Life as we knew it has been put on hold due to COVID-19.  Courts are closed, deadlines are extended, and court dates have been continued.  As the courts establish “new norms” for their operations, access to the civil courts may be limited and further delayed.  It is not clear what civil matters will receive priority. Civil law and motion matters taken off calendar due to court closures will need to be rescheduled, and newly filed motions added to crowded calendars. It could take months or years before the court dockets return to normal.  Scheduling new law and motion matters and having them heard will be challenging for all litigators.  However, courts and counsel have available options to address the backlog.

Code of Civil Procedure section 638 titled “Appointment of referee on agreement of parties” and Code of Civil Procedure section 639 titled “Appointment of referee in absence of consent”  allow parties and the court to identify issues and matters to be heard by private referees outside of the courthouse, avoiding the congestion. The procedures can save time, allow certainty in the litigation timeline, as well as streamline the litigation process. These statutes are not new; they have been around since 1872. If used properly, these statutes can restore a predictable timetable while protecting litigants’ rights. With the advances in technology, and the enactment of the Judicial Council’s emergency rules, there is greater flexibility allowing counsel, parties and witnesses to  appear remotely at  hearings  thus advancing the litigation process and hopefully lessening legal expenses. This blog will set forth the statutory authority in appointing a referee and the technology that can be used so your case will not be delayed.

I.  APPOINTMENT OF A REFEREE 

Most attorneys are familiar with the court’s power to appoint a discovery referee upon the filing of a motion or on the court’s own motion. But the court’s and a party’s power to refer matters is not just limited to the appointment of a discovery referee. In fact, under C.C.P. §638, the parties can stipulate to the appointment of a referee to hear any issue or the entire matter. If there is no agreement with all the parties, the court has the power pursuant to C.C.P. §639(a)(1)-(5) to appoint a referee upon the motion of any party or on its own motion to perform five specific functions.

A. CCP §638 –Agreement of the parties to the appointment of a Referee 

Parties can stipulate to the appointment for a referee to hear and determine a single issue up to and including presiding over a bench trial. C.C.P. §638 states in pertinent part:

“A referee may be appointed upon the agreement of the parties filed with the clerk, or judge, or entered in the minutes, or upon the motion of a party to a written contract or lease that provides that any controversy arising therefrom shall be heard by a referee if the court finds a reference agreement exists between the parties:

(a) To hear and determine any or all of the issues in an action or  proceeding, whether of fact or of law, and to report a statement of decision.           

            (b) To ascertain a fact necessary to enable the court to determine in an  action or proceeding.”

There is also a distinction between stipulation between §638(a)–a general reference and §638(b), a special reference. A referee appointed under §638(a) is empowered to make binding decisions upon controverted issues.

A special reference referee appointed under §638(b) can only give advisory opinions to the court. See Estate of Bassi, 234 Cal. App. 2d 529. In this regard, this reference is similar to an appointment under §639.

Even though the parties may agree to the appointment of a referee, the court has the discretion to deny a reference motion based on concerns about judicial economy or the possibility of conflicting rulings on a common issue of law or fact. See Tarrant Bell Prop. LLC v. Superior Court (2011) 51 C4th 538, 545-546.

B. C.C.P.  §639–Appointment of referee in absence of consent 

Whereas C.C.P.  §638 requires an agreement of the parties, C.C.P. §639(a)(1)-(5) allows the court to appoint a referee upon written motion of any party or on its own motion to appoint a referee for the following matters:

” (1) When the trial of an issue of fact requires the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein. 

(2) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect.

(3) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action. 

(4) When it is necessary for the information of the court in a special proceeding. 

(5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.”

C.  Motion and Order Appointing Referee

The Judicial Council has created forms for the appointment of a referee. Form ADR-109  is to be used for the stipulation or motion for appointment of a referee. Form ADR-110 is the order appointing the referee. Here is a link to stipulations and orders in Word.  If you are drafting your own order, make sure it is in compliance with California Rule of Court Rule 3.922.

II.  REQUIRED REFEREE REPORTS TO THE COURT 

In either a C.C.P.  §638 or C.C.P. §639 reference, the referee reports back to the court.  However, the requirements for the reports are different in purpose and legal effect.

When preparing the stipulation or motion for the court requesting the appointment of a referee, you must address the issue of what type of referee report you want the referee to send to the court. A referee appointed under either C.C.P.  §638 or C.C.P. §639 must file a report with the court. However, the requirements regarding the report are different. Code of Civil Procedure section 643 titled “Requirement that referees or commissioner report within twenty days states:

“(a) Unless otherwise directed by the court, the referees or commissioner must report their statement of decision in writing to the court within 20 days after the hearing, if any, has been concluded and the matter has been submitted.”

