Having Your Case Heard By A Temporary Judge Might Be A Fast Track To Resolution.
By Hon. Wynne Carvill (Ret.), JAMS
Given the impact of the pandemic on court dockets— especially in state courts—litigants are facing either trial dates in the distant future or trial dates that appear certain but are frequently continued shortly beforehand. The latter can be extremely frustrating and expensive because the parties are forced to spend the time and money to prepare for trial only to be told their case has been continued. This can happen repeatedly, as was often the case before California adopted delay reduction measures and standards decades ago.
Unfortunately, this may well be our immediate future. Civil case backlogs are skyrocketing as a result of the pandemic. In the Alameda County, California, Superior Court, for example, the caseload for each civil direct calendar judge has roughly doubled since the start of the pandemic. The problem is compounded by staff shortages that are a “hangover” from pandemic-related budget cuts. While budgets have definitely improved, hiring courtroom clerks is a challenge. The situation is so dire in Alameda County that the issue is not the availability of courtrooms, but rather the availability of clerks to staff them. Civil cases cannot be set for trial unless a courtroom clerk is “reserved” through the supervising judge for the expected trial date. Currently, most of those “reservations” are limited to preference cases, which means most civil cases are being continued.
Under these circumstances, litigants can expect a return to the “bad old days” of repeated trial settings and continuances. Cases are set knowing that many will settle before trial. In Alameda County, before the pandemic, each civil direct calendar department scheduled trial dates that were 12 to 18 months after the first case management conference. By the trial date, the cases would be winnowed down to one or two, and one of the double-set cases could usually be handed off to another direct calendar judge. With the pandemic, the surge of preference cases in Alameda County and the shortage of courtroom clerks, this whole system of moving cases along has been fundamentally disrupted. While the challenges in Alameda County may have some unique features, the backlog of civil cases and the resulting delays are common throughout California.
Where the parties have a non-jury case, however, they do not have to suffer exceptional delays with the attendant expense. Instead, they can actually get to trial relatively quickly and with a date certain by simply taking advantage of the temporary judge alternative provided for in the Constitution of California (Article VI, Section 21) or a consensual general reference to a referee pursuant to section 638 of the California Code of Civil Procedure (CCP). The two routes are governed by parallel provisions in the California Rules of Court (CRC) (compare section 2.830 et seq. with section 3.900 et seq.), but there are some differences.
The principal difference is that a temporary judge is always a judge for all purposes, and may enter a judgment on the case from which an appeal may be taken, as with any other judgment. On the other hand, a referee may be appointed for a limited purpose or by a consensual general reference pursuant to section 638. Only a referee appointed pursuant to a consensual general reference may issue a decision that “stands as the decision of the court … [on which] judgment may be entered thereon … in the same manner as if the case had been tried by the court.” If a referee is not appointed pursuant to a consensual general reference, his or her decisions are only recommendations to the trial court. In addition, while a temporary judge must be a member of the State Bar, referees need not even be lawyers, which in some situations may be helpful.
Whether one uses a temporary judge or a referee, parties electing to take advantage of either alternative do incur the expense of the private judge or referee (unless the neutral agrees to serve pro bono); however, that expense will likely pale in comparison to the expense of repeated trial settings and continuances. As a result, cost may not be an appreciable factor, and the parties can actually get to trial as quickly as they want. If there is a mutual interest in a particular trial date, that of course may be stated up front as a condition to selecting the particular temporary judge or referee.
Another advantage of this route is that the parties have the ability to select the temporary judge or referee with the kind of expertise that is most suited to the case. This can be particularly useful in intellectual property disputes, complex construction cases or detailed accountings involving voluminous records. In the latter circumstance, selecting a referee instead of a temporary judge would allow the parties to select, for example, an accountant rather than a State Bar member. Retaining a neutral who is experienced in the field may also facilitate a more efficient pre-trial and trial process because there is no need to “educate” a judge who may be unfamiliar with the substantive area. Discovery and motion practice can also be more efficient because a private judge or a referee can be readily available to handle discovery issues by phone or set a motion for a prompt hearing. All of these features may reduce cost and enhance the quality of the decision-making process.
The authority and mechanism for appointing a temporary judge is found in the CRC. CRC 2.831(a) requires a written stipulation by the parties with the name and office address of the State Bar member to be appointed. The stipulation is submitted to the presiding judge or the judge designated by the presiding judge, and the order designating the temporary judge must refer to the stipulation. CRC 2.831(b). “The temporary judge must take and subscribe the oath of office and certify that he or she is aware of and will comply with applicable provisions of canon 6 of the Code of Judicial Ethics and the California Rules of Court.” Id. The temporary judge may proceed with the matter “after the stipulation, order, oath, and certification has been filed.” CRC 2.831(c).
The process for appointing a referee is very similar. A “written stipulation … for an order appointing a referee under Code of Civil Procedure 638 must be presented to the judge to whom the case is assigned, or to the presiding judge or law and motion department if the case has not yet been assigned.” CRC 3.901(a). The stipulation under section 638 must “[c]learly state whether the scope of the requested representation includes all issues,” state whether the referee is to be privately compensated and include a proposed order. CRC 3.901(b). If the stipulation is to appoint a particular referee, it must be accompanied by the proposed referee’s certification required by CRC 3.904(a). The latter is a written certification “that he or she 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.” The certification must be filed with the court.
