Written by attorney Jeff Gerard Harmeyer


I. The Rules of Court Have Limited Authority A. The Judicial Council Cannot Adopt Caselaw Which Conflicts With Statute The proposed amendments to Rule 3.1380 incorporate the decision in Lu v. Superior Court (1997) 55 Cal.App.1264 in the proposed Advisory Committee Comment. In Lu, the Court of Appeal combined two creations of the Judicial Council -- the mandatory settlement conference and the complex litigation designation -- to circumvent the provisions of CCP Section 639. The reference to Lu in the proposed comment is purportedly to "prevent confusion" in distinguishing between mandatory settlement conference and mediation under the proposed amendment. The comment is misguided since the Lu court expressly declined to even attempt to distinguish a mandatory settlement conference from mediation. In considering the distinction, the Lu Court stated: We will not use this case as a vehicle to attempt determine how or whether mediation differs from traditional court supervised settlement conferences. (Lu, supra at 1270.) Indeed, rather than clarify the distinction between a mandatory settlement conference and mediation, the Lu opinion obfuscates it. The controversy in Lu involves an order appointing a referee, which states "[a]ll mediation sessions are deemed to be Mandatory Settlement Conferences of this Court, . . ." The facts of the case themselves blur the line between mandatory settlement conference and mediation, yet the Lu court declined to clarify the distinction. The reference to Lu in the proposed comment does not help to distinguish mandatory settlement conference from mediation. Moreover, in creating another category in which the appointment of a referee is authorized, the Lu opinion ignores established caselaw holding that the provisions of Section 639 authorizing reference are exclusive. (See Williams v. Benton (1864) 24 Cal. 424, 425 - 426; Bird v. Superior Court (1980) 112 Cal.App.3d 595, 598 - 599; Aetna Life Ins. Co. v. Superior Court (1986) 182 Cal.App.3d 431; and Kim v. Superior Court (1998) 64 Cal.App.4th 256, 261.) As discussed above, courts have held that judicial reference is allowed only in the specific instances listed in Section 639. Lu concludes -- without citing or analyzing this existing caselaw -- that it is not appropriate "to hold that, absent express statutory authorization, courts are powerless to devise procedures to expedite and facilitate the management of complex cases." (Lu, supra at 1270-1271.) The Lu opinion then goes on to say: "We need not here determine whether courts have authority under Code of Civil Procedure section 639 routinely to appoint references to conduct settlement conferences. This is not a routine case but a complex case under the complex litigation standard." (Id. at 1271.) Anyone familiar with construction defect litigation is aware that complex cases are in fact routine. Contrary to Lu's own assertion, in the context of construction defect, the Lu decision does attempt to determine the courts' authority under Section 639 to routinely appoint referees to conduct mandatory settlement conferences. The Lu court next utilizes the complex litigation designation -- itself a creation of the Judicial Council -- to circumvent the provisions of Section 639. Nowhere in section 639 is there an exception for complex cases. As discussed above, had the Legislature intended that there be such an exception, it would have expressly stated so. More importantly, the Judicial Council cannot combine the impact of two of its own rules to circumvent Section 639. (See CRC 3.400 et seq., creating the "complex designation," and CRC Rule 3.920 and 3.1380 addressing mandatory settlement conferences). Lu improperly did so, and to that extent Lu is "bad law" which should not be promoted by the Judicial Council, especially in light of other conflicting authority. B. The Judicial Council Cannot Perform Judicial and Legislative Functions Even without regard to the soundness of the Lu decision, the Judicial Council has no authority to adopt and promote Lu, or any other Court of Appeal Decision. It is well established that a District Court of Appeal is not bound by the opinion of a Court of Appeal in another district. (Wolfe v. Dublin Unified School District (1997) Cal.App.4th 126.) By incorporating Lu into a California Rules of Court, the Judicial Council attempts to adopt caselaw interpretation of a statute (which is binding only in the district in which the case was decided) and then impose it statewide. Doing so impermissibly infringes on the other District Courts of Appeal's discretion on whether or not to follow Lu. This interferes with the well established principle that Courts of Appeal in different districts operate independently of one another. Moreover, the interpretation and adoption of the Lu decision is an impermissible exercise of judicial authority by the Judicial Council. Judicial authority is vested in the courts of record of the state -- The Supreme Court, the Courts of Appeal, and the Superior Courts. (CA Constitution, Article VI, ? 