 [For C.C.P. §638 appointment] 

“(b) A referee appointed pursuant to Section 638 shall report as agreed by the parties and approved by the court.”

  [For C.C.P.  §639 appointment]

“(c) A referee appointed pursuant to Section 639 shall file with the court a report that includes a recommendation on the merits of any disputed issue, a statement of the total hours spent and the total fees charged by the referee, and the referee’s recommended allocation of payment. The referee shall serve the report on all parties. Any party may file an objection to the referee’s report or recommendations within 10 days after the referee serves and files the report, or within another time as the court may direct. The objection shall be served on the referee and all other parties. Responses to the objections shall be filed with the court and served on the referee and all other parties within 10 days after the objection is served. The court shall review any objections to the report and any responses submitted to those objections and shall thereafter enter appropriate orders. Nothing in this section is intended to deprive the court of its power to change the terms of the referee’s appointment or to modify or disregard the referee’s recommendations, and this overriding power may be exercised at any time, either on the motion of any party for good cause shown or on the court’s own motion.”

 Note that the difference in length and requirements is consistent with the purpose and the scope of the reference. Under C.C.P.  §638(b) the court has appointed the referee to make a recommendation on a limited part of the case, such as the “account”, a statement of fact or a discovery dispute. Therefore, the parties have the opportunity to “object” to the recommendation and the court remains the ultimate decision maker.

If the parties are agreeing to the appointment of a referee pursuant to C.C.P. §638(b), you may want to consider adding some of the safeguards that are required for a C.C.P. §639 appointment, such as using the objection procedure listed in C.C.P. §643(c). In this regard, there would be something of a hybrid: a reference of a “fact” under C.C.P. §638(b, while stipulating to the procedures in C.C.P. §643(c).

III.       REVIEW OF THE REFEREE’S REPORT

There is a drastic difference between the review of a referee’s report for a C.C.P. §638(a), general reference appointment, and a C.C.P. §638(b)), special reference appointment, or a referee appointed under C.C.P. §639.

[For C.C.P. §638(a)­­­ appointment]

Unless the parties stipulate to a modification of C.C.P. §644, the report when filed with the clerk, will become the decision of the court. Pursuant to C.C.P. §645 titled Exception and review of referee’s decision:

The decision of the referee appointed pursuant to Section 638 or commissioner may be excepted to and reviewed in like manner as if made  by the court. When the reference is to report the facts, the decision reported has the effect of a  special verdict.” 

The decision of the referee must be attacked in the same manner  as one made by the court, and an order vacating the decision and directing a rehearing is properly appealable as an order granting a new trial. Estate of Bassi, 234 Cal. App. 2d 529 at 536. In other words, an appealable order made by the referee and filed in the trial court is directly appealable to the Court of Appeal without the need of the trial court to review it.  See Lindsey v. Conteh (2017) 9 CA5th 1296, 1304-1305.

[For C.C.P. §638(b) appointment] 

A special reference referee appointed under §638(b) can only give advisory opinions to the court. According to Estate of Bassi, 234 Cal. App. 2d 529 at 537,  “Until the adoption of the report and the filing of  the findings of fact and conclusion of law of the trial court, the report may be set aside without the necessity of granting a new trial.”   This is also codified in C.C.P. §644(b), which states

“[t]he court may adopt the referee’s recommendations, in whole or in part, after independently considering the referee’s findings and any objections  and responses thereto filed with the court.” 

[For C.C.P. §639 appointment] 

A party has 10 days to object to a referee’s report and responses to the objection is due 10 days later. Once the objections are filed then

 “[t]he court shall review any objections to the report and any responses submitted to those objections and shall thereafter enter appropriate orders. Nothing in this section is intended to deprive the court of its power to change the terms of the Referee’s recommendations, and this overriding power may be exercised at any time, either on the motion of any party for good cause shown or on the court’s own motion.” C.C.P. §643(c)

When the court reviews a referee who was appointed under C.C.P. §638(b) or under C.C.P. §639(a)(1)-(5), [t]he trial court must independently consider the referee’s findings and any objections submitted by the parties before accepting or rejecting the referee’s recommendations.” Rockwell International Corp. v. Superior Court (1994) 26 CA4th 1255, 1269-1270.  A hearing is not required as a matter of law. The review may be done “in whatever manner the trial court deems appropriate.Marathon National Bank v. Superior Court (1993) 19 CA4th 1256, 1258.  “Even though the trial court must independently consider the Referee’s findings before acting, the Referee’s recommendations are entitled to great weightMarathon National Bank v. Superior Court (1993) 19 CA4th 1256, 1258.

