Daily Blast February 22, 2012

Here is a nice little case discussing PAGA claims and peremptory challenges. On February 22, 2012, Division Five of the Second Appellate District Court of Appeal (Los Angeles) issued an important opinion in Picket v. Superior Court (Feb. 22, 2012, B238175) ___ Cal.App.4th ____ holding that one action is not a continuation of another for purposes of the single peremptory challenge rule merely because the two cases involve the same parties and arise from common acts of alleged wrongdoing. (Slip opn., p. 7.)

Petitioner Pickett brought an action under the Private Attorney General Act (PAGA) and sought injunctive relief claiming that Defendant 99¢ Only Stores failed to provide adequate seating for cashiers at its stores. (Slip opn., p. 2.) After Pickett filed her complaint, she filed a notice of related cases identifying an action brought by Bright, who had also invoked the provisions of PAGA against defendant. (Ibid.) A month later, Pickett filed a peremptory challenge to the court pursuant to Code of Civil Procedure section 170.6. (Id. at p. 4.) Respondent court struck the challenge as improper, finding that Pickett’s action was identical to and a continuation of the action brought by Bright, who had already used her one peremptory challenge. (Id. at p. 2.) Pickett filed a petition for writ of mandate. (Ibid.)

The Court of Appeal granted Pickett’s petition, concluding that the peremptory challenge should have been accepted. (Slip opn., p. 2.) According to the court, although the alleged wrongful conduct was the same, since Pickett was seeking injunction relief, she was seeking additional relief beyond her representative claims for Labor Code penalties. (Id. at p. 8.) Additionally, Pickett’s action did not arise out of the Bright action itself even though the alleged violations were the same. (Ibid.) Further, the court rejected defendant’s argument that Pickett’s PAGA allegations were repetitive of Bright’s since both were made on behalf of State enforcement agencies. (Id. at p. 9.) The court explained that although both plaintiffs were representatives, each named plaintiff who establishes a violation of the Labor Code is entitled to a penalty and reasonable attorney fees. (Ibid.) The court noted that the one challenge per side provision of section 170.6 provides that only one motion for each side may be made in any one action or special proceeding. (Ibid.) The court concluded that the Pickett action and the Bright action were not one action. (Ibid.)

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