Full opinion text
Opinion GEORGE, C. J. Pursuant to a warrant issued by respondent superior court, law enforcement authorities seized numerous documents from real parties in interest Gary Laff and Jerry Widawski, who are attorneys suspected of criminal conduct. Real parties in interest (hereafter the attorneys) requested that the superior court conduct an in camera hearing to determine whether any of the seized documents were privileged. The court sealed the documents and refused to proceed with the hearing unless the People, represented by the district attorney’s office, agreed to pay one-half the cost of the services of a special master appointed by the superior court to review the documents. The Court of Appeal denied the People’s petition for writ of mandate, which sought to compel the superior court to conduct the hearing without requiring the People to contribute to the cost of a special master. The appellate court held that Code of Civil Procedure section 639, subdivision (a) (4), which permits a compulsory reference when necessary for the information of the court in a special proceeding, authorizes the appointment of a referee to assist in ruling upon the claims of privilege asserted by the attorneys. The Court of Appeal further determined that the cost of the referee may be apportioned among the parties pursuant to section 645.1, subdivision (b) . We granted review to decide whether the superior court properly refused to proceed with the hearing unless the People agreed to the appointment of a special master compensated in part by the People. In addition, we subsequently obtained supplemental briefing from the parties regarding the threshold issue whether a superior court is authorized to conduct such a hearing. As we shall explain, we have reached the following conclusions with regard to the numerous issues presented. First, we conclude that the superior court has an obligation to determine claims of privilege regarding materials seized from the attorneys, whether or not the attorneys are suspected of criminal conduct, and that the court properly may conduct a hearing to resolve such claims. Second, although section 639 does not authorize a compulsory reference in a proceeding to determine whether documents seized from a criminal suspect are privileged (because such a proceeding is not the type of “special proceeding” to which section 639 applies), the superior court nonetheless possesses inherent authority to appoint a special master to assist it in examining such documents and ruling upon the claims of privilege. Third and finally, however, the superior court lacks either statutory or inherent power to require the parties to bear the cost of a special master’s services in this context. Thus, the superior court erred in conditioning its willingness to determine the privilege claims asserted by the attorneys upon the People’s agreement to pay for the services of a special master. We shall reverse the judgment of the Court of Appeal. I The attorneys are suspected of possible automobile insurance fraud. They have not been charged with any crime, however, and no related criminal action is pending. At the request of the fraud divisions of the California Department of Insurance and the Los Angeles County District Attorney’s Office, the superior court issued warrants authorizing the search of the homes and law offices of the attorneys and the seizure of specified categories of documents. When the warrants were executed, the attorneys each asserted that the materials seized by law enforcement authorities included information protected by the attorney-client privilege and the work-product doctrine. They requested that the search be conducted under the supervision of a special master, or, alternatively, that the seized materials be removed under seal. These requests were denied, and computers and files containing voluminous documents were examined and seized by investigators. The superior court subsequently ordered that the Department of Insurance and the district attorney’s office cease inspection and copying of the seized materials, that the attorneys be afforded an opportunity to examine and copy these items, and that the files remain under seal pending further order of the court. The attorneys filed a motion, captioned “In the Matter of the Search Warrant for the Premises of’ the attorneys and others, requesting an in camera hearing at which the superior court would determine whether any of the documents were privileged. No opposing party was named in the motion, although the People, represented by the district attorney’s office, appeared in the proceeding to oppose the claims of privilege asserted by the attorneys. The motion requested that the superior court appoint a special master to conduct the in camera inspection of the items and determine the applicability of any privilege. In support of this request, the attorneys stated that examining approximately 220 privileged files, including two computer databases, would be unduly burdensome for the court. A deputy district attorney agreed that a special master should be appointed for this purpose. At the initial hearing on the attorneys’ motion, the superior court asked the parties whether they would contribute to the cost of the services of a special master. The attorneys agreed to pay one-half of this cost. The People, however, declined to share the cost of a special master, although a deputy district attorney indicated that guidance regarding this issue would be sought from management in the district attorney’s office. Soon thereafter, the People and the attorneys agreed upon the selection of a special master to be appointed by the court. When the superior court again inquired whether the People would contribute to the special master’s fees, however, the district attorney’s office informed the court in writing that it was “not in a position to contribute to the payment of special master fees.” The superior court then issued an order to show cause why the proceeding should not be summarily dismissed. The court observed that the parties previously had stated that approximately 15 to 20 packing boxes of documents must be reviewed, and that a qualified special master reasonably would devote 80 to 100 hours to the task, at an hourly rate of $130 to $150. Thus, the cost of a special master could reach $15,000. The superior court further noted that the record indicated law enforcement authorities already had allocated substantial expenditures of time and money to the investigation that had resulted in the seizure of the documents from the attorneys. In further briefing, the People agreed that the court has inherent authority to appoint a special master to review the seized documents, and stated that the People never opposed the court’s appointment of a special master for this purpose. The People asserted, however, that the cost of a special master should be paid from county general funds pursuant to Evidence Code sections 730 and 731, which authorize the appointment and payment of an expert selected by the court to testify at the trial of an action, if the court determines that expert evidence may be required by the court or a party. At a subsequent hearing, the People contended that the cost of a special master, if one is appointed, should be paid from the operating budget of the superior court, because the hearing