III.   EFFECT OF REFEREE’S DECISION 

The effect of a referee’s decision is outlined in C.C.P. §644 titled Referee’s decision; Effect; Entry of judgment

[For C.C.P. §638(a) appointment]

(a) In the case of a consensual general reference pursuant to Section 638, the decision of the referee or commissioner upon the whole issue must stand as the decision of the court, and upon filing of the statement of decision with the clerk of the court, judgment may be entered thereon in the same manner as if the action had been tried by the court.”

[For C.C.P. §638(b) or §639 appointment]

“(b) In the case of all other references, the decision of the referee or commissioner is only advisory. The court may adopt the referee’s recommendations, in whole or in part, after independently considering the referee’s findings and any objections and responses thereto filed with the court.” 

IV.  PROCEDURAL ISSUES WHEN USING A REFEREE

 A.  Filing and serving papers

California Rules of Court, Rule 2.400(b)(1) states that:

all original documents in a case pending before a temporary judge or referee must be filed with the clerk in the same manner as would be required if the matter where being heard by a judge…”

For years, the rules of practice of law has lagged behind technology. Rather than the norm, service of papers by email or other electronic means has required consent of the parties and papers are regularly served by email and regular mail.  However,  due to the Covid-19 Epidemic, the Judicial Council issued Emergency Rule 12 titled “Electronic service” which requires that service be conducted via electronic transmission if counsel has appeared in the action for a party. The only exception is under subsection (c) of the rule which states “Electronic service on a self-represented party is permitted only with consent of that party, confirmed in writing.”  Emergency Rule 12 will remain in effect until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted, or until amended or repealed by the Judicial Council.

Once the courts open the Clerk’s office will likely be inundated with new filings.  It is in everyone’s best interests to agree to use a court filing service for service of papers on the court, the referee and the parties.

B.  Hearings with a Referee

Before the Shelter-in-Place orders, referees generally conducted hearings by telephone or in person at private conference rooms. Hearings would be held with or without a court reporter depending on the hearing. With social distancing being the new norm, it will be a while before in-person conferences will proceed.

Video conferencing has now become an accepted practice. By using video conference companies like GoToMeeting, Skype, Webex, and Zoom, law firms  are able to set up remote hearings with the referee and, if necessary, with the court reporter too.  Many court reporting companies also have the ability to conduct hearings remotely via videoconference technology.  They even have the ability to set up the introduction of documents via the video conference. These court reporting companies are also providing training on how to use their platform including how to introduce evidence. Here is an example of what remote services court reporting firms can provide.

Recognizing that remote appearances are imperative due to the pandemic if litigation is to continue, the Judicial Council issued Emergency Rule 3: titled “Use of technology for remote appearances” and Emergency Rule 11: “Depositions through remote electronic means.” These emergency rules will remain in effect until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted, or until amended or repealed by the Judicial Council.

This remote video conferencing has become a necessity to keep the courts and law firms functioning during the epidemic. These tools are also cost efficient because remote appearances dramatically lower the time demands and the cost of travel, as well as waiting time for in person appearances It will be up to all the parties to be educated on what is possible and make use of  that technology that is available.

Civil litigation in the foreseeable future is going to be a challenge. It is best to be armed with all possible options in getting your case resolved or tried. Code of Civil Procedure sections 638 and 639 with all their procedural safeguards are viable solutions that should be considered.

Recently at an MCLE seminar, a sitting judge forewarned the audience that because of all the new judges from a variety of backgrounds, often they don’t  have the necessary background on law and procedures for their department.  His advice:

come to your hearings with copies of all the important cases and statutes, no matter how basic the concept is.

This sitting judge was subtly saying:  Plan on educating the court!!

Before you file your motion, do your research on the Judge

What is the judge’s reputation?  Check with members of your firm as well as members of the legal community as to their experiences with the Judge.

Are there any appellate decisions that review the Judge’s previous rulings?  In what area(s) of law  was reviewed, upheld or overruled?

Find out the Judge’s background prior to taking the bench.  Did they practice in state court or federal court?  What type of practice did they have –criminal, civil, family, probate, etc.  Has this Judge had enough exposure to civil litigation to understand that the philosophy of discovery is a liberal exchange of information as well as its limitations set forth in the Code of Civil Procedure and current case law?

