday threw out a $39,000 judgment against the County of Los Angeles that a trial judge awarded for the Sheriff’s Department’s delay in serving a writ of execution on entities that paid funds to Bay Area rap artist and judgment debtor Too $hort.
Div. One said a judgment creditor’s private instructions to the department to act “promptly” and serve the writ “as soon as possible” did not impose a mandatory obligation beyond the 180-day time limit set forth in state law.
However, the court upheld over $6,000 in sanctions against the county and its attorney, former Los Angeles Superior Court Judge Henry Patrick Nelson, for failing to participate in a court-ordered mediation before the matter went to trial.
Bobby Frank Ellerbee holds a $1 million judgment against the rapper, whose real name is Todd Anthony Shaw, for the 1991 death of Ellerbee’s 22-year-old son James Ellerbee in a vehicle collision involving Shaw. He sued the county and the department, claiming the department in 2007 negligently failed to promptly serve a writ on Sony Records and MTV Networks, which collectively paid Shaw at least $66,000 that year for his work on a new album and on a television reality show.
Ellerbee’s attorney, Montie Day, delivered the writ to the Sheriff’s Department in late June 2007, and asked the department to expedite service on Sony because the company was in the process of making a new album for Shaw. Day made a similar request in September 2007 when Ellerbee learned that Shaw would be appearing on the MTV program.
The department served the writ on both Sony and MTV, but in both cases after each party had already made payments to Shaw.
Ellerbee’s judgment remains unpaid and Shaw—who reportedly owes federal taxes of over $1 million and has declared bankruptcy—is not able to satisfy it.
Los Angeles Superior Court Judge Conrad Aragon ordered Ellerbee, the county and the department to participate in mediation, and the mediator required that all parties with authority to settle be present.
Nelson attended the meeting, but no other representative from the county or the department was present. Nelson represented that he had client representatives on telephone standby and the mediation went forward, but he later admitted that he did not have anyone with settlement authority on standby when Ellerbee made a settlement offer, and the mediation was terminated.
Aragon denied the defendants’ motion for judgment on the pleadings, which was based on failure to state a claim and governmental immunity, and granted Ellerbee’s request for sanctions for failure to participate in good faith in the mediation.
After a jury trial in 2009, Aragon granted the department’s motion for nonsuit, but denied the county’s similar motion, and a jury awarded Ellerbee $39,230 in damages.
On appeal, Justice Jeffrey W. Johnson wrote that the county could not be liable for failing to serve the writ “promptly” as asked because the only mandatory statutory duty imposed on it was to act “in accordance with the written instructions,” and because state law made no reference to any duty to comply with deadlines or timing requests in those instructions.
“The Sheriff retains complete discretion to determine how and when it is feasible to allocate departmental resources to effect service, constrained only by the parameters that it be done prior to the writ’s expiration,” he commented.
He rejected Nelson’s argument that mediation confidentiality precluded sanctions for failing to participate in the mediation under state and local court rules, and said Nelson and the others failed to show that the amount Aragon awarded was an abuse of discretion.
The appellate panel similarly declined to grant Ellerbee’s request for nearly $30,000 in attorney’s fees for his defense on appeal, reasoning that the appeal was not frivolous.
Justices Frances Rothschild and Victoria Gerrard Chaney joined Johnson in his opinion.
The case is Ellerbee v. County of Los Angeles, B216848.
Copyright 2010, Metropolitan News Company