to determine whether the seized documents are privileged is a judicial proceeding and a judicial function. The superior court, however, concluded that the subject proceeding would be one in aid of a continuing investigation funded by the Fraud Division of the Department of Insurance, and that therefore the cost of the special master should be paid either by the People or by the Department of Insurance. Anticipating that the People would seek appellate review of its determination, the superior court ordered that all material seized from the attorneys remain sealed pending further order of the court. In a motion for reconsideration, the People urged the superior court immediately to unseal the seized materials and to consider the special master as either an expert witness or a quasi-judicial officer, in which case the fees of the special master would be paid from either county funds or the court’s operating budget, respectively. The superior court denied the motion for reconsideration. The People sought a writ of mandate to compel the superior court to conduct a hearing to determine the claims of privilege asserted by the attorneys, and to refrain from conditioning such a hearing upon the agreement of the parties to pay the cost of the hearing. Abandoning its principal legal argument asserted in the trial court, the People contended in the Court of Appeal that there is no explicit statutory authorization for referring the matter to a special master (i.e., that Evid. Code, §§ 730 and 731 do not apply), and that absent such authorization, the superior court had a duty to determine the attorneys’ claims of privilege without requiring the parties to pay the cost of that determination. The superior court filed a return and answer asserting, among other things, that it has authority to appoint a referee and to allocate the cost of the reference among the parties pursuant to Code of Civil Procedure sections 639 and 645.1. The Court of Appeal agreed with the superior court’s assertion and held that the cost of a referee could be apportioned among the parties pursuant to section 645.1. We granted the People’s petition for review to decide whether the superior court properly sealed the materials seized from the attorneys and refused to conduct the hearing unless the People agreed to contribute to the cost of a special master. Subsequently, we solicited supplemental briefing from the parties regarding the threshold issue whether the attorneys have a right to a judicial hearing to determine the applicability of the attorney-client privilege and work-product doctrine to the documents seized pursuant to the search warrant. II This dispute arose after the attorneys requested a judicial hearing to determine whether certain materials seized pursuant to a search warrant during a criminal investigation were privileged. The People contend that the attorneys have no right to such a hearing, and that neither the attorney-client privilege nor the work-product doctrine precludes disclosure of documents properly seized under a valid search warrant. The People urge us to disapprove the decision in People v. Superior Court (Bauman & Rose) (1995) 37 Cal.App.4th 1757 [44 Cal.Rptr.2d 734] (Bauman & Rose), which held that an attorney suspected of criminal conduct has a right to a judicial hearing to determine the applicability of such privileges to materials seized from the attorney. In considering the validity of Bauman & Rose, we begin with the general proposition that the custodian of materials protected by an evidentiary privilege owes a duty to the holder of the privilege to claim the privilege and to take actions necessary to ensure that the materials are not disclosed improperly. (E.g., Evid. Code, §§ 955 [attorney], 995 [physician], 1015 [psychotherapist]; see also Bus. & Prof. Code, § 6068, subd. (e) [attorney has duty to maintain client confidences].) Even if the custodian is suspected of a crime, when privileged materials in the custodian’s possession are seized pursuant to a search warrant, he or she still owes a duty to take appropriate steps to protect the interest of the privilege holders in not disclosing the materials to law enforcement authorities or others. As explained by the court in Bauman & Rose, supra, 37 Cal.App.4th at page 1766: “The fact that the attorney is suspected of criminal activity does not lessen the client’s interest in the confidentiality of his or her files, or obviate the privilege with respect to those files. ... [A] suspect attorney no less than a nonsuspect attorney is entitled to assert the privilege on behalf of his or her client . . . .” Seeking a court order precluding such disclosure in these circumstances constitutes an appropriate and necessary exercise of the statutory and ethical obligations of the attorney. Penal Code section 1536 authorizes the superior court to conduct a hearing to determine whether materials seized pursuant to a search warrant should be disclosed to the authorities. This statute states in relevant part: “All property or things taken on a warrant must be retained by the officer in his custody, subject to the order of the court to which he is required to return the proceedings before him, or of any other court in which the offense in respect to which the property or things taken is triable.” (Italics added.) “[Penal Code] [s]ection 1536 was enacted in order to provide controls over those officials in possession of property seized pursuant to a search warrant, pending resolution of the disposition of the property, either through an order granting a motion for release of improperly seized materials or an order admitting the items seized into evidence.” (People v. Von Villas (1992) 10 Cal.App.4th 201, 239 [13 Cal.Rptr.2d 62].) Law enforcement officials who seize property pursuant to a warrant issued by the court do so on behalf of the court, which has authority pursuant to Penal Code section 1536 to control the disposition of the property. (People v. Superior Court (1972) 28 Cal.App.3d 600, 607-608 [104 Cal.Rptr. 876].) This authority also arises from the court’s inherent power to control and prevent the abuse of its process. (Id. at p. 607; Ensoniq Corp. v. Superior Court (1998) 65 Cal.App.4th 1537, 1547 [77 Cal.Rptr.2d 507].) Thus, even in the absence of statutory authorization, the superior court possesses the inherent power to conduct proceedings and issue orders regarding property seized from a criminal suspect pursuant to a warrant issued by the court. Examining seized documents, ruling upon claims of privilege, and precluding disclosure of privileged materials in the constructive custody of the superior court are well within the scope of the court’s statutory and inherent authority. The seizure of files from an attorney’s office often will result in the seizure of privileged documents. The court in Bauman & Rose, supra, 37 Cal.App.4th 1757, properly recognized that a judicial hearing is warranted in these circumstances, where a statutory privilege will be lost if the court fails to act. The People raise three objections to the Bauman & Rose decision, but each lacks merit. First, the People assert that the attorney-client privilege precludes disclosure only during proceedings at which testimony can be compelled by law. The People rely upon the circumstance that statutory provisions regarding evidentiary privileges “apply in all