Watch the tentative rulings weeks prior to your hearing.  It may provide insight on how the Judge handles discovery motions and sanctions.

Determine whether you want to file a challenge to the judge pursuant to C.C.P. section 170.6. Remember that “if the judge, other than a judge assigned to the case for all purposes, court commissioner, or referee assigned to, or who is scheduled to try, the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least 5 days before that date.” C.C.P. section 170.6(a)(2)

Determine whether you want to request a discovery referee to be appointed pursuant to C.C.P. section 638 or C.C.P. section 639(a)(5)

When you receive the tentative ruling

Don’t assume that your papers were read in depth and the court understands the nuances of why you need the discovery you are requesting.   Discovery motions can be voluminous and the courts don’t really have the time to do a deep dive on your papers.

Make copies of relevant case law and statutes to give to the court and opposing counsel.  Highlight the relevant portions.

Make copies of relevant discussions from CEB’s California Civil Discovery Practice, the Rutter Group’s California Practice Guide: Civil Procedure Before Trial or other relevant treatise discussions to give to the court and opposing counsel.  Again, highlight the relevant portions.

Hire a court reporter to report the hearing.  Then you will have the transcript for evidence for future discovery hearings if necessary as well as for a writ or appeal.

Be prepared to educate the court (1) the specific facts of the case, (2) why the discovery is needed to prosecute or defend your client, (3) why you are entitled to a code compliant response, (4) why you are entitled to a detailed privilege log, and (5) why the documents requested should be produced.

The Judge has a past: learn it.  You may need to show theJudge not just what the law is, but why it is and will be grateful if you help them out.

 

 

 

The meet and confer process has failed.   Now you have to decide whether (1) you need to bring a Motion to Compel Further Documents because the documents are an integral part of the defense and/or prosecution of your case, or (2) wait for trial and make a motion in limine to exclude the documents categorically at trial.  Two of the factors you are going to have to consider are how much time it’s going to take to prepare the motion as well as the cost to your client.

Most attorneys underestimate the time and cost in filing a Motion to Compel Further Responses.

Below is an example of how much time a SKELETON Motion to Compel Further Responses to Requests for Production of Documents would take.

NOTICE:          .5

MEMORANDUM OF POINTS AND AUTHORITIES:     3 – 5 hours

A.  Introduction

* Describing what the motion seeks.

B.  Facts of the Case

C.  Procedural History regarding the Discovery in issue

D.  Argument

*  Why these documents are important to your case.
*  Why the objections are garbage.
*  What happened during the meet and confer process.

E.  Request for Sanctions

*  Calculation of your Hourly Rate x Hours Spent on the Motion + Costs.

F.  Conclusion

*  Delineate what you are requesting the court to award you

SEPARATE STATEMENT OF ITEMS IN DISPUTE         1 hour for every 10 requests

A.  Separate Statement of Items in Dispute. CRC, Rule 3.1345

B.  Concise outline of the discovery request and each response in dispute.   Cal Code Civ Proc § 2031.310(b)(3)

ATTORNEY DECLARATION TO SUPPORT OF YOUR MOTION            .5

A.  Authenticating each document attached as an exhibit

B.  Describing why the documents are necessary for your case.

C.  Delineating  the meet and confer process. Describing in detail the amount of attorney time and      expenses in calculating sanctions

PROPOSED ORDER     .5

A.  All relief you are seeking from the court including overruling of the objections and compliance dates.

B.  Sanctions, including how much sanctions, against whom, whom to be paid to and when they are to be paid.

In the majority of cases, the above estimate is not realistic.

These motions can take anywhere from 15 to over 50 hours.  So, before you give your estimate regarding the cost of a motion to compel further responses to your client, consider the following in your calculations:

NOTICE

*  Locating an example of a notice to use as a template and drafting a compliant notice pursuant to CRC, Rule 3.1110.  SEE Cal. Civil Discovery Practice, 4th Ed. (CEB 2019) 15.46.

MEMORANDUM OF POINTS AND AUTHORITIES

*  Are the facts of the case complex enough (and important enough) that the court should be educated to understand the motion in context?

*  Is there a history of discovery abuse that needs to be delineated in the procedural history?

*  Legal research and argument if a proper privilege log was not served with the response.

*  Legal research regarding each of the garbage objections.

*  Are you challenging the assertion of a privilege? What research  will be necessary to outline the boundaries of the privilege to make sure your motion is seeking non-privileged documents?

