Ellerbee v. County of Los Angeles

• Decision Date: 27 August 2010
• Docket Number: No. B216848.,B216848.
• Court: California Court of Appeals Court of Appeals
• Parties: Bobby Frank ELLERBEE, Plaintiff and Respondent, v. COUNTY OF LOS ANGELES et al., Defendants and Appellants.

187 Cal.App.4th 1206

114 Cal.Rptr.3d 756

Bobby Frank ELLERBEE, Plaintiff and Respondent,

v.COUNTY OF LOS ANGELES et al., Defendants and Appellants.

No. B216848.

Court of Appeal, Second District, Division 1, California.

Aug. 27, 2010.

Nelson & Fulton, Los Angeles, Henry Patrick Nelson and Sanaz Tahernia for Defendants and Appellants.

Day Law Offices and Montie S. Day for Plaintiff and Respondent.

JOHNSON, J.

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 ¹ 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).²

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 wascurrently 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 ... bepresent [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 admitted that he did not have anyone with settlement authority on standby; the mediation was terminated.

The County and Sheriff moved for judgment on the pleadings. They argued the complaint failed to state facts sufficient to constitute a cause of action against either defendant, and that each governmental defendant was immune. That motion was denied.

Ellerbee filed a motion against defendants and their counsel seeking monetary sanctions for their failure to participate in good faith in the court-ordered mediation. That motion was granted and defendants and Nelson were ordered, jointly and severally, to pay sanctions of $6,194.00 to Ellerbee's attorney to cover the costs he incurred preparing for and attending the mediation.

A jury trial was held in March 2009. At the close of Ellerbee's case, the Sheriff and the County moved for nonsuit. The Sheriff's motion was granted; the County's motion was denied. The jury found in favor of Ellerbee on his "claim for failing reasonably to execute any of the writs of attachment against the County...." Ellerbee was awarded damages of $39,230.00. This appeal followed.

DISCUSSION

1. Appealability

a. Motion for judgment on the pleadings

The County purports to appeal from the trial court order denying its motionfor judgment on pleadings. Ellerbee argues the appeal is not well-taken because the order is nonappealable. Ellerbee also asserts that even if that January 8, 2009 order were appealable, this appeal, initially filed June 12, 2009 (and amended three days later to add Nelson), would be untimely. Ellerbee is correct on both counts. (See Code Civ. Proc., § 904.1; Neufeld v. State Bd. of Equalization (2004) 124 Cal.App.4th 1471, 1476, fn. 4, 22 Cal.Rptr.3d 423 ["An order granting or denying a motion for judgment onthe pleadings is not an appealable order because it is not final, but only a preliminary or interlocutory order. The proper appeal is from an actual judgment"]; e.g., Little v. Mountain View Dairies (1950) 35 Cal.2d 232, 234, 217 P.2d 416; Cal. Rules of Court, rule 8.104(a)(3) [latest date on which notice of appeal may be filed is 180 days from entry of order].)

Nevertheless, we do not, as Ellerbee contends, lack jurisdiction to consider the merits of the trial court's ruling. Whether a motion for judgment on the pleadings is denied or granted, an appeal from that ruling may be taken from the ultimate judgment. ( Fraser-Yamor Agency, Inc. v. County of Del Norte (1977) 68 Cal.App.3d 201, 207, 137 Cal.Rptr. 118 [order denying motion]; Campbell v. Jewish Com. for P. Service (1954) 125 Cal.App.2d 771, 773, 271 P.2d 185 [order granting motion].) The County filed a timely appeal from the April 14, 2009 judgment. That appeal encompasses the order denying the motion.

b. Order to pay sanctions

Ellerbee maintains the appeal from the trial court's order requiring the County and Nelson to pay $6,194.00 in sanctions for failing to participate in the court-ordered mediation is time-barred. An order directing the payment of monetary sanctions by a party or its attorney is immediately appealable if the amount of sanctions exceeds $5,000. (Code Civ. Proc., § 904.1, subds. (a)(11), (12); In re Marriage of Dupre (2005) 127 Cal.App.4th 1517, 1524, 26 Cal.Rptr.3d 328.) The order imposing sanctions was issued on January 30, 2009. The amended notice of appeal was filed on June 15, 2009, within the 180 day window. The appeal is timely. (Cal. Rules of Court, rule 8.104(a)(3).)

2. Motion for judgment on the pleadings was improperly denied

The County contends the trial court erred when it denied the motion for judgment on the pleadings because public entity liability must be predicated on violation of a statute and Ellerbee failed to allege or prove any statutory violation.

"A motion for judgment on the pleadings, like a general demurrer, challenges the sufficiency of the plaintiff's cause of action and raises the legal issue, regardless of the existence of triable issues of fact, of whether the complaint states a cause of action. [Citation.]" ( Brownell v. Los Angeles Unified School Dist. (1992) 4 Cal.App.4th 787, 793, 5 Cal.Rptr.2d 756.) The standard of review for a motion for judgment on the pleadings is the same as that for a general demurrer. ( Baughman v. State of California (1995) 38 Cal.App.4th 182, 187, 45 Cal.Rptr.2d 82.) "We treat the pleadings asadmitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law." ( Ibid.) " 'We review the complaint de novo to determine whether [it] alleges facts sufficient to state a cause of action under any legal theory. [Citations.]' " ( DiPirro v. American Isuzu Motors, Inc. (2004) 119 Cal.App.4th 966, 972, 14 Cal.Rptr.3d 787.) We review the disposition, not the court's reasons for that disposition.

( Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064-1065, 20 Cal.Rptr.3d 562.)

The County is correct that its liability, if any, cannot arise out of the common law. "Except as otherwise provided by statute," a public entity "is not liable for an injury, whether such injury arises...