DISCOVERY CASE OUTLINE
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Why
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Early
use of a Discovery Referee can save time and money. It can
assure that all parties obtain prompt, consistent, and
knowledgeable guidance and decisions from an experienced
Judge and expert. If you think there
may be a discovery dispute in your case, stipulate
with opposing counsel and retain a Discovery Referee to be
on call for your case should any dispute arise. Often, the
mere retention of a referee will deter abuses. If
judicial guidance or decision is required, having a referee
in place assures prompt access, consultation and
decisions. Prevent
discovery abuses before they occur by retaining a Discovery
Referee at the inception of your case. Avoid
the expenses and delays of unnecessary motions and court
appearances. Obtain informal rulings before you research,
brief and file a motion. Obtain “hands on” case management
of discovery from the beginning.
By
stipulation, lawyers can write their own rules and
procedures for resolving discovery disputes and using
referees. The default procedures of discovery law may not
work best for your case.
Background.
The law in this area developed in phases: the
historical period similar to arbitration, the modern case
law of the 1980s and 90s, the legislative reforms of 2000,
the rulemaking period thereafter. Referees
have been a part of the legal process for many years in
many jurisdictions and statutory provisions were enacted
in the 1800s. "The predecessor to
section 639 appeared in California's first statutes in 1850 and
was included in "An Act to Regulate Proceedings in Civil Cases."
(Stats. 1850, ch. 142, § 164, pp. 442-443; cf. Stats. 1850,
ch. 119, p. 275 ["An Act to Regulate Proceedings in Criminal
Cases"].) The following year, the statute was amended to
authorize a reference in a special proceeding and was
recodified. (Stats. 1851, ch. 5, § 183, p. 79.) This new
section appeared in Statutes 1851, chapter 5, entitled "An Act
to Regulate Proceedings in Civil Cases," title 6, captioned Of
the Trial and Judgment in Civil Actions. (Stats. 1851, at pp.
51, 73.) As established above, the current version of section
639 remains...." People v. Superior Court (Laff) (2001) 25
Cal.4th 703 at page 729. The practice of
refering cases for discovery purposes as well as other
reasons increased and attracted attention in the 1980s and
1990s. several important court decisions occurred during
that period and complaints arose as to alleged abuses. The
Judicial Council reacted by appointing and task force to
study the area and sponsored legislation which was enacted
in 2000. Generally, the alleged abuses included routine
referals by courts of normal judicial duties, referals to
court favorites, inattention or lack of competence by
referees, lack of attorney input, referee expansion of
subject matter beyond the scope or justification for the
reference, lack of judicial review, and similar
abuses.
GENERAL [CCP §638]
SPECIAL [CCP §639]
COMPARISON OF CRC RULES: CCP §638 vs CCP §639
PROPRIETY OF REFERENCE / JUDICIAL RESPONSIBILITY & REVIEW
Justification for reference over objection
Matters trial court should decide
Court cannot abdicate judicial responsibility
Court should avoid appearance of delegating judicial functions to referees and should not routinely refer discovery matters outside of court
Exception in complex litigation requiring case management & monitoring
Court should carefully differentiate types of discovery motions that are appropriate for reference
SELECTION OF REFEREE
[CCP §640]
ORDER APPOINTING REFEREE
[CCP §639(d)]
OTHER MATTERS FOR
CONSIDERATION FOR INCLUSION IN ORDER
FEES [CCP §639(d)(5)(6);
§645.1]
ALLOCATION OF FEES [CCP
§643(c); §645.1]
REFEREE REPORT, FINDINGS &
DECISION [CCP §643]
COURT REVIEW [CCP §644]
RECOVERY OF LITIGATION COSTSConsensual references [CCP §638]
Nonconsensual references [CCP §639]
Aetna Life Ins.Co.v. Superior Court (1986), 182 Cal.App.3d
431
Andrews v. Superior Court (2000), 82 Cal.App.4th 779
Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal. App.
4th 592;3 Cal. Rptr. 3d 593
Bird v. Superior Court (1980), 112 Cal App3rd 595
[stat.amended]
Baumohl v. FHP, Inc. (1998), 64 Cal.App.4th 1506
DeBlase v. Superior Court (1996), 41 Cal.App.4th 1279;
Approved in People v. Superior
Court (Laff) (2001)
Holt v. Kelly (1978) 20
Cal.3d 560
Hood v. Superior Court (1999), 72 Cal.App.4th 446
Jovine v. FHP, Inc.(1998), 64 Cal.App.4th 1506
Kajima Engineering & Construction v. Pacific Bell
(2002), 103 Cal.App.4th 1397 , 127 Cal.Rptr.2d 464
Kim v. Superior Court (Palmco Corp.)
(1998), 64 Cal.App.4th 256
Korea Data Systems Co. v. Superior Court (1997)
Lu v. Superior Court(1997), 55 Cal.App.4th 1264
Marathon National Bank v. Superior Court (1993), 19
Cal.App.4th 1256 [rehrg den]
Martino v. Denevi(1986), 182 Cal.Ap.3d 553
McDonald v. Superior Court(1994), 22 Cal.App.4th 364
McMillan v. Superior Court(1996), 50 Cal.App.4th 246 [depublished]
People v. Superior Court (Laff)
(2001) 25 Cal.4th 703 , 107 Cal.Rptr.2d 323; 23 P.3d 563
People v. Superior Court(Laff)(1998), 64 Cal.App4th 414
[6/1/98][review granted]
Rockwell Int. Corp. v. Superior Court (1994), 26 Cal. App.