proceedings” (Evid. Code, § 910), and the term “proceeding” is defined as “any action, hearing, investigation, inquest, or inquiry (whether conducted by a court, administrative agency, hearing officer, arbitrator, legislative body, or any other person authorized by law) in which, pursuant to law, testimony can be compelled to be given” (id., § 901). Because execution of a search warrant and inspection of seized materials as part of a criminal investigation do not constitute such a proceeding, the People claim that the privilege cannot be invoked to prevent disclosure of documents pursuant to a search warrant. The People’s position is contrary to the governing statutes and existing case law. It is doubtful whether the statement in Evidence Code section 910—that statutory provisions regarding evidentiary privileges “apply in all proceedings”—was intended to limit the application of those provisions to such proceedings. The Law Revision Commission observed: “The protection afforded by a privilege would be insufficient if a court were the only place where the privilege could be invoked. Every officer with power to issue subpoenas for investigative purposes, every administrative agency, every local governing board, and many more persons could pry into the protected information if the privilege rules were applicable only in judicial proceedings.” (Cal. Law Revision Com. com., reprinted at 29B pt. 3 West’s Ann. Evid. Code (1995 ed.) foil. § 910, pp. 150-151, italics added.) An administrative subpoena, like a search warrant, may be issued absent the pendency of a proceeding at which testimony can be compelled. (See, e.g., Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 8 [56 Cal.Rptr.2d 706, 923 P.2d 1] (Arnett).) In any event, neither the definition of “proceeding” in Evidence Code section 901, nor the provision in Evidence Code section 910 that evidentiary privileges “apply in all proceedings,” necessarily establishes the scope of the attorney-client privilege. The definitions set forth in division 8 of the Evidence Code (regarding evidentiary privileges) govern the construction of that division “[u]nless the provision or context otherwise requires(Id., § 900, italics added.) In addition, the specified privileges apply in all proceedings “[e]xcept as otherwise provided by statute.” (Id., § 910, italics added.) An attorney who received or made a communication subject to the attorney-client privilege “shall claim the privilege whenever he is present when the communication is sought to be disclosed.” (Id., § 955, italics added.) The attorney has a duty “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” (Bus. & Prof. Code, § 6068, subd. (e).) These statutes do not limit the attorney’s obligation in this regard to protecting client communications only in the course of proceedings at which testimony may be compelled by law. Nor do the policies underlying the attorney-client privilege support the People’s reading of the statutes. “Protecting the confidentiality of communications between attorney and client is fundamental to our legal system. The attorney-client privilege is a hallmark of our jurisprudence that furthers the public policy of ensuring “the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense.” [Citation.]’ [Citation.]” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1146 [86 Cal.Rptr.2d 816, 980 P.2d 371] [the privilege is relevant in determining whether law firm should be disqualified].) “It is no mere peripheral evidentiary rule, but is held vital to the effective administration of justice. [Citation.]” (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 380 [20 Cal.Rptr.2d 330, 853 P.2d 496].) Permitting unfettered access to attorney-client communications, simply because there is no pending proceeding at which testimony can be compelled, would violate the policies supporting the privilege as well as the statutory and ethical obligations of attorneys to maintain client confidences. Penal Code section 1524 also undermines the People’s contention that the attorney-client privilege applies only in pending proceedings. Pursuant to subdivision (c) of this statute, the superior court must follow certain procedures before issuing a search warrant for any documentary evidence in the possession of or under the control of a lawyer, physician, psychotherapist, or clergyman who is not reasonably suspected of criminal activity. The statute requires that the court appoint a special master to accompany the individual serving the warrant. The specified professionals upon whom the warrant is served are authorized to state to the special master that particular items should not be disclosed, and the special master then must seal such items and take them to a court for a hearing, at which the individual searched “shall be entitled to raise ... a claim that the item or items are privileged, as provided by law.” (Pen. Code, § 1524, subd. (c)(2), italics added.) These passages clearly authorize the specified professionals to raise at such a hearing privileges set forth in division 8 of the Evidence Code and to seek to preclude disclosure of the items to the authorities. Because a search warrant often is issued before any criminal proceeding is commenced, there is no merit in the People’s claim that the attorney-client privilege precludes disclosure of client confidences only in the course of such a proceeding. As the People concede, existing authority—in addition to Bauman & Rose, supra, 37 Cal.App.4th 1757—supports the view that even if no criminal proceeding is pending, materials protected by the attorney-client privilege are not subject to disclosure pursuant to a search warrant. (Gordon v. Superior Court (1997) 55 Cal.App.4th 1546, 1557 [65 Cal.Rptr.2d 53]; PSC Geothermal Services Co. v. Superior Court (1994) 25 Cal.App.4th 1697, 1712 [31 Cal.Rptr.2d 213]; Geilim v. Superior Court (1991) 234 Cal.App.3d 166, 171-173 [285 Cal.Rptr. 602].) We agree with these decisions and conclude that an attorney suspected of criminal conduct properly may, before any charges have been filed, assert the attorney-client privilege with regard to materials seized from the attorney pursuant to a search warrant. Second, the People attack the Bauman & Rose decision on the ground that, whatever the rule with regard to the attorney-client privilege, the work-product doctrine has no application to documents seized pursuant to a search warrant. The People claim that the doctrine precludes disclosure of attorney work product only during discovery, and that a search warrant is not a tool of discovery. Therefore, according to the People, a hearing to determine the applicability of the work-product doctrine would serve no purpose. Contrary to the People’s position, however, the work-product doctrine applies outside the context of formal discovery between parties to a pending action. The work-product doctrine is codified in section 2018. Subdivision (a) of this statute provides: “It is the policy of the state to: (1) preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases; and (2) to prevent attorneys from taking undue advantage of their adversary’s industry and efforts.” Pursuant to subdivision (c) of section 2018, “[a]ny writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances.” (Italics added.) The work-product doctrine expressly is made applicable to criminal cases by Penal Code