Appealability of Reference Depends on the Kind of Ref

Lindsey v. Conteh, No. G052016 (D4d3 Mar. 23, 2017)

A discovery referee in a contentious stockholder derivative litigation imposed 100k in sanctions against a defendant for failure to abide by one of his orders.

Q: Is that order appealable?

A: It is.

Q: Why?

A: Well, it depends on the kind of reference. Generally, a superior court order for more than $5k in sanctions is immediately appealable under Code of Civil Procedure § 904.1(a)(12). So if the referee is acting under a general reference where his orders are statements of decision that count as orders of the court, see § 638(a), then it’s immediately appealable. But if it’s a “special reference”—where the referee is acting as a adjunct to the superior court, making a report and recommendation subject to review by it, see § 638(b)—it’s not. A general reference requires consent of the parties, a special one doesn’t. Somewhat confusingly, you can have a general reference for only some of the issues in a case, like just for discovery.

Sometimes the order isn’t entirely clear what kind of reference is being ordered, in which case you look to the totality of the circumstances. Here, the order was made as a stipulation and request of the parties and cites § 638(a). Which means it was a general reference. Even if just for discovery. Which means an immediate appeal could be taken.

The court goes on the reject the merits of the appeal in an unpublished part of the opinion.

Affirmed.