Trial Judge Refuses To Appoint Retired Judge Who Mediated The Class Action Dispute As Temporary Judge
Petitioner Luckey’s mediation of a class action lawsuit with defendants resulted in a settlement agreement pursuant to which the parties stipulated to appoint a temporary judge to hear the matter “until final determination thereof.” The parties intended that the temporary judge would decide issues related to preliminary and final approval of the class action settlement, and that the same retired judge who had served as mediator would act as the temporary judge and be privately compensated. The trial judge, however, declined to appoint a temporary judge, leading to plaintiff/petitioner Luckey’s writ petition seeking relief. Luckey v. Super. Ct., B253892 (2nd Dist. Div. 3 July 22, 2014) (Croskey, Kitching, Aldrich).
The Court of Appeal denied the writ petition:
“We conclude that the California Constitution, the California Rules of Court, and public policy concerns all preclude the appointment of a temporary judge for purposes of approving the settlement of a pre-certification class action. When the class has not yet been certified, the putative class representative has no authority to consent to a temporary judge on behalf of the absent putative class members.”
The Court mentioned two interesting issues that, however, it did not decide: (1) following class certification, does the class representative have authority to consent to a temporary judge on behalf of absent class members? (2) are any ethical issues raised by having the same individual who mediated a settlement agreement act as a temporary judge in the matter?