Second District, Division 5 Applies “Inconsistent Position” Doctrine in Challenge to Allocation of Referee Fees.
What follows is an interesting application of the judicial estoppel doctrine in the referee fee allocation area. This doctrine is a good one to have in any litigator’s arsenal, especially in this age of modern litigation where litigants and their counsel frequently will take whatever position favors the moment. Beware, because judicial estoppel may rear up to bite you!
Judicial estoppel is a doctrine that precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. (Aguilar v. Lerner, 32 Cal.4th 974, 986-987 (2004).) [BLOG EXTRA—Although not cited in the case we next review, one needs to review two Second District decisions on the subject, starting with (now Retired/JAMS neutral) Justice Masterson’s seminal opinion in Jackson v. County of Los Angeles, 60 Cal.App.4th 171 (1997) and (Second District, Division 1’s Presiding) Justice Mallano’s scholarly decision in Jogani v. Jogani, 141 Cal.App.4th 158 (2006).]
In C3 Entertainment, Inc. v. Columbia Pictures Television, Inc., Case No. B208179 (2d Dist., Div. 5 Mar. 8, 2010) (unpublished), one party moved for a judicial reference, with the adverse party contending that the costs of the referee should be moving party’s responsibility and moving party arguing that the referee fees should be divided equally between the parties. The court ruled in moving party’s favor, appointing a judicial referee. Later, after the judicial reference was fought and won by the previous moving party, that party had a change of heart after each side paid about $80,000 in referee fees. Care to take a stab at moving party’s newfound position? You guessed it—moving party argued that the earlier adverse (and eventual non-prevailing) party should reimburse moving party for its $80,000 in referee fees.
Result? The appellate court applied judicial estoppel, finding that winning litigant took a diametrically opposite position in the prior judicial reference motion—one that was won after moving party stated that the referee fees should be divided. On review, successful party was held to its earlier position, with the result that it bore the $80,000 fee allocation which was advocated as proper in the beginning.