4th 1255
Sauer v. Superior Court(1987), 195 Cal.App.3d 213
Solorzano v. Superior Court (1993), 18 Cal.App. 4th 603
Taggares v. Superior Court(1998), 62 Cal.App.4th 94;
Approved in People v. Superior
Court (Laff) (2001)
Whoop Inc. v. Dyno Productions Inc.(1998), 64Cal.App. 4th
32 [depublished]
TYPES OF
REFERENCES
Historically, two types of references have
long been recognized: general and special. Under
the current C.C.P provisions, the division is between a
consensual reference under C.C.P. §638 and a non-consensual
reference under
C.C.P. §639
People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 721, 107 Cal.Rptr.2d 323; 23 P.3d 563
" The California Constitution imposes limitations upon the power of nonjudicial officers to exercise judicial functions. 'The judicial power of this State is vested in the Supreme Court, courts of appeal, superior courts, and municipal courts.' (Cal. Const., art. VI, § 1.) To avoid an unconstitutional delegation of judicial authority, the Constitution requires the stipulation of the parties before a trial court may refer a cause to be tried by a referee. (Id., § 21; In re Edgar M. (1975) 14 Cal.3d 727, 732 [122 Cal.Rptr. 574, 537 P.2d 406].) Such a referral of the entire case, with the consent of the parties, is known as a general reference and results in a binding determination by the referee. (In re Edgar M., supra, 14 Cal.3d at p. 734; see § 638.)"
Holt v. Kelly (1978) 20 Cal.3d 560
C.C.P. §638 provides for reference by agreement of the parties for the referee to hear and determine issues. Note that, though the statutory provisions are not clear, certain provisions in C.C.P. §640 et seq appear to apply and/or have been applied to an appointment under C.C.P. §638. For example, the Judicial Council Rule 3.903 requires the court to appoint the particular referee in accord with C.C.P. §640 and C.C.P. §644(a) expressly applies to references under C.C.P. §638.
CRC Rule 3.901-3.910
C.C.P. §644(a) clarifies that "In the case of a consensual general reference pursuant to Section 638, the decision of the referee...must stand as the decision of the court...." C.C.P. §644(b) reiterates existing case law that in nonconsensual references the referee decision is only advisory and requires independent review. See below re court review.
Binding; written consent required; silence and participation without objection is not waiverBaumohl v. FHP, Inc. (1998), 64 Cal.App.4th 1506,
Aetna Life Ins.Co.v. Superior Court (1986), 182 Cal.App.3d 431
Sauer v. Superior Court(1987), 195 Cal.App.3d 213
Jovine v. FHP, Inc.(1998), 64 Cal.App.4th 1506
Kim v. Superior Court (Palmco Corp.) (1998), 64 Cal.App.4th 256, 259, 260-1 ["Kim consented to the appointment of Judge Blanpied based on his years of experience with the case as a referee. This specific consent cannot be expanded to encompass consent to Judge Beacom" as a Temporary Judge.]
Explicit statutory authority required to assign to referee
Baumohl v. FHP, Inc. (1998), 64 Cal.App.4th 1506
Aetna Life Ins.Co.v. Superior Court (1986), 182 Cal.App.3d 431 at p.435
Marriage of Gallis 149 Cal.App.3d 147, 150
Calif. Constitution art.Vl, sec.22 limits references to subordinate judicial dutiesPeople v. Superior Court (Laff) (2001) 25 Cal.4th 703, 721, 107 Cal.Rptr.2d 323; 23 P.3d 563
"Masters and referees perform subordinate judicial duties only if their findings and recommendations are advisory and not binding until adopted by the court. (In re Perrone C. (1979) 26 Cal.3d 49, 54-55 [160 Cal.Rptr. 704, 603 P.2d 1300]; Aetna Life Ins. Co. v. Superior Court (1986) 182 Cal.App.3d 431, 436 [227 Cal.Rptr. 460].) The court independently must review the referee's proposed findings and conclusions. (Jovine v. FHP, Inc. (1998) 64 Cal.App.4th 1506, 1522 [76 Cal.Rptr.2d 322].) If authorized by law, a superior court's referral of a particular aspect of a judicial proceeding to a special master or referee to render advisory findings and recommendations may be made with or without the consent of the parties and is known as a special reference. (Ibid.) [25 Cal.4th 722]"
Holt v. Kelly (1978) 20 Cal.3d 560
Discovery Referee
Doyle v. Superior Court (Caldwell) (1996), 50 Cal.App.4th 1878, Footnote 1
"Our review is of the superior court's order not the special master's "orders." Discovery matters were referred to the special master in this case by means of a court order apparently pursuant to Code of Civil Procedure section 639, subdivision (e). This order purported to provide that the special master's decisions "will be final save for the parties [sic] appellate rights." Quoting C.C.P. § 639 (e) and then existing C.R.C. Rule 244.2(e).)
