California Partition Law Blog
Just because a party prevails in a lawsuit does not mean the matter is over. Rarely discussed but crucially important is the fact that a judgment must be enforced once it is entered. This isn’t always easy. Losing parties don’t always want to cooperate, especially when they’re operating without an attorney.
Sometimes, a party might “disappear,” ignoring all communications from the other side and the court. Other times, they might simply refuse to sign documents as ordered, convinced the court got it wrong. These actions can cost victorious parties thousands of extra dollars of their time and money. Thankfully, in these situations, litigants have a unique remedy to combat this behavior: an elisor.
An elisor is a person appointed by the court to perform functions like the execution of a deed or document. (Blueberry Properties, LLC v. Chow (2014) 230 Cal.App.4th 1017, 1020.) They are most commonly utilized in cases where a party never shows up or where a party refuses, even under court order, to sign documents as required by the court.
Why do courts have the ability to appoint elisors?
The court’s authority to appoint elisors is statutory in nature. Code of Civil Procedure section 128 outlines the powers a court has to conduct proceedings. These include the ability to control the conduct of individuals before it, to compel attendance, to provide for orderly conduct, and a host of others.
Interestingly, however, the word “elisor” does not appear in the statute at all. Instead, the code provides that the court has the power to “compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending.” (CCP § 128(4).)
Courts have interpreted this language to mean that judges can do what is necessary to “exercise reasonable control over litigation before [them]… to achieve justice and prevent misuse of processes lawfully issued.” (Venice Canals Resident Home Owners Assn. v. Superior Court (1977) 72 Cal.App.3d 675, 679.)
Thus, the appointment of an elisor is merely a means of achieving justice for the parties before the court. It is a method courts use to compel obedience with their orders. Absent this power, the court system’s judgments and orders would be as valuable as the paper they’re printed on.
When are elisors usually appointed?
As stated, courts typically employ elisors only when they see no other way of effectuating their orders. Blueberry Properties is a classic illustration of when a court sees the need to use one. (see Blueberry Properties, 230 Cal.App.4th at 1020.)
There, a woman named Esther Chow entered into an agreement with Blueberry to sell her valuable apartment complex in Los Angeles. But for some reason, Chow refused to honor the agreement and returned the money Blueberry had placed in escrow for the sale.
Blueberry sued Chow to enforce the sales agreement, and eventually, Chow settled the lawsuit. As part of the settlement process, Chow again agreed to sell the apartment complex. But when the time came for her to sign the sales papers, she again refused.
Blueberry went back to the court, asking it to enforce the settlement agreement. The court agreed and ordered Chow “to do all things necessary and to execute all documents necessary to consummate the sale.” Nonetheless, Chow persisted in her refusal to sign any documents whatsoever.
Left without any other options, Blueberry once again approached the court and asked it to appoint an elisor to sign on behalf of Chow. The court agreed as an elisor was the only way the documents would be signed in light of Chow’s ongoing refusal.
Blueberry Properties deals with a purchase agreement, but elisors can also be appointed to sign any number of documents, including settlement checks, title transfers, listing agreements, and any other document that must be signed in accordance with a court order.
How do you apply for an elisor?
Most courts in California have their own rules for applying for an elisor. Some courts require parties to apply for one through requests for order, while others require ex-parte applications or noticed motions.
Usually, however, there must be some showing that the other party is unable or unwilling to sign the document(s) in question and that there was some effort beforehand to resolve the matter informally.
Importantly, the process can be complicated if the matter relates to a settlement agreement. When parties settle a case, they can request the court presiding over the litigation to retain jurisdiction over the matter if there are any future problems.
This process is authorized by Code of Civil Procedure section 664.6, which mandates that the parties to the settlement can request the court to retain jurisdiction to later enforce the settlement judgment. But, to effectuate this request, there must be a written signature by both parties (or their attorneys) or made orally before the court itself.
If this request is made, then a party can seek the appointment of an elisor for the other side to comply with the settlement. But if the court has not retained jurisdiction, then there could be some procedural problems that might force the party to file a whole other lawsuit, costing them time, money, and peace of mind.
How can the attorneys at the Underwood Law Firm, P.C. assist you?
Winning a lawsuit should bring feelings of elation and vindication. But on the other side, the reciprocal emotions are just as strong. Quickly, that feeling of victory can disappear when you realize the other side just won’t cooperate. Failure to get a listing agreement or sales contract signed on time can cost a party millions of dollars, and being denied settlement checks can tank a promising business venture.
As each case is unique, property owners would be well-served to seek experienced counsel familiar with the trials and tribulations of enforcing judgments. At the Underwood Law Firm, P.C., our knowledgeable attorneys are here to help. If you are concerned about enforcing a judgment, getting your property sold on time, or if you just have questions, please do not hesitate to contact our office.
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