referee_statute_&

DISCOVERY REFEREE
© Richard E. Best 1998-2003 All Right Reserved
Richard E. Best

Consensual references
Non-Consensual references

Consensual
Non-consensual

SUMMARY OUTLINE OF
REFEREE STATUTE AND RULES

C.C.P. 638 & CRC 244.1 references by agreement & consent
CCP 639 & CRC RULE 244.2 references by court without consent of parties
TEMPORARY JUDGES: CRC 244: written stipulation of parties; approval of PJ; oath; and filing thereof

Consensual references
Non-consensual references
Selection of Referee
Fees
Statement of Decision

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Consensual Reference by Agreement: CCP §638, CRC Rule 244.1]

Copy of Order re appointment or compensation to Presiding Judge [638(c) CRC Rule 244.1(h)]
Copy of Referee Report to Presiding Judge [CRC Rule 244.1(h)]
Contents of Order [CRC 244.1(a)]

Referee's name, address & telephone number
State Bar number if member; former Calif. Judicial officer must be a member
Referee's signature re consent to serve
Agreement of referee to comply with Canon 6, Judicial Ethics
Scope of reference: all issues or specified issues

Peremptory challenges, timeliness CCP 639(b): 5 days prior to hearing, 10 days after appointment
Disclosure by Referee [CRC 241.1(c)]

Required by Canon 6, (D)(2)(f) and (g)
Prior relationship with parties etc.

Fee information [638(c) ]
Fee agreed by the parties or court "may" order [CCP §645.1(a)]
Cannot appoint mediator pursuant to 638 [CRC Rule 244.1(b)

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Non-consensual Reference [CCP §639, CRC Rule 244.2]

Discovery disputes CCP §639(a)(5)
Copy of Report and Orders re appointment or compensation to Presiding Judge [CCP §639(e); CRC Rule 244.2(i)]
Written motion or court's own motion

Cannot appoint mediator pursuant to 639
No routine appointments:
"only when exceptional circumstances of the particular case require it"
Certification by referee re compliance with Canon 6 prerequisite to appointment

Peremptory challenges, timeliness CCP 639(b): 5 days prior to hearing, 10 days after appointment
Disclosure by Referee [CRC 244.2(e)]

Required by Canon 6
Prior relationships with parties, counsel

Contents of Order: CCP 639(d); CRC Rule 244.2(c):

Reasons & justification for appointment (d)(2)

"exceptional circumstances requiring the reference"
"must be specific to …the particular case"

Subject of reference [can be "all discovery purposes" §639(c) & (d)(3); CRC 244.2(h)]
Referee name, address, & telephone; CCP 639(d)(4)
Referee state bar number [CRC Rule 244.2(c)]
Maximum hourly rate and number of hours
Finding re economic inability of party not established or voluntary payment by other party [statute expressly prohibits consideration of attorney ability to pay][244.2(c)]
Attach referee certification re compliance with rules and Canon 6 [CRC 244.2(c)]

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Selection of Referee [CCP §640]

Must appoint person agreed upon by parties
Absent agreement, parties submit 3 names from which court selects
If no nominee, court appoints
Former California judicial officer must be member of state bar [CRC 244.2(d)]

Fees [CCP §645.1]

Court "may order the parties to pay"
See Enforcement of Judgment CCP §680.230: "Judgment means…order."
"In any manner…including an apportionment …among the parties."
Counsel not liable
Forward copy of order to Presiding Judge [CRC 244.2(i)]

Statement of Decision by Referee within 20 days of hearing [CCP§643]

CCP §638 Consensual Reference report as agreed and approved by court

CCP §639 Non-consensual Reference

Recommendation on merits which is advisory [CCP §644(b)]
Total hours and total fees
Recommended allocation of fees
Objections within 10 days
Copy must be forward to Presiding Judge [CRC 244.2(i)]

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STATUTES AND RULES
Code of Civil Procedure §§638-645.2
California Rules of Court, Rules 244.1-

Code of Civil Procedure § 638

638. 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 an action or proceeding.
(c) In any matter in which a referee is appointed pursuant to this section, a copy of the order shall be forwarded to the office of the presiding judge. The Judicial Council shall, by rule, collect information on the use of these referees. The Judicial Council shall also collect information on fees paid by the parties for the use of referees to the extent that information regarding those fees is reported to the court. The Judicial Council shall report thereon to the Legislature by July 1, 2003. This subdivision shall become inoperative on January 1, 2004.

