Judge: Michelle Williams Court, Case: 21STCV47485, Date: 2022-09-19 Tentative Ruling
Case Number: 21STCV47485 Hearing Date: September 19, 2022 Dept: 74
21STCV47485
ATLANTIC SOLUTIONS GROUP vs JWD
INCORPORATED
Plaintiff’s
Motion for Judicial Reference [CCP § 638]
TENTATIVE
RULING: The motion is GRANTED. The Court sets an OSC
re: Referee Selection for November 16, 2022 at 8:30 a.m.
Background
On December 30,
2021, Plaintiff Atlantic Solutions Group, Inc.
d/b/a Empire Workforce Solutions filed this action against Defendants JWD
Incorporated and James W. Dumas. The complaint asserted causes of action for:
(1) breach of contract; (2) common count; and (3) quantum meruit and included a
demand for judicial reference.
Motion
On June 9, 2022,
Plaintiff filed the instant motion for judicial reference.
The motion is
unopposed. (Code Civ. Proc. § 1005(c).)
Motion
Standard
Pursuant to
Code of Civil Procedure section 638(a), “[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.”
Judicial
reference involves sending a pending trial court action to a referee for
hearing, determination and a report back to the court. 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.” (O'Donoghue v. Superior Court (2013) 219 Cal.App.4th 245, 255 (quotations and
citations omitted).) While judicial references differ significantly from
arbitrations, courts draw on cases related to arbitration in assessing judicial
reference agreements. (Id. at 250.)
“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.” (Code Civ. Proc. §
638(b).)
The Court Shall Enforce the Parties’ Agreement
In an agreement
dated May 5, 2019, Defendant JWD Incorporated entered into a Master Service
Agreement with Plaintiff Atlantic Solutions Group, Inc. d/b/a
Empire Workforce Solutions. (Palazzolo Decl. Ex. 1.) The agreement provides:
All disputes hereinunder shall be resolved by the rules in a
Judicial reference that is codified in California Code of Civil Procedure (CCP)
section 638, which provides for the appointment of a referee 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.’ Section 638 expressly
provides that a contract or agreement made before a dispute arises can require
that any lawsuit arising out of hat contract or agreement shall be heard by a
referee.
(Id. at § 5.) Plaintiff served a demand
for mediation as required by the parties’ agreement. (Ibid. See Robinson Decl.
¶ 4, Ex. 4.) The agreement was signed by Defendant Dumas, the CEO/President of
Defendant JWD. Defendant Dumas holds every reportable position other than agent
for service of process for Defendant JWD and JWD indicated it had no employees
in its contractor’s license filings. (Robinson Decl. Ex. 2-3.) The agreement
was also expressly made to be binding upon the parties’ representatives, which
would include Dumas. (Palazzolo Decl. Ex. 1 § 9(E) (“The provisions of this
Agreement will inure to the benefit of and be binding upon the Parties and
their respective representatives . . . ”).) The reference requirement can be
enforced against Defendant Dumas. (See e.g. RN
Solution, Inc. v. Catholic Healthcare West (2008) 165 Cal.App.4th 1511,
1520; Michaelis v. Schori (1993) 20 Cal.App.4th 133, 139.)
The Court finds Plaintiff
and Defendants entered into a valid agreement which provides that they will
resolve their disputes in a judicial reference. The Court shall enforce the
parties’ agreement. (Code Civ. Proc. § 638.) The Court shall stay the action,
pending selection of a referee and conclusion of the reference. (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 148 (“Trial courts generally have the
inherent power to stay proceedings in the interests of justice and to promote
judicial economy.”).)
The parties are
ordered to meet and confer to determine whether they can agree to a referee.
(Code Civ. Proc. § 640(a) (“The court shall appoint as referee or referees the
person or persons, not exceeding three, agreed upon by the parties.”).)
If the parties
are unable to reach an agreement, they must each provide nominees, who have
demonstrated a willingness to conduct the reference, in compliance with Code of
Civil Procedure section 640(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.”
Conclusion
Plaintiff’s Motion for Judicial Reference
[CCP § 638] is GRANTED. The action STAYED pending selection of a referee and conclusion of the reference.
The Court sets an OSC re: Referee Selection for November 16, 2022
at 8:30 a.m.