Jump Client Cases to the Front of the Line – Use Judicial Reference

Due to COVID-19, courts in many California counties suspended civil trials, if they did not close to civil filings altogether. As of May 7, 2020 courts in these 14 counties were closed for all civil matters:

Courts in these 42 counties were largely closed, open only for limited kinds of matters that vary by county:

In only two California counties were courts open for business somewhat as usual. These were Lassen, which borders Nevada north of Reno, with a population of about 30,000 (less than the daily traffic at UCLA); and Tuolumne in North Central California which consists largely of the Stanislaus National Forest, Yosemite Park, and only one incorporated city (Sonora) with a population of about 55,000.

In Los Angeles and other counties, courts were already backlogged before the pandemic. With the pandemic-induced postponement of all trials, the backlog has grown. Many civil litigants are in a long line to have cases tried.

This long wait is a problem. The California Constitution, statutes and rules provide a solution. The State Constitution (Art. VI §21) was amended in 1966 to provide for appointment of temporary judges. It states: “On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause.”   

The Rules of Court (Rules 2.830 – 2.835) set forth straightforward procedures for a temporary judge. The parties may stipulate to their choice of a member of the state bar to serve as their temporary judge. The stipulation must be in writing and state the name and office address of the agreed upon State Bar member. The stipulation is submitted to the court for approval by the presiding judge. The parties can mutually agree in writing on the rate they will pay the temporary judge.

The temporary judge subscribes to an oath and certifies to complying with Canon 6 of the Code of Judicial Ethics and California Rules of Court. The temporary judge may proceed with the hearing, trial, and determination of the case.

Proceedings generally are not permitted to use court facilities or court personnel. But they must still be open to the public if they would be open to the public normally. The rules provide for giving notice of the proceedings. The temporary judge, when appointed, must file with the court a statement providing contact information, to facilitate being contacted about the date, time, location and general nature of proceedings. The temporary judge must also post these details on a publicly accessible website.

Anyone from the public who may be interested to attend proceedings, would have to take two-steps: identify the court filing made by the temporary judge and contacting the temporary judge for more information or locating the temporary judge’s website disclosing details of the proceeding and then locating and attending the proceeding.

Separate from the Constitutional provision, the California Code of Civil Procedure has a procedure for “judicial references.”  These provisions authorize appointment of a referee to hear all or part of a case. (CCP §§638 – 645.1). Under these provisions, parties may agree to the appointment of a referee to determine “any or all of the issues” in the action or to ascertain a fact necessary for the court to decide the case.

The parties may agree to a judicial reference before or after a dispute arises. Under CCP 638, a reference may be for all or part of a case, as the parties mutually agree. The scope of the reference can also be modified by agreement of the parties to include all the issues of law and fact in the matter.

A general reference under CCP 638(a) allows a referee to “hear and determine any or all of the issues in an action or proceeding, whether of fact or law, and to report a statement of decision.”    Under CCP 644(a), in the case of a consensual general reference, the referee’s decision on the whole issue must stand as the decision of the court and judgment may be entered on that decision the same as if the action had been tried by the court.

In a consensual general reference, documents must first be filed with the court clerk and the party filing the documents with the clerk must then provide the referee with file-stamped copies of the documents. CRC 2.400

On the other hand, if a court orders appointment of a referee to ascertain a fact, (for example, to review a long account or resolve a discovery dispute), without consent of all parties, this is called a “special reference.”  Then, the decision of the referee is only advisory and is not binding on the court. CCP 639 & 644(b).

Temporary judges have broader authority than referees and may be appointed by agreement pursuant to CCP 638. Their broader authority is because a temporary judge has essentially the same range of powers in the particular case, as an active court judge. This includes the power to entertain and rule on post-trial motions and issue contempt citations.

A temporary judge may by agreement be appointed not only to render a binding decision in a civil matter, but may also entertain and rule on disputes between a guardian or conservator, or between a personal representative of an estate and a third person. Probate Code 2405 & 9620.

There is no specific provision in the referenced CCP Sections regarding public notice of a referee proceeding. However, one might conservatively assume that, at least in cases where a referee has final authority over the outcome of a trial (CCP 644 (a)), public notice at least as stringent as provided for in the case of temporary judges, should be provided.

The procedures for use of a temporary judge or referee are not mediation, arbitration or settlement procedures. They are judicial proceedings, wherein the temporary judge or referee is required to follow the  law, and rules of evidence and procedure.

A decision of an arbitrator cannot be overturned because of faulty reasoning or errors in law, nor can a court reweigh the evidence. Moncharsh v. Heily & Blasé (1992) 3 Cal.4^th 1. Also, persons appointed to arbitrate a matter are not required to, and commonly do not, follow the rules of evidence. A party aggrieved by an arbitration award has only limited grounds to have it overturned.

On the other hand, a decision of a temporary judge under the Constitutional provision or a referee acting pursuant to CCP 638, is subject to review by an appellate court, just like a case tried in court.

During the Covid-19 crisis, parties may wish to use telecommunications (e.g., Zoom, Microsoft Teams) under the temporary judge or referee procedure. There appears to be no legal implement to doing this, as long as the parties stipulated to such telecommunication use. A benefit of telecommunications is that cases stalled by requirements of social distancing may proceed despite quarantines.

With the logjam of cases waiting for trial, counsel and parties can consider using procedures in California’s Constitution and laws, for selection of a mutually agreeable lawyer to serve as temporary judge or referee, for all or part of the case, and to move their case along.

Steven L. Feldman, David Gurnick, and Stephen T. Holzer are Shareholders in our Business Litigation Practice Group.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.