section 1054.6, which states: “Neither the defendant nor the prosecuting attorney is required to disclose any materials or information which are work product as defined in subdivision (c) of Section 2018 of the Code of Civil Procedure, or which are privileged pursuant to an express statutory provision, or are privileged as provided by the Constitution of the United States.” (See Izazaga v. Superior Court (1991) 54 Cal.3d 356, 380-382 [285 Cal.Rptr. 231, 815 P.2d 304]; People v. Collie (1981) 30 Cal.3d 43, 59 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776] [holding, before enactment of Penal Code section 1054.6, that the work-product doctrine applies in criminal cases].) In support of the claim that the work-product doctrine applies only during formal discovery, the People rely upon Arnett, supra, 14 Cal.4th 4, which interpreted a statute specifying that the proceedings and records of hospital peer review committees shall not be “subject to discovery.” (Evid. Code, § 1157, subd. (a).) Our decision in Arnett concluded that the term “discovery” in this particular statute must be given “its well-established legal meaning of a formal exchange of evidentiary information between parties to a pending action . . . .” (14 Cal.4th at p. 24.) Thus, we held that a subpoena issued by an administrative agency for purely investigative purposes, before any action had been filed, did not constitute discovery within the meaning of Evidence Code section 1157. The People contend that, by analogy, a search warrant authorizing seizure of materials from a criminal suspect before charges have been filed does not constitute discovery for purposes of Code of Civil Procedure section 2018, which provides that attorney work product shall not be discoverable. Unlike the statute considered in Arnett, however, section 2018 expressly is intended to restate the common law regarding attorney work product. (Id., subd. (d).) In order to further the policies underlying the doctrine, several decisions have applied the work-product doctrine to preclude disclosure of attorney work product in situations other than formal discovery between parties to a pending action. For example, in People v. Coddington (2000) 23 Cal.4th 529 [97 Cal.Rptr.2d 528, 2 P.3d 1081], we held that a prosecutor violated the work-product doctrine by using at trial information he had obtained informally through social contacts and an examination of a jail sign-in sheet. Our opinion states it was irrelevant that the prosecutor did not seek or obtain the information through discovery. (Id. at p. 606; see also County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 654-658 [271 Cal.Rptr. 698] [opposing party cannot retain adversary’s former expert witness without violating work-product doctrine]; Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 648-649 [151 Cal.Rptr. 399] [work-product doctrine is applicable at trial as well as in pretrial discovery proceedings]; 70 Ops.Cal.Atty.Gen. 28, 33-35 (1987) [work-product doctrine applies in grand jury proceedings]; accord, In re Grand Jury Proceedings (8th Cir. 1973) 473 F.2d 840, 842-848 [the need for protection of attorney work product outweighs the public interest in the search for the truth at a grand jury proceeding].) Bauman & Rose, supra, 37 Cal.App.4th 1757, is not the only California decision holding that materials seized pursuant to a search warrant, as part of a criminal investigation, are protected by the work-product doctrine. In PSC Geothermal Services Co. v. Superior Court, supra, 25 Cal.App.4th 1697, the Court of Appeal stated: “[T]he court should be able to control the disclosure of potentially privileged materials sought to be discovered by the prosecution through execution of a search warrant. The attorney-client and work-product privileges should not be lost simply because the prosecution seeks discovery through execution of a search warrant rather than through a discovery motion.” (Id. at p. 1712.) Federal decisions are in accord. (E.g., Upjohn Co. v. United States (1981) 449 U.S. 383, 397-400 [101 S.Ct. 677, 686-688, 66 L.Ed.2d 584] [attorney-client privilege and work-product doctrine apply to summonses issued by IRS as part of tax investigation]; Klitzman, Klitzman and Gallagher v. Krut (3d Cir. 1984) 744 F.2d 955, 961 [same, with regard to search warrants executed by United States Postal Service in connection with pending grand jury proceedings].) We agree with these decisions and reject the People’s assertion that the work-product doctrine cannot preclude disclosure of materials seized pursuant to a search warrant as part of a criminal investigation. A determination that the attorney-client privilege and work-product doctrine protect materials from disclosure only during a pending proceeding or in formal discovery would be inconsistent with the purpose of and policies underlying these privileges. If law enforcement authorities were permitted to seize and inspect privileged items that would be protected against discovery in a criminal proceeding, the prosecution simply could delay filing charges until a search warrant for those items is executed. Although the prosecution could riot introduce the privileged information discovered by such a search as evidence in the proceeding, it nevertheless could use the information in preparing its case and thereby gain an unfair advantage over individuals intended to be protected by the privilege. Just as importantly, mere disclosure of client confidences and attorney work product to third parties, in itself, would violate these privileges. (Geilim v. Superior Court, supra, 234 Cal.App.3d at p. 176.) We find no indication in the statutes or case law that the Legislature intended such a result. Third, the People challenge the validity of Bauman & Rose by claiming that, even if the attorney-client privilege and work-product doctrine apply before charges have been filed, the superior court lacks authority to conduct a hearing to decide whether materials seized from an attorney suspected of criminal activity are protected against disclosure. The People rely upon the circumstance that Penal Code section 1524, subdivision (c), authorizes such a hearing only when materials are seized from privilege holders who are not suspects. According to the People, the Legislature thus intended that only individuals not suspected of criminal conduct have a right to such a hearing. The People further assert that if courts always have had the power to conduct a privilege hearing before charges are filed, there would have been no need for the Legislature to confer a statutory right to such a hearing. Contrary to the People’s position, Penal Code section 1524 does not reflect a legislative intent to authorize privilege hearings only for individuals not suspected of criminal activity. Subdivisions (c), (d), and (e) of Penal Code section 1524 contain detailed provisions concerning the appointment and duties of a special master who must accompany the individual serving the warrant, supervise and/or conduct the search, and seal items that the party who has been served believes should not be disclosed. Subdivision (c)(2) states that the special master must take the sealed items to the court for a hearing. This subdivision not only provides for a privilege hearing but also (1) imposes a duty upon the special master to take the sealed items to the