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Shelley Pickett v. the Superior Court of Los Angeles County

February 22, 2012


ORIGINAL PROCEEDINGS; petition for writ of mandate. (Super. Ct. No. BC473038) William F. Fahey, Judge.

The opinion of the court was delivered by: Mosk, J.


Petition granted.


Plaintiff Shelley Pickett's action that included a Private Attorney General Act (Lab. Code, § 2698 et seq.) (PAGA) claim was deemed related to a prior-filed PAGA action brought by Eugina Bright, against the same defendant on similar allegations, although the remedies sought were not identical. Upon Pickett's action being reassigned to the all-purpose judge in the prior-filed action, but not consolidated with that first action, Pickett timely filed a peremptory challenge to the trial judge pursuant to Code of Civil Procedure section 170.6.*fn1 The respondent court struck the challenge as improper. It determined that Pickett's action was identical to and a continuation of the action brought by Bright, who had already used her one peremptory challenge in the matter. Pickett petitioned for an extraordinary writ of mandate directing the respondent court to vacate its order. Under section 170.6 and the authorities applying it, Pickett's action is not a continuation of Bright's action, nor is Pickett on the same "side" as Bright in one action, and therefore Pickett's peremptory challenge should have been accepted. We grant the petition.


Pickett is suing real party in interest 99ó Only Stores, alleging that 99ó Only Stores violated a wage order No. 7-2001 and Labor Code section 1198 by failing to provide adequate seating for cashiers at its stores. Her first cause of action is brought under PAGA, which permits her to sue on behalf of herself and other current and former employees, as a private attorney, in order to obtain penalties and attorney fees. In a second cause of action, Pickett alleges that because she suffers continuing injury that would not be covered by the penalties sought in her first claim, she also seeks an injunction under sections 525 and 526, and Civil Code sections 3420 through 3422, to require 99ó Only Stores to provide suitable seating to Pickett and its other cashiers.

Bright had also sued 99ó Only Stores for failing to provide cashier seating in violation of a wage order No. 7-2001 and Labor Code section 1198. She invoked the provisions of PAGA as authority to seek penalties on behalf of herself and all current and former employees. In conjunction with that claim, she did not seek any additional relief, such as injunctive relief.

Bright's case was assigned to Los Angeles Superior Court Judge Luis Lavin.*fn2 Judge Lavin sustained a demurrer to Bright's allegations under PAGA, but this court reversed the order. (Bright v. 99ó Only Stores (2010) 189 Cal.App.4th 1472, 1475.) Upon the return of her action to the superior court, Bright used a post-appeal peremptory challenge to disqualify Judge Lavin. Her case was then assigned to the respondent court, presided over by Judge William Fahey.

On November 4, 2011, 99ó Only Stores moved to strike all of Bright's representative allegations. The same day, Pickett, represented by different attorneys than those representing Bright, filed her complaint. On November 10, 2011, Pickett filed a notice of related cases, as required by rule 3.300 of the California Rules of Court, identifying Bright's action. Pickett stated that the cases presented "identical claims" because she and Bright were both suing 99ó Only Stores for the same alleged misconduct and were bringing representative claims under PAGA. On Wednesday, December 7, 2011, after a hearing, the respondent court issued an order finding that the cases were related, and assigned the Pickett matter to its courtroom. On the same day, the court granted the motion to strike representative allegations from Bright's complaint.

On December 14, 2011, Pickett filed a peremptory challenge to the respondent court pursuant to section 170.6.*fn3 In anticipation of that challenge, 99ó Only Stores had already filed an opposition, arguing that the Pickett matter was the same as and a continuation of the Bright action for the same reasons that the cases had been deemed related--the claims and parties were in effect the same because of the PAGA allegations. 99ó Only Stores contended that Pickett was limited by the one-challenge-per-side rule under section 170.6, subdivision (a)(4). The respondent court agreed and struck the challenge. In doing so, the trial court noted and that it considered that Pickett admitted she was pursuing claims identical to those in the Bright action, and it viewed the challenge as an attempt at forum shopping. This timely petition followed.


The independent standard of review applies when, as here, proper application of the disqualification statute turns on undisputed facts.*fn4 (Swift v. ...

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