Filed 10/27/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

MICHAEL S. YU, a LAW 

CORPORATION, et al.,

Petitioners,

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

Respondent;

BANK OF THE WEST et al., 

Real Parties in Interest.

 B304011

 (Los Angeles County

 Super. Ct. No. BC562415)

Petition for writ of mandate. Randolph M. Hammock, 

Judge. Petition granted.

Shaw Koepke & Satter, Jens B. Koepke; PB Law Group, 

Luan K. Phan and Jody M. Borrelli for Petitioners.

No appearance for Respondent.

Miller Barondess, Brian A. Procel, Mira Hashmall and 

Colin H. Rolfs for Real Party in Interest Bank of the West.
2

Valle Makoff, John M. Moscarino; Greines, Martin, Stein & 

Richland and Kent L. Richland for Real Parties in Interest 

Commercial Loan Solutions III, LLC and Commercial Loan 

Solutions, LLC.

——————————

After the referee in a consensual general reference (Code 

Civ. Proc.,1 § 638) filed his decisions in the trial court, but before 

entry of judgment on those decisions, the court entertained 

motions to set them aside and ordered a new trial to be had by 

the court, not by the referee. Michael S. Yu, a Law Corporation, 

My Law Holdings, LLC, and Michael S. Yu individually (together 

petitioners), who had prevailed before the referee, petitioned this 

court for a writ of mandate to compel the trial court to enter 

judgment on the referee’s decisions, or alternatively, to direct the 

trial court to order a new trial to be heard by the referee. We 

issued an order to show cause. 

Our review of the statutory scheme compels the conclusion 

that the trial court had no authority to review the consensual 

referee’s decisions before entering judgment on them. We further 

conclude however, that the trial court was authorized to 

entertain the motions as postjudgment motions and, based on the 

parties’ reference agreement, properly ruled that the new trial 

would be heard by the court and not by the referee. Accordingly, 

we grant the writ petition.

1 All further statutory references are to the Code of Civil 

Procedure.
3

BACKGROUND

I. The lawsuit and reference agreement

The underlying lawsuit, brought by petitioners against 

Commercial Loan Solutions, LLC, Commercial Loan Solutions 

III, LLC (together, CLS), and Bank of The West (the Bank, and 

together with CLS, real parties), arose out of the nonjudicial 

foreclosure of petitioner’s property. Real parties moved the trial 

court to assign all issues in the lawsuit to a referee pursuant to 

reference clauses contained in certain forbearance agreements. 

The reference clauses provided, in the section entitled “Jury 

Waiver and Judicial Reference” (boldface and capitalization 

omitted), that the parties waived any right to a trial by jury and 

agreed that in “the event any legal proceeding is filed . . . by or 

against any party hereto in connection with any 

controversy . . . arising out of or relating to this agreement or the 

transactions contemplated hereby or the loan 

documents . . . . [¶] . . . any claim will be determined by a general 

reference proceeding in accordance with the provisions 

of . . . sections 638 through 645.1. The parties intend this general 

reference agreement to be specifically enforceable in accordance 

with . . . section 638.” (Capitalization omitted.) “The referee 

shall apply the rules of evidence applicable to proceedings at law 

in the State of California and shall determine all issues in 

accordance with applicable state and federal law. The referee 

shall be empowered to enter equitable as well as legal relief and 

rule on any motion which would be authorized in a trial, 

including, without limitation, motions for default judgment or 

summary judgment. The referee shall report his decision, which 
4

report shall also include findings of fact and conclusions of law.” 

(Capitalization omitted.)

II. The reference and referee’s decisions

The trial court granted real parties’ motion to compel a 

judicial reference and assigned the matter to a retired trial court 

judge.2 The lawsuit was tried in two phases. After the liability

phase, each side filed proposed statements of decision, objections, 

and other briefing with the referee. The referee then issued a 53-

page decision finding in favor of petitioners on 10 causes of 

action. The referee awarded petitioners over $2 million in 

damages and granted them equitable relief. In response to the 

Bank’s objections, the referee issued a supplemental decision that 

corrected typographical errors, but made no substantive changes. 

At the close of the punitive damages phase of the trial, the 

referee assessed $5 million in punitive damages against the 

Bank. The final decision awarded petitioners costs and fees. 

Having completed the “consensual judicial reference pursuant to 

section 638” (capitalization omitted), the referee filed all of his 

decisions with the trial court. 

III. Attacks on the referee’s decisions in the trial court

Before the trial court entered judgment on the referee’s 

decisions, real parties moved to set them aside, arguing that 

Calderwood v. Pyser (1866) 31 Cal. 333 (Calderwood) authorized 

the court to set aside a referee’s erroneous conclusions of law 

2 Defendant Delano Retail Center West, LLC, the

purchaser at the foreclosure sale, was not a party to the 

forbearance agreements and so the trial court stayed a quiet title 

cause of action involving that defendant. That defendant is not a 

party to this proceeding.
5

based on the facts found in the decisions prior to entering 

judgment. The Bank alternatively sought entry of judgment on 

the decisions before setting them aside. 

