Referee Cost Shifting Provisions Does Not Mention Counsel Involvement.
Lupien v. Vons Market, Case No. B228896 (2d Dist., Div. 5 Dec. 6, 2011) (unpublished) involved a situation where plaintiff’s counsel was held jointly and severally liable along with their client for one half of a discovery referee’s costs totaling $7,800. Plaintiff appealed, arguing among other things that her counsel should not be responsible for these costs.
This argument was successful. An award for discovery abuse sanctions must follow certain procedures, and an order that an attorney pay an amount without any finding of discovery abuse did not cut the cake correctly. Beyond that, nothing in the referee cost-shifting scheme suggests that counsel was responsible for costs, actually quite the opposite. (Code Civ. Proc., § 639(d)(6)(B) [in determining financial inability to pay a referee’s fees, court only considers the ability of the party, not counsel, to pay fees].) Referee costs award reversed as to counsel.