Yannoulatos v. Superior Court CA2/4 ( 2020 )

Filed 11/19/20 Yannoulatos v. Superior Court CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JOHN YANNOULATOS et al., B306989
Petitioners,
(Los Angeles County
v. Super. Ct. Nos. BC632679, 20STCV04200)
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondents,
RALPHS GROCERY
COMPANY,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Patricia Nieto,
Judge. Petition granted, alternative writ discharged.
Law Office of Michael V. Jehdian and Michael V. Jehdian;
Knapp, Petersen & Clarke, K.L. Myles, Andre E. Jardini for
Petitioners.
No appearance for Respondent Superior Court of Los
Angeles.
Morrison & Foerster, Tritia M. Murata, Wendy J. Ray,
Karen J. Kubin, James R. Sigel for Real Parties in Interest.
Petitioner Jill LaFace filed a representative action under
the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et
seq.) (PAGA) against her employer, real party in interest Ralphs
Grocery Co. (Ralphs), alleging that Ralphs failed to provide
suitable seating for its checkstand cashiers. Following a bench
trial, the court found in favor of Ralphs.
After trial, but prior to entry of judgment in that case,
LaFace and petitioner John Yannoulatos filed a second PAGA
action against Ralphs, alleging that Ralphs failed to provide
seating for employees working in the self-checkout area. The
second action was deemed related to the first and reassigned to
the same judge. Petitioners 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 untimely on the
grounds that the second action was identical to, and therefore a
continuation of, the first action.
LaFace and Yannoulatos petitioned for an extraordinary
writ of mandate directing the trial court to vacate its order. They
contend that the second lawsuit includes an additional plaintiff
(Yannoulatos), covers a different time period, and focuses on the
failure to provide seating for self-checkout attendants, a claim
never alleged in the first lawsuit. Ralphs argues that petitioners’
claim regarding self-checkout cashiers was subsumed within
LaFace’s allegations in the first lawsuit regarding checkstand
cashiers, and therefore that the second lawsuit is merely a
continuation of the first. We find no evidence to support Ralphs’
All further statutory references are to the Code of Civil
1
Procedure unless otherwise indicated.
2
contention that LaFace asserted, and then abandoned, a claim
covering self-checkout attendants in the first lawsuit. Thus, we
conclude that the trial court erred by striking the peremptory
challenge based on a finding that the second case was a
continuation of the first one. We therefore grant the petition.
FACTUAL AND PROCEDURAL HISTORY
I. LaFace Action
LaFace filed the first lawsuit, case number BC632679,
against Ralphs in September 2016 (LaFace). Ralphs operates a
grocery store chain in California. LaFace worked as a “checker
and/or cashier” in a Ralphs store. LaFace brought a
representative action under PAGA, alleging a single cause of
action contending Ralphs violated Industrial Wage Commission
(IWC) Wage Order No. 7, section 14(A), by failing to provide
suitable seats to LaFace “and other checkers and/or cashiers.”
She further alleged that the “cubicle area is sufficiently spacious
to provide adequate room to provide a seat for a checker and/or
cashier.” LaFace sought civil penalties under PAGA on behalf of
herself and other “checkers and/or cashiers” working at Ralphs.
In initial discovery, the parties adduced some evidence
regarding the different types of checkout locations. For example,
in interrogatory responses served in June 2017, Ralphs stated
that its stores had “multiple types of checkstands, with differing
locations, configurations, and dimensions.” The store where
LaFace worked had “seven checkstands with an incoming
conveyor belt that is in-line with a scanner and an outgoing
conveyor,” as well as “a self-checkout area with four checkstands
where customers can scan and bag their own items. The cashier
in this self-checkout area has an override station where they
have a cash box and access to the transactions that are occurring
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on each self-checkout register.” Both types of checkstands were
located at the “front-end” of the store. Ralphs also produced
schematics for its self-check machines.
In addition, Ralphs responded that in an ordinary customer
transaction at a checkstand, the cashier’s duties included
scanning or weighing the items placed on the conveyor belt, then
passing the items to the bagging area, ringing up the purchase,
and often bagging items for the customer. Ralphs stated that it
did not provide seating in the checkstands because of the
“cashier’s dynamic work,” “the limited space within the
checkstand for a seat,” and the fact that “the space behind the
cashier’s area is often a passage way for the customers being
serviced at the next checkstand.”
In response to questions by Ralphs’ counsel at her
deposition in May 2017, LaFace testified that she sometimes
worked as a cashier supervising the self-checkout stations, which
differed from the job of someone working at one of the registers.
She explained that the cashier overseeing the self-checkout
stations was responsible for helping customers who needed
assistance with the self-checkout machines. LaFace also agreed
that the cashier at the self-checkout station would have nowhere
to put a chair, because it could get in the way of customers and
the cashier needed to be able to walk among the four self-
checkout stations.
At a case management conference on August 17, 2017, the
court had the following exchange with LaFace’s counsel:
Court:
“Are we talking about only cashiers who are working
regular registers?
