Carr Business Enterprises, Inc. v. City of Chowchilla

Opinion

WISEMAN, J. We hold that a stipulated judicial reference agreement made pursuant to Code of Civil Procedure section 638, which includes a provision to split the referee’s fees equally between the parties, is enforceable and precludes recovery of the prevailing party’s 50 percent share of the referee’s fees as an item of costs.

PROCEDURAL AND FACTUAL HISTORIES

This appeal comes after remand in litigation arising out of a contractual dispute between appellant City of Chowchilla (Chowchilla) and respondent Carr Business Enterprises, Inc. (Carr). In December 1999, the parties stipulated that the case would be submitted to a referee pursuant to Code of Civil Procedure1 section 638. The referee was asked to “try all of the issues of fact and law” raised by the pleadings. The stipulation also provided that “compensation for the referee shall be paid 50% by [Chowchilla] and 50% by [Carr].” After a lengthy trial, the referee issued a detailed statement of decision largely finding in favor of Carr. Chowchilla moved for a new trial, which was granted. The order granting new trial was reversed on appeal and remanded for further proceedings on a question relating to damages.

[28]At the conclusion of these proceedings, Carr filed its timely memorandum of costs. One of the items sought as costs by Carr was one-half of the fees charged by the “court-ordered Referee,” an amount equal to $44,562.50. Chowchilla filed a motion to tax costs, objecting to the recovery of the referee’s fees as costs. The trial court denied the motion, impliedly agreeing that the referee’s fees were recoverable under the discretionary authority granted by section 1033.5, subdivision (a)(13). Chowchilla appealed.

DISCUSSION

Chowchilla claims the trial court erred in allowing Carr’s recovery of the referee’s fees as costs. We agree.

Section 638 provides that “[a] referee may be appointed upon the agreement of the parties . . . .” The stipulation to send the matter to a referee in this case was a general reference, allowable only upon the consent of the parties and one permitted and governed by section 638. (Ellsworth v. Ellsworth (1954) 42 Cal.2d 719, 722 [269 P.2d 3] [general reference, which is trial before referee on all issues of fact or law, only occurs with consent of parties].) The dispute over who pays the referee’s fees in this case must be resolved by looking at the language of the stipulation and enforcing the objective intent of the parties as expressed in their agreement. (Greenbriar Homes Communities, Inc. v. Superior Court (2004) 117 Cal.App.4th 337, 348 [11 Cal.Rptr.3d 371], quoting Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945, 968 [103 Cal.Rptr.2d 672, 16 P.3d 94] [courts are not to rewrite any provision of a contract].)