"As both... make plain, a discovery referee does not have the authority to issue court orders. Instead, the discovery referee's power is limited to "report[ing] [its] findings and making a recommendation thereon" to the superior court "with a proposed order and any recommendation for the imposition of sanctions." [Id] After the referee has submitted his or her report to the superior court, the parties may make objections to the referee's findings, recommendations and proposed orders and request a hearing in the superior court on these objections. [citing CRC]
The only logical conclusion... is that a referee can only propose or recommend orders. The superior court must decide whether to accept or reject the referee's recommendations. In this case, the special master purported to issue an "order" compelling Doyle to submit to a mental examination. Doyle filed a motion in the superior court objecting to the special master's "orders" and asking the superior court to "overrule" the special master's "orders." Both the special master and the parties proceeded improperly. The special master should have submitted his findings and recommendations to the superior court along with his proposed orders. Doyle would then have had the opportunity to object to the special master's findings, recommendations and proposed orders before the superior court decided whether to accept or reject the special master's proposed orders. If the superior court rejected Doyle's objections, it would then issue the proposed orders.
Thus, technically, our review should be of an order by the superior court compelling Doyle to submit to a mental examination and imposing sanctions. However, since the superior court's order rejecting Doyle's objections to the special master's "orders" was, in substance, a decision to accept the special master's recommendations, it is appropriate for us to treat the superior court's order as an order compelling Doyle to submit to a mental examination and imposing sanctions. We do not review the special master's "orders.""
CCP §639 et seq; CRC Rule 3.920-3.926
Discovery Referee CCP §639(a)(5) on written motion or court's own motion CCP§639(a)
No routine appointments [CCP 639(d)(2)]:
"only when exceptional circumstancesConsent to serve and certification by referee re compliance with Canon 6 & CRC prerequisite to appointment [CRC Rule 3.924] CCP §643(c) clarifies that in a CCP§639 reference the court is not bound by the referee report
must be specific to the circumstances of the particular
CCP §644(b) reiterates existing case law that in nonconsensual refereences the referee decision is only advisory and requires independent review. See below re court review.
Independent determination by trial court requiredBaumohl v. FHP, Inc. (1998), 64 Cal.App.4th 1506 [trial court rev'd for attempting to refer summary judgment to retired judge without consent of parties]
Aetna Life Ins.Co.v. Superior Court (1986), 182 Cal.App.3d 431 at p. 436 [Trial Court. rev'd. after attempting to refer summary judgment and adopt findings & conclusions without hearing ]
Sauer v. Superior Court(1987), 195 Cal.App.3d 213
People v. Superior Court (Laff) (1998) review granted
Bird v. Superior Court (1980), 112 Cal App3rd 595 [stat.amended]
Advisory; may be ordered without consent of the partiesAetna Life Ins.Co.v. Superior Court (1986), 182 Cal.App.3d 431
JUDICIAL RESPONSIBILITY & REVIEW
Distinguish rule technicalities and details from Constitutional requirement re delegation of judicial authority
Kim v. Superior Court (Palmco Corp.) (1998), 64 Cal.App.4th 256, p.260 Failure to comply with direction of CRC does not invalidate the appointment; consent is essential requirement. [citing Richard S. (1991) 54 Cal.3d 857 [2 Cal.Rptr.2d 2, 819 P.2d 843], In re Lamonica H. (1990) 220 Cal.App.3d 634, 644 [270 Cal.Rptr. 60] and In re Robert S. (1988) 197 Cal.App.3d 1260 [243 Cal.Rptr. 459] However, a court cannot make an appointment under CCP 639 without the consent of a party that confers powers restricted to appointment under CCP 638 e.g. the power to decide matters rather than report to court with a recommendation.
Justification for reference over objection
CCP §639 (d)(2) Order must "include... the exceptional circumstances requiring the reference which must be specific to the circumstances of the particular case. " However, the statute does not suggest what might be such exceptional circumstances prior case law should govern this issue with the exception of the Lu case..
Complex, time consuming issuesDeBlase v. Superior Court (1996), 41 Cal.App.4th 1279 [Reference over objection of financial hardship rev'd; no complex, time consuming matters. Approved in People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 736
Taggares v. Superior Court(1998), 62 Cal.App.4th 94[Sua sponte reference of all routine discovery and forcing one side to pay solely on the basis of financial status reversed] Approved in People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 736
Lu v. Superior Court(1997)[Referee may be appointed in complex litigation before an actual dispute. In questionable dictim, the court assumed "complex cases invariably involve complex discovery disputes" and suggested routine references as part of case management in complex litigation. The dictum in contrary to the weight of authority condemning routine references as an abdication of judicial responsibility and is contrary to the new statutory language.]Hood v. Superior Court (1999), 72 Cal.App.4th 446 [fn.4 re appropriate for complex cases involving acrimony or requiring extraordinary expenditure of judicial time]
Privilege issues relating to numerous documents
DeBlase v. Superior Court (1996), 41 Cal.App.4th 1279; 25 Cal.4th 703, 736 Approved in People v. Superior Court (Laff) (2001), 25 Cal.4th 703, 736
Taggares v. Superior Court(1998), 62 Cal.App.4th 94; Approved in People v. Superior Court (Laff) (2001)
Depositions requiring presence of neutral party
DeBlase v. Superior Court (1996), 41 Cal.App.4th 1279 Approved in People v. Superior Court (Laff) (2001)
Taggares v. Superior Court(1998), 62 Cal.App.4th 94 Approved in People v. Superior Court (Laff) (2001)
On going discovery disputes
DeBlase v. Superior Court (1996), 41 Cal.App.4th 1279; Approved in People v. Superior Court (Laff) (2001)
Taggares v. Superior Court(1998), 62 Cal.App.4th 94 Approved in People v. Superior Court (Laff) (2001)
Matters trial court should decideComplex, unsettled legal issues or matters of first impression
Matters affecting 3rd partiesTaggares v. Superior Court(1998), 62 Cal.App.4th 94
Court cannot abdicate judicial responsibility
Court should avoid appearance of delegating judicial functions to referees and should not routinely refer discovery matters outside of courtHood v. Superior Court (1999), 72 Cal.App.4th 446 [writ issued to set aside sua sponte reference in routine discovery dispute; ct app suggests tr ct should make finding of extraordinary circumstances and cannot parrot statute]
Baumohl v. FHP, Inc. (1998), 64 Cal.App.4th 1506 ["...the responsibility to decide cannot be delegated irrespective of the burdens imposed by the court's pending caseload." Ct Ap seems to disapprove of routine use of form order in LA for referring discovery matters to private judges paid by the parties.]
