Kajima Engineering & Costruction, Inc. v. Pacific Bell

Opinion

O’LEARY, J. Appellant seeks reversal of a judgment entered upon a referee’s statement of decision. The sole ground for appeal is the referee’s alleged failure to take the oath required of temporary judges by California Rules of Court, rule 244, and the California Constitution, article VI, section 21.

The appeal fails because it is based on a mistaken assumption concerning the form of alternative dispute resolution employed here. The appeal

[1400]wrongly assumes a temporary judge tried this case. Instead, trial was conducted by a referee on a general reference pursuant to Code of Civil Procedure section 638, subdivision (a).1 Although a temporary judge is required to take an oath, a referee is not.

Statement of Facts and Procedural Background

This case arose out of a work-related injury at a construction site. Kajima Engineering and Construction, Inc. (Kajima) sued defendants (collectively Pacific Bell) to recover workers’ compensation benefits paid to its injured employee, Manuel Gonzalez. Gonzalez joined the litigation as a plaintiff in intervention, seeking to recover from Pacific Bell for his personal injury.

The case was assigned for all purposes to Judge Hugh Michael Brenner. The parties stipulated on the record to have the action tried by Edward Y. Kakita, a retired superior court judge. At the conclusion of a four-day bench trial, Judge Kakita ruled in favor of Pacific Bell and against Kajima and Gonzalez. Judge Kakita issued a statement of decision setting forth his findings of fact and law and filed it in the Orange County Superior Court.

Judge Brenner entered judgment on the statement of decision. The parties thereafter litigated the issues of costs, with Pacific Bell seeking over $35,000 and Kajima and Gonzalez moving to tax the costs claimed. Judge Brenner granted the motion to tax costs, allowing Pacific Bell just over $4,000 in costs. Only Gonzalez has appealed the judgment.

Discussion

1. Judge Kakita Was Not Required to Take an Oath.

Gonzalez argues the judgment is void because Judge Kakita did not take an oath before presiding over the trial—a constitutional prerequisite to serving as a temporary judge. (Cal. Const., art. VI, § 21; City of Shasta Lake v. County of Shasta (1999) 75 Cal.App.4th 1, 11, fn. 6 [88 Cal.Rptr.2d 863]; In re Marriage of Assemi (1994) 7 Cal.4th 896, 908 [30 Cal.Rptr.2d 265, 872 P.2d 1190].) Unfortunately for Gonzalez, his argument is entirely beside the point. After reviewing the record, we conclude Judge Kakita did not serve as a temporary judge. Rather, he was a referee serving on a general reference by the trial court. As such, he was not required to take an oath.