Petitioners argued that the statutes governing references 

obligated the trial court first to enter judgment on the referee’s 

decisions before review could occur. Petitioners added that any 

new trial or retrial must take place before the referee, not the 

court.

The trial court found legal errors in the referee’s decisions. 

Yet, the court was “unsure as to whether it is a better practice to 

simply enter a judgment in favor of [petitioners] (which 

essentially adopts the Referee’s findings), and then subsequently 

entertain (and grant) a motion for new trial, per . . . [section] 645, 

as opposed to simply granting the pending motions. In either 

approach, however, the same result will be reached. [¶] In either 

approach, and based upon the record at this time, it is the clear 

intent of this Court to not adopt the Referee’s findings and awards

in all respects, and to simply order a new trial on all issues. This 

does not mean that this Court is making any opposite finding on 

any of the issues. It means only that a new trial is to be held on 

all issues, including the claim for punitive damages. This new 

trial is to be conducted before this Court.” (Original italics 

omitted, and italics added.) The trial court set a new trial date to 

retry the entire case. 

Petitioners’ writ petition ensued. We stayed the trial and 

issued an order to show cause. We now grant the writ petition.
6

DISCUSSION

I. The trial court had no authority to review the referee’s 

decisions before judgment was entered on them.

In determining the trial court’s authority with respect to a 

reference, we first review the parties’ agreement and the 

reference order. (§ 643, subd. (b); see SFPP v. Burlington 

Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 463–

464 (SFPP).) Here, the reference provisions give no guidance. 

They broadly authorize the referee to determine all issues, to 

enter equitable and legal relief, and to rule on any motion “which 

would be authorized in a trial.” (Capitalization omitted, italics 

added.) The contracts make no mention of review. In the 

absence of contractual guidance, we are left to consider the 

statutes themselves.

We apply well-established rules of statutory interpretation. 

Our task “ ‘ “is to determine the Legislature’s intent so as to 

effectuate the law’s purpose.” [Citation.] We begin by examining 

the statutory language because the words of a statute are 

generally the most reliable indicator of legislative intent. 

[Citations.] We give the words of the statute their ordinary and 

usual meaning and view them in their statutory context. 

[Citation.] We harmonize the various parts of the enactment by 

considering them in the context of the statutory framework as a 

whole.’ ” (1550 Laurel Owner’s Assn., Inc. v. Appellate Division of 

Superior Court (2018) 28 Cal.App.5th 1146, 1151.) “The meaning 

and construction of a statute is a question of law, which we 

examine de novo.” (Ibid.)
7

A. The relevant statutes 

References are governed by sections 638 to 645.1. Section 

638 provides in relevant part: “A referee may be appointed upon 

the agreement of the parties . . . or upon the motion of a party to 

a written contract . . . that provides that any controversy arising 

therefrom shall be heard by a referee . . . . [¶] (a) To hear and 

determine any or all of the issues in an action or proceeding, 

whether of fact or of law, and to report a statement of 

decision. [¶] (b) To ascertain a fact necessary to enable the court 

to determine an action or proceeding.” Proceedings under 

subdivision (a) of section 638 are called general references 

because they authorize the referee to consider any or all of the 

issues raised, whereas those under subdivision (b) of section 638 

are considered special references, as they limit the referee to 

specific factual findings to aid the trial court in its determination 

of the action. This case is a section 638, subdivision (a) general, 

consensual reference.3

Nonconsensual references, not at issue here, are governed 

by section 639. Nonconsensual references are always considered 

to be special references. 

The relevant statutes for our purposes are sections 644 and 

645.

Section 644, governing the effect of a referee or 

commissioner’s decision, provides in subdivision (a) that in “the 

3 “Although a special reference may be made with or 

without the consent of the parties, a general reference requires 

the parties’ prior consent so as to avoid an unlawful delegation of 

judicial power.” (Lindsey v. Conteh (2017) 9 Cal.App.5th 1296, 

1303 (Lindsey).)
8

case of a consensual general reference pursuant to Section 638, 

the decision of the referee or commissioner upon the whole issue 

must stand as the decision of the court, and upon filing of the 

statement of decision with the clerk of the court, judgment may 

be entered thereon in the same manner as if the action had been 

tried by the court.” (Italics added.)

Section 645, titled “Exception and review of referee’s

decision,” expansively states: “The decision of the referee 

appointed pursuant to Section 638 or commissioner may be 

excepted to and reviewed in like manner as if made by the court. 

