Friday, January 18, 2013
C.A. Rejects Tom Jones’ Negligence Claim Against L.A. Sheriff
Panel Applies Litigation Privilege to Suit Charging Mishandling of Levy Instructions
By JACKIE FUCHS, Staff Writer
Singer Tom Jones’ negligence claim against the Los Angeles County Sheriff’s Department, for allegedly instructing a bank to transfer levied-upon funds back to a judgment debtor’s account, is barred by the litigation privilege, this district’s Court of Appeal held yesterday.
Div. Five said that the privilege extends to the act of carrying out the directive of a writ of execution, and thus Los Angeles Superior Court Judge Ruth Ann Kwan correctly sustained the defendant’s demurrer to Jones’ complaint without leave to amend.
In 2009, Tom Jones Enterprises, Ltd. and Thomas Woodward, professionally known as Tom Jones, obtained a judgment in an amount exceeding $9 million against “Barbara S. Rosen, as Trustee of the Rosen Family Trust, successor in interest to Alexander B. Rosen, Deceased.”
Alexander Rosen—better known as Burt Rosen—was a television producer and later a distributor of programming, prior to his death in 2008. The judgment, according to news accounts, was entered to enforce an arbitration award on Jones’ claim for the unauthorized licensing of recordings of a television series filmed in Canada in 1981, which one of Rosen’s companies had syndicated in first run.
Jones’ attorney, Martin Goldman, thereafter instructed the Sheriff’s Department to levy a writ of execution against all funds “standing in the name of judgment debtor” at Wells Fargo Bank. His instructions inadvertently identified the debtor as Barbara S. Rosen, however, rather than Rosen in her capacity as trustee of the Rosen Family Trust.
After some of her personal funds were frozen, Rosen asked Goldman to direct the Sheriff to have any property not in the name of the actual judgment debtor immediately released, which Goldman did.
Jones’ complaint alleged, however, that on receipt of such notification, an employee of the Sheriff’s Department instructed Wells Fargo “to fully release” all funds taken in connection with the execution garnishment.
Such funds included $193,350 on deposit in the name Barbara S. Rosen, as Trustee of the Rosen Family Trust, which was returned to the judgment debtor’s account and immediately removed to an unknown location, thereby preventing Jones from recovering that amount, according to the complaint. Plaintiffs argued that the county was, therefore, liable for that amount under the theory of vicarious liability.
Kwan sustained the county’s demurrer without leave to amend, agreeing that by failing to allege the existence of a duty owed to them and by not identifying the employee upon whose conduct the alleged liability was based, the plaintiffs had failed to state facts sufficient to constitute a cause of action for negligence.
On appeal, Justice Richard Mosk, writing for the panel, quickly disposed of defendant’s second contention. A plaintiff is not required to specifically plead, before undertaking discovery, the identity of a government employee whose alleged negligence is made the basis for vicarious liability, he said.
Kwan’s judgment was correct, however, the panel held, because the employee’s conduct fell within the litigation privilege set forth in Civil Code Sec. 47(b).
The key in determining whether the privilege applies, Mosk said, is whether the injury allegedly results from an act that is communicative or non-communicative in its essential nature.
“[T]he gravamen of the action—the issuance of written instructions by the Sheriff’s Department (presumably to the bank) to fully release the funds—was a communicative act,” Mosk wrote, terming the plaintiffs’ contention that their claims did not rely on the communicative act of applying for a writ of execution, but rather from the wrongful levy effected pursuant to the writ, a “distinction without a difference.”
He explained that since the litigation privilege extends to torts arising from a privileged statement or publication, and the act of applying for a writ of execution is privileged, the privilege extends to the act of carrying out the directive of the writ.
Presiding Justice Paul Turner and Justice Orville Armstrong concurred in the opinion.
Martin F. Goldman represented Tom Jones and Tom Jones Enterprises, Ltd in the proceedings. Henry Patrick Nelson and Rina Mathevosian of Nelson & Fulton represented the county.
The case is Tom Jones Enterprises, Ltd. v. County of Los Angeles; 1 S.O.S. 271.
Copyright 2013, Metropolitan News Company