Civil Litigation Legal Topics Litigation Strategy

Trial by Referee

Did you know that California cases can be referred to a referee instead of being decided by a judge? This process certainly has its advantages, but you should know what you are getting into before you agree to a referee.

The court may refer any or all issues in a pending lawsuit for trial by a referee. CCP §638; see Cal Rules of Ct 3.900-3.910. Usually only a portion of the case is sent to the referee. For example, courts frequently appoint a discovery referee to assist the parties in developing a voluntary exchange of discovery to avoid or limit the need for formal motions. The referee may ensure that deadlines are met and simultaneous exchanges are made, if needed.

In rare situations, the entire case is sent to the referee (a “general reference”) and the resulting decision will stand as the decision of the court; when the decision is filed, judgment may be entered as if the matter had been tried by the court. CCP §644.

There are three ways in which a case gets sent to a referee:

  1. Motion for Reference by One Party. A reference may be ordered on motion of a party to a written contract or lease that provides that any controversy arising under the contract or lease will be heard by a referee. CCP §638.
  2. Court Orders Issue(s) Referenced. The court may, without the parties’ consent, order a particular issue, e.g., discovery, to be refereed. CCP §639; see Cal Rules of Ct 3.920-3.926. When the court appoints a referee without the parties’ consent, it must be by written order, which includes a finding either that (1) no party has established an economic inability to pay a prorata share of the costs of the reference or (2) another party has agreed voluntarily to pay the prorata share of the referee’s fee that would otherwise be paid by the party with the economic inability. CCP §639(d)(6). If the court appoints a discovery referee, it has to specify in its order whether the referee is being appointed for all discovery purposes and include a statement of the extraordinary circumstances that make the appointment necessary. CCP §639(c), (d)(2). These special referees are sometimes called “special masters.”
  3. Court Appoints Referee per Parties’ Stipulation. If the parties agree to have the entire case heard by a referee, the court will appoint from one to three persons designated by the parties. CCP §640. If the parties cannot agree on a referee, the court may appoint from one to three referees. Alternatively, the reference may be to a court commissioner in the county where the action is pending. CCP §640. 

Because a general reference is almost always made only on agreement of the parties, the procedures and rules of evidence are also generally a matter of stipulation in these cases. The statutory rules of evidence and procedure govern a general reference made on motion of a party or on the court’s own motion.

If the agreement addresses the payment of the referee’s fees, it must be enforced as written. Carr Bus. Enters. v City of Chowchilla (2008) 165 CA4th 1568, 82 CR3d 64. If the agreement doesn’t address the payment of fees, the court may apportion the fees in any way it finds to be fair and reasonable. CCP §645.1.

The advantages of a trial by a referee include the following:

  • The parties select their own referee. The referees need not be attorneys. In fact, parties often opt for those with special expertise in the subject matter of the dispute. The parties’ mutual selection of the trier of law and fact results in fewer appeals.
  • The parties set the trial at a mutually convenient time.
  • The parties may agree to simplified rules of evidence and procedures.
  • The parties retain their right to appeal. However, unlike judicial arbitration (CCP §§1141.10-1141.31), there is no right to a trial de novo following trial on reference.

Potential disadvantages of a trial by a referee include the following:

  • The referee’s powers will terminate as soon as the statement of decision is filed. This means that all subsequent motions must be presented to the court, before a judicial officer who is not familiar with the case.
  • The referee cannot punish for contempt. The referee’s powers are strictly defined by the order of reference.

If you are considering the use of a referee, or your case is headed in that direction, you need CEB’s California Civil Procedure Before Trial, chap 45, with everything you need to know about trial by reference. On discovery referees specifically, be sure to check out CEB’s California Civil Discovery Practice.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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