When the reference is to report the facts, the decision reported 

has the effect of a special verdict.” (Italics added.)

Real parties contend that the language of sections 644, 

subdivision (a) and 645 preserves to the trial court the power to 

correct errors of law before entry of the general referee’s decision 

as its judgment. They cite Tarrant Bell Property, LLC v. 

Superior Court (2011) 51 Cal.4th 538, 542 (Tarrant), to argue 

that when the Legislature juxtaposes compulsory and permissive 

verbs “ ‘in close proximity in a particular context, we may fairly 

infer the Legislature intended mandatory and discretionary 

meanings, respectively.’ ” Accordingly, real parties construe the 

relevant statutes to mean that once the referee issues a decision 

and files it with the court, it becomes the decision of the court 

(§ 644, subd. (a)), who then “treats” it as if it were the court’s own 

decision, meaning, real parties argue, that the trial court may in 

its discretion enter the decision as its judgment, or not, as the 

law permits, just as it would with any decision of the court. 

Then, under section 645, real parties assert, the court may review 
9

its decision in “like manner as if made by the court.”

4 Petitioners 

dispute that the trial court has unfettered control over general 

referees’ decisions before entry of judgment. All parties believe 

the trial court had the power to review the referee’s decisions for 

legal error before filing the decisions as its judgment. However, 

independently reviewing the statutes here, we disagree and so we

issued our order to show cause to clarify what is a somewhat 

muddled area of the law.

B. Statutory construction

1.The reference statutes’ language and framework

In “determining whether the Legislature intended a statute 

to be mandatory or permissive, use in the statute of ‘may’ or 

‘shall’ is merely indicative, not dispositive or conclusive.” 

(Tarrant, supra, 51 Cal.4th at p. 542, italics added; cf. Gutierrez 

De Martinez v. Lamagno (1995) 515 U.S. 417, 432, fn. 9 [“shall”

means may in some circumstances].) Thus, we cannot resolve the 

question of the trial court’s authority merely by reference to the 

mandatory/discretionary dichotomy.

To ascertain legislative intent, we consider the words of 

sections 644, subdivision (a) and 645 in the context of the 

statutory framework as a whole, and seek “ ‘ “where reasonably 

possible, [to] harmonize statutes, reconcile seeming 

inconsistencies in them, and construe them to give force and 

4 Real parties believe that sections 663a and 659, setting 

the time for filing notices of motions for vacatur and new trial, 

confirm that the trial court may adjust a general referee’s 

decision before entering that decision as its judgment. Sections 

663a and 659 do not help the analysis. They do not concern the 

time to file the actual motions themselves.
10

effect to all of their provisions.” ’ ” (In re Merrick V. (2004) 122 

Cal.App.4th 235, 251.) 

Viewing section 644, subdivision (a) harmoniously in the 

context of modern civil procedure, all parties agree that the first 

clause—–“the decision of the referee or commissioner upon the 

whole issue must stand as the decision of the court” (italics 

added)—means that the referee’s decision becomes the trial 

court’s decision when the referee files it. However, use of the 

word may in the second clause—“upon filing of the statement of 

decision with the clerk of the court, judgment may be entered 

thereon in the same manner as if the action had been tried by the 

court” (italics added)—cannot mean that the trial court has 

discretion whether to enter judgment. This second clause is 

directed at the clerk, as use of the word “entered” indicates. 

Entry of judgment is a ministerial act done by the clerk. (Casa de 

Valley View Owner’s Assn. v. Stevenson (1985) 167 Cal.App.3d 

1182, 1193.) Section 664 specifies that when, such as here, “the 

trial has been had by the court, judgment must be entered by the 

clerk, in conformity to the decision of the court, immediately upon 

the filing of such decision.” (§ 664, italics added.) That is, once 

the referee’s statement of decision is filed, it becomes the decision 

of the court and “the clerk enters judgment ‘in the same manner 

as if the action had been tried by the court’ ” (Knight et al., Cal. 

Practice Guide: Alternative Dispute Resolution (The Rutter 

Group 2019) ¶ 6:223), i.e., immediately. 

It follows that section 645 concerning exception and review,

addresses postjudgment procedure. (See SFPP, supra, 121 

Cal.App.4th at pp. 463–464.) In that way, general references 

preserve “the court’s power regarding new trial motions and 

other postjudgment remedies.” (National Union Fire Ins. Co. v. 
11

Nationwide Ins. Co. (1999) 69 Cal.App.4th 709, 716, italics added; 

accord, Kajima Engineering and Construction, Inc. v. Pacific Bell

(2002) 103 Cal.App.4th 1397, 1401.) Logically, the language in 

section 645 about exception and review, namely that a general 

referee’s decision “may be excepted to and reviewed in like 

manner as if made by the court” (italics added), means that 

aggrieved parties have the option to challenge the general 

referee’s decision by bringing a postjudgment motion (see e.g., 

§§ 663a, 657), or by filing an appeal.5

Real parties’ construction is not tenable for three reasons. 

