Pickett v. Superior Court (99¢ Only Stores): Plaintiff in Related Action Retains Right to Challenge Judge under CCP 170.6

I previously posted about the decision in Bright v. 99¢ Only Stores (2010) 189 Cal.App.4th 1472, in which the Court of Appeal reversed a trial court order (Los Angeles Superior Court, Judge Luis Lavin) sustaining an employer's demurrer to a PAGA complaint. The Court of Appeal held that employees may file PAGA actions for alleged violations of the Wage Orders (in this case, the Wage Order's requirement that employers provide seating to certain employees). See the post here. On remand, the plaintiffs challenged the judge who had sustained the demurrer and were reassigned to a second judge (Los Angeles Superior Court, Judge William H. Fahey).

A second plaintiff, represented by different attorneys, then filed a similar action, which was deemed related to the first action, but not consolidated with it. The plaintiff in the second action then filed a CCP 170.6 peremptory challenge to Judge Fahey. The court struck the challenge as improper, holding that the second action was merely a continuation of the first, and that the plaintiff in the first action had already used the one peremptory challenge.

In Pickett v. Superior Court (99¢ Only Stores) (February 22, 2012) --- Cal.App.4th ----, 2012 WL 556314, the Court of Appeal issued a writ of mandate reversing this decision.  It held that the second action was not a continuation of the first:

The named plaintiffs in both, even though representatives, are different. Pickett seeks injunctive relief, while Bright did not do so. Each named plaintiff who establishes a violation of the Labor Code is entitled to a penalty and her reasonable attorney fees. (Lab. Code, § 2699, subd. (3)(g)(1).) Although a judgment in a PAGA case collaterally estops employees not parties to that case—at least as to civil penalties (Arias, supra, 46 Cal.4th at p. 985), here no such judgment has been entered.

Slip op. at 9.


The Court held further that the first and second plaintiffs were not on the same side in "one action," and therefore the peremptory challenge should have been accepted.

The opinion is available here.