Carr Business Enterprises, Inc. v. City of Chowchilla

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 Procedure 1 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…