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Court of Appeal:
Superior Court Can’t Rid Itself of Cases by Shipping Them to Ex-Judge’s ADR Firm
By a MetNews Staff Writer
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STEPHEN GIZZI Solano Superior Court judge |
Div. Two of the First District Court of Appeal has issued a peremptory writ in the first instance directing the Solano Superior Court to decide two cases that had been filed there and which a judge of that court, on his own motion, routed to a private judge for decision.
In both cases—an estate matter and a dispute over a trust—the parties are the same: Edward Biggs Jr. on one side and Loretta Biggs and Angelique Gabrielle Bouton on the other. It was Edward Biggs Jr. who petitioned for a writ.
He protested that Judge Stephen Gizzi, to whom both cases were assigned, on June 8, 2023, ordered a general reference to retired Placer Superior Court Judge Richard L. Gilbert, proprietor of an alternative dispute resolution business in Sacramento.
Abuse of Discretion
Presiding Justice Therese M. Stewart and Justices James A. Richman and Maria J. Miller signed the “by the Court” opinion, which was filed Tuesday and not certified for publication. They declared that Gizzi abused his discretion “because there was no lawful basis for appointing Judge Gilbert as a consensual or nonconsensual referee.”
The opinion says:
“A general reference is possible only with the parties’ express written consent….The language and stated purpose indicate the challenged references are intended to be general in nature. There is no dispute, however, that Biggs did not request or consent to references, which respondent court made sua sponte.
“There is also no basis for Judge Gilbert to serve as a nonconsensual referee.”
Provision Gizzi Cited
The panel pointed out that the “scope of a nonconsensual reference is narrowly limited” by Code of Civil Procedure §639. The portion of that section under which Gizzi purported to act was subd. (a)(1), which says:
“When the trial of an issue of fact requires the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein.”
The justices said it is undisputed that there is “nothing in the record or the appointment orders” indicates that a “long account” must be analyzed and noted that informal opposition filed by the real parties in interest suggests that the citation to subd. (a)(1) “appears to have been a typographical error.”
They added:
“The orders are also not authorized, as real party in interest contends, by subdivision (a)(4) of section 639. That subdivision authorizes a nonconsensual referee appointment only ‘[w]hen it is necessary for the information of the court in a special proceeding.’…Neither the superior court nor real party in interest has shown that all those requirements are satisfied here or that, as is generally required, there is any need for determination of a controverted issue of fact respondent court is not well-equipped to decide.”
The justices specified that “[i]n the interests of justice and to prevent further delays,” the decision is final immediately as to the Court of Appeal.
The case is Biggs v. Superior Court (Biggs), A168399.
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