Tuesday, April 24, 2007
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Court Permits New 170.6 Challenge in Man’s Second Suit Against County Involving Same Issues, Distinct Facts
By a MetNews Staff Writer
Two employment discrimination lawsuit involving the same parties and similar issues but arising out of distinct events were not “related” for purposes of a peremptory challenge, the Court of Appeal for this district ruled yesterday.
Reinstating a peremptory challenge against Superior Court Judge James R. Dunn, Div. Seven granted a writ of mandate sought by former Los Angeles County employee Arthur Bravo in his second work-related lawsuit against the county.
Dunn presided over the prior action, in which Bravo alleged the county retaliated against him for filing a complaint with the Equal Employment Opportunity Commission.
After he reported workplace harassment that was directly related to his sexual orientation, he alleged in his suit, his employer retaliated in January and April 2004 by means of discipline, reprimand, denial of accommodations, and surveillance.
The first action concluded last April with Dunn sustaining the county’s demurrer to Bravo’s third amended complaint, without leave to amend.
The following month, Bravo filed a second suit against the county asserting claims for employment harassment, discrimination, and retaliation. The latter action alleged facts concerning ongoing retaliation that he had not alleged in his first lawsuit.
He claimed, for example, that he suffered retaliation from May 10 through June 10 of 2004 in various ways including being falsely accused of making death threats and suspended for 30 days pending investigation.
After the case was assigned to Judge Irving Feffer, the county filed a notice of related case asserting that Bravo’s current and previous actions were “related” within the meaning of Los Angeles Superior Court Local Rule 7.3(f) and California Rules of Court, rule 804(a). Both rules provide that related cases—those involving the same or substantially identical transactions, events, or the same or similar questions of law and/or fact—may be ordered heard before the same judge.
The county maintained that Dunn should hear Bravo’s second action because he had heard the prior action and was familiar with it.
Opposing the county’s notice of related cases, Bravo contended his two actions were not related because the second action involved events that occurred after those alleged in the first action, and the prior action was no longer pending at the time the latter suit was filed.
The trial court found Bravo’s cases related and assigned the case to Dunn.
The plaintiff then filed a motion under Code of Civil Procedure 170.6 to disqualify Dunn for prejudice. The peremptory challenge was opposed by the county, which argued that it was untimely because the two matters were related and the second action was a continuation of the first.
Dunn found his challenge untimely.
Div. Seven disagreed.
Writing for the panel, Justice Laurie D. Zelon explained:
“The fact that the cases are related does not resolve the issue of whether the second case is a continuation of the first case for purposes of Code of Civil Procedure section 170.6. Here, although the two cases involve the same employee and the same employer, the current action arises out of later events distinct from those in the previous action.”
Therefore, she said, Bravo’s latter action did not constitute a continuation of his previous action and his peremptory challenge was timely.
Presiding Justice Dennis M. Perluss and Justice Earl Johnson Jr. concurred in the opinion.
The case is Bravo v. Superior Court (County of Los Angeles), B195593.
Copyright 2007, Metropolitan News Company