First, their reading of the clause, “judgment may be entered 

thereon” in section 644, subdivision (a) to afford the trial court

the discretion whether to enter any judgment before reviewing it 

for legal errors, contradicts the statute’s requirement that the 

general referee’s decision “must stand” as the court’s decision. 

(Italics added.) Second, real parties’ construction reads out of the 

5 At least one treatise has concluded that the language of 

section 645, that the general referee’s decision “may be excepted 

to” (§ 645), “probably means that, after a tentative decision is 

announced and before the referee’s statement of decision is signed 

and filed with the court, the losing party may file objections with 

the referee to the proposed findings and conclusions. The referee 

must consider and rule on the objections (just as a court considers 

and rules on objections to a proposed statement of decision).” 

(Knight et al., Cal. Practice Guide: Alternative Dispute 

Resolution (The Rutter Group 2019) ¶ 6:231.1, p. 6-73.) 

Objections are made to the referee before the decision is filed 

because once a general referee files a decision with the trial court, 

the decision “must stand as the decision of the court” (§ 644, subd. 

(a), italics added) and is “conclusive” (Lewis v. Grunberg (1928) 

205 Cal. 158, 162).
12

statute the word “entered.” Third, real parties’ interpretation 

cannot be squared with the amendments of 2000 creating the 

statutes’ distinction between the effect of a general referee’s 

“statement of decision” on the one hand (§ 638, subd. (a)), and 

special referee’s “report that includes a recommendation” on the 

other hand (§ 643, subd. (c); see Lindsey, supra, 9 Cal.App.5th at 

p. 1303).6 We shall explain.

2. The reference statutes’ history 

Our conclusion that trial court review of a general 

consensual referee’s decision may be had only in postjudgment 

proceedings is supported by the relevant history. (Tarrant, 

supra, 51 Cal.4th at p. 542.) That history shows that the 

Legislature intended that the decisions of general referees be 

binding on the trial court and the reports of all other referees be 

merely advisory. 

a. Statutes of 1851

The Practice Act is the precursor to the Code of Civil 

Procedure. In effect at the time the Supreme Court decided 

Calderwood, the Practice Act provided in section 182, the 

6 In re Marriage of Demblewski (1994) 26 Cal.App.4th 232, 

does not affect our conclusion, even though it is relied on by both 

sides for their proposition that a party may challenge a general 

referee’s decision before it is entered as the judgment. Any 

suggestion in Demblewski at page 237 that motions may be made 

to the trial court before judgment is entered on the referee’s 

decision was based on inapt authority. Martino v. Denevi (1986) 

182 Cal.App.3d 553, 556–557 is a special reference case, and 

Salka v. Dean Homes of Beverly Hills, Inc. (1993) 23 Cal.App.4th 

952 was superseded by grant of review.
13

antecedent of section 638, that a “reference may be ordered upon 

the agreement of the parties filed with the Clerk, or entered in 

the minutes: [¶] 1st. To try any or all of the issues in an action 

or proceeding, whether of fact or of law; and to report a judgment

thereon. [¶] 2d. To ascertain a fact necessary to enable the 

Court to proceed and determine the case.” (Stats. 1851, ch. VI, 

p. 79, italics added.)7

The derivation of section 639 is Practice Act section 183, 

which provided that when the parties did not consent, the trial 

court could direct a reference in the following cases: “1st. When 

the trial of an issue of fact requires the examination of a long 

account . . . ; in which case the referees may be directed to hear 

and decide the whole issue, or report upon any specific question 

of fact . . .; [¶] 2d. 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: [¶] 3d. When a question of 

fact . . . arises . . .; or, [¶] 4th. When it is necessary for the 

information of the Court in a special proceeding.” (Stats. 1851, 

ch. VI, § 183, p. 79.)8

Section 187 of the Practice Act then read, “The referees 

shall make their report within ten days after the testimony 

7 Section 182 of the Practice Act was amended during the 

1865 to 1866 legislative session to add the words “a finding” 

before “and judgment thereon” and to change “1st” to “First–” and 

“2d” to “Second–.” (Stats. 1866, ch. DCXIX, § 3, pp. 844–845.) 

8 Sections 184 through 186 of the Practice Act concerned 

the qualifications for referee (§ 184), the grounds for objections to 

the choice of referee (§ 185), and how the court addresses 

objections to the appointment of referees (§ 186).
14

before them is closed. Their report upon the whole issue shall 

stand as the decision of the Court, and upon filing the report with 

the Clerk of the Court, judgment may be entered thereon in the 

same manner as if the action had been tried by the Court. The 

decision of the referees may be excepted to and reviewed in like 

manner as if made by the Court. When the reference is to report 

the facts, the report shall have the effect of a special verdict.” 

