Discovery Referee Orders–They Can’t Be Issued Ex Parte and Cannot Order Litigant to Pay Referee Fees/Costs in Absence of Noticed Motion

Fourth District, Division Three Issues Mandate to Reverse Contrary Ex Parte Order.

            The Fourth District, Division Three, in Clayton v. Superior Court, Case No. G040482 (4^th Dist., Div. 3 June 27, 2008) (unpublished “by the court” decision), issued a writ of mandate overturning an ex parte order appointing a discovery referee pursuant to Code of Civil Procedure section 639(a)(5). 

            Clayton is significant in two respects.

            First, the appellate panel fundamentally found that discovery referees cannot be appointed on an ex parte basis.  Reason:  section 639(a)(5) requires appointment upon a written motion, which means notice and affording the other side an opportunity to be heard. 

            Second, the order requiring a litigant to bear all fees and costs of the referee is a “doubly important” reason for mandating a decision only after a noticed hearing occurs.   “Because the order imposes an up-front duty on petitioner to pay all fees and costs of the referee it clearly affects petitioner’s rights and its issuance on an ex parte basis deprives him of basic due process.”  (Slip Opn., at p. 3.)