Law School Case Brief
Ellerbee v. Cty. of L.A. - 187 Cal. App. 4th 1206, 114 Cal. Rptr. 3d 756 (2010)
The only mandatory statutory duty in serving a writ of execution is that the governmental entity or employee act in accordance with the written instructions provided by the judgment creditor. Code Civ. Proc., § 687.010, subd. (b). The statute makes no reference to any duty to comply with deadlines or timing requests contained in the judgment creditor's instructions. Thus, a creditor's private instructions to act promptly or to serve a writ as soon as possible do not impose a mandatory obligation on the sheriff. 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. Code Civ. Proc., § 699.530, subd. (b), provides that an officer may not levy on property more than 180 days from the date a writ is issued.
Defendant County of Los Angeles was found negligent for not promptly serving writs of execution as requested by plaintiff judgment creditor. Plaintiff asked that the writs be served promptly and as soon as possible, but service was made between one and two months after delivery to the sheriff and after some money had been paid to the judgment debtor, who later declared bankruptcy. The court denied defendant’s motion for judgment on the pleadings. Defendant County appealed.
Was the defendant Country liable for not serving the writs promptly as requested by the plaintiff?
The court reversed and held that the appeal from the sanctions order was timely under Cal. Rules of Court, rule 8.104(a)(3). Judgment on the pleadings should have been granted because Gov. Code, § 815, subd. (a), barred common law liability and no mandatory duty was breached under Gov. Code, § 815.6. The sheriff had no mandatory obligation under Code Civ. Proc., §§ 687.010, subds. (a), (b), 699.530, subds. (a), (b), to comply with instructions to act promptly and had a duty only to act within 180 days.
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