(Stats. 1851, ch. VI, § 187, p. 80, italics added.)

b. Statutes of 1872

The Legislature enacted the Code of Civil Procedure in 

1872, supplanting the Practice Act. The Legislature split 

Practice Act section 187 into three separate sections that referred 

back to section 187. They provided, section “643. (§187.) The 

referees or Commissioner must report their findings in writing to 

the Court within twenty days after the testimony is closed, and 

the facts found and conclusions of law must be separately stated 

therein. [¶] 644. The finding of the referee or commissioner 

upon the whole issue must stand as the finding of the Court, and 

upon filing of the finding with the Clerk of the Court, judgment 

may be entered thereon in the same manner as if the action had 

been tried by the Court. [¶] 645. The findings of the referee or 

commissioner may be excepted to and reviewed in like manner as

if made by the Court. When the reference is to report the facts,

the finding reported has the effect of a special verdict.” (Stats. 

1872, ch. VI, §§ 643–645, pp. 166–167.)

c. The modern version

In 2000, the Legislature amended section 644, subdivision 

(a) to refer specifically to “a consensual general reference 

pursuant to Section 638,” and then adjusted pertinent words in 
15

the early section 644 and Practice Act section 187 to read (with 

changes in italics), “the decision of the referee or commissioner

upon the whole issue must stand as the decision of the court, and 

upon filing of the statement of decision with the clerk of the court, 

judgment may be entered thereon in the same manner as if the 

action had been tried by the court.” (Italics added.) (See Legis. 

Counsel’s Dig., Amends. to Assem. Bill No. 2912 (1999–2000 Reg. 

Sess.).) The Legislature also changed section 645 by applying it 

specifically to section 638 consensual references, and labeling the 

consensual referee’s report a “decision.” (Legis. Counsel’s Dig., 

Amends. to Assem. Bill No. 2912 (1999–2000 Reg. Sess.) By 

substituting “must stand” for “shall stand” and “decision” and 

“statement of decision” for “report” and “findings” in sections 644, 

subdivision (a) and 645, the Legislature emphasized that the 

consensual general referee’s decision was not simply a finding 

and report for the trial court’s adjustment, but was obligatorily 

the court’s decision.

More important, however, is the crucial difference between 

the Practice Act and the original Code of Civil Procedure on the 

one hand, and the modern Code of Civil Procedure on the other 

hand, that was created by the Legislature’s addition of sections

643, subdivision (c) and 644, subdivision (b) in 2000. (Stats. 

2000, ch. 644, §§ 8 & 9.) Subdivision (c) of section 643 tightly 

controls the conduct of section 639 nonconsensual references by 

outlining the contents of the referee’s report, providing for 

objections, and specifying the extensive authority of the trial 

court upon receipt of the nonconsensual referee’s report: After 

specifying the time for filing responses to the objections, section 

643, subdivision (c) provides that the “court shall review any 

objections to the report and any responses submitted to those 
16

objections and shall thereafter enter appropriate orders. Nothing 

in this section is intended to deprive the court of its power to 

change the terms of the referee’s appointment or to modify or 

disregard the referee’s recommendations, and this overriding 

power may be exercised at any time, either on the motion of any 

party for good cause shown or on the court’s own motion.” (Italics 

added.)

Then section 644, subdivision (b) establishes that for all 

references other than section 638 consensual general references, 

“the decision of the referee or commissioner is only advisory. The 

court may adopt the referee’s recommendations, in whole or in 

part, after independently considering the referee’s findings and 

any objections and responses thereto filed with the court.” 

(Italics added.)

These amendments in 2000 to sections 643 and 644 draw a 

clear distinction between consensual references (§ 638) and 

nonconsensual references (§ 639). For consensual references, 

section 643 reads simply, “(b) A referee appointed pursuant to 

Section 638 shall report as agreed by the parties and approved by 

the court,” and section 644, subdivision (a) establishes, as noted, 

that the consensual general referee’s decision “must stand as the 

decision of the court.” The Legislature added the amendments in 

2000 for the express purpose of providing that for all references, 

other than consensual references, “the decision of the referee or 

commissioner is only advisory, and that the court may adopt the 

referee’s recommendations in whole or in part after independently 

considering the referee’s findings and any objections and 

responses thereto filed with the court.” (Legis. Counsel’s Dig.,

Amends. to Assem. Bill No. 2912 (1999–2000 Reg. Sess.), italics 

added; § 644, subd. (b).) Then, by limiting section 645 to general 
17

references, the Legislature necessarily confirmed that review of 

such referees’ decisions could only occur by postjudgment 

procedure.