*  Legal research and argument if requesting an in camera review by the court.

*  Preparing a protective order for the court to put in place in order to resolve objections on the grounds of privacy, trade secret etc.

*  Legal research and argument for the appointment of a discovery referee for an in camera review and/or for all further discovery disputes.

*  A substantive argument regarding sanctions.

SEPARATE STATEMENT OF ITEMS IN DISPUTE

*  Even if you can easily copy  the request and the response this document takes a lot of time.  Expect close to ½ an hour for each request.  (i.e., 10 requests would equal 5 hours.)

*  Each request and response needs to be specifically addressed as to why you need the documents as well as why the objections are garbage.

*  If a protective order is being proposed, argue why the protective order resolves the objection(s) to that request.

*  If you are going to opt for discovery outline pursuant to Cal Code Civ Proc § 2031.310(b)(3), you are going to need to get permission from the court.  That process can include the need to bring an ex parte application to obtain the order.

DECLARATIONS:

*  Tracking down and copying all the documents you need for your declaration.

*  Deciding whether you need declarations and exhibits from your client, witnesses and/or your experts.

*  Making sure your declaration paragraphs and exhibits are accurately reflected in your memorandum of points and authorities.

OTHER PROPOSED ORDERS

*  Proposed Protective Order

*  Proposed Order for the Appointment of a Discovery Referee.

HINT:   Don’t forget the time and cost for reading the opposition, preparing the reply as well as traveling to and appearing in court as that could easily be an additional 10 hours.

Effective January 1, 2019, Code of Civil Procedure Section 2016.080 authorizes the court to conduct an informal discovery conference upon request of a party or on the court’s own motion. The statute reads:

(a) If an informal resolution is not reached by the parties, as described in Section 2016.040, the court may conduct an informal discovery conference upon request by a party or on the court’s own motion for the purpose of discussing discovery matters in dispute between the parties.

Continue Reading If Meet and Confer Fails, Ask for Help

The purpose of the “meet and confer” requirements set forth in C.C.P. §§ 2025.450(b)(2), 2025.480, 2030.300(b), 2031.310(b), 2032.250 and 2033.290 was for the lawyers to revisit their position, and in good faith, discuss a resolution in order to avoid unnecessary discovery motions.

Unfortunately, times have changed since the Discovery Act of 1986 went into effect. No longer can a law firm afford to have an associate sit at the knees of a respected senior partner and watch, listen, and learn without billing. No longer do lawyers have time for the “two-martini” lunch in order to get input from their colleagues about cases with which they are having trouble. No longer is the legal community so small that you know you are going to see opposing counsel again and fear their retaliation.

Continue Reading EXHIBIT A—The Meet and Confer Letter

 In the previous blog, Start Preparing Your Motion Because with These Responses You’re Going to Court, I used the following example as a type of response I see as a Discovery Referee:

Responding party hereby incorporates its general objections as if fully stated herein.  Responding party objects to this request to the extent it seeks information protected from disclosure by the attorney-client privilege and/or work product doctrine, or any other applicable privilege. Responding party objects as it invades their and third parties’ right of privacy. Responding party objects that the request fails to specifically describe each individual item sought or reasonably particularize each category of item sought. Responding party objects that it is unduly burdensome and overbroad.  Responding party objects to this request as it does not seek relevant documents or documents reasonably calculated to the discovery of admissible evidence.  Responding party objects that plaintiff has equal access to these documents.  Responding party objects that the request seeks documents already in plaintiff’s possession custody or control.  Responding party objects to this request as it seeks documents that are not within defendants’ possession, custody, or control.

Boilerplate objections are becoming more and more common in response to each of the document requests.  The above is an example of inappropriate boilerplate objections. In fact, boilerplate general objections are sanctionable in California per Korea Data Systems Co. Ltd. v. Superior Court (1997) 51 Cal.App.4th 1513 and may result in waivers of privilege per Burlington Northern & Santa Fe Ry Co. v. U.S. Dist. Court 408 F.3d 1142, 2005 WL 1175 922 (9th Cir.2005) [trial court affirmed in holding boilerplate objection without identification of documents is not the proper assertion of a privilege.] Continue Reading WHY THESE OBJECTIONS ARE GARBAGE

Have you noticed that you are getting too many objections and very little documents to your document requests?  Have you also noticed that despite months of meet and confers you still don’t have a determination whether or not documents exist; and if they do exist, why they aren’t being produced? Is this scenario more the norm then the exception? Continue Reading Start Preparing Your Motion Because with These Responses You’re Going to Court