Calif. Rule of Court, Rule 244.1

Rule 244.1. Reference by agreement

(a) [Reference pursuant to Code of Civil Procedure section 638] A written agreement for an order appointing a referee pursuant to section 638 of the Code of Civil Procedure must be presented with a proposed order to the judge to whom the case is assigned, or to the presiding judge or supervising judge if the case has not been assigned. The proposed order must state the name, business address, and telephone number of the proposed referee and, if he or she is a member of the State Bar, the proposed referee's State Bar number. If the proposed referee is a former California judicial officer, he or she must be an active or inactive member of the State Bar. The proposed order must bear the proposed referee's signature indicating consent to serve and certification that he or she is aware of and will comply with applicable provisions of canon 6 of the Code of Judicial Ethics and these rules. The written agreement and proposed order must clearly state whether the scope of the reference covers all issues or is limited to specified issues.
Subd (a) amended effective July 1, 2001.)

(b) [Purposes of reference] A court must not use the reference procedure under Code of Civil Procedure section 638 to appoint a person to conduct a mediation. Nothing in this subdivision is intended to prevent a court from appointing a referee to conduct a mandatory settlement conference or, following the termination of a reference, from appointing a person who previously served as a referee to conduct a mediation.

(c) [Disclosure by referee] In addition to any other disclosure required by law, no later than five days prior to the deadline for parties to file a motion for disqualification of the referee under Code of Civil Procedure section 170.6 or, if the referee is not aware of his or her appointment or of a matter subject to disclosure at that time, as soon as practicable thereafter, a referee must disclose to the parties:

(1) Any matter subject to disclosure under subdivisions (D)(2)(f) and (D)(2)(g) of canon 6 of the Code of Judicial Ethics; and
(2) Any significant personal or professional relationship the referee has or has had with a party, attorney, or law firm in the instant 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 instant case for any services, including, but not limited to, service as an attorney, expert witness, or consultant or as a judge, referee, arbitrator, mediator, settlement facilitator, or other alternative dispute resolution neutral.

(d) [Objections to the appointment] An agreement for an order appointing a referee does not constitute a waiver of grounds for objection to the appointment under section 641 of the Code of Civil Procedure, but any objection must be made with reasonable diligence. Any objection to the appointment of a person as a referee must be in writing and must be filed and served upon all parties and the referee.

(e) [Use of court facilities and court personnel] A party who has elected to use the services of a privately compensated referee pursuant to section 638 of the Code of Civil Procedure is deemed to have elected to proceed outside the courthouse; therefore, court facilities and court personnel must not be used, except upon a finding by the presiding judge that the use would further the interests of justice. For all matters pending before privately compensated referees, the clerk must post a notice indicating the case name and number as well as the telephone number of a person to contact to arrange for attendance at any proceeding that would be open to the public if held in a courthouse.

(f) [Order for appropriate hearing site] The presiding judge or supervising judge, on request of any person or on the judge's own motion, may order that a case before a privately compensated referee must be heard at a site easily accessible to the public and appropriate for seating those who have made known their plan to attend hearings. The request must be by letter with reasons stated and must be accompanied by a declaration that a copy of the request was mailed to each party, to the referee, and to the clerk for placement in the file. The order may require that notice of trial or of other proceedings be given to the requesting party directly. An order for an appropriate hearing site is not grounds for withdrawal of a stipulation.

(g) [Motion to withdraw stipulation or to seal records; complaint for intervention] A motion to withdraw a stipulation for the appointment of a referee must be supported by a declaration of facts establishing good cause for permitting the party to withdraw the stipulation, and must be heard by the presiding judge or a judge designated by the presiding judge. A declaration that a ruling is based on an error of fact or law does not establish good cause for withdrawing a stipulation. Notice of the motion must be served and filed, and the moving party must mail or deliver a copy to the referee. If the motion is granted, the case must be transferred to the trial court docket.

A motion to seal records in a cause before a privately compensated referee must be served and filed and must be heard by the presiding judge or a judge designated by the presiding judge. The moving party must mail or deliver a copy of the motion to the referee and to any person or organization who has requested that the case take place at an appropriate hearing site.

A motion for leave to file a complaint for intervention in a cause before a privately compensated referee must be served and filed, and must be assigned for hearing as a law and motion matter. The party seeking intervention must mail or deliver a copy of the motion to the referee. If intervention is allowed, the case must be returned to the trial court docket unless all parties stipulate in the manner prescribed in subdivision (a) to proceed before the referee.