We glean from this evolution of the reference statutes—

from the Practice Act to the modern Code of Civil Procedure—

that the Legislature intended in the modern era to give the trial 

court vast control over nonconsensual referees, from their 

appointments to their reports, while leaving the authority to 

delineate consensual general referees’ work and decisions to the 

litigants by contract. Neither the Practice Act nor the early 

version of the Code of Civil Procedure contained an equivalent to 

current sections 643, subdivision (c) and 644, subdivision (b). Nor 

has the Legislature granted similar power to the trial court to 

control or alter consensual general referees’ decisions, leading to 

the inescapable conclusion that the Legislature did not intend to 

confer any power of review on the trial court until after entry of 

judgment on the decision under section 645.

9 The statutory 

scheme created by the Legislature after 2000 conferred expansive 

power on the trial court to review and adjust advisory reports of 

nonconsensual referees before entering them as judgments, while 

keeping consensual general reference decisions final and binding 

on the court. 

Numerous cases confirm that the “statutes carefully 

preserve the distinction of special and general reference to 

9 The Bank cites the annotations to the 1872 version of 

section 654, which stated that the referee’s report could not be 

“attacked except for error or mistake of law, shown on its face, or 

by motion for new trial.” That annotation is obsolete given the 

modern amendments to sections 643 and 644. 
18

comply with the constitutional mandate; a general reference has 

binding effect, but must be consensual, whereas a special 

reference may be ordered without consent but is merely advisory, 

not binding on the superior court.” (Aetna Life Ins. Co. v. 

Superior Court (1986) 182 Cal.App.3d 431, 436; Ellsworth v. 

Ellsworth (1954) 42 Cal.2d 719, 723; Jovine v. FHP, Inc. (1998) 

64 Cal.App.4th 1506, 1522–1523; Lindsey, supra, 9 Cal.App.5th 

at pp. 1303–1304; see Estate of Bassi (1965) 234 Cal.App.2d 529, 

536.) Indeed, it has long been understood that “mandamus will 

lie to compel the court to enter judgment on the general referee’s 

report.” (Knight et al., Cal. Practice Guide: Alternative Dispute 

Resolution (The Rutter Group 2019) ¶ 6:246, p. 6-77.)

Lewis v. Grunberg, supra, 205 Cal. 158, cited by petitioners,

is particularly instructive as it postdates enactment of the Code

of Civil Procedure. The Supreme Court in Lewis cited In re 

Riccardi (1926) 80 Cal.App. 66, Weavering v. Schneider (1921) 52 

Cal.App. 182, and Clark v. Millsap (1926) 197 Cal. 765, as 

“holding the findings conclusive where the reference is general, as

in the case at bar. [¶] ‘Upon the filing of the findings of the 

referee in this cause, judgment should have been entered thereon 

in accordance with the findings, and for any error committed by 

the referee, the remedy of the aggrieved party was by motion for a 

new trial, or other appropriate proceeding.’ ” (Lewis, at p. 162, 

italics added.) Indeed, where the reference is a general one, the 

decision filed with the trial court “ ‘stand[s] as the decision of the 

court.’ ” (Lindsey, supra, 9 Cal.App.5th at p. 1304.) As such it is 
19

directly appealable as a binding decision, whereas the report of a 

special referee is not. (Ibid.)10

The general, consensual referee’s decisions here were 

binding and stood as the decision of the court when issued, with 

the result judgment should have been entered thereon 

immediately by the clerk. (§§ 644, subd. (a) & 664.) The 

aggrieved party’s remedy for any error committed by the referee 

was by a postjudgment proceeding or appeal. 

C. Calderwood is not controlling.

Real parties relied primarily on Calderwood, supra, 31 Cal. 

at page 337 for their contention that sections 644, subdivision (a) 

and 645 give the trial court authority to review a general 

referee’s decision for legal errors before entering the decision as 

its judgment. 

The action in Calderwood, supra, 31 Cal. at page 335 was 

tried by a referee who went beyond the issues and found an 

10 The cases real parties rely on actually support our 

construction. In National Union Fire Ins. Co. v. Nationwide Ins. 