Taggares v. Superior Court(1998), 62 Cal.App.4th 94 [blanket ref of routine disc disfavored; refer when necessary not merely convenient]
Marathon National Bank v. Superior Court (1993), 19 Cal.App.4th 1256 [rehrg den] [meaningful review and independent determination by tr.ct. required]
Aetna Life Ins.Co.v. Superior Court (1986) at p. 437
Solorzano v. Superior Court (1993) at p. 615
Rockwell Int. at p.1269 [record must show considered and careful review of report , transcript & objections thereto]
DeBlase v. Superior Court (1996), 41 Cal.App.4th 1279 at p.1284
Korea Data Systems Co.Ltd. v. Superior Court (1997) [Ct. does not reach issues but cites Marathon & Rockwell cases regarding abdication by rubber stamping reference]
McMillan v. Superior Court (1996), 50 Cal.App.4th 246 (depublished) [ prior to 639 reference, when party raises financial issues, suggests court should determine issues such as financial condition & ability to pay of objecting party, allocation of fees, hourly amount or amount for task etc., scope and extent of references]
Possible exception in complex litigation requiring case management & monitoring
Lu v. Superior Court(1997)[The issue and holding was that a referee may be appointed in complex litigation before an actual dispute. In questionable dictum, the court assumed "complex cases invariably involve complex discovery disputes" and suggested routine references as part of case management in complex litigation. The dictum in contrary to the weight of authority condemning routine references as an abdication of judicial responsibility and is contrary to the new statutory language.]
Hood v. Superior Court (1999), 72 Cal.App.4th 446 [suggests some history or additional reason is required to justify references even in "complex" cases]
Court should carefully differentiate types of discovery motions that are appropriate for reference
Taggares v. Superior Court(1998), 62 Cal.App.4th 94
Solorzano v. Superior Court (1993) at p. 615
SELECTION OF REFEREE [C.C.P. §640]
Disclosure by Referee [CRC Rule 3.904(b), 3.924(b)]
Required by Canon 6, (D)(5)(a) and (b)
Prior relationship with parties etc.Referee must consent to serve and certify it will comply with Canon 6 and the CRC rules; CRC Rules 3.904, 3.924
Appointment
Must appoint person agreed upon by parties C.C.P. §640(a)Disqualification of Referee
Absent agreement, parties submit 3 names from which court selects C.C.P. §640(b)
If no nominee, court appoints
Former California judicial officer must be member of state bar [CRC Rule 3.903, 3.923]
Peremptory challenges, timeliness CCP 639(b): 5 days prior to hearing, 10 days after appointment
ORDER
APPOINTING REFEREE [CCP §639(d)]
Contents of appointment Order [CRC Rule 3.902, Rule 3.922 see table below re CRC provisions]
Reasons & justification for appointment (d)(2) CRC Rule 3.922(c),"exceptional circumstances requiring the reference"
"must be specific to …the particular case"
Possible reasons
Complex, time consuming issues
Privilege issues relating to numerous documents
Specialized issues requiring extra time or expertise e.g. contruction cases, e-discovery issues of technical nature
Depositions requiring presence of neutral party to facilitate or control abuses
On going discovery disputes
Inordinate consumption of time on routine discovery disputes involving the parties
Need to control discovery abuses
Need to assure and provide cost effective discovery
Part of case management programSubject matter of reference [can be "all discovery purposes" §639(c) & (d)(3); CRC Rule 3.922(d)]
Powers as set forth in Rule 3.922(e)
Referee name, address, & telephone; [CCP 639(d)(4); CRC Rule 3.922(b))]
Referee state bar number [CRC Rule 3.922(b))]
Maximum hourly rate and, if requested, maximum number of hours CRC Rule 3.922(f)(1)
Finding re economic inability of party not established or voluntary payment by other party [statute expressly prohibits consideration of attorney ability to pay] CRC Rule 3.922(f)(2)]
Attach or file referee certification re compliance with rules and Canon 6 and consent to srve [CRC Rule 3.924(a)]
Referee's signature re consent to serve
FINDINGS re Discovery Referee
No party has established economic inability to pay a pro rata share of the referee fee
OR
If so, another party has voluntarily agreed to pay the additional share
[Note: Ability of counsel to pay cannot be considered]CCP §639(d)(6): "A court shall not appoint a referee at a cost to the parties if neither of these findings is made."