(h) [Copies to office of presiding judge] A copy of the order appointing the referee, the referee's report under Code of Civil Procedure section 643, and any order of the court concerning the compensation of the referee must be forwarded to the office of the presiding judge of the court. On a monthly basis, the presiding judge must forward copies of these orders and reports to the Reference Research Project at the Administrative Office of the Courts.

Rule 244.1 amended effective July 1, 2001; adopted effective July 1, 1993.

Code of Civil Procedure §639

639. (a) When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640:
(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.

(b) In a discovery matter, a motion to disqualify an appointed referee pursuant to Section 170.6 shall be made to the court by a party either:
(A) Within 10 days after notice of the appointment, or if the party has not yet appeared in the action, a motion shall be made within 10 days after the appearance, if a discovery referee has been appointed for all discovery purposes.
(B) At least five days before the date set for hearing, if the
referee assigned is known at least 10 days before the date set for hearing and the discovery referee has been assigned only for limited discovery purposes.

(c) When a referee is appointed pursuant to paragraph (5) of subdivision (a), the order shall indicate whether the referee is being appointed for all discovery purposes in the action.

(d) All appointments of referees pursuant to this section shall be by written order and shall include the following:
(1) When the referee is appointed pursuant to paragraph (1), (2), (3), or (4) of subdivision (a), a statement of the reason the referee is being appointed.
(2) When the referee is appointed pursuant to paragraph (5) of subdivision (a), the exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case.
(3) The subject matter or matters included in the reference.
(4) The name, business address, and telephone number of the referee.
(5) The maximum hourly rate the referee may charge and, at the request of any party, the maximum number of hours for which the referee may charge. Upon the written application of any party or the referee, the court may, for good cause shown, modify the maximum number of hours subject to any findings as set forth in paragraph (6).
(6) (A) Either a finding that no party has established an economic inability to pay a pro rata share of the referee's fee or a finding that one or more parties has established an economic inability to pay a pro rata share of the referee's fees and that another party has agreed voluntarily to pay that additional share of the referee's fee.
A court shall not appoint a referee at a cost to the parties if
neither of these findings is made.
(B) In determining whether a party has established an inability to pay the referee's fees under subparagraph (A), the court shall consider only the ability of the party, not the party's counsel, to pay these fees. If a party is proceeding in forma pauperis, the party shall be deemed by the court to have an economic inability to pay the referee's fees. However, a determination of economic inability to pay the fees shall not be limited to parties that proceed in forma pauperis. For those parties who are not proceeding in forma pauperis, the court, in determining whether a party has established an inability to pay the fees, shall consider, among other things, the estimated cost of the referral and the impact of the proposed fees on the party's ability to proceed with the litigation.

(e) In any matter in which a referee is appointed pursuant to paragraph (5) of subdivision (a), a copy of the order appointing the referee shall be forwarded to the office of the presiding judge of the court. The Judicial Council shall, by rule, collect information on the use of these references and the reference fees charged to litigants, and shall report thereon to the Legislature by July 1, 2003. This subdivision shall become inoperative on January 1, 2004.

Calif Rule of Court 244.2

Rule 244.2. Reference by order

(a) [Motion for reference pursuant to Code of Civil Procedure section 639] A motion by a party for the appointment of a referee pursuant to section 639 of the Code of Civil Procedure must be served and filed and must be heard in the department to which the case is assigned or, if the case has not been assigned, in the department in which law and motion matters are heard. The motion must specify the matter or matters to be included in the requested reference.

(b) [Purposes of reference] A court may order the appointment of a referee under Code of Civil Procedure section 639 only for the purposes specified in that section. A court must not use the reference procedure under Code of Civil Procedure section 639 to appoint a person to conduct a mediation. Nothing in this subdivision is intended to limit the power of a court to appoint a referee to conduct a mandatory settlement conference in a complex case or to prevent a court, following the termination of a reference, from appointing a person who previously served as a referee to conduct a mediation.

(c) [Reference order] A discovery referee must not be appointed pursuant to Code of Civil Procedure section 639(a)(5) unless the exceptional circumstances of the particular case require it. A referee must not be appointed at a cost to the parties unless the court can make one of the findings required by Code of Civil Procedure section 639(d)(6). Before an order appointing a referee is issued, the proposed referee must certify that he or she is aware of and will comply with applicable provisions of canon 6 of the Code of Judicial Ethics and these rules.