“Mr. Jardini [plaintiff’s counsel]: Yes, your honor, we are.
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Court: So we’re not talking about cashiers who are assisting
people at the self serve checkout sort of things?
“Mr. Jardini: No . . . . That person actually has to be
serving five or six, eight, I don’t know, however many stations.
So that person cannot have a chair, I don’t believe.”
The court’s minute order from the hearing memorialized
this statement that the case would deal “only with regular
cashiers, not self-serve attendants.”
Subsequently, the parties’ discovery excluded the self-
checkout area. Ralphs objected in its later written discovery
responses to the definitions of “workstation” and “checkstand,”
“to the extent [they] include[d] self-checkout lanes,” and expressly
limited its responses to include front-end checkstands and
exclude self-checkout areas. LaFace’s expert conducted site
inspections at Ralphs’ stores, which expressly excluded inspection
of self-check registers.
The case culminated in a 13-day bench trial before the
Honorable Patricia Nieto, between November 12, 2019 and
January 6, 2020. LaFace and fellow longtime cashier
Yannoulatos testified during trial. It is undisputed that the
parties did not present evidence at trial regarding the self-
checkout area.
The court issued a lengthy statement of decision on March
20, 2020, finding in favor of Ralphs and against LaFace. Relying
on the factors set forth in Kilby v. CVS Pharmacy, Inc. (2016) 63
Cal.4th 1 (Kilby), the court concluded that LaFace failed to meet
her burden “to show that the nature of the work of Ralphs
cashiers reasonably permits the use of seats.” Specifically, the
court found that “throughout the time they are checking out
customer orders, Ralphs cashiers engage in continuous dynamic
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movement. They are scanning, reaching, pulling, pushing,
bagging, handling items, accepting payment, moving in and
around the checkstands, and exiting the checkstands, among
other things.” The court also cited evidence that cashiers
“constantly move in and around” the cashier well, handle and lift
heavy items, bag groceries, either inside the cashier well or at the
back of the checkstand, and leave their checkstands for various
reasons. When not assisting customers, cashiers had other duties
at their checkstands and around the store.
The court cited testimony of Ralphs’ expert, Dr. Fernandez,
that cashiers “continuously engage in extended reaches while
checking out customer orders,” including reaching to retrieve
items coming down the incoming conveyor belt and sorting items
on the outgoing belt. The court relied on Dr. Fernandez’s “robust
quantitative analysis and qualitative assessment of the nature of
the work of Ralphs cashiers and the physical layout of the Front
End checkstand configurations.” The court found that “the
evidence presented by Ralphs was overwhelming with respect to
the physical layout of the front-end checkstands and the fact that
they cannot reasonably accommodate a seated cashier.”
The court entered judgment for Ralphs on March 20, 2020.
LaFace filed a notice of appeal on April 1, 2020. That appeal is
currently pending.
II. Yannoulatos Action
On January 31, 2020, after trial in LaFace had concluded
but before the court issued its statement of decision, LaFace and
Yannoulatos filed a second PAGA action against Ralphs (case
number 20STCV4200) (Yannoulatos).2 The complaint again
2Petitioners filed their PAGA notice letter on October 24,
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alleged a single cause of action contending Ralphs violated IWC
Wage Order No. 7, section 14(A). This time, petitioners alleged
that Ralphs failed to provide suitable seats for “plaintiffs and
other similarly situated self-checkout attendants.” In their
complaint, petitioners sought civil penalties under PAGA on
behalf of themselves and other cashiers working at self-checkout
stations.
Ralphs filed a notice of related cases pursuant to California
Rules of Court, rule 3.300 in April 2020. LaFace objected,
contending that the cases were not related. On June 30, 2020,
the court issued a minute order finding that the cases were
related and transferring Yannoulatos to Judge Nieto.
On July 9, 2020, petitioners filed a peremptory challenge
under section 170.6. Ralphs opposed, arguing that Yannoulatos
was a continuation of LaFace and involved “contested factual
issues on which Judge Nieto has already ruled and made
material factual findings.” Ralphs further argued that
petitioners were attempting to resurrect a claim regarding the
feasibility of seats for self-checkout cashiers that “they
consciously, deliberately abandoned” in the first case. It pointed
to its discovery responses in LaFace that included information
about the self-checkout area and deposition testimony of Ralphs’
employees as evidence that “the self-checkout register is just
another type of front-end register where Ralphs cashiers work.”
2019, prior to the start of trial in LaFace. Pursuant to Labor
Code section 2699.3, an employee must give written notice of the
alleged Labor Code violation to both the employer and the Labor
and Workforce Development Agency, and the notice must
describe facts and theories supporting the violation. (§ 2699.3,
subd. (a).)