court; (2) authorizes the party served with the warrant to raise at the hearing issues pursuant to Penal Code section 1538.5, a statute ordinarily available only to a defendant in a criminal proceeding (id., subd. (a)(1)); (3) requires that the parties be given sufficient time to obtain counsel, make motions, and present evidence; and (4) requires an expedited hearing unless impracticable. Thus, the reference in Penal Code section 1524 to a superior court hearing does not reflect a legislative assumption or intention that the court otherwise lacks authority to conduct a hearing regarding privilege issues. Instead the statute sets forth additional rights and procedures that apply at a hearing involving specified individuals who are not suspected of criminal activity. Nothing in Penal Code section 1524 purports to restrict a court’s authority to adjudicate claims of privilege or work product raised by attorneys who are suspects. Accordingly, we conclude that the court in Bauman & Rose correctly held that the superior court has an obligation to consider and determine claims that materials seized pursuant to a search warrant, from attorneys suspected of criminal activity and before charges have been filed, are protected by the attorney-client privilege or work-product doctrine and thus should not be inspected by or disclosed to law enforcement authorities. III We next consider whether the superior court possesses authority, without the consent of the parties, to order that the review of seized materials and the determination of privilege claims in a Bauman & Rose proceeding be referred to a special master for a report and recommendation. The California Constitution imposes limitations upon the power of nonjudicial officers to exercise judicial functions. “The judicial power of this State is vested in the Supreme Court, courts of appeal, superior courts, and municipal courts.” (Cal. Const., art. VI, § 1.) To avoid an unconstitutional delegation of judicial authority, the Constitution requires the stipulation of the parties before a trial court may refer a cause to be tried by a referee. (Id.., § 21; In re Edgar M. (1975) 14 Cal.3d 727, 732 [122 Cal.Rptr. 574, 537 P.2d 406].) Such a referral of the entire case, with the consent of the parties, is known as a general reference and results in a binding determination by the referee. (In re Edgar M., supra, 14 Cal.3d at p. 734; see § 638.) In addition, the Constitution specifies that “[t]he Legislature may provide for the appointment by trial courts of record of officers such as commissioners to perform subordinate judicial duties.” (Cal. Const., art. VI, § 22.) Article VI, section 22, was intended to retain constitutional authorization for existing statutes under which court commissioners had exercised their powers (see Code Civ. Proc., § 259), and also to authorize expressly the previously implicit power under article VI for the appointment by trial courts of masters and referees to assist in the factfinding process. (In re Edgar M., supra, 14 Cal.3d at pp. 733-734.) Masters and referees perform subordinate judicial duties only if their findings and recommendations are advisory and not binding until adopted by the court. (In re Perrone C. (1979) 26 Cal.3d 49, 54-55 [160 Cal.Rptr. 704, 603 P.2d 1300]; Aetna Life Ins. Co. v. Superior Court (1986) 182 Cal.App.3d 431, 436 [227 Cal.Rptr. 460].) The court independently must review the referee’s proposed findings and conclusions. (Jovine v. FHP, Inc. (1998) 64 Cal.App.4th 1506, 1522 [76 Cal.Rptr.2d 322].) If authorized by law, a superior court’s referral of a particular aspect of a judicial proceeding to a special master or referee to render advisory findings and recommendations may be made with or without the consent of the parties and is known as a special reference. (Ibid.) Neither the decision in Bauman & Rose, supra, 37 Cal.App.4th 1757, nor Penal Code section 1524 expressly addresses the question whether a trial court is authorized to appoint a special master or referee to review seized documents as to which a claim of privilege has been asserted. The attorneys and the superior court assert that the Court of Appeal correctly concluded that a special reference of the privilege issues raised in a Bauman & Rose hearing is authorized by Code of Civil Procedure section 639. The People, on the other hand, contend that the superior court lacks the authority to compel the parties to submit any part of the proceeding to a special master, because no statute authorizes a compulsory reference in this context. We shall consider these contentions in turn. A The Court of Appeal held that the superior court possesses authority to compel a special reference in a Bauman & Rose hearing pursuant to section 639, subdivision (a)(4), which states: “When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee . . . R0 . . . [ID . . . [w]hen it is necessary for the information of the court in a special proceeding,” The Court of Appeal reasoned that a Bauman & Rose hearing is neither a criminal action nor a civil action, as those terms are defined in the Code of Civil Procedure, and thus by definition the hearing is a special proceeding within the meaning of section 639. In evaluating the Court of Appeal’s conclusion, we shall ascertain whether a Bauman & Rose hearing is a special proceeding, and, if so, whether it is the type of special proceeding in which section 639 authorizes a special reference. 1. The Code of Civil Procedure classifies the remedies that may be obtained in the courts. “Judicial remedies” are defined as those remedies administered by the courts of justice or judicial officers empowered for that purpose by the Constitution and statutes. (§ 20.) Judicial remedies are divided into two classes: actions and special proceedings. (§ 21.) “An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” (§ 22.) “Every other remedy is a special proceeding.” (§ 23.) Actions are classified as either civil or criminal. (Code Civ. Proc., § 24.) “A civil action is prosecuted by one party against another for the declaration, enforcement or protection of a right, or the redress or prevention of a wrong.” (Id., § 30.) A criminal action is “[t]he proceeding by which a party charged with a public offense is accused and brought to trial and punishment . . . .” (Pen. Code, § 683; see Code Civ. Proc., § 31 [definition of criminal action].) “A criminal action is prosecuted in the name of the people of the State of California, as a party, against the person charged with the offense.” (Pen. Code, § 684.) The People acknowledge that no criminal action, as defined in Penal Code section 683, has been initiated against the attorneys. The Bauman & Rose hearing may not be characterized properly as a criminal action, because it is not a proceeding in which any party has been charged with a public offense. Nor is the hearing related to any pending criminal action so as to warrant treating it as an integral part of such an action. In Bravo v. Cabell (1974) 11 Cal.3d 834 [114 Cal.Rptr. 618, 523 P.2d 658], we held that special proceedings ordinarily regarded as civil in nature (petitions for prerogative writs) should be deemed a part of the criminal action to which they relate, because the proceedings “initiate no new controversy but relate only to the action below.” (Id. at p. 840.) Similarly, the Court of Appeal subsequently held