An order appointing a referee under Code of Civil Procedure section 639, whether based on a motion of a party or on the court's own motion, must be in writing and must address all of the matters required by Code of Civil Procedure section 639. If the referee is a member of the State Bar, the order must include the referee's State Bar number. The referee's certification that he or she is aware of and will comply with applicable provisions of canon 6 of the Code of Judicial Ethics and these rules must be attached to the order. When the issue of economic hardship is raised before the commencement of the referee's services, the court must determine a fair and reasonable apportionment of reference costs. The court may modify its order as to the apportionment and may consider a recommendation by the referee as a factor in determining any modification.

(d) [Selecting the referee] The court must appoint the referee or referees as provided in Code of Civil Procedure section 640. If the referee is a former California judicial officer, he or she must be an active or inactive member of the State Bar.

(e) [Disclosure by referee] In addition to any other disclosure required by law, no later than five days prior to the deadline for parties to file a motion for disqualification of the referee under Code of Civil Procedure section 170.6 or, if the referee is not aware of his or her appointment or of a matter subject to disclosure at that time, as soon as practicable thereafter, a referee must disclose to the parties:

(1) Any matter subject to disclosure under subdivisions (D)(2)(f) and (D)(2)(g) of canon 6 of the Code of Judicial Ethics; and

(2) Any significant personal or professional relationship the referee has or has had with a party, attorney, or law firm in the instant 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 instant case for any services, including, but not limited to, service as an attorney, expert witness, or consultant or as a judge, referee, arbitrator, mediator, settlement facilitator, or other alternative dispute resolution neutral.

(f) [Objection to reference] Participation in the selection procedure under subdivision (d) does not constitute a waiver of grounds for objection to the appointment under section 641 of the Code of Civil Procedure, or objection to the rate or apportionment of compensation of the referee, but any objection must be made with reasonable diligence. Any objection to the appointment of a person as a referee must be in writing and must be filed and served upon all parties and the referee.

(g) [Use of court facilities] A reference ordered pursuant to section 639 of the Code of Civil Procedure 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 upon request of any person.

(h) [Discovery referees] When a referee is appointed under section 639(a)(5) of the Code of Civil Procedure to assist in the resolution of a discovery dispute:
(1) The order appointing the referee must clearly state whether the referee is being appointed for all discovery purposes or only for limited purposes.

(2) The referee is authorized to set the date, time, and place for all hearings determined by the referee to be necessary, to direct the issuance of subpoenas, to preside over hearings, to take evidence, and to rule on objections, motions, and other requests made during the course of the hearing.

(i) [Copies to office of presiding judge] A copy of the order appointing the referee, the referee's report under Code of Civil Procedure section 643, and any order of the court concerning the compensation of the referee must be forwarded to the office of the presiding judge of the court. On a monthly basis, the presiding judge must forward copies of these orders and reports to the Reference Research Project at the Administrative Office of the Courts.

Rule 244.2 amended effective July 1, 2001; adopted effective July 1, 1993; previously amended effective January 1, 1996.

640. (a) The court shall appoint as referee or referees the person or persons, not exceeding three, agreed upon by the parties.
(b) If the parties do not agree on the selection of the referee or referees, each party shall submit to the court up to three nominees for appointment as referee and the court shall appoint one or more referees, not exceeding three, from among the nominees against whom there is no legal objection. If no nominations are received from any
of the parties, the court shall appoint one or more referees, not exceeding three, against whom there is no legal objection, or the court may appoint a court commissioner of the county where the cause is pending as a referee.
(c) Participation in the referee selection procedure pursuant to this section does not constitute a waiver of grounds for objection to the appointment of a referee under Section 641 or 641.2.

640.5. It is the intent of the Legislature that the practice and
cost of referring discovery disputes to outside referees be
thoroughly reviewed. Therefore, in addition to the requirements of subdivision (e) of Section 639, the Judicial Council shall collect information from the trial courts on the use of referees in discovery matters pursuant to either Sections 638 and 639. The collected data shall include information on the number of referees, the cost to the
parties, and the time spent by the discovery referee. The Judicial Council shall report thereon to the Legislature by July 1, 2003.