Oath of referee not requiredKajima Engineering & Construction v. Pacific Bell (2002), Cal.App.4th 2002 DJDAR 13647 [Assigned judge refered matter to retired judge for 4 day court trial; retired judge filed Statement of Decision; assigned judge entered judgement on the statement of decision; sole issue on appeal was whether referee must take oath of Temporary Judge; Held: no oath required on general reference]
CCP §643 referee report must include total fees and recommended allocation
CCP §645.1(b) apportionment of fees by court
Court "may order the parties to pay"
"In any manner…including an apportionment …among the parties."
See Enforcement of Judgment CCP §680.230: "Judgment means…order."
Attorney not responsible for fees as such
CCP §645.1(b) amendment expressly protects counsel from any obligation to pay fees as part of "parties" obligation: "...the term 'parties' does not include parties' counsel." However, statute does not address requiring attorney to pay referee fees as a discovery sanction as suggested in the Andrews case below.
CCP §639(d)(6)(B) attorney ability to pay cannot be considered on issue of party's ability to pay
Andrews v. Superior Court (7/28/00) 82 Cal.App.4th 779 [Tr.Ct rev'd for ordering attorney to pay referee fees; court recognizes that attorney might be ordered to pay such fees as a monetary sanction if appropriate under CCP 2023 and 2031]
Taggares v. Superior Court(1998), 62 Cal.App.4th 94 [court questions whether attorney advancing costs justifies requiring attorney to pay for referee]
McMillan v. Superior Court(1996), 50 Cal.App.4th 246[depublished][absent agreement CCP645.1 only allows court to order parties to pay]Attorney may be required to pay referee fees as monetary sanction
Andrews v. Superior Court (7/28/00), 82 Cal.App.4th 779 [The court rejected an order requiring an attorney to pay referee fees based on the court's inherent power or CCP128.5 but noted: "It may well be that, in a proper case, the burden of such fees could be placed on an erring attorney under the discovery statute."]
ALLOCATION
OF FEES [CCP §645.1]
CCP §643(c) Referee report must include "the referee's recommended allocation of payment" of the referee's fees.
CCP §645.1(b) apportionment of fees by court
The statutory amendments in 2000 may have modified the case law requiring apportionment at the time of initial appointmnet.
One side can be ordered to pay all feesTaggares v. Superior Court(1998), 62 Cal.App.4th 94[not if based solely on financial status]
Marathon National Bank v. Superior Court (1993), 19 Cal.App.4th 1256 [rehrg den] p.12591261-2 ["But for Marathon's hardball discovery tactics, these expenses would never have been incurred."]???Court cannot defer allocation of fee issue until after referee's work is completed but must make a provisional allocation subject to later adjustment. [The statutory amendments in Y2K may have modified the case law requiring apportionment at the time of initial appointmnet.]
Taggares v. Superior Court(1998), 62 Cal.App.4th 94
DeBlase v. Superior Court (1996), 41 Cal.App.4th 1279 [Rev'd for not making determination; see re factors to consider]
McDonald v. Superior Court at p.370[fee allocation can't be referred to ref.]
Marathon National Bank v. Superior Court (1993), 19 Cal.App.4th 1256 [rehrg den], p.1261
McMillan v. Superior Court (1996), 50 Cal.App.4th 246Hood v. Superior Court (1999), 72 Cal.App.4th 446 [tr ct cannot abdicate responsibility of determining financial hardship or allocation of fees]
Court must consider alternatives to paid referee
Meet & confer rules etc to resolve matters inexpensively
Pro bono referee
Retired judge sitting by assignment
Retention by trial court
Reference to Muni Ct. Judge under coordination plan
Ref. within court: staff atty, law clerk, bailiff, commissionerTaggares v. Superior Court(1998), 62 Cal.App.4th 94
Solorzano v. Superior Court (1993),
DeBlase v. Superior Court (1996), 41 Cal.App.4th 1279Court must consider financial consequences
CCP 639(d)(6) requires express findings in order appointing referee
No party has established inability to pay pro rata share
OR
If so, another party has agreed voluntarily that additional shareTaggares v. Superior Court(1998), 62 Cal.App.4th 94)
Solorzano v. Superior Court (1993) at p.615 [court could not require in forma pauperis plaintiff to pay private referee ]
DeBlase v. Superior Court (1996), 41 Cal.App.4th 1279 [whenever issue of economic hardship is raised, trial court must consider issue of fair & reasonable apportionment of fees before reference]
McDonald v. Superior Court [raised by renewal of mot.compel after referral but before referee commenced proceedings]
McMillan v. Superior Court (1996), 50 Cal.App.4th 246Hood v. Superior Court (1999), 72 Cal.App.4th 446 [tr ct cannot abdicate responsibility to referee to decide and make allocations; must consider declarations of party and representations of counsel unless there is reason not to do so]
Court may only consider the ability of the party to pay fees and may not consider the ability of counsel to pay
CCP§639(d)(6)(B)
