Creditor's Instructions to a Sheriff's Deputy Serving a Writ Do Not Create a Mandatory Duty

In Ellerbee v. County of Los Angeles, published August 27, 2010, the Second DCA, Division One, rejected a judgment creditor’s argument that a county sheriff’s department’s purported delay in serving a writ of execution rendered the county liable to the creditor for violating a mandatory duty.  The creditor failed to show that a statute created a mandatory duty that would support liability under Government Code § 815.6.  Code of Civil Procedure §§ 687.010, subds. (a), (b), do require levying officers to act in accordance with the judgment creditor’s written instructions.  But the statute makes no reference to any duty to comply with deadlines or timing requests contained in those instructions.  The county 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 before the writ’s expiration.  Since the writ was served before its 180-day expiration date, the sheriff’s department did not violate a mandatory duty.