641. A party may object to the appointment of any person as referee, on one or more of the following grounds:
(a) A want of any of the qualifications prescribed by statute to render a person competent as a juror, except a requirement of residence within a particular county in the state.
(b) Consanguinity or affinity, within the third degree, to either party, or to an officer of a corporation which is a party, or to any judge of the court in which the appointment shall be made.
(c) Standing in the relation of guardian and ward, conservator and conservatee, master and servant, employer and clerk, or principal and agent, to either party; or being a member of the family of either party; or a partner in business with either party; or security on any bond or obligation for either party.
(d) Having served as a juror or been a witness on any trial
between the same parties.
(e) Interest on the part of the person in the event of the action, or in the main question involved in the action.
(f) Having formed or expressed an unqualified opinion or belief as to the merits of the action.
(g) The existence of a state of mind in the potential referee
evincing enmity against or bias toward either party.

641.2. In any action brought under Article 8 (commencing with Section 12600) of Chapter 6, Part 2, Division 3, Title 3 of the Government Code, a party may object to the appointment of any person as referee on the ground that the person is not technically qualified with respect to the particular subject matter of the proceeding.

642. Objections, if any, to a reference or to the referee or
referees appointed by the court shall be made in writing, and must be heard and disposed of by the court, not by the referee.

643. (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.
(b) A referee appointed pursuant to Section 638 shall report as agreed by the parties and approved by the court.
(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.

644. (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, or with the judge where there is no clerk, judgment may be entered thereon in the same manner as if the action had been tried by the court.
(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.

645. 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.

645.1. (a) When a referee is appointed pursuant to Section 638, the referee's fees shall be paid as agreed by the parties. If the parties do not agree on the payment of fees and request the matter to be resolved by the court, the court may order the parties to pay the referee's fees as set forth in subdivision (b).
(b) When a referee is appointed pursuant to Section 639, at any time after a determination of ability to pay is made as specified in paragraph (6) of subdivision (d) of Section 639, the court may order the parties to pay the fees of referees who are not employees or officers of the court at the time of appointment, as fixed pursuant to Section 1023, in any manner determined by the court to be fair and reasonable, including an apportionment of the fees among the parties. For purposes of this section, the term "parties" does not
include parties' counsel.