Court may not consider extent to which expenses are being advanced by counsel in determining ability of party to payTaggares v. Superior Court(1998), 62 Cal.App.4th 94 [language in DeBlase questioned]
DeBlase v. Superior Court (1996), 41 Cal.App.4th 1279 at p.1284Court need not make findings or even disclose reasons for allocation of fees and is presumed to have considered all relevant factors
DeBlase v. Superior Court (1996), 41 Cal.App.4th 1279 at p. 1286
REFEREE
REPORT, FINDINGS & DECISION [CCP §643]
CCP §638 report as agreed by the parties and approved by the court
Statement of decision must stand as findings of court; actual judgment is entered by court
Kajima Engineering & Construction v. Pacific Bell (2002), 103 Cal.App.4th 1397 , 127 Cal.Rptr.2d 464
Jovine v. FHP Inc. (1998), 64 Cal.App.4th 1506
Statement of Decision by Referee within 20 days of hearing [CCP§643]
CCP §639 report
Written report and statement of decision filed with court within 20 days of submission
Serve all parties
Recommendation on the merits of any disputed issue
Total hours spent and total fees charged
Referee's recommended allocation of payment of feesObjections served and filed within 10 days
Responses to objections within 10 days
Report is advisory [CCP §644(b)]No provisions are set forth regarding procedures if any to present matter to court for final decisions
Waiver of objectionsMartino v. Denevi(1986)[ objections in ref rpt., written obj filed, or motion]
Consensual references CCP §638
CCP §644(a) clarifies that "In the case of a consensual general reference pursuant to Section 638, the decision of the referee...must stand as the decision of the court...."Kajima Engineering & Construction v. Pacific Bell (2002), 103 Cal.App.4th 1397 , 127 Cal.Rptr.2d 464 [Assigned judge refered matter to retired judge for 4 day court trial; retired judge filed Statement of Decision; assigned judge entered judgement on the statement of decision; sole issue on appeal was whether referee must take oath of Temporary Judge; Held: no oath required on general reference]
Marathon National Bank v. Superior Court (1993), 19 Cal.App.4th 1256 [rehrg den]
Aetna Life Ins.Co.v. Superior Court (1986), 182 Cal.App.3d 431
Whoop Inc. v. Dyno Productions Inc.(1998), [depublished] [consensual reference for determination enforced as if agreement to arbitration; suggests review consensual references like arbitration decision]
Jovine v. FHP, Inc.(1998), 64 Cal.App.4th 1506
Nonconsensual references CCP §639
CCP §644(b) reiterates existing case law that in nonconsensual references the referee decision is only advisory and requires independent review.People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 736 ["subject to mandatory, independent review by the trial judge before any ruling could be rendered"]
Baumohl v. FHP, Inc. (1998), 64 Cal.App.4th 1506 [Tr ct re'vd for improper general reference w/o consent; in discussion, court questioned the legitimacy of a recitation of the trial courts de nova review]
Marathon National Bank v. Superior Court (1993), 19 Cal.App.4th 1256 [rehrg den] p.1260 fn3,1261
Bird v. Superior Court(1980), 112 CA3d 595 [order cannot confer power]
McMillan v. Superior Court (1996), 50 Cal.App.4th 246
People v. Superior Court(Laff)(1998)
Jovine v. FHP, Inc.(1998), 64 Cal.App.4th 1506
Independent determination by trial court required
Marathon National Bank v. Superior Court (1993)
Aetna Life Ins.Co.v. Superior Court (1986)
Consider referee findings & objections thereto
Marathon National Bank v. Superior Court (1993)
In re Estate of Beard (1999), 71 Cal.App.4th 753 “Although the trial court must independently consider the referee's findings before acting, the referee's recommendations are entitled to great weight.”Whatever manner the trial court deems appropriate
Marathon National Bank v. Superior Court (1993)Hearing not required
Marathon National Bank v. Superior Court (1993), 19 Cal.App.4th 1256 [rehrg den] [Order provided for one in ct discretion and party requested it but none was held; aff'd; §639(e) ref; meaningful review by tr.ct. req. but not rehearing; order shows court carefully reviewed report, transcript etc.]
Aetna Life Ins.Co.v. Superior Court (1986), at p. 436 [Independent determination by trial court required;Tr.Ct.rev'd. after attempting to refer summary judgment and adopt findings & conclusions without hearing ]
People v. Superior Court (Laff)
(2001) 25 Cal.4th 703, Fn 15. "The Court of Appeal has
held that fees of various court-appointed assistants necessary
for the conduct of civil litigation constitute statutory costs
awarded to the prevailing party pursuant to Code of Civil
Procedure section 1032. (E.g., Gibson v. Bobroff (1996) 49
Cal.App.4th 1202, 1207-1210 [57 Cal.Rptr.2d 235] [private
mediator]; Winston Square Homeowner's Assn. v. Centex West, Inc.
(1989) 213 Cal.App.3d 282, 292-293 [261 Cal.Rptr. 605] [special
master for discovery and settlement]; Most Worshipful Lodge v.
Sons etc. Lodge (1956) 140 Cal.App.2d 833, 834-835 [295 P.2d
912] [referee]; Estrin v. Fromsky (1942) 53 Cal.App.2d 253, 255
[127 P.2d 603] [accountant].)"
