August 11, 2016
Enforcing a Court Order Through an Elisor
The vast majority of lawsuits are settled. I have read that 95% of lawsuits do not end up being decided by a judge or jury but rather through settlement. Still, just because you have a settlement agreement, this does not necessarily mean that your matter is over. Yes your case continues.........
Settlement agreements are not self-executing. Each party to a settlement agreement is required to perform certain conditions by certain times. For example, this could entail signing a document by the end of the month, paying a debt on the 1st of the month, turning over an item to a specific party immediately or filing documents within 6 months. The potential list of conditions that could be included in a settlement agreement are ostensibly limitless. The practical limitations are one's creativity and the willingness to agree to certain terms.
Unfortunately one party to a settlement agreement may balk at performing their side of the deal (for meritorious or idiotic reasons). In such a case, the non-breaching party can ask the court to appoint an "elisor." See Blueberry Properties, LLC v. Chow (2014) 230 Cal.App.4th 1017, 1020-1021. If a party "will not or cannot execute a document necessary to carry out a court order, the clerk of the court, or his or her authorized representative or designee may be appointed as an elisor to sign the document." (Super. Ct. San Diego County, Local Rules, rule 2.5.11.)
A recent unpublished appellate opinion highlighted how an elisor was used to execute a settlement agreement.
Bajan et al. v. Mikos et al., San Diego County Superior Court Case # 37-2008-00094754-CU-FR-CTL
A dispute arose over the ownership of a property. Eventually, after years of litigation, the parties came to a settlement agreement. One of the conditions of the settlement was that the defendants would sign deeds in conformity with the settlement agreement. Simple enough you could say.
However the defendants refused to sign the deeds. The plaintiffs then asked the court to appoint an elisor to sign the deeds in place of the defendants. The court obliged and appointed the San Diego County Superior Court Clerk to sign the deeds, who did so.
The basis of the appeal was unrelated to the appointment of the elisor.