that a motion for disclosure of a peace officer’s personnel records (Evid. Code, § 1043) should not be deemed a special proceeding if it is an integral part of a pending action. (Avelar v. Superior Court (1992) 7 Cal.App.4th 1270, 1275-1277 [9 Cal.Rptr.2d 536].) When no criminal action has been filed, however, a motion for the return of seized property is deemed to be a special proceeding, even though it may be considered part of a criminal action if such an action is pending. (Ensoniq Corp. v. Superior Court, supra, 65 Cal.App.4th 1537, 1547.) Thus, although the pendency of a related criminal action may warrant classifying a special proceeding as a part of the criminal action, the mere circumstance that a criminal action may be filed against the attorneys at some point in the future is insufficient to justify categorizing the Bauman & Rose hearing as a criminal action or as an integral part of such an action. The decision in People v. Superior Court (Memorial Medical Center) (1991) 234 Cal.App.3d 363, 387-389 [286 Cal.Rptr. 478] (Memorial Medical Center) does not support a contrary conclusion. That case concerned the privilege not to disclose records of a hospital peer review committee. (Evid. Code, § 1157.) The Court of Appeal held that a proceeding pursuant to Penal Code section 1524, subdivision (c), to determine the applicability of the privilege before criminal charges had been filed against a physician, was a “criminal action” within the meaning of Evidence Code section 1157, subdivision (e). The latter statute specifies that the privilege for the records of a hospital peer review committee does not apply in a criminal action. The court acknowledged that a strict reading of the definition of “criminal action” in Penal Code section 683 “would seem to exclude special proceedings of a criminal nature in which a defendant has not yet been charged.” (Memorial Medical Center, supra, 234 Cal.App.3d at p. 388.) Nevertheless, the Court of Appeal determined that excluding a proceeding under Penal Code section 1524 from the definition of “criminal action” in Evidence Code section 1157 would frustrate the legislative purpose of not permitting the peer review privilege to hamper the discovery and prosecution of criminally negligent conduct by physicians. The determination in Memorial Medical Center, supra, 234 Cal.App.3d 363, that a proceeding pursuant to Penal Code section 1524 constitutes a criminal action specifically was limited to the meaning of that term as used in Evidence Code section 1157. More importantly, the opinion in Memorial Medical Center did not recognize that the definition of “criminal action” in the Evidence Code expressly includes “criminal proceedings.” (Evid. Code, §§ 100, 130.) This definition was added to ensure that the rules set forth in the Evidence Code apply to all actions and proceedings. (Cal. Law Revision Com. com., reprinted at 29B pt. 1 West’s Ann. Evid. Code (1995 ed.) foil. § 120, p. 13.) Thus, the term “criminal action” as used in Evidence Code section 1157 necessarily encompasses special proceedings. The resolution of the present case, however, does not depend upon the meaning of the term “criminal action” as used in any provision of the Evidence Code. Therefore, the construction of that term in Memorial Medical Center is not instructive for our purposes. Because the Bauman & Rose hearing is not a criminal action, it must be classified as either a civil action or a special proceeding. As established above, a civil action “is prosecuted by one party against another for the declaration, enforcement or protection of a right, or the redress or prevention of a wrong.” (§ 30.) Special proceedings, on the other hand, generally are “confined to the type of case which was not, under the common law or equity practice, either an action at law or a suit in equity. [Citations.]” (Tide Water Assoc. Oil Co. v. Superior Court (1955) 43 Cal.2d 815, 822 [279 P.2d 35].) Special proceedings instead are established by statute. (3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 13, p. 66; see In re Rose (2000) 22 Cal.4th 430, 452 [93 Cal.Rptr.2d 298, 993 P.2d 956].) The term “special proceeding” applies only to a proceeding that is distinct from, and not a mere part of, any underlying litigation. (Avelar v. Superior Court, supra, 7 Cal.App.4th 1270, 1275.) The term “has reference only to such proceedings as may be commenced independently of a pending action by petition or motion upon notice in order to obtain special relief. [Citations.]” (In re Sutter-Butte By-Pass Assessment (1923) 190 Cal. 532, 537 [213 P. 974].) The motion of the attorneys for a hearing to determine the applicability of claimed privileges to the seized documents does not include any express request for a declaration that some of the documents are privileged, or for an order enforcing and protecting privileged documents. The motion simply requests that a hearing be held so that the applicability of any privilege “can be determined” in accordance with the decision in Bauman & Rose, which characterizes the hearing authorized therein as one to ascertain whether the attorney-client privilege or work-product doctrine applies. (Bauman & Rose, supra, 37 Cal.App.4th at p. 1771.) Presumably, however, if the superior court determines that some documents are privileged, it would order such documents sealed and/or returned to the attorneys. Such an order, in effect, would amount to a declaration and enforcement of the rights of the attorneys and their clients. Thus, the motion could be considered analogous to a civil action against the People for declaratory or injunctive relief. (Cf. Tide Water Assoc. Oil Co. v. Superior Court, supra, 43 Cal.2d at pp. 822-823 [statutory proceeding for an injunction against waste of gas essentially is an action in equity for the prevention of a wrong]; Agricultural Labor Relations Bd. v. Superior Court (1983) 149 Cal.App.3d 709, 713-714 [196 Cal.Rptr. 920] [statutory proceeding for a temporary restraining order constitutes an equitable action for injunctive relief].) On the other hand, it is difficult to characterize the motion of the attorneys as an ordinary action, historically recognized under the common law or equity practice, in which the attorneys are prosecuting the People. The Bauman & Rose proceeding here stems from the People’s criminal investigation against the attorneys that could lead to the prosecution of the attorneys as defendants. No charges yet have been filed, but the attorneys nevertheless are acting defensively. Although the label ascribed to a proceeding by the parties or the court is not determinative, we observe that the motion of the attorneys is captioned simply “In the Matter of the Search Warrant for the Premises of’ the attorneys and others. The People are not named as a defendant but have appeared in the proceeding to oppose the claims of privilege asserted by the attorneys. Indeed, the superior court designated the deputy district attorney as counsel for plaintiff, apparently because the People would be considered the plaintiff in any future criminal action against the attorneys. In determining whether the Bauman & Rose hearing is a civil action or a special proceeding, it is appropriate to consider the essential character of the proceeding and the classification of similar remedies. (See Bravo v. Cabell, supra, 11 Cal.3d 834, 