645.2. The Judicial Council shall adopt all rules of court
necessary to implement this chapter.

Code of Civil Procedure § 638 638. 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 an action or proceeding. (c) In any matter in which a referee is appointed pursuant to this section, a copy of the order shall be forwarded to the office of the presiding judge. The Judicial Council shall, by rule, collect information on the use of these referees. The Judicial Council shall also collect information on fees paid by the parties for the use of referees to the extent that information regarding those fees is reported to the court. The Judicial Council shall report thereon to the Legislature by July 1, 2003. This subdivision shall become inoperative on January 1, 2004.	Calif. Rule of Court, Rule 244.1 Rule 244.1. Reference by agreement (a) [Reference pursuant to Code of Civil Procedure section 638] A written agreement for an order appointing a referee pursuant to section 638 of the Code of Civil Procedure must be presented with a proposed order to the judge to whom the case is assigned, or to the presiding judge or supervising judge if the case has not been assigned. The proposed order must state the name, business address, and telephone number of the proposed referee and, if he or she is a member of the State Bar, the proposed referee's State Bar number. If the proposed referee is a former California judicial officer, he or she must be an active or inactive member of the State Bar. The proposed order must bear the proposed referee's signature indicating consent to serve and certification that he or she is aware of and will comply with applicable provisions of canon 6 of the Code of Judicial Ethics and these rules. The written agreement and proposed order must clearly state whether the scope of the reference covers all issues or is limited to specified issues. Subd (a) amended effective July 1, 2001.) (b) [Purposes of reference] A court must not use the reference procedure under Code of Civil Procedure section 638 to appoint a person to conduct a mediation. Nothing in this subdivision is intended to prevent a court from appointing a referee to conduct a mandatory settlement conference or, following the termination of a reference, from appointing a person who previously served as a referee to conduct a mediation. (c) [Disclosure by referee] In addition to any other disclosure required by law, no later than five days prior to the deadline for parties to file a motion for disqualification of the referee under Code of Civil Procedure section 170.6 or, if the referee is not aware of his or her appointment or of a matter subject to disclosure at that time, as soon as practicable thereafter, a referee must disclose to the parties: (1) Any matter subject to disclosure under subdivisions (D)(2)(f) and (D)(2)(g) of canon 6 of the Code of Judicial Ethics; and (2) Any significant personal or professional relationship the referee has or has had with a party, attorney, or law firm in the instant 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 instant case for any services, including, but not limited to, service as an attorney, expert witness, or consultant or as a judge, referee, arbitrator, mediator, settlement facilitator, or other alternative dispute resolution neutral. (d) [Objections to the appointment] An agreement for an order appointing a referee does not constitute a waiver of grounds for objection to the appointment under section 641 of the Code of Civil Procedure, but any objection must be made with reasonable diligence. Any objection to the appointment of a person as a referee must be in writing and must be filed and served upon all parties and the referee. (e) [Use of court facilities and court personnel] A party who has elected to use the services of a privately compensated referee pursuant to section 638 of the Code of Civil Procedure is deemed to have elected to proceed outside the courthouse; therefore, court facilities and court personnel must not be used, except upon a finding by the presiding judge that the use would further the interests of justice. For all matters pending before privately compensated referees, the clerk must post a notice indicating the case name and number as well as the telephone number of a person to contact to arrange for attendance at any proceeding that would be open to the public if held in a courthouse. (f) [Order for appropriate hearing site] The presiding judge or supervising judge, on request of any person or on the judge's own motion, may order that a case before a privately compensated referee must be heard at a site easily accessible to the public and appropriate for seating those who have made known their plan to attend hearings. The request must be by letter with reasons stated and must be accompanied by a declaration that a copy of the request was mailed to each party, to the referee, and to the clerk for placement in the file. The order may require that notice of trial or of other proceedings be given to the requesting party directly. An order for an appropriate hearing site is not grounds for withdrawal of a stipulation. (g) [Motion to withdraw stipulation or to seal records; complaint for intervention] A motion to withdraw a stipulation for the appointment of a referee must be supported by a declaration of facts establishing good cause for permitting the party to withdraw the stipulation, and must be heard by the presiding judge or a judge designated by the presiding judge. A declaration that a ruling is based on an error of fact or law does not establish good cause for withdrawing a stipulation. Notice of the motion must be served and filed, and the moving party must mail or deliver a copy to the referee. If the motion is granted, the case must be transferred to the trial court docket. A motion to seal records in a cause before a privately compensated referee must be served and filed and must be heard by the presiding judge or a judge designated by the presiding judge. The moving party must mail or deliver a copy of the motion to the referee and to any person or organization who has requested that the case take place at an appropriate hearing site. A motion for leave to file a complaint for intervention in a cause before a privately compensated referee must be served and filed, and must be assigned for hearing as a law and motion matter. The party seeking intervention must mail or deliver a copy of the motion to the referee. If intervention is allowed, the case must be returned to the trial court docket unless all parties stipulate in the manner prescribed in subdivision (a) to proceed before the referee. (h) [Copies to office of presiding judge] A copy of the order appointing the referee, the referee's report under Code of Civil Procedure section 643, and any order of the court concerning the compensation of the referee must be forwarded to the office of the presiding judge of the court. On a monthly basis, the presiding judge must forward copies of these orders and reports to the Reference Research Project at the Administrative Office of the Courts. Rule 244.1 amended effective July 1, 2001; adopted effective July 1, 1993.
