Judge: Layne H. Melzer, Case: 2022-01276212, Date: 2022-12-07 Tentative Ruling
Petitioner Ponani Sukumar
Motion - Other (Petition for Commencement and Appointment of Referee for All Purposes)
Before the court is Petitioner Ponani Sukumar Petition by Stipulation to appoint Retired Orange County Superior Court Judge Judith Ryan to act as a general Judicial Referee in this matter against Land Creative Inc., David Salkowitz, and Paul Wang pursuant to Code of Civil Procedure Sections 638, et. seq.
Pursuant to Code Civ. Proc. § 638(a), “a referee may be appointed upon the agreement of the parties…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) [t]o 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.”
“Judicial reference involves sending a pending trial court action to a referee for hearing, determination and a report back to the court.” Trend Homes, Inc. v. Superior Court (2005) 131 Cal. App. 4th 950, 955, disapproved on other grounds in Tarrant Bell, supra, 51 Cal. 4th 538. “A general reference directs the referee to try all issues in the action. The hearing is conducted under the rules of evidence applicable to judicial proceedings. In a general reference, the referee prepares a statement of decision that stands as the decision of the court and is reviewable as if the court had rendered it. The primary effect of such a reference is to require trial by a referee and not by a court or jury. [Citation.]” Treo @ Kettner Homeowners Assn. v. Superior Court (2008) 166 Cal. App. 4th 1055, 1061.
As a general rule, agreements for reference pursuant to Code Civ. Proc. § 638 may be enforceable as contracts between the parties. Code Civ. Proc. § 638; O’Donoghue v. Superior Court (2013) 219 Cal. App. 2d 245, 255-56. They are thus subject to claims of unconscionability. See, e.g., Pardee Construction Co. v. Superior Court (2002) 100 Cal. App. 4th 1081, 1087-93 (finding judicial reference provision in homeowner’s purchase agreement, which also provided for waiver of punitive damages, to be unconscionable) and Greenbriar Homes Communities, Inc. v. Superior Court (2004) 117 Cal. App. 4th 337, 342-46 (finding judicial reference agreement in homeowners’ purchase agreement not to be unconscionable) disapproved on other grounds Tarrant Bell Property LLC v. Superior Court (2011) 51 Cal. 4th 538, 545 n.5.
Here, Ponani Sukumar and Defendant Land Creative, Inc., a California corporation, entered into a Personal Services Agreement dated December 24, 2019. According to 9 of the Personal Services Agreement between Plaintiff Ponani Sukumar as “Owner” and Defendant Land Creative, Inc., a California corporation as “Consultant”, Petitioner and the corporate Respondent agreed to a judicial reference to resolve any dispute including “any claim, demand, action or cause of action arising out of, or relating to, this Agreement or the project Or the Property…” Although the claims at issue are not identified or provided to the court, the parties agree that all potential claims of either side fit within this broad definition.
As to the remainder of the Respondents, parties provide a Stipulation indicating that all Respondent agree to judicial reference. The Stipulation is signed by Counsel for Respondents and includes a copy of the relevant portions of the December 24, 2019 Personal Services Agreement between Petitioner and the corporate Respondent that sets forth the method of designation of the referee, procedural and evidentiary matters in the reference, and the judgment and findings.
Petitioner provides a Stipulation signed by Counsel for Respondents indicating that Respondents agree that the court should appoint Retired Orange County Superior Court Judge Judith Ryan with JAMS as the Referee.
The court will sign the Order.
The court sets an OSC re status of Judicial Reference for 9/12/23 at 9:30AM.