Co., supra, 69 Cal.App.4th at pages 714 to 716, the trial court 

“adopted” the referee’s decision “as the decision of the court, in its 

entirety” which “preserved the court’s power regarding new trial 

motions and other postjudgment remedies.” Kajima Engineering 

and Construction, Inc. v. Pacific Bell, supra, 103 Cal.App.4th at 

page 1401, quoted the above language. In Old Republic Ins. Co. 

v. St. Paul Fire & Marine Ins. Co. (1996) 45 Cal.App.4th 631, 637

to 638, the appellate court analyzed the parties’ contract and 

concluded they agreed to binding arbitration not a general 

reference. The court noted that general references afford the 

trial court the power to alter or vacate a referee’s award “upon a 

motion for a new trial.” (Id. at p. 637, italics added.)
20

additional fact that the lawsuit had abated by the plaintiff’s 

divorce and could not be re-prosecuted absent revival requiring

the court’s permission. Hence, the referee reported a judgment 

dismissing the lawsuit for lack of a revivor. (Ibid.) The Supreme 

Court found that the referee had erred in finding the action had 

abated. (Id. at p. 335.) Concluding that “the referee erred in his 

conclusions of law” and that on “the facts found upon the issues 

made by the pleadings the plaintiffs were entitled to judgment” 

(id. at p. 336), the Calderwood court affirmed the trial court’s 

order granting a new trial (id. at p. 338).

In dicta, Calderwood, supra, 31 Cal. 333 discussed the trial 

court’s authority to set aside a referee’s report for legal error 

before entering judgment. “We see no good reason why the County 

Court might not have set aside the conclusions of law reported by 

the referee . . . . The referee had made his report, but no 

judgment had been entered upon it, and it was still under the 

control of the Court. . . . [citation] . . . Where a referee finds the 

facts upon all the issues, draws an erroneous conclusion of law 

from the facts found, and reports a judgment in accordance with 

such conclusion, before judgment [is] entered and while the 

report is still under the control of the Court, we can perceive no 

objection to the Court’s setting aside the erroneous conclusion, and 

directing the proper judgment to be entered. . . . The Court, 

however, under an erroneous impression as to the application of 

the principle of the case cited, thought otherwise, and directed 

the judgment to be entered, and, on application of plaintiffs, 

afterwards granted a new trial on the ground indicated.” (Id. at 

pp. 337–338, italics added.) Only two published California 

opinions issued in the 148 years since enactment of the Code of 

Civil Procedure cite Calderwood for the proposition that a trial 
21

court may modify a section 638 referee’s decision for erroneous 

legal conclusions before entering judgment on that decision. 

(Estate of Bassi, supra, 234 Cal.App.2d 529, 539 & Clark v. 

Rancho (1989) 216 Cal.App.3d 606, 625.)11

Calderwood provided no indication whether the reference 

there was consensual or nonconsensual, or general or special, 

which as explained, are treated differently in the modern era for 

purposes of trial-court review. The only case that actually 

addressed the question is Jackson v. Allen (1921) 55 Cal.App. 

257, 258, which baldly stated that Calderwood involved a general 

reference under Practice Act section 183, subdivision (1).

We conclude that Calderwood, supra, 31 Cal. 333 is not 

controlling, irrespective of the kind of reference involved there. 

As petitioners observe, Calderwood is factually distinguished 

because the appeal there was “from an order granting a new 

11 Estate of Bassi, supra, 234 Cal.App.2d 529, and Clark v. 

Rancho, supra, 216 Cal.App.3d 606, cited by real parties did not 

analyze the type of reference at issue in Calderwood. 

Furthermore, Estate of Bassi, at page 539 is distinguishable 

because the appellate court determined that the parties there 

had stipulated to a special reference. Thus, the comments in 

Estate of Bassi citing Calderwood about the trial court’s authority 

in general references are dicta. Bagdasarian Prods., LLC v. 

Twentieth Century Fox Film Corp. (9th Cir. 2012) 673 F.3d 1267, 

cited by real parties does not affect our conclusion. Apart from 

the fact the “ ‘decisions of the Ninth Circuit Court of Appeals . . . 

are not binding on us’ ” (Victrola 89, LLC v. Jaman Properties 8 

LLC (2020) 46 Cal.App.5th 337, 357, fn. 8), Bagdasarian, at page 

1271 actually cited Calderwood as authority for its assertion that 

“the case may be reviewed by the district court upon a motion for 

new trial or other post-judgment motions.” (Italics added.) 
22

trial” (id. at p. 335), and the Supreme Court held, “Order 

granting new trial affirmed” (id. at p. 338). Thus, Calderwood’s 

comments about what the trial court might have done prior to 

entering judgment are dicta. More important, regardless of the 

nature of the reference there, Calderwood is not controlling given 

the changes to the reference statutes after enactment of the Code 

of Civil Procedure and the Legislature’s express purpose in 

adding sections 643, subdivision (c) and 644, subdivision (b).

Accordingly, Calderwood did not give the trial court here 

authority to review the referee’s decisions before judgment was 

entered on those decisions.

II. The trial court did not apply the incorrect standard of 

review.

Petitioners argued in their writ petition that the trial court 

applied the incorrect standard of review in that it did not 

appropriately defer to the referee’s factual findings. They quote 

from what they call the “heart” of the court’s ruling that “the 

gravamen of the referee’s [statement of decision] is based upon a 

fundamental finding of fact (which was a clear error of law in 

that it was not supported by the record or evidence presented), to 

wit, that there was a legally “ ‘enforceable’ ” oral agreement of 

forbearance between [petitioners] and [Bank].” 

