Judge: Nathan Vu, Case: 2021-01238144, Date: 2022-09-12 Tentative Ruling

Motion for Judicial Reference

The motion of judicial reference of Plaintiff Woodbury Town Center, LLC is DENIED without prejudice.

Plaintiff Woodbury Town Center, LLC seeks to have this case referred to a referee pursuant to Civil Procedure Code section 638.

Section 638 authorizes the court to appoint a referee “[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.” (Civil Proc. Code, § 638, subd. (a); Grafton Partners L.P. v. Superior Court (2005) 36 Cal.4th 944, 960-961.)

The appointment may be made “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.” (Civil Proc. Code, § 638.)

The motion for the appointment of referee is handled much the same way as a motion to compel contractual arbitration, with the Court deciding the threshold issues of enforceability of the agreement and the scope of issues to be resolved by the reference. (O’Donoghue v. Superior Court (2013) 219 Cal.App.4th 245, 256-257.)

In this case, Plaintiff asserts that Section 21.12(b) of the Retail Lease dated 11/14/2019 (Lease) and Section N(b) of the Guarantee of Lease dated 11/14/2019 (Guarantee) authorizes a judicial reference in this case.

It is true that both provisions mandate that all disputes arising in connection with the Lease or Guarantee are to be resolved by way of a general reference pursuant to Civil Procedure Code section 638. (See Compl., Exh. 1.)

However, both provisions are only effective under a specific condition. Section 21.12(b) of the Lease states, ““In the event that the jury waiver provisions of Section 21.12(a) are not enforceable under California Law, then the provisions of this Section 21.12(b) shall apply.” (Compl., Exh. 1.) Section N(b) of the Guarantee similarly provides that “In the event that the jury waiver provisions of Section III. N.(a) are not enforceable under California Law, then the provisions of this Section III. N. (b) shall apply.” (Ibid.)

Sections 21.12(a) of the Lease and Section N(a) of the Guarantee are jury waiver provisions. (See Compl., Exh. 1.) No showing or argument has been made that these judicial waiver provisions are not enforceable under California law.

Therefore, the court cannot find that there is an enforceable reference agreement between the parties. However, neither party addressed this issue so the court will deny the motion without prejudice.

Defendant shall give notice of this ruling.