Judge: Mark H. Epstein, Case: 23SMCV04219, Date: 2025-03-19 Tentative Ruling

Case Number: 23SMCV04219    Hearing Date: March 19, 2025    Dept: I

This is a motion to remand the case from the judicial reference to which the parties had agreed.  The motion is DENIED. 

Defendant, the moving party, contends that the 638 referee, Judge Hogue (Ret.), acted improperly by defaulting the defense because the defendant was unable to pay the referee’s fees.  Defendant waxes long about due process and the right to be heard, which would be impossible if one had to pay a referee and lacked the financial wherewithal to do so.  What defendant mis-perceives is that the referee considered that issue but found that defendant had not made the requisite showing. 

The court notes that the parties had an underlying agreement to have the matter resolved by a section 638 reference.  While the law on such references is not identical to the law on arbitrations, it is similar.  Agreements to that effect are favored and will be enforced.  Therefore, if a party to such an agreement wants to get out of the reference for some reason, it is that party’s burden to establish cause.  An inability to pay could constitute such cause.  If a party cannot pay its share of the referee’s fees, the appropriate thing to do is to bring an appropriate motion.  If the motion is granted, the other party might still enforce the reference provision by agreeing to shoulder the cost, but the court agrees that it would be improper to force a party to a judicial reference in which that party cannot participate.

Here, defendant argued to Judge Hogue that defendant could not pay the reference fees.  Judge Hogue considered that issue but found that defendant had not made a showing of any such inability.  Because of the lack of that showing, the court cannot find that there is any cause to revoke the reference.  But defendant argues that the issue was not for Judge Hogue to decide; it is for this court.  Even assuming that is true (and perhaps it is), the case has still not been made.  There is no evidence before this court that defendant cannot pay the reference fee; in fact, there is no evidence at all other than a declaration from counsel that is, obviously, of no evidentiary weight on this point.  So even assuming that the issue is for this court and Judge Hogue’s decision ought to be otherwise ignored (as to this point), the motion is DENIED.