Note that it is very important that the stipulation and order for appointment of a referee specify whether it is a consensual general reference or a limited one. CCP section 638(a) provides that a referee may be appointed upon the agreement of the parties “[t]o hear and determine any or all of the issues in an action or proceeding, whether of fact or law, and report a statement of decision.” Section 644(a) provides that “[i]n the case of a consensual general reference pursuant to Section 638, the decision of the referee … upon the whole issue must stand as the decision of the court, and … judgment may be entered thereon in the case in the same manner as if the case had been tried by the court.” These same sections provide for the appointment of discovery referees by consent or on a motion, but unless it is a consensual general reference, “the decision of the referee … is only advisory.” CCP section 644(b). There is an optional Judicial Council form that may be used for either a consensual general reference or the appointment of a discovery referee (ADR109). There is also an optional form for the actual order (ADR110).
Both a temporary judge and a referee are subject to disclosure requirements. For a temporary judge, “[i] n addition to any other disclosure required by law, no later than five days after designation as a temporary judge or, if the temporary judge is not aware of his or her designation or of a matter subject to disclosure at that time, as soon as practicable thereafter, a temporary judge must disclose to the parties any matter subject to disclosure under the Code of Judicial Ethics.” CRC 2.831(d). A referee must disclose to the parties whatever is “subject to disclosure under either canon 6D(5)(a) or 6D(5)(b) of the Code of Judicial Ethics” and “[a]ny significant personal or professional relationship the referee has or has had with a party, attorney, or law firm in the current case.” CRC 3.904(b). The disclosure must include “the number and nature of any other proceeding 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.” CRC 3.904(b)(2). If the referee is unaware of any matter requiring disclosure at the time of appointment, the referee must disclose it as soon as practicable thereafter.
Disqualification procedures are specified for both temporary judges and referees. With a temporary judge, “[i]n addition to any other disqualification required by law, [he or she ] … disqualif[ies] himself or herself as provided under the Code of Judicial Ethics.” In the case of a referee, stipulating to an order appointing a referee does not constitute a waiver of grounds for objection to Continued from page 6 Do You Want a Bench Trial With a Date Certain? 7 Do You Want a Bench Trial With a Date Certain? Continued from page 7 8 the appointment of a particular individual as a referee under CCP section 641, but any objection “must be made with reasonable diligence and in writing … and served on all parties and the referee and filed with the court.” CRC 3.905. The objection must be heard by the judge to whom the case is assigned or, if not yet assigned, by the presiding judge or law and motion judge. Id. A party may file a motion to withdraw a stipulation for appointment supported by a declaration establishing good cause for withdrawing the stipulation, but good cause cannot be based on a declaration that a ruling was based on an error of fact or law. CRC 2.831(f ) and 3.906(a).
A party who stipulates to a temporary judge or referee under CCP section 638 is “deemed to have elected to proceed outside court facilities.” CRC 2.834(c) and 3.907. Interestingly, though, “[c]ourt 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.” (Emphasis added.) While it is extremely unlikely that a presiding judge would make such a finding, the reference to “summoned jurors” indicates that it is at least theoretically possible to have jury trials before a temporary judge or referee!
As a practical matter, bench trials pursuant to CRC 2.830 or referees pursuant to CCP section 638 are held outside of courthouses. Most alternative dispute resolution providers have such facilities; however, if the person the parties select is not affiliated with such a provider, any number of venues may suffice – be it a commercial office or a hotel conference room. If the proceeding before a referee is one that would be open to the public if held before a judge, it must be open to the public regardless of the location. CRC 2.834(a) and 3.931(a). To that end, the temporary judge or referee must file a statement providing the name, telephone number, email address and mailing address of the person who may be contacted for information about the date, time, location and “general nature of all hearings scheduled in matters pending before the referee.” CRC 2.834(b)(1) and 3.931(b)(1). This statement must be filed at the same time as the temporary judge’s or referee’s certification under CRC 2.834(b)(1) or 3.904(a). The original of documents presented to temporary judges or referees are must be filed with the court because they are “court records” within the meaning of CRC 2.400. CRC 2.833 and 3.930. Only file-stamped duplicates should be provided to the temporary judge or referee. CRC 2.400(b)(1).
The appointment of a referee to hear the entire case requires the consent of all parties and should not be confused with CCP section 639, which covers situations where one party may move for the appointment of a referee, or a judge may appoint one on his or her own motion. These appointments are for only a portion of a case and most often are used to address complex discovery matters. Section 639 appointments are governed by a distinct set of rules (CRC 3.920 through 3.926), and the referee only makes a report and recommendation to the judge. A stipulation is required if you want a bench trial where the referee’s decision will be entered as a final judgment subject only to the right of appeal. Historically, a temporary judge or consensual general reference of an entire case has been most commonly used in family law. However, civil litigators whose clients want to avoid the expense and delays of repeated trial settings and also prefer a decision-maker with relevant expertise may want to give this alternative serious consideration. It can provide them with a date certain for trial on a relatively fast track while – in contrast to arbitration – preserving all the procedural protections of a traditional superior court trial and the right of appeal.
Historically, a temporary judge or consensual general reference of an entire case has been most commonly used in family law. However, civil litigators whose clients want to avoid the expense and delays of repeated trial settings and also prefer a decision-maker with relevant expertise may want to give this alternative serious consideration. It can provide them with a date certain for trial on a relatively fast track while – in contrast to arbitration – preserving all the procedural protections of a traditional superior court trial and the right of appeal.
Hon. Wynne Carvill (Ret.), a former judge of the Alameda County Superior Court, is a mediator and arbitrator with JAMS. He can be reached at wcarvill@ jamsadr.com. Hon. Wynne Carvill (Ret.), a former judge of the Alameda County Superior Court, is a mediator and arbitrator with JAMS. He can be reached at wcarvill@ jamsadr.com.