Referee fee not recoverable cost as a matter of right
COMPARISON OF CRC RULES: CCP §638 vs CCP §639
Generally, the CRC provisions do not add matters of substance and merely repeat provisions contained in the CCP. However, some additions are made as to order content, referee disclosures of conflicts or grounds for disqualification and as to a referee's consent to serve and certification of compliance with Canon 6 of the Code of Judicial Conduct and the CRC. One provision requires courts to determine fee allocations in case of hardships. The table is edited to highlight matters of significance. Consult full text of current rules on the Judicial Council webpage.
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Consensual References C.C.P. §638 |
Non-Consensual References C.C.P. §639 |
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Rule 3.900. Purposes of reference Not to appoint mediator See Advisory Committee Comment re permissible appointment for mediation or mandatory settlement Rule 3.901. Application for order appointing referee (a) Written stipulation or motion to assigned judge, PJ, or law & motion judge (b) Contents (1) scope: all or limited to specified issues; (2) whether referee will be privately compensated; (3) describe any use of court facilities or court personnel and state the reasons it would further the interests of justice; (4) If request or stip to particular referee, submit proposed referee’s certification as required by rule 3.904(a); and (5) proposed
order Rule 3.902. Order filed with the clerk
or entered in the minutes (1) name, State Bar number "if ... is a member...."
(2) all issues or limited to specified issues; (3) Whether privately compensated; and (4) Whether the use of court facilities & personnel is authorized. Rule 3.903. Selection and qualifications of referee Comply with C.C.P. §640. Former California judicial officer must be an active or inactive member of the State Bar. Rule 3.904. Certification and disclosure by referee (a) Certification by referee Before a referee begins to serve: (1) certify in writing consents to serve as provided in the order of appointment and is aware of and will comply with applicable provisions of canon 6 of the Code of Judicial Ethics and with the California Rules of Court; and (2) The referee’s certification must be filed with the court. (b) Disclosure by referee I (2) Any significant personal or professional relationship the referee has or has had with a party, attorney, or law firm in the current case, including the number and nature of any other proceedings in the past 24 months in which the referee has been privately compensated by a party, attorney, law firm, or insurance company in the current case for any services. The disclosure must include privately compensated service as an attorney, expert witness, or consultant or as a judge, referee, arbitrator, mediator, settlement facilitator, or other alternative dispute resolution neutral. Rule 3.905. Objections to the appointment Consent to referee not waiver of objection to particular person [§ 641] Objection to particular person must be made with reasonable diligence and in writing. The objection must be served on all parties and the referee and filed with the court. The objection must be heard by the judge to whom the case is assigned or by the presiding judge or law and motion judge if the case has not been assigned. Rule 3.906. Motion to withdraw stipulation (a) Good cause requirement must be supported by a declaration of facts establishing good cause for permitting the party to withdraw the stipulation. The following do not constitute good cause for withdrawing a stipulation: (1) A declaration that a ruling is based on an error of fact or law. (2) The issuance of an order for an appropriate hearing site under rule 3.910. (b) Service, filing and hearing of motion Notice of the motion must be served on all parties and the referee and filed with the court. The motion must be heard by the judge to whom the case is assigned or by the presiding judge or law and motion judge. If the motion is granted, the case must be transferred to the trial court docket.
Rule 3.907. Use of court facilities and court personnel A party who has elected to use the services of a referee appointed under Code of Civil Procedure section 638 is deemed to have elected to proceed outside court facilities. Court facilities, court personnel, and summoned jurors may not be used in proceedings pending before such a referee except on a finding by the presiding judge or his or her designee that their use would further the interests of justice.
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Rule 3.920. Purposes and conditions for appointment of referee (a) See statute [CCP 639(a)(5) Discovery Referee] (b) No references for mediation (c) Exceptional circumstances required to appoint discovery referee [See CCP §639(d)(2)]
See Advisory Committee Comment re permissible appointment for mediation or mandatory settlement Rule 3.921. Motion for appointment of a referee [or court's own motion CCP639(a)] (a) Filing and contents -specify the matter or matters to be referred -If seek appointment of specific person, submit proposed referee’s certification per rule 3.924(a). (b) Hearing motion to assigned judge, PJ, or law & motion judge Rule 3.922. Form and contents of order (a) Written order (b) Referee information [1st 3 items required by CCP §639(D)(4)] name,
business address, and telephone number
State Bar number "if ... is a member...." (c) Basis for reference specify subsection of §639(a) and: for Discovery Referee
appointed per 639(a)(5) (d) Subject matter and scope of reference (1)must specify the subject matter or matters [see CCP §639(d)(3)] (2) must state whether a discovery referee is appointed for all purposes or only for limited purposes. [ See CCP§ 639(c)] (e) Authority of discovery referee "the order must state that the referee is authorized to set the date, time, and place for all hearings determined by the referee to be necessary; direct the issuance of subpoenas; preside over hearings; take evidence; and rule on objections, motions, and other requests made during the course of the hearing." (f) Referee fees; apportionment (1) Specify the maximum hourly rate... and, if any party so requests, the maximum number of hours for which the referee may charge; [CCP 639(d)(5)] (2) Finding re economic ability either: (A) No party has established an economic inability to pay a pro rata share of the referee’s fee; or (B) One or more parties has established an economic inability to pay a pro rata share of the referee’s fees and another party has agreed voluntarily to pay that additional share of the referee’s fees. [See CCP §639(d)(6)(A). "A court shall not appoint a referee at a cost to the parties if neither of these findings is made." "(B) ...the court shall consider only the ability of the party, not the party's counsel to pay these fees." ] (3) When the issue of economic hardship is raised before the referee begins performing services, the court must determine a fair and reasonable apportionment of reference costs. (g) Specify the extent, if any, to which court facilities and court personnel may be used Rule 3.923. Selection and qualification of referee Comply with C.C.P. §640. Former California judicial officer must be an active or inactive member of the State Bar. Rule 3.924. Certification and disclosure by referee (a) Certification by referee Before a referee begins to serve: (1) certify in writing consents to serve as provided in the order of appointment and is aware of and will comply with applicable provisions of canon 6 of the Code of Judicial Ethics and with the California Rules of Court; and (2) The referee’s certification must be filed with the court.
