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Court of Appeal, Fourth District, Division 1, California.

COUNTY OF SAN DIEGO et al., Petitioners, v. SUPERIOR COURT, etc., County of San Diego, Respondent. James Lee ARMSTRONG et al., Real Parties in Interest.

No. D009577.

Decided: April 26, 1989

Lloyd M. Harmon, Jr., County Counsel, Daniel J. Wallace and Morris G. Hill, Deputy County Counsel, San Diego, for petitioners. Katherine Bower, Manhattan Beach, for respondent. No appearance by real parties in interest.

This is a civil suit brought against the County of San Diego (the county) and certain individual sheriff's deputies.   During a status conference, the court, over the county's objection appointed an experienced attorney 1 to act as private “settlement and discovery” referee and further provided the referee determine his own fees.   The county contends the appointment of the referee was in excess of the court's jurisdiction.   We conclude the court acted within its discretion in appointing a referee for discovery purposes and permitting him in the first instance to determine his fees.   However, we conclude the court erred in appointing the referee for purposes of settlement.


James Lee Armstrong filed a complaint for damages alleging causes of action for false imprisonment, malicious prosecution, trespass, assault and battery, and deprivation of civil rights by certain San Diego County Deputy Sheriffs.   The County was also joined as a defendant.   Thereafter, the deputies requested the county provide them a defense and indemnification pursuant to Government Code sections 825, 825.2, 995, and 995.2.   While the county agreed to provide the defense and indemnification it notified the deputies it would not indemnify for punitive or exemplary damages.

The deputies thus requested association of independent counsel to represent them on the issue of punitive damages.   During a chambers conference held May 31, 1988, in department 1, the presiding judge ruled such independent counsel was “appropriately in the case representing the interests of the officers on their possible punitive damage award.”   Independent counsel prepared the order which stated:

“[B]y reason of the allegations of liability of Defendants VICTOR G. RAY, DENISE MARQUARDT and BRENT WAGNER for punitive damages and the limitations upon indemnification for such liability by Defendant COUNTY OF SAN DIEGO by reason of the provisions of Government Code §§ 825 and 995, a conflict of interest between Defendants VICTOR G. RAY, DENISE MARQUARDT and BRENT WAGNER and the COUNTY OF SAN DIEGO, such as entitle said Defendants to independent representation by a co-counsel, together with the right to representation by County Counsel for the County of San Diego, on the issue of liability for punitive damages;  ․”

The county moved for reconsideration of the trial court's order, arguing the court had made no finding on the issue of conflict of interest.   The court referred the motion for reconsideration to a referee.   The referee thereafter submitted his recommendation which found a conflict of interest did in fact exist, that the county counsel had become disqualified as a matter of law from representing deputies, and that deputies had the right to independent counsel.

Having determined the case should be handled as complex litigation, the presiding judge thereafter transferred this case and a companion case to department 11 for all purposes.

A chambers status conference was held in department 11 on January 26, 1989, at which time the court set forth a time table of procedural deadlines for bringing the case to trial.   The court appointed an attorney as settlement and discovery referee for the case, and provided his fee would be determined by him.   This order forms the basis of the petition before us.


 The California Constitution vests in the Legislature the power to “provide for the appointment by trial courts ․ of officers such as commissioners to perform subordinate judicial duties.”  (Cal. Const., art. VI, § 22.)   Referees are within this class of subordinate judicial officers.   (In re Kathy P. (1979) 25 Cal.3d 91, 98, 157 Cal.Rptr. 874, 599 P.2d 65.)   The Legislature has, in Code of Civil Procedure 2 sections 638 and 639, exercised this grant of power.   References made with the consent of the parties are governed by section 638, while the circumstances under which nonconsensual references may be made are set forth in section 639.   Because petitioner did not consent to a reference the propriety of the court's order rests upon application of the latter statute.

 Prior to 1981, section 639 provided a narrow category of matters which could be referenced for discovery purposes.   In Bird v. Superior Court (1980) 112 Cal.App.3d 595, 600, 169 Cal.Rptr. 530, the trial court had appointed a referee to hear all motions pending before it which involved issues of both fact and law.   The Court of Appeal held the reference overly broad, concluding section 639 permitted discovery references only where a question of fact was presented, and further concluded the section did not permit a trial court to authorize a referee to hear and determine future discovery motions.

In 1981, the Legislature amended section 639 by adding subdivision (e) which provides:

(e) When the court in any pending action determines in its discretion 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.  (Stats.1981, ch. 299, § 1, p. 1429.)

