203 Cal. App. 4th 887
Cal. Ct. App.2012Background
- Pickett filed a PAGA action against 990 Only Stores alleging wage-order seating violations and seeking penalties; Bright previously filed a similar PAGA action against the same defendant for the same conduct.
- Bright’s case was assigned to Judge Lavin, later reversed on appeal, and Bright used a postappeal peremptory challenge against the judge.
- Pickett’s action was related to Bright’s, but not consolidated, and was reassigned to the all-purpose judge who presided Bright’s case.
- Pickett timely filed a section 170.6 peremptory challenge to the respondent court after the related case was assigned to the same judge.
- Respondent court struck Pickett’s challenge as improper, treating Pickett’s action as a continuation of Bright’s case and thus exhausting the one-challenge-per-side rule.
- Petition for a writ of mandate was granted; the court directed vacatur of the order striking the challenge and acceptance of Pickett’s challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pickett’s action is a continuation of Bright’s case for §170.6 purposes. | Pickett is a separate action; not a continuation. | Cases are the same action; Pickett exhausted the challenge. | No continuation; challenge proper to hear. |
| Whether two actions may be separate sides under §170.6(a)(4) for a single dispute. | Two separate plaintiffs and claims justify two side-by-side challenges. | Single action per side; related actions still count as one. | Two actions are separate; one challenge per side allowed. |
| Whether the PAGA injunctive claim in Pickett changes the continuation analysis. | Injunctive relief creates a distinct action. | Injunctive relief does not create a continuation. | No continuum; continuation rule not triggered by injunctive relief. |
Key Cases Cited
- Bravo v. Superior Court, 149 Cal.App.4th 1489 (Cal. Ct. App. 2007) (automatic right to disqualify; liberal construction of 170.6)
- NutraGenetics, LLC v. Superior Court, 179 Cal.App.4th 243 (Cal. Ct. App. 2009) (second action not a continuation if not arising from first)
- McClenny v. Superior Court, 60 Cal.2d 677 (Cal. Sup. Ct. 1964) (continuation focus on subsequent proceeding)
- Jacobs v. Superior Court, 53 Cal.2d 187 (Cal. Sup. Ct. 1959) (continuation where same parties at later stage)
- Solberg v. Superior Court, 19 Cal.3d 182 (Cal. Sup. Ct. 1977) (an automatic right to disqualification under 170.6)
- Nissan Motor Corp. v. Superior Court, 6 Cal.App.4th 150 (Cal. Ct. App. 1992) (consolidation not necessarily continuation for 170.6)
- Arias v. Superior Court, 46 Cal.4th 969 (Cal. 2009) (PAGA not personal claim; representative action)
- Reys v. Macy’s, Inc., 202 Cal.App.4th 1119 (Cal. Ct. App. 2011) (PAGA representative action analysis)