A referee may be appointed upon the agreement of the parties filed with the clerk, or judge, or entered in the minutes, or upon the motion of a party to a written contract or lease that provides that any controversy arising therefrom shall be heard by a referee if the court finds a reference agreement exists between the parties:
§ 638.Appointment Upon Agreement of Parties Or Upon Motion of Party to Contract Or Lease
Title 8. Of the Trial and Judgment In Civil Actions · Chapter 6. Of References and Trials by Referees · Last amended 2003 · Last verified July 28, 2026
In one sentenceSection 638 lets the parties, by agreement, or a party under a written contract or lease requiring reference, have a referee appointed either to hear and decide all or some issues and report a statement of decision, or to find a fact the court needs to reach its own decision.
Full Text of § 638
(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.
(c) In any matter in which a referee is appointed pursuant to this section, a copy of the order shall be forwarded to the office of the presiding judge. The Judicial Council shall, by rule, collect information on the use of these referees. The Judicial Council shall also collect information on fees paid by the parties for the use of referees to the extent that information regarding those fees is reported to the court. The Judicial Council shall report thereon to the Legislature by July 1, 2003. This subdivision shall become inoperative on January 1, 2004.
Plain-English Summary
A reference under this section is fundamentally consensual. It happens either because the parties themselves agree to it — filed with the clerk or judge, or entered in the minutes — or because a party moves under a written contract or lease that already requires disputes to go to a referee, and the court finds that reference agreement exists.
Once appointed, a referee under this section can play one of two roles. Subdivision (a) covers a general reference: hearing and deciding any or all of the issues in the case, whether factual or legal, and reporting back a statement of decision that (as § 644 explains) stands as the decision of the court. Subdivision (b) covers a narrower, specific reference: ascertaining a single fact the court needs in order to reach its own decision, leaving the ultimate decision to the court itself.
Subdivision (c) once required forwarding a copy of every § 638 appointment order to the presiding judge's office and had the Judicial Council collect data on referee use and fees for a report to the Legislature — but that reporting duty became inoperative on January 1, 2004, so it's now a historical artifact of the statute rather than a live obligation.
Frequently Asked Questions
How does a case end up before a referee under § 638?
Either the parties agree to the reference, or a party moves for it under a written contract or lease that requires disputes to be heard by a referee and the court finds that agreement exists.
What can a referee appointed under § 638 do?
Hear and determine any or all issues in the action and report a statement of decision, or just ascertain a fact the court needs to reach its own decision.
Is the presiding-judge notification and Judicial Council reporting requirement in subdivision (c) still active?
No. That subdivision became inoperative on January 1, 2004, and now stands as historical text rather than a current obligation.
Amendment History
Amended by Stats 2002 ch 1008 (AB 3028),s 4, eff. 1/1/2003. Amended by Stats 2001 ch 44 (SB 562), s 5, eff. 1/1/2002. Amended by Stats 2000 ch 644 (AB 2912), s 1, eff. 1/1/2001.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 28, 2026.
· Official source
Also known as: stipulated reference californiareferee appointment agreement of parties