Code of Civil Procedure §639 639. (a) When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640: (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. (b) In a discovery matter, a motion to disqualify an appointed referee pursuant to Section 170.6 shall be made to the court by a party either: (A) Within 10 days after notice of the appointment, or if the party has not yet appeared in the action, a motion shall be made within 10 days after the appearance, if a discovery referee has been appointed for all discovery purposes. (B) At least five days before the date set for hearing, if the referee assigned is known at least 10 days before the date set for hearing and the discovery referee has been assigned only for limited discovery purposes. (c) When a referee is appointed pursuant to paragraph (5) of subdivision (a), the order shall indicate whether the referee is being appointed for all discovery purposes in the action. (d) All appointments of referees pursuant to this section shall be by written order and shall include the following: (1) When the referee is appointed pursuant to paragraph (1), (2), (3), or (4) of subdivision (a), a statement of the reason the referee is being appointed. (2) When the referee is appointed pursuant to paragraph (5) of subdivision (a), the exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case. (3) The subject matter or matters included in the reference. (4) The name, business address, and telephone number of the referee. (5) The maximum hourly rate the referee may charge and, at the request of any party, the maximum number of hours for which the referee may charge. Upon the written application of any party or the referee, the court may, for good cause shown, modify the maximum number of hours subject to any findings as set forth in paragraph (6). (6) (A) Either a finding that no party has established an economic inability to pay a pro rata share of the referee's fee or a finding that one or more parties has established an economic inability to pay a pro rata share of the referee's fees and that another party has agreed voluntarily to pay that additional share of the referee's fee. A court shall not appoint a referee at a cost to the parties if neither of these findings is made. (B) In determining whether a party has established an inability to pay the referee's fees under subparagraph (A), the court shall consider only the ability of the party, not the party's counsel, to pay these fees. If a party is proceeding in forma pauperis, the party shall be deemed by the court to have an economic inability to pay the referee's fees. However, a determination of economic inability to pay the fees shall not be limited to parties that proceed in forma pauperis. For those parties who are not proceeding in forma pauperis, the court, in determining whether a party has established an inability to pay the fees, shall consider, among other things, the estimated cost of the referral and the impact of the proposed fees on the party's ability to proceed with the litigation. (e) In any matter in which a referee is appointed pursuant to paragraph (5) of subdivision (a), a copy of the order appointing the referee shall be forwarded to the office of the presiding judge of the court. The Judicial Council shall, by rule, collect information on the use of these references and the reference fees charged to litigants, and shall report thereon to the Legislature by July 1, 2003. This subdivision shall become inoperative on January 1, 2004.	Calif Rule of Court 244.2 Rule 244.2. Reference by order (a) [Motion for reference pursuant to Code of Civil Procedure section 639] A motion by a party for the appointment of a referee pursuant to section 639 of the Code of Civil Procedure must be served and filed and must be heard in the department to which the case is assigned or, if the case has not been assigned, in the department in which law and motion matters are heard. The motion must specify the matter or matters to be included in the requested reference. (b) [Purposes of reference] A court may order the appointment of a referee under Code of Civil Procedure section 639 only for the purposes specified in that section. A court must not use the reference procedure under Code of Civil Procedure section 639 to appoint a person to conduct a mediation. Nothing in this subdivision is intended to limit the power of a court to appoint a referee to conduct a mandatory settlement conference in a complex case or to prevent a court, following the termination of a reference, from appointing a person who previously served as a referee to conduct a mediation. (c) [Reference order] A discovery referee must not be appointed pursuant to Code of Civil Procedure section 639(a)(5) unless the exceptional circumstances of the particular case require it. A referee must not be appointed at a cost to the parties unless the court can make one of the findings required by Code of Civil Procedure section 639(d)(6). Before an order appointing a referee is issued, the proposed referee must certify that he or she is aware of and will comply with applicable provisions of canon 6 of the Code of Judicial Ethics and these rules. An order appointing a referee under Code of Civil Procedure section 639, whether based on a motion of a party or on the court's own motion, must be in writing and must address all of the matters required by Code of Civil Procedure section 639. If the referee is a member of the State Bar, the order must include the referee's State Bar number. The referee's certification that he or she is aware of and will comply with applicable provisions of canon 6 of the Code of Judicial Ethics and these rules must be attached to the order. When the issue of economic hardship is raised before the commencement of the referee's services, the court must determine a fair and reasonable apportionment of reference costs. The court may modify its order as to the apportionment and may consider a recommendation by the referee as a factor in determining any modification. (d) [Selecting the referee] The court must appoint the referee or referees as provided in Code of Civil Procedure section 640. If the referee is a former California judicial officer, he or she must be an active or inactive member of the State Bar. (e) [Disclosure by referee] In addition to any other disclosure required by law, no later than five days prior to the deadline for parties to file a motion for disqualification of the referee under Code of Civil Procedure section 170.6 or, if the referee is not aware of his or her appointment or of a matter subject to disclosure at that time, as soon as practicable thereafter, a referee must disclose to the parties: (1) Any matter subject to disclosure under subdivisions (D)(2)(f) and (D)(2)(g) of canon 6 of the Code of Judicial