Yet, this quote omits an important statement from the 

ruling. Just before reaching the above conclusion, the trial court 

stated, “this Court finds and concludes that the Referee’s 

[statement of decision] is fundamentally unsound and unjust, as 

it is based upon several errors of law.” (Italics added.) That is, 

contrary to petitioners’ argument, the trial court did not 

determine there was insufficient evidence of an oral forbearance 

agreement. Rather, after properly deferring to the referee’s 
23

factual findings, the court concluded that it was legal error to 

find on those facts that the agreement was enforceable. 

“ ‘Whether or not a valid binder exists is a question of fact insofar 

as a finding comprehends issues relating to the credibility of 

witnesses or the weight of the evidence, but a question of law 

insofar as a finding embraces a conclusion that such factual 

elements do not constitute a valid oral binder.’ [Citation.] 

‘Whether undisputed facts establish the existence of a binder is a 

question of law.’ ” (Chicago Title Ins. Co. v. AMZ Ins. Services, 

Inc. (2010) 188 Cal.App.4th 401, 419.) No error is shown.

III. The trial court did not err in ordering that the new trial 

would be heard by it and not by the referee.

Real parties moved to set aside the referee’s decision and 

the trial court decided “to simply order a new trial on all issues.” 

Petitioners’ writ assigns as error the subsequent portion of the 

trial court’s order that the new trial be conducted by the trial 

court rather than by the referee. In support of that order, real 

parties cite Tarrant, supra, 51 Cal.4th at page 543, which stated 

that “section 638 unmistakably shows a legislative intent to give 

trial courts discretion not to enforce valid reference agreements.” 

Real parties also cite the trial court’s inherent supervisory and 

administrative powers, and authority to control the litigation 

before it.

Reviewing the parties’ reference agreement (§ 643, subd. 

(b); SFPP, supra, 121 Cal.App.4th at pp. 463–464), it authorized 

the referee to “report his decision, which report shall also include 

findings of fact and conclusions of law.” The agreement 

empowered the referee to “rule on any motion which would be 

authorized in a trial, including without limitation, motions for 

default judgment or summary judgment.” (Capitalization 
24

omitted and italics added.) The agreement clearly does not 

authorize the referee to take any further action after he filed his 

decisions, such as in a postjudgment proceeding.

Daverkosen v. Kelley (1872) 43 Cal. 477, issued the same 

year as the Code of Civil Procedure was enacted, is on point. Just 

as here, the reference agreement in Daverkosen authorized the 

referee “ ‘to take the evidence and report a judgment.’ ” 

(Daverkosen, at p. 478.) The trial court granted a new trial to be 

tried by the same referee. The Supreme Court agreed with the 

appellant that that order was erroneous, stating simply, “Prior to 

the last order the referee had taken the testimony and reported a 

judgment. The powers conferred by the stipulation were then 

exhausted. When the new trial was granted the parties were 

restored to the position which they occupied when the issues were 

originally made. Either party could then demand a trial by jury, 

or object to a reference, which, in an action at law, can only be 

made by mutual consent.” (Ibid.) 

Petitioners rely on Clark v. Rancho, supra, 216 Cal.App.3d

at page 625, which held that the referee there possessed the 

power both to entertain and decide a motion for new trial and to 

conduct any new trial. Clark distinguished Daverkosen v. Kelley

because unlike the reference agreement in the latter case, the 

stipulation in Clark provided, “ ‘for a complete and final 

adjudication.’ ” (Clark, at p. 623.) The powers of the referee here 

are akin to those of the referee in Daverkosen, supra, 43 Cal. at 

page 478, and so Daverkosen is controlling.

Under the parties’ agreement here, the referee’s powers

were exhausted when he filed his decisions with the trial court. 

Real parties sought a new trial by the court, effectively objecting 

to the reference. In the absence of mutual consent for a new 
25

reference, therefore, the trial court properly ruled that the new 

trial be conducted before the court. 

DISPOSITION

Let a peremptory writ of mandate issue ordering 

respondent trial court to (1) vacate its November 25, 2019 order 

granting real parties’ motions to set aside the decisions of the 

referee, (2) enter a new and different order denying the motions

to set aside the referee’s decisions, and (3) enter judgment on the 

referee’s decisions. The trial court shall thereafter enter its order 

setting a new trial to be conducted before the trial court. The 

stay dated March 20, 2020 is lifted upon issuance of the 

remittitur. The parties are to bear their own costs of this 

proceeding.

CERTIFIED FOR PUBLICATION.

DHANIDINA, J.

We concur:

EDMON, P. J.

EGERTON, J.