1.) The Judicial Council must not be confused with the Judicial branch, in which judicial authority is vested. It is not within the Judicial Council's purview to interpret caselaw, or to promote or adopt one Court of Appeal decision over another. (See McClung v. Employment Development Department (2004) 34 Cal.4th 467, 472; discussing the grant and scope of judicial authority.) Nor does the Judicial Council have the authority to promulgate rules where the Legislature has already exercised its authority on the matter. (California Court Reporter's Association v. Judicial Council of California (1995) 39 Cal.App.4th 15, 22.) It is the function of the California Supreme Court to resolve conflicting decisions among the state Courts of Appeal and determine what the law is on any given issue,[1] and only the Legislature has the authority to abrogate or codify a holding of the Supreme Court or Courts of Appeal. The Supreme Court has made very clear the distinction between Judicial and Legislative powers: Under fundamental principles of separation of powers, the legislative branch of government enacts laws. Subject to constitutional constraints, it may change the law. But interpreting the law is a judicial function. After the judiciary definitively and finally interprets a statute, . . . the Legislature may amend the statute to say something different. (Emphasis in original.) (McClung v. Employment Development Department (2004) 34 Cal.4th 467, 470.) There are numerous decisions directly in conflict with Lu. (See Williams v. Benton (1864) 24 Cal. 424; Bird v. Superior Court (1980) 112 Cal.App.3d 595; Aetna Life Ins. Co. v. Superior Court (1986) 182 Cal.App.3d 431; Raygoza v. Betteravia Farms (1987) 193 Cal.App.3d 1592; and Kim v. Superior Court (1998) 64 Cal.App.4th 256.) The proposal for the amendment to Rule 3.1380 -- and the adoption of the Lu decision therein -- argues that because the Lu decision has been the law for more than 10 years, the Judicial Council should respect it as the governing law. If the Judicial Council is inclined to consider the longevity of a decision (which it should not), the Judicial Council should lend far greater respect to the decisions of Williams, supra (1864), Bird, supra (1980), Aetna, supra (1986), and Raygoza, supra (1987), which have been the "law" on judicial reference for much longer than Lu. (As discussed above, it is outside the scope of the Judicial Council's authority to weigh in on the merits of caselaw.) The Lu opinion fails to even consider these conflicting authorities in its analysis of the scope of Section 639, and is invalid to the extent it conflicts with the decision of the California Supreme Court in Williams, which held that judicial reference is limited to the express terms of Section 639. "Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to over-rule decisions of a higher court." (McClung, supra at 473.) As discussed in detail above, the extent of the Judicial Council's rule-making authority is to adopt rules for court administration, practice, and procedure. (CA Constitution, Article VI, Section 6.) "A rule of court may go beyond the provisions of a related statute so long as it reasonably furthers the statutory purpose." (Trans-Action Commercial Investors v. Jelinek (1997) 60 Cal.App.4th 352, 364.) "However, if a statute even implicitly or inferentially reflects a legislative choice to require a particular procedure, a rule of court may not deviate from that procedure." (Id.) The legislature has clearly outlined the specific procedure and purposes for judicial reference in CCP Sections 638 and 639. Consequently, the proposed amendment to Rule 3.1380 is invalid because it deviates from that procedure, allowing reference in a situation not expressly authorized by statute. Should the Judicial Council attempt to adopt Lu and promote its holding over conflicting decisions, it would interfere with the function of the Supreme Court and infringe on the primacy of the Legislature's law-making power. [1] In fact, a primary reason for granting Supreme Court review is to resolve conflict among the Courts of Appeal (See People v. Davis (1905) 147 Cal. 346; CRC 8.500(b)(1).)

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