Judge: Nick A. Dourbetas, Case: 2020-01155136, Date: 2022-08-05 Tentative Ruling

Motion - Other

Plaintiff/cross-defendant Moorefield Construction, Inc.’s (Moorefield) motion for judicial reference is GRANTED. (See Code Civ. Proc., §§ 638, 740.)

There is no dispute that the written subcontract between Moorefield and defendant/cross-complainant Buss Mechanical Services of California, Inc. (Buss) includes an agreement for judicial reference that governs this dispute. (See Soll Decl. ¶¶ 3, 4, 8, Exs. 1-3.)

While the right to judicial reference may, like other contractual rights, be waived (O’Donoghue v. Superior Court (2013) 219 Cal.App.4th 245, 261-262 (O’Donoghue) [applying cases concerning waiver of contractual arbitration to determine whether the plaintiff waived right to judicial reference]), Buss has failed to demonstrate waiver in this case. 

First, Buss has failed to demonstrate prejudice as a result of Moorefield’s delay in bringing this motion. The parties’ agreement sets the deadline for any motion for judicial reference at 60 days before trial (see Soll Decl. ¶ 8, Ex. 3; see also id. ¶¶ 3, 4, Exs. 1-2), and Moorefield timely brought this motion on 5/20/22, two days before that deadline. It is therefore hard to see how Buss has suffered any prejudice as a result of Moorefield’s timing of this motion, even if Moorefield should have, at least preferably, sought judicial reference earlier in the litigation.

Buss has also failed to show any resulting prejudice from the fact that “the litigation machinery has been substantially invoked” (see Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1099), because the parties’ agreement also expressly accounts for this, and specifically provides that “[t]he fact a party files a complaint, or an answer, or attends a case management conference, or agrees to set the case for trial (whether jury or non-jury), or participates in mediation, or engages in pre-trial discovery pursuant to Code of Civil Procedure sections 2016.010 – 2035.050 shall not be deemed to waive that party[’]s right to file a motion to appoint a Referee, and have a Referee appointed.” (Soll Decl. ¶ 8, Ex. 3; see id. ¶¶ 3, 4, Exs. 1-2.)

Moreover, unlike with arbitration, parties have the same right to discovery before a judicial referee as they do in court, and thus the fact that the parties have already engaged in extensive discovery does not necessarily demonstrate prejudice. (See O’Donghue, supra, 219 Cal.App.4th at p. 265.)

As for the fact that Buss’s counsel has already begun to prepare for trial in accordance with Local Rule 317 (which requires, inter alia, a list of controverted issues, a statement of the case, a witness list, the exchange of trial exhibits), this also fails to demonstrate any undue prejudice because counsel will have to prepare for trial before the referee in any event.

Further, although some of the benefit of having this action decided by judicial reference may have been lost by Moorefield’s delay in seeking judicial reference, having the matter decided by judicial reference is still more efficient and expeditious than having the matter determined by a jury.

Finally, the fact that Buss will now have to bear the cost of a referee does not demonstrate prejudice, because this is a cost that Buss explicitly agreed to and/or should have anticipated when it entered into the subject agreement for judicial reference.

The court therefore ORDERS all remaining issues in this litigation between Moorefield and Buss, including the trial thereof, to be determined by judicial reference.

Moorefield and Buss shall agree upon a single referee as provided in the subject agreement, and if they cannot so agree within 10 days, shall seek the appointment of a referee pursuant to the terms of the agreement and Code of Civil Procedure sections 638 and 640. (See Soll Decl. ¶ 8, Ex. 3 [subject agreement for judicial reference]; see also id. ¶¶ 3, 4, Exs. 1-2.)

The remainder of this litigation as it pertains to defendant Hudson Insurance Company is ORDERED stayed pending completion of the trial between Moorefield and Buss before a judicial reference and the issuance of a statement of decision by the referee, or until further order of the court.

Moorefield shall give notice of all the above.