Blueberry Properties, LLC v. Chow , 179 Cal. Rptr. 3d 145 ( 2014 )

Filed 10/22/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
BLUEBERRY PROPERTIES, LLC, B254259
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC473469)
v.
ESTHER KHOE CHOW,
Defendant and Appellant.
APPEAL from order of the Superior Court of Los Angeles County,
Frederick C. Shaller, Judge. Affirmed.
Esther Khoe Chow, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_____________________
INTRODUCTION
Defendant Esther Khoe Chow appeals the trial court’s post-judgment order
appointing the clerk of the court as an elisor to execute an escrow agreement on behalf of
Chow. Chow had entered into a settlement agreement to sell her property to Plaintiff
Blueberry Properties, LLC (Blueberry). When Chow refused to consummate the sale to
Blueberry, the court entered judgment pursuant to the terms of the settlement agreement
under Code of Civil Procedure section1 664.6, ordering Chow to complete the sale.
At Blueberry’s request, the court issued an order appointing an elisor to effect sale of the
property. We affirm the trial court’s order because it was proper under section 128,
subdivision (a)(4), which empowers the court to compel obedience to its judgments.
FACTS AND PROCEDURAL BACKGROUND
In June 2011, Chow entered into an agreement to sell her apartment complex
located at 1242 Lilac Place, Los Angeles, California. However, Chow refused to
complete the sale and returned the money Blueberry had placed in escrow for the
property. Blueberry brought the present action for specific performance to enforce the
purchase agreement. In July 2012, the parties entered into a settlement, where Chow
agreed to sell the property to Blueberry in accordance with the terms of their original
purchase agreement. Chow failed to comply with the settlement agreement by
withholding her signature from documents necessary to reopen and complete the sale of
the property.
In April 2013, the trial court entered a judgment pursuant to section 664.6 in favor
of Blueberry against Chow, setting forth the terms of their settlement agreement. It stated
that “Esther Chow [is] ordered to do all things necessary and to execute all documents
necessary to consummate the sale by Defendant, Esther Chow to Plaintiff, BLUEBERRY
PROPERTIES, LLC, A California Limited Liability Company of the real property
located at 1242 Lilac Place, Los Angeles, California.” The judgment further provided
that “Esther Chow shall do all things necessary and execute all documents necessary to
1
All subsequent references are to the Code of Civil Procedure.
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perform the terms of the Purchase Agreement,” “to perform the terms of all escrow
documents previously executed by both parties,” and “to perform the terms of the
Settlement Agreement.”
Chow subsequently refused to execute escrow documents to complete the sale of
the property. Blueberry applied for an order appointing the clerk of the court as an elisor
to execute the escrow documents on behalf of Chow, which the trial court granted. Chow
now appeals this post-judgment order.
DISCUSSION
“ ‘Where, as here, the trial court is vested with discretionary powers, we review its
ruling for an abuse of discretion. [Citation.]’ ” (In re Marriage of Geraci (2006)
144 Cal.App.4th 1278, 1286; see Santandrea v. Siltec Corp. (1976) 56 Cal.App.3d 525,
530 [“The exercise of the court’s inherent power to provide for the orderly conduct of the
court’s business is a matter vested in the sound legal discretion of the trial court. Such a
decision is subject to reversal only where there has been an abuse of that discretion.”]
disapproved on another point in Bauguess v. Paine (1978) 22 Cal.3d 626, 639.) “An
abuse of discretion occurs only where it is shown that the trial court exceeded the bounds
of reason. [Citation.] It is a deferential standard of review that requires us to uphold the
trial court’s determination, even if we disagree with it, so long as it is reasonable.
[Citation.]” (Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864.)
On appeal, Chow asserts that the CEO of Blueberry properties forged a check and
committed fraud. It is unclear how this is relevant to the post-judgment order at issue on
appeal. Notably, Chow did not pursue an appeal with regard to the court’s section 664.6
judgment made in favor of Blueberry and against Chow, which provided the terms of
their settlement agreement. At this point, any appeal as to that judgment would be
untimely. We therefore review only the post-judgment order appointing the clerk of the
court as an elisor to sign the escrow documents on behalf of Chow, which Chow
identifies as the subject of her appeal in her notice of appeal.
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At issue here is the court’s authority and reasonableness in issuing the order
appointing the elisor. As used in the case at bar, consistent with its common legal
meaning, an elisor is a person appointed by the court to perform functions like the
execution of a deed or document. (Rayan v. Dykeman (1990) 224 Cal.App.3d 1629,
1635, fn. 2 (Rayan).) A court typically appoints an elisor to sign documents on behalf of
a recalcitrant party in order to effectuate its judgments or orders, where the party refuses
to execute such documents. (See Ibid.) We note that under Code of Civil Procedure
section 262.8, “elisor” specifically means a person designated by the court to execute
process or orders in an action or proceeding involving the sheriff and/or coroner. The
Code of Civil Procedure’s use of the term is not at issue in this case.
Courts use elisors in matters like this one to enforce their orders. Under section
128, subdivision (a)(4), “[e]very court shall have the power . . . . [¶] . . . [¶] [t]o compel
obedience to its judgments, orders, and process, and to the orders of a judge out of court,
in an action or proceeding pending therein.” This statute has codified the principle of
“[t]he inherent power of the trial court to exercise reasonable control over litigation
before it, as well as the inherent and equitable power 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.)
Here, Chow entered into a settlement agreement where she agreed to transfer her
property to Blueberry. The trial court entered judgment against Chow in accordance with
section 664.6, which allows the court to enter judgment pursuant to the terms of a signed
settlement agreement. The judgment clearly stated that Chow must execute all
documents to complete the sale, including those associated with escrow. Chow thereafter
failed to comply with the court’s judgment and the settlement agreement by refusing to
execute escrow documents. By appointing the clerk as an elisor to execute the
documents on Chow’s behalf, the trial court properly exercised its power under
section 128, subdivision (a)(4) to enforce its judgment.
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In Rayan, supra, 224 Cal.App.3d at p. 1635, the Court of Appeal affirmed the
similar appointment of an elisor to sign the plaintiff’s name to all documents necessary
for a property transfer. There, the trial court issued an order incorporating a stipulation
by the parties that the plaintiff would execute a quitclaim deed to the property
transferring title to the defendant, yet the plaintiff refused to sign the documents. Citing
section 128, subdivision (a)(4), the Court of Appeal explained that, “[a]s to the
appointment of [an] elisor, to compel obedience to its orders the court is authorized to
make such an appointment. [Citations.]” (Rayan, at p. 1635, fn. omitted.)
Like in Rayan, the trial court here was authorized under section 128, subdivision
(a)(4) to appoint an elisor to enforce its judgment. The appointment does not exceed the
bounds of reason because the trial court is simply enforcing its valid judgment, which
requires Chow to transfer the property to Blueberry. As Chow provides us no valid basis
for reversing the order and we conclude that the trial court did not abuse its discretion in
issuing the order, we affirm the court’s post-judgment order appointing the clerk of court
as an elisor to execute the escrow documents on Chow’s behalf.
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DISPOSITION
The judgment is affirmed. We award no costs on appeal as Respondent Blueberry
Properties, LLC failed to appear.
CERTIFIED FOR PUBLICATION
KITCHING, J.
We concur:
KLEIN, P. J.
EDMON, J.*
*
Associate Justice of the Court of Appeal, Second Appellate District, Division
Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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