Passage of subdivision (e) was in direct response to the decision in Bird.   Legislative history reflects that at the third reading of Senate Bill 877, which added subdivision (e), the office of assembly research noted:

“According to the Assembly Judiciary Committee analysis, in Bird v. Superior Court, 112 Cal.App.3d 594 [ (595) 169 Cal.Rptr. 530] (1980), the court held there is no statutory authority for a trial court to refer discovery matters for hearing and disposition to referees without the consent of the parties.   This bill, according to proponents, would provide needed statutory authority for a court to refer discovery matters to referees and thus free judges in reducing the number of backlogged matters that require a judge's specific attention.”  (Assem. File Analysis of the Assem. Office Research, 3d Reading File, Sen. Bill 877 (1981–1982 Reg.Sess.) p. 1.)

The county questions whether a trial court may make a reference for purposes of discovery absent a specific finding and demonstration of necessity.   As the legislative history of subdivision (e) demonstrates, however, references are made in order to assist the court in the performance of its duties.  (See San Bernardino Community Hospital v. Meeks (1986) 187 Cal.App.3d 457, 472–473, 231 Cal.Rptr. 673.)   Whether such a reference will be of assistance is peculiarly a function of the trial court's assessment of both its caseload in general, and more particularly, the case it has before it, together with all of its complexities and personalities.   We therefore deem the phrase “that it is necessary” to be the equivalent of “that it should,” rather than imposing upon the court a separate obligation of making a finding of necessity.   To impose upon the court an additional requirement of making specific findings of necessity would encrust with undesired formality a provision of law intended to relieve, rather than increase, the burdens faced by trial courts.

 At the time the trial judge in department 11 appointed the referee, it had before it a complex case which clearly could use the assistance of a discovery referee.   Moreover, we note the January 26, 1989 chambers conference at which the court made its order and during which petitioner made objection to appointment of the referee was not reported.   We are therefore not privy to the reasons the trial court may have articulated for the reference.   Given the intent of subdivision (e) of section 639 and the facts presented on this petition, we cannot conclude the reference for purposes of discovery was improper.


 The county further urges it was error to appoint a discovery referee when no motion to compel or other discovery motion was then pending.   We reject this contention.   As the history of section 639, subdivision (e) suggests, it is not necessary that discovery problems be actually encountered before appointment of a discovery referee may be made.   The superior court is entitled to gauge the likely complexity of discovery in a case, and make appropriate appointments, before discovery disputes erupt.   We can conceive that the timely appointment of a discovery referee, in an appropriate case, could have the beneficial effect of eliminating problems before they arise, organizing complex discovery such that it is made easier for the parties, and forestalling what might otherwise be vexatious discovery motions.


 The county further objects to that portion of the order empowering the referee to set his own fee, saying it fears fees will be ordered without itemized bills or a record which can be reviewed.   We note that fee orders, like all referee's orders, are subject to review, revision and approval by the superior court.  (§§ 645.1, 1023.)   Consistent with this procedure it is our conclusion that the superior court's order was simply authorization to the referee to determine in the first instance his own reasonable fee, and that his determination was subject to review and revision upon timely petition to the superior court.


 Although we conclude the appointment of a referee for discovery purposes was proper, we conclude the portion of the order appointing a “settlement referee” was in excess of the court's jurisdiction.   We are aware of the great benefit a special settlement referee can bestow on settlement negotiations, just as the assistance of a referee in any aspect of complex pre-trial or trial litigation may be of great assistance to the court and counsel.  (Cf. San Bernardino Community Hospital v. Meeks, supra, 187 Cal.App.3d at pp. 472–473, 231 Cal.Rptr. 673.)   However, unless the purpose of the referee's appointment falls within one of the subdivisions of section 639, such appointment is entirely dependent upon agreement of the parties.   We discern no subdivision authorizing appointment of a settlement referee and respondent suggests none.   Failing agreement, as here, the court's use of a referee to assist in settlement must be limited to those circumstances where for instance generation of information will be of benefit to court-conducted settlement proceedings.  (See § 639, subd. (d);  see also Aetna Life Ins. Co. v. Superior Court (1986) 182 Cal.App.3d 431, 435, 227 Cal.Rptr. 460.)


 An alternative writ or order to show cause would add nothing to the presentation, therefore a peremptory writ is proper.  (§ 1088;  United Nuclear Corp. v. Superior Court (1980) 113 Cal.App.3d 359, 169 Cal.Rptr. 827;  Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697, 96 Cal.Rptr. 165.)   We could perhaps achieve an appropriate result simply by striking the reference to “settlement” in the court's order.   However, in that the present unavailability of the designated referee will require a completely new order, we deem it more appropriate to annul the entire appointment.   Let a peremptory wit of prohibition issue annulling the order appointing a “settlement and discovery judge.”


1.   The referee has subsequently been appointed to the bench and respondent suggests that since he can no longer continue as referee, the issue is moot.   Even if moot, we believe the questions presented to be of sufficient importance to entertain the petition.

FN2. All statutory references are to the Code of Civil Procedure unless otherwise specified..  FN2. All statutory references are to the Code of Civil Procedure unless otherwise specified.

BENKE, Associate Justice.

KREMER, P.J., and FROEHLICH, J., concur.

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