(b) Disclosure by referee (2) Any significant personal or professional relationship the referee has or has had with a party, attorney, or law firm in the current case, including the number and nature of any other proceedings in the past 24 months in which the referee has been privately compensated by a party, attorney, law firm, or insurance company in the current case for any services. The disclosure must include privately compensated service as an attorney, expert witness, or consultant or as a judge, referee, arbitrator, mediator, settlement facilitator, or other alternative dispute resolution neutral. Rule 3.925. Objection to reference Consent to reference not waiver of objection to particular person [§ 641], rate of compensation apportionment compensation Objection to particular person must be made with reasonable diligence and in writing. The objection must be heard by the judge to whom the case is assigned, or by the presiding judge or the law and motion judge. Rule 3.926. Use of court facilities A reference ordered under Code of Civil Procedure section 639 entitles the parties to the use of court facilities and court personnel to the extent provided in the order of reference. The proceedings may be held in a private facility, but, if so, the private facility must be open to the public as provided in rule 3.931.
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OTHER MATTERS FOR
CONSIDERATION FOR INCLUSION IN ORDER
Both the statutes and CRC rules specify provisions that must or
should be in the order and current provisions of each must be
consulted. The Judicial Council Form should be consulted and at
least used as a check list. However, counsel should consider
additional provisions that will clarify obligations and that will
avoid expenses and delays that may result from the existing rules.
Counsel are more likely to agree at the beginning as to what
modification, additions or clarifications would be most
desireable. Otherwise, the advantages and benefits of a discovery
referee may be greatly diminished. The following suggestion are
made to encourage appropriate modifications and are not intended
for verbatim inclusion in any or all cases.
The following conditions apply to this reference
The above terms and obligations for payment are provisional and
may be reconsidered and modified by the court. The referee shall
recommend an allocation of referee fees. Upon request of any
party, the referee shall determine and report whether, the extent
of and the reasons why any party is more responsible for the
parties incurring costs and shall recommend an appropriate
division of the costs of the reference based on that
responsibility.
sanctions
fee allocation
Set forth terms of rule 244.2c-e
referee authority
report & order within 20 days
Objections within 15 days
Notice & request for hearing
All applicable provisions of statute, California Rules of Court
and local rules are incorporated herein by reference as if set
forth herein.
APPROVAL AS TO FORM
PROPOSED PROCEDURE FOR REVIEW
AND INDEPENDENT DETERMINATION BY COURT
COURT REVIEW OF REFEREE DETERMINATIONS
REFEREE REVIEW OF OBJECTIONS. If objection is made to the
referee's decision, such objections shall, prior to submission to
the court and as promptly as possible within the statutory limits,
be served on the referee. The referee may decline to revise its
order, may reconsider and revise its order or may schedule
additional hearings to review the objections. The referee shall
provide a formal written response to the objections as promptly as
possible and within five business days. If there is no response or
the referee declines to revise the order, the matter may be
submitted for independent review. If the referee revises its
recommendation, the time to commence review shall recommence in
accord with the timing of the revision. If further hearings are
scheduled, further proceedings shall be had before the referee as
required by the referee to render its decision and the review
process shall recommence in accord with the timing of the new
decision.
SUBMISSION OF ORDER TO COURT. A final order from the court
should be obtained as promptly as possible. Counsel and the
referee are expected to stipulate to a prompt submission when
formal objection will not be raised and the order can be signed
without further proceedings. No order shall be submitted for
signature by the court until the time to object has expired, by
law or stipulation, or until all proceedings before the referee on
the issues to be determined by the order have been completed,
including the opportunity to review, reconsider and act upon any
objections. The order should reflect the fact that the time to
object has expired or has been waived and counsel have stipulated
that the order may be signed without further proceedings or delay
or the fact that the time to object has expired and no objections
have been received. Counsel should approve such order as to form.
Such order may then be signed without further proceedings by the
court.
SUBMISSION TO COURT FOR REVIEW. When objection is raised to
the referee's decision and the matter submitted to the court for
review, the original moving party shall submit all relevant papers
in a binder with appropriate tabs and should schedule the matter
for hearing on the regular motion calendar. The binder should
contain at least the following: the initial moving and opposing
papers, the referee's decision, the objection to the referee's
decisions and response thereto. The matter shall be set for
hearing by the moving party on any day available on the court
calendar on a date agreeable to all parties litigant or upon 5
court days notice. Should the moving party not promptly submit the
relevant papers and schedule the matter for hearing any other
party to the motion may do so.
