What is the Liability of a Partition Referee? (Holt v. Brock (2022) 85 Cal.App.5th 611)

October 2023

By Eli Underwood

This article is reposted with permission.

Generally, when a trial court orders an interlocutory judgment directing a partition by sale, it can appoint a referee to conduct the sale (CCP § 873.010). However, when a party to the partition feels that they have been aggrieved by the actions of this court-appointed referee, they may bring an action against them.

When this occurs, the party may contend that the referee violated some fiduciary duties or committed some torts while performing the role appointed to them by the court. However, when a role is appointed by a court, the person holding that role may be entitled to what is known as quasi-judicial immunity. 

What is Quasi-Judicial Immunity?

Quasi-judicial immunity is an extension of the doctrine of judicial immunity where civil actions are barred against judges for acts they perform in the exercise of their judicial functions. (Howard v. Drapkin (1990) 222 Cal.App.3d 843, 851). The policies that support this doctrine are the protection of judgments and the discouragement of inappropriate collateral attacks (Id.) 

Quasi-judicial immunity then extends judicial immunity to people other than judges that act in a judicial or quasi-judicial capacity (Id.) There are at least three classes of persons who are not judges for whom quasi-immunity exists: persons whom perform functions normally performed by a judge, or who act in a judicial or quasi-judicial capacity (this includes referees); persons who function apart from the courts but are engaged in neutral dispute resolutions (such as arbitrators or referees); and persons connected to the judicial process who are not public officials, arbitrators, or referees, but who serve functions integral to the judicial process. (Id.) Of course mere appointment by the court is not enough to establish quasi-judicial immunity, the doctrine’s touchstone for applicability is the performance of the function of resolving disputes between parties. (Id.) Therefore, referees can be immune from liability for the actions they conducted in their capacity as referee. 

What About Court-Appointed Real-Estate Brokers?

Courts have held that court appointed brokers can use quasi-judicial immunity as a defense to claims against them. (Holt v. Brock (2022) 301 Cal.App.5^th 611). When the court vests an element of discretionary authority in a broker to assist the court in resolving a dispute between parties, that is more than appointing them to sell the property. (Id.) In partition in actions, the court could give brokers limited discretionary authority to resolve a key dispute between the sellers, such as the property’s value. (Id.) 

Accordingly, the broker serves as an agent of the court with limited authority. (Id.) When the court sets a broker’s commission rate, authorizes them to adjust the listing terms upon a court order, and requires them to report their marketing activities to the court and the sellers, they will be entitled to quasi-immunity. (Id.) This is because they are exercising discretionary judgment in serving a function integral to the partition action and as an arm of the court. (Id.)

What Are the Policy Reasons Behind Quasi-Judicial Immunity?

Policy reasons for quasi-judicial immunity include that qualified persons might not ever agree to judicial appointments if their exposure to liability would be higher than the fee they would receive as a result of accepting the appointment. (Id.) The Court of Appeal has noted that without immunity, people such as brokers who are asked to perform a discretionary function on behalf of the court in face of opposition from the affected parties will be reluctant to accept such appointments or provide work for the court to use. (Id.) The threat of civil liability may also affect the way in which these persons perform their jobs. (Howard, supra, 222 Cal.App.3d at 857).

An Example

“Shawn” and “Julie” are boyfriend and girlfriend and decide to buy a house together. They are both on the title, each holding an undivided half interest in the property. However, after some time, Shawn and Julie realize that they are no longer right for each other, and they break up. Shawn wants to keep the house but Julie wants to sell it so she can move on with her life. As a result of Shawn’s unwillingness to compromise, Julie files a suit against Shawn for a partition of the property by sale. 

The trial court rules in Julie’s favor and orders a partition by sale. Since the parties cannot agree on a person to conduct the sale of the property, the court appoints a referee. The referee successfully sells the property and provides his work towards the sale to the court. Shawn attempts to sue the referee claiming that the referee had sold the property extremely below value. The court however ruled in the referee’s favor as the referee had quasi-judicial immunity in his role as referee, and also had supplied the court with the findings he had made to value and sell the property as he did. Therefore, the sale was valid, and the referee faced no liability from his actions as referee. 

Eli Underwood is an attorney at Underwood Law Firm, and practices partition law through out the State of California.  To learn more about Eli click here.