Ethics; and (2) Any significant personal or professional relationship the referee has or has had with a party, attorney, or law firm in the instant 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 instant case for any services, including, but not limited to, service as an attorney, expert witness, or consultant or as a judge, referee, arbitrator, mediator, settlement facilitator, or other alternative dispute resolution neutral. (f) [Objection to reference] Participation in the selection procedure under subdivision (d) does not constitute a waiver of grounds for objection to the appointment under section 641 of the Code of Civil Procedure, or objection to the rate or apportionment of compensation of the referee, but any objection must be made with reasonable diligence. Any objection to the appointment of a person as a referee must be in writing and must be filed and served upon all parties and the referee. (g) [Use of court facilities] A reference ordered pursuant to section 639 of the Code of Civil Procedure 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 upon request of any person. (h) [Discovery referees] When a referee is appointed under section 639(a)(5) of the Code of Civil Procedure to assist in the resolution of a discovery dispute: (1) The order appointing the referee must clearly state whether the referee is being appointed for all discovery purposes or only for limited purposes. (2) The referee is authorized to set the date, time, and place for all hearings determined by the referee to be necessary, to direct the issuance of subpoenas, to preside over hearings, to take evidence, and to rule on objections, motions, and other requests made during the course of the hearing. (i) [Copies to office of presiding judge] A copy of the order appointing the referee, the referee's report under Code of Civil Procedure section 643, and any order of the court concerning the compensation of the referee must be forwarded to the office of the presiding judge of the court. On a monthly basis, the presiding judge must forward copies of these orders and reports to the Reference Research Project at the Administrative Office of the Courts. Rule 244.2 amended effective July 1, 2001; adopted effective July 1, 1993; previously amended effective January 1, 1996.
640. (a) The court shall appoint as referee or referees the person or persons, not exceeding three, agreed upon by the parties. (b) If the parties do not agree on the selection of the referee or referees, each party shall submit to the court up to three nominees for appointment as referee and the court shall appoint one or more referees, not exceeding three, from among the nominees against whom there is no legal objection. If no nominations are received from any of the parties, the court shall appoint one or more referees, not exceeding three, against whom there is no legal objection, or the court may appoint a court commissioner of the county where the cause is pending as a referee. (c) Participation in the referee selection procedure pursuant to this section does not constitute a waiver of grounds for objection to the appointment of a referee under Section 641 or 641.2.
640.5. It is the intent of the Legislature that the practice and cost of referring discovery disputes to outside referees be thoroughly reviewed. Therefore, in addition to the requirements of subdivision (e) of Section 639, the Judicial Council shall collect information from the trial courts on the use of referees in discovery matters pursuant to either Sections 638 and 639. The collected data shall include information on the number of referees, the cost to the parties, and the time spent by the discovery referee. The Judicial Council shall report thereon to the Legislature by July 1, 2003.
641. A party may object to the appointment of any person as referee, on one or more of the following grounds: (a) A want of any of the qualifications prescribed by statute to render a person competent as a juror, except a requirement of residence within a particular county in the state. (b) Consanguinity or affinity, within the third degree, to either party, or to an officer of a corporation which is a party, or to any judge of the court in which the appointment shall be made. (c) Standing in the relation of guardian and ward, conservator and conservatee, master and servant, employer and clerk, or principal and agent, to either party; or being a member of the family of either party; or a partner in business with either party; or security on any bond or obligation for either party. (d) Having served as a juror or been a witness on any trial between the same parties. (e) Interest on the part of the person in the event of the action, or in the main question involved in the action. (f) Having formed or expressed an unqualified opinion or belief as to the merits of the action. (g) The existence of a state of mind in the potential referee evincing enmity against or bias toward either party.
641.2. In any action brought under Article 8 (commencing with Section 12600) of Chapter 6, Part 2, Division 3, Title 3 of the Government Code, a party may object to the appointment of any person as referee on the ground that the person is not technically qualified with respect to the particular subject matter of the proceeding.
642. Objections, if any, to a reference or to the referee or referees appointed by the court shall be made in writing, and must be heard and disposed of by the court, not by the referee.
643. (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. (b) A referee appointed pursuant to Section 638 shall report as agreed by the parties and approved by the court. (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.
644. (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, or with the judge where there is no clerk, judgment may be entered thereon in the same manner as if the action had been tried by the court. (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.
645. 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.
645.1. (a) When a referee is appointed pursuant to Section 638, the referee's fees shall be paid as agreed by the parties. If the parties do not agree on the payment of fees and request the matter to be resolved by the court, the court may order the parties to pay the referee's fees as set forth in subdivision (b). (b) When a referee is appointed pursuant to Section 639, at any time after a determination of ability to pay is made as specified in paragraph (6) of subdivision (d) of Section 639, the court may order the parties to pay the fees of referees who are not employees or officers of the court at the time of appointment, as fixed pursuant to Section 1023, in any manner determined by the court to be fair and reasonable, including an apportionment of the fees among the parties. For purposes of this section, the term "parties" does not include parties' counsel.
645.2. The Judicial Council shall adopt all rules of court necessary to implement this chapter.