839; Agricultural Labor Relations Bd. v. Superior Court, supra, 149 Cal.App.3d 709, 714-715.) The decision in Bauman & Rose authorizes a hearing that is similar to the privilege hearing provided pursuant to Penal Code section 1524, subdivision (c), for attorneys who are not suspects. A hearing conducted under that statute, according to the court in Memorial Medical Center, supra, 234 Cal.App.3d at page 388, is a special proceeding of a criminal nature for purposes other than Evidence Code section 1157. Furthermore, a motion for a Bauman & Rose hearing is analogous to a motion by a nondefendant for the return of property not described in the warrant under which it was seized. (Pen. Code, §§ 1539, 1540.) When no criminal action is pending, such a motion is considered to be a special proceeding and, like a Bauman & Rose hearing, has been held to be authorized by Penal Code section 1536. (Ensoniq Corp. v. Superior Court, supra, 65 Cal.App.4th at pp. 1546-1547.) Thus, the essential character of a Bauman & Rose hearing, like the proceedings discussed in the preceding paragraph, is to determine whether property seized pursuant to a search warrant, from an individual who has not been charged with a crime, should remain available to law enforcement authorities or be returned to the individual. In addition, as with the other types of hearings, the Bauman & Rose hearing is authorized by a statute in the Penal Code, even if it has the effect of protecting private rights of individuals not suspected of criminal activity. The hearing has little in common, however, with an ordinary proceeding at common law or in equity in which a plaintiff prosecutes a defendant for the enforcement and protection of private rights. For these reasons, we conclude that a Bauman & Rose hearing is a special proceeding, rather than a civil action. 2. The People concede that a Bauman & Rose hearing is a special proceeding. According to the People, however, Code of Civil Procedure section 639 does not authorize a reference in a Bauman & Rose hearing, because this statute authorizes a reference only in civil special proceedings, and a proceeding pursuant to Bauman & Rose is a criminal special proceeding. The People rely upon the circumstance that section 639 appears in part 2 of the Code of Civil Procedure (Of Civil Actions), and within title 8 of that part (Of the Trial and Judgment in Civil Actions). Part 2 of the Penal Code, on the other hand, sets forth the provisions governing criminal procedure. The chapter of the Penal Code concerning search warrants, which includes statutes relevant to this proceeding (Pen. Code, §§ 1524, 1536), is located in part 2, title 12, captioned Special Proceedings of a Criminal Nature. As the People observe, no Penal Code section in this chapter authorizes a trial court to compel a reference in a special proceeding. Because a Bauman & Rose hearing is analogous to hearings authorized by Penal Code section 1524 and other statutes in part 2, title 12, of that code, we determine that a Bauman & Rose hearing is a criminal special proceeding. This determination is supported by Memorial Medical Center, supra, 234 Cal.App.3d 363, which characterized a proceeding pursuant to Penal Code section 1524, commenced before charges had been filed, as a criminal special proceeding. The Court of Appeal in that case explained: “While neither [the criminal suspect nor the custodian resisting disclosure of documents] has been charged with a crime, the People’s request for a search warrant was brought as part of an investigation of allegedly criminal conduct [by the suspect]. The People anticipate that seizure of the items sought under the warrant will provide evidence which will support the filing of a [criminal] complaint .... There is no intimation that the documents sought under the search warrant are to be used in a civil action. Hence, there is no doubt but that the special proceeding ... is fully grounded in criminal, rather than civil law.” (Memorial Medical Center, at p. 388; see also People v. Superior Court (Aquino) (1988) 201 Cal.App.3d 1346, 1349-1350 [248 Cal.Rptr. 50] [the People must be granted party status in a precomplaint proceeding for the return of seized property pursuant to Penal Code sections 1539 and 1540, because investigation and gathering of evidence is inseparable from the district attorney’s prosecutorial function].) We further conclude that Code of Civil Procedure section 639 does not authorize a reference in a special proceeding of a criminal nature. In Gonzales v. Superior Court (1935) 3 Cal.2d 260 [44 P.2d 320] (Gonzales), we held that another statute in part 2 of the Code of Civil Procedure does not apply in a criminal action. The defendant in Gonzales claimed that his failure to comply with a rule of court was due to the inadvertence and excusable neglect of counsel, and that Code of Civil Procedure section 473 authorized the court to grant relief from dismissal of his appeal. In rejecting this claim, we first recognized that the Penal Code contains provisions governing procedure in criminal actions, and that, unlike some statutes in the Code of Civil Procedure, section 473 is not made applicable to criminal actions by an express provision of the Penal Code. (Gonzales, supra, 3 Cal.2d at p. 263, citing Pen. Code, §§ 1046 [juries are formed in the same manner in both civil and criminal actions], 1102 [rules of evidence in civil actions generally are applicable to criminal actions].) We further observed that section 473 is found in part 2 of the Code of Civil Procedure (Of Civil Actions), title 6 (Of the Pleadings in Civil Actions). Our decision states: “It is an elementary rule of construction that chapter and section headings in the codes are entitled to considerable weight in interpreting the various sections and should be given effect according to their import, to the same extent as though they were included in the body of the law. [Citation.]” (3 Cal.2d at p. 263; see also People v. Hull (1991) 1 Cal.4th 266, 272 [2 Cal.Rptr.2d 526, 820 P.2d 1036] [chapter and section headings properly may be considered in determining legislative intent].) Furthermore, we noted in Gonzales that the framers of the codes in 1872 cited many decisions indicating their interpretation of section 473, but none of these decisions was a criminal case. (3 Cal.2d at p. 263.) Although recognizing that the curative provisions of section 473 would be of greater import in criminal matters than civil matters, our opinion states: “That such a remedial section should exist may be conceded but arguments based on such a premise are more properly addressed to the legislature than to the courts.” (3 Cal.2d at p. 262.) We recently relied upon Gonzales in determining that Code of Civil Procedure section 630, providing for directed verdicts, appears to apply only to civil actions. (People v. Hernandez (2000) 22 Cal.4th 512, 525 & fn. 2 [93 Cal.Rptr.2d 509, 994 P.2d 354].) Our decision observes that this statute does not refer expressly to criminal actions, and that no provision in the Penal Code purports to allow for a directed verdict under section 630. The Court of Appeal also recently followed Gonzales in holding that Code of Civil Procedure section 1008 does not apply in criminal cases. In People v. Castello (1998) 65 Cal.App.4th 1242 [77 Cal.Rptr.2d 314] (Castello), the People sought to limit