Special Master Family Law California
"In family law matters, especially where the parties are unable to curb their animosity toward each other, the trial court may well find it advantageous to designate a separate forum to resolve the parties' differences." (Ruisi v. Thieriot (1997) 53 Cal.App.4th 1197, 1207; accord, In re Marriage of Olson (1993) 14 Cal.App.4th 1, 5, fn. 2 and 8.)
Although the court may not entirely delegate its judicial power (Cal. Const., art. VI, 1), it has the statutory authority to send a pending action or proceeding, or some issue raised therein, to a referee or special master "for hearing, determination and report back to the court." (Jovine v. FHP, Inc. (1998) 64 Cal.App.4th 1506, 1521; see 638, 639.)
There are two types of references. A "general" reference, conducted under Code of Civil Procedure section 638, empowers a special master to make a conclusive determination without further action by the court. To comport with the constitutional prohibition against delegation of judicial power, a general reference requires the consent of the parties. ( 638; Ruisi v. Thieriot, supra, 53 Cal.App.4th at p. 1208.)
"If the reference is by agreement of the parties, the parties can stipulate to the referee making determinations which otherwise would be an unlawful delegation of judicial authority." (In re Marriage of Olson, supra, 14 Cal.App.4th at p. 8.)
A "special" reference under Code of Civil Procedure section 639 may be ordered by the court without the parties' consent. (Jovine v. FHP, Inc., supra, 64 Cal.App.4th at p. 1522.) In such cases the authority of the referee is limited to resolving specific questions of fact.
"The procedure is most commonly employed where complicated accounts can more conveniently be examined or taken outside of court, and to resolve discovery disputes or certain types of family law issues." (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 176.)
These findings are advisory recommendations only and are not binding unless the court adopts them. (Ruisi v. Thieriot, supra, 53 Cal.App.4th at p. 1208; Marriage of Petropolis, at p. 176.)
Nevertheless, although a referee's findings on factual questions are not binding, they are entitled to great weight when supported by substantial evidence. (See In re Johnson (1998) 18 Cal.4th 447, 461 "deference to the referee is called for on factual questions, especially those requiring resolution of testimonial conflicts and assessment of witnesses' credibility, as the referee has the opportunity to observe the witnesses' demeanor and manner of testifying".)
"The court may adopt the referee's recommendations, in whole or in part after independently considering the referee's findings and any objections and response thereto filed with the court." ( 644, subd. (b); see Marathon Nat. Bank v. Superior Court (1993) 19 Cal.App.4th 1256, 1261.)
If substantial evidence supports the referee's recommendations, there is no abuse of discretion by the trial court.
The trial court may direct a special reference under section 639 only in the following cases: "(1) 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. (2) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect. (3) When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action. (4) When it is necessary for the information of the court in a special proceeding. (5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon." ( 639, subd. (a).)