SAMPLE JUDICIAL REFERENCE CLAUSE
Michael P. Carbone
___.1 In the event of any legal action or proceeding based upon a controversy arising from or relating to this Agreement, the parties hereby agree, pursuant to California Code of Civil Procedure Section 638, to the appointment of a referee to hear and determine any or all of the issues in such action or proceeding, whether of fact or law. This agreement to the use of judicial reference may be filed with the clerk of the court; or in the alternative, either party may move the court for the appointment of a referee.
___.2 Not later than thirty (30) days after the filing of this Agreement with the clerk or after the filing of a motion for appointment of a referee, the parties shall agree on the choice of a referee. In the event that the parties have been unable to agree on the choice of a referee within that thirty (30) day period, then the court shall appoint the referee. The referee must be either an active member of the State Bar of California who has been licensed to practice in
___.3 The parties shall participate in one or more pre-hearing conferences with the referee as he or she may direct, whereby the referee shall hear and determine all discovery disputes, pre-hearing motions, and any other matters to be resolved in advance of the hearing. These conferences may be conducted in person or telephonically. Any party may request a transcript thereof at that party’s own expense.
____.4 The hearing shall be held in the City of ____________________, at a place to be agreed upon the parties, or if they do not agree, then to be determined by the referee. The hearing shall commence not later than __________days after the appointment of the referee. Any party may request a transcript of all or any part of the hearing at that party’s own expense.
____.5 The hearing shall be conducted and the controversy shall be determined in accordance with all applicable laws, both substantive and procedural, of the State of
___.6 The referee may engage in telephonic or electronic conferences and communications with counsel; provided however that no such conferences shall be ex parte in nature except under circumstances in which ex parte communications with a judge would be permitted.
___.7 Within thirty (30) days after the conclusion of the hearing and the submission of any post-hearing briefs, the referee shall report a statement of decision to the court. At the request of a party made before the submission of the case for decision, the statement of decision shall direct a party to prepare findings of fact and conclusions of law, which shall thereafter be settled by the referee.
____.8 The parties shall pay to the referee, in advance, their respective shares of the referee’s fee as and when directed to do so by the referee. The referee shall allocate responsibility for the payment or reimbursement of all costs of suit, including transcripts and referee’s fees.
___.9 Any party shall have the right to apply to the court at any time for a temporary restraining order, writ of attachment or other provisional remedy.
___.10 Each party to this Agreement acknowledges that by agreeing to the terms of this Section ___ he or she is agreeing to have any legal action or proceeding based upon a controversy arising from or relating to this Agreement tried before a referee according to the provisions hereof and not by a judge or jury and that the referee shall have full authority to hear and determine any or all of the issues in such action or proceeding, whether of fact or law, in the same manner as would a judge sitting without a jury.