the power of the trial court to reconsider interim rulings in a criminal action. The People relied upon section 1008, which provides that a party may seek reconsideration only in certain circumstances, such as when new facts are discovered or there has been a change in the law. In holding that the court’s inherent power to reconsider its rulings in a criminal action is not limited by section 1008, the appellate court in Castello, relying in part upon our opinion in Gonzales, supra, 3 Cal.2d 260, determined that only those procedural provisions of the Code of Civil Procedure that expressly are made applicable to penal actions apply in criminal cases, (Castello, supra, 65 Cal.App.4th at p. 1247; see also People v. Glimps (1979) 92 Cal.App.3d 315, 325, fn. 6 [155 Cal.Rptr. 230] [section 1011, specifying methods for service, does not apply in criminal actions because the statute appears in part 2 of the Code of Civil Procedure and is not referenced in the Penal Code].) Although the foregoing decisions considered criminal actions, rather than criminal special proceedings, Penal Code section 690 specifies that the provisions of part 2 of that code “shall apply to all criminal actions and proceedings in all courts, except where . . . special provision is made for particular courts or proceedings.” (Italics added.) Like Code of Civil Procedure sections 473, 630, 1008, and 1011—considered in the decisions discussed above—section 639 is not incorporated in the procedural provisions of the Penal Code, including those provisions that relate to criminal special proceedings analogous to a Bauman & Rose hearing. Moreover, nothing in the language or history of section 639 suggests that it was intended to apply in criminal special proceedings. The predecessor to section 639 appeared in California’s first statutes in 1850 and was included in “An Act to Regulate Proceedings in Civil Cases.” (Stats. 1850, ch. 142, § 164, pp. 442-443; cf. Stats. 1850, ch. 119, p. 275 [“An Act to Regulate Proceedings in Criminal Cases”].) The following year, the statute was amended to authorize a reference in a special proceeding and was recodified. (Stats. 1851, ch. 5, § 183, p. 79.) This new section appeared in Statutes 1851, chapter 5, entitled “An Act to Regulate Proceedings in Civil Cases,” title 6, captioned Of the Trial and Judgment in Civil Actions. (Stats. 1851, at pp. 51, 73.) As established above, the current version of section 639 remains in portions of the Code of Civil Procedure with headings expressly referring to civil cases. Furthermore, as in Gonzales, supra, 3 Cal.2d at page 263, the notes of the Code Commissioners in 1872 refer to several decisions reflecting their understanding of section 639, and all of these decisions concern civil matters. (Code Comrs. note, reprinted at 16A West’s Ann. Code Civ. Proc. (1976 ed.) foil. § 639, pp. 153-154.) Although these notes provide no indication of the legislative intent underlying the 1851 amendment that added special proceedings to the type of cases in which the trial court may compel a reference, we observe that, prior to the 20th century, “[n]early all, if not all, special proceedings [were] civil in their nature.” (Estate of Joseph (1897) 118 Cal. 660, 663 [50 P. 768].) Indeed, aside from the present case, the parties do not cite any decision in which a trial court in any type of criminal proceeding ordered a reference pursuant to section 639, and our own research has disclosed none. The few cases considering a trial court’s authority under section 639 to appoint a referee in a special proceeding have involved civil proceedings. (E.g., In re Reed (1928) 204 Cal. 119, 121 [266 P. 948] [proceeding for registration of land titles]; Estate of Johnston (1970) 12 Cal.App.3d 855, 859-860 & fn. 1 [91 Cal.Rptr. 116] [probate proceeding].) Our opinion in In re Edgar M., supra, 14 Cal.3d at page 734, also indicates that sections 638 and 639 apply only in civil cases, and that juvenile court referees in wardship proceedings are not appointed pursuant to those statutes. Contrary to the contention of the attorneys, Holt v. Kelly (1978) 20 Cal.3d 560 [143 Cal.Rptr. 625, 574 P.2d 441] (Holt) does not hold that a trial court has authority pursuant to section 639 to appoint a referee in a special proceeding of a criminal nature. The petitioner in Holt, following the disposition of criminal charges against him, filed a petition for writ of mandate in the superior court, seeking the return of property seized from him at the time of his arrest. After the superior court denied relief, the Court of Appeal issued an alternative writ and appointed a referee to hear evidence and make factual findings. The Court of Appeal subsequently denied the writ petition, and we granted review. Before setting forth the standard of review of the factual findings made by the referee appointed by the Court of Appeal, we stated: “The appointment of a special referee without consent of the parties is authorized ‘When it is necessary for the information of the court in a special proceeding.’ (Code Civ. Proc., § 639, subd. [(a)(4)].) Since appellate courts are not equipped to take evidence, a reference is essential when the determination of controverted issues of fact becomes necessary in an original proceeding. [Citation.]” (Holt, supra, 20 Cal.3d at p. 562.) Our opinion then contrasts a general reference authorized by section 638 with a special reference under section 639, and states that a special referee’s findings are not binding on this court but are entitled to great weight. (20 Cal.3d at pp. 562-563.) To the extent Holt’s references to sections 638 and 639 properly could be construed to suggest that these statutes apply in appellate proceedings, that decision is inapplicable here, because the mandate proceeding considered in Holt was not a criminal proceeding. After the disposition of his criminal action, the petitioner sought to compel a public officer to comply with the ministerial duty to “pay and deliver all the remainder of [a prisoner’s] money and valuables to the prisoner or to his order upon his release from jail,” as required by Government Code section 26640. Because a proceeding for a writ of mandate ordinarily is considered to be a civil special proceeding (Bravo v. Cabell, supra, 11 Cal.3d 834, 838), and the writ proceeding in Holt was not connected with any pending criminal action but rather initiated a new controversy regarding a public officer’s duty to comply with provisions of the Government Code, the proceeding properly is characterized as civil in nature. Indeed, we observed that because the petitioner’s property apparently had been lost or destroyed, the ultimate goal of the petition was to recover the value of the property—a typical civil remedy. (Holt, supra, 20 Cal.3d at p. 565, fn. 5.) The attorneys and the superior court do not cite or discuss Gonzales, supra, 3 Cal.2d 260, and its progeny, which hold that certain sections in part 2 of the Code of Civil Procedure do not govern criminal proceedings unless expressly made applicable to such proceedings. Instead the attorneys assert that a Bauman & Rose proceeding constitutes a civil proceeding, but, as established above, this assertion is incorrect. The superior court does not address whether the special proceeding is civil or criminal, but rather contends that section 639 applies in either type of proceedin