Pickett

I concur in the majority decision. Respectfully, I write separately to emphasize the limited nature of the holding in NutraGenetics, LLC v. Superior Court (2009) 179 Cal.App.4th 243, 251 [ 101 Cal.Rptr.3d 657 ]. After accepting the Code of Civil Procedure section 170.6 challenge filed in the “related” case, the trial judge in NutraGenetics transferred both the related case and the original case to another judge. (NutraGenetics, LLC v. Superior Court, supra, 179 Cal.App.4th at p. 250 .) There is nothing in NutraGenetics to suggest the two actions were consolidated prior to the filing of the challenge.

NutraGenetics should not be considered authority for the proposition that, under these circumstances, Code of Civil Procedure section 170.6 requires the transfer of the original case to another judge. Although the writ of mandate was denied, NutraGenetics did not expressly address the propriety of reassigning the original case. Cases are not authority for propositions not considered. (People v. Burnick (1975) 14 Cal.3d 306, 317 [ 121 Cal.Rptr. 488 , 535 P.2d 352 ]; McDowell & Craig v. City of Santa Fe Springs (1960) 54 Cal.2d 33, 38 [ 4 Cal.Rptr. 176 , 351 P.2d 344 ].)

*897 I agree…

*890 Opinion

INTRODUCTION

Plaintiff Shelley Pickett’s action that included a Labor Code Private Attorneys General Act of 2004 (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. 1 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…