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Ralphs also contended that LaFace and her counsel admitted
during the first case that a cashier working at a self-checkout
station would have nowhere to put a chair. Ralphs acknowledged
that LaFace’s ergonomics expert did not inspect any self-checkout
stations during discovery, but contended that she never
requested such access. Thus, Ralphs argued that the court
should deny the peremptory challenge because Yannoulatos3 was
a continuation of prior proceedings in LaFace, and in LaFace, the
court had ruled on “contested fact issues relevant to”
Yannoulatos.
Petitioners replied, arguing that Yannoulatos focused
exclusively on seating at the self-checkout stations, that no
claims were made in LaFace regarding self-checkout seating, and
all the evidence at trial in LaFace focused on the regular, front-
end checkstands. As such, they contended that the two cases
were distinct from each other.
The court denied the peremptory challenge on July 29,
2020. The court found that (1) Yannoulatos was “a continuation
of prior proceedings before this Court” in LaFace; and (2) in
LaFace, “this Court ruled on contested fact issues relevant to
[Yannoulatos].” First, the court found that both actions “involve
the same parties,” because LaFace was a named plaintiff in both
actions, Yannoulatos was a named plaintiff in Yannoulatos and
an “allegedly aggrieved cashier” in LaFace, and both actions were
3In its opposition to the peremptory challenge, Ralphs
referred to the two lawsuits at LaFace I and LaFace II. The trial
court adopted this naming convention in its order denying the
peremptory challenge. While we reject petitioners’ unsupported
assertion that doing so was improper, for clarity, we refer to the
actions as LaFace and Yannoulatos.
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brought against Ralphs. The court also found that petitioners
“sued in their representative capacities on behalf of the same
group of allegedly aggrieved employees.” The court characterized
LaFace as a PAGA action “brought on behalf of all allegedly
aggrieved employees who worked for Ralphs as checkers and/or
cashiers at front-end checkstand locations in California,” with
potential penalties running from June 28, 2015. The court
described Yannoulatos as a PAGA action “brought on behalf of all
allegedly aggrieved employees who worked for Ralphs at self-
checkout stations (one type of front-end checkstand location),”
with potential penalties running from November 27, 2018. Thus,
the court concluded that “because LaFace is a named plaintiff
(represented by the same counsel) in both cases, and the group of
allegedly aggrieved employees in LaFace . . . subsumes the
allegedly aggrieved employees in [Yannoulatos], the parties in
both actions are identical.”
The court also found that Yannoulatos “arises out of
conduct in and orders arising out of LaFace. . . . Both cases
involve the question of whether the nature of the work of Ralphs
cashiers reasonably permits the use of seats in or at the front-end
checkstand locations at Ralphs stores.” Therefore, the court
concluded that both cases involved “the same parties and
questions of fact and law.”
Petitioners timely filed this petition for writ of mandate
directing the trial court to vacate its order and accept their
peremptory challenge against Judge Nieto.4 We issued an
4An order granting or denying a peremptory challenge is
not an appealable order and may be reviewed only by way of a
petition for writ of mandate filed within 10 days of notice to the
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alternative writ, ordering the trial court to vacate its order and
enter a new order accepting the peremptory challenge, or to show
cause why a peremptory writ requiring it to do so should not
issue. After the trial court declined to vacate its order, Ralphs
filed a written return to the petition and petitioners filed a reply.
DISCUSSION
I. Standard of Review
We review the denial of a peremptory challenge for an
abuse of discretion. (Grant v. Superior Court (2001) 90
Cal.App.4th 518, 523; see also Zilog, Inc. v. Superior Court (2001)
86 Cal.App.4th 1309, 1315.) Petitioners argue that the
independent standard of review applies in instances, such as this
case, where “proper application of the disqualification statute
turns on undisputed facts.” (Pickett v. Superior Court (2012) 203
Cal.App.4th 887, 892 (Pickett), citing Swift v. Superior Court
(2009) 172 Cal.App.4th 878, 882.) However, the central dispute
here is a factual one—whether LaFace raised a claim regarding
self-checkout workstations as part of the first lawsuit. Under
either standard, we would conclude that the trial court erred in
denying the peremptory challenge.
II. Peremptory Challenge and the Continuation Rule
Section 170.6 permits summary disqualification of an
assigned judge upon a timely peremptory challenge. (§ 170.6,
subd. (a).) If a peremptory challenge pursuant to section 170.6 is
raised in a timely manner, a trial court must accept it without
further inquiry. (Stephens v. Superior Court (2002) 96
Cal.App.4th 54, 59.) “The right to exercise a peremptory
challenge under Code of Civil Procedure section 170.6 is a
parties of the decision. (170.3, subd. (d).)
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substantial right and an important part of California’s system of
due process that promotes fair and impartial trials and
confidence in the judiciary.” (National Financial Lending, LLC v.
Superior Court (2013) 222 Cal.App.4th 262, 270.) “As a remedial
statute, section 170.6 is to be liberally construed in favor of
allowing a peremptory challenge, and a challenge should be
denied only if the statute absolutely forbids it.” (Ibid., citing
Stephens v. Superior Court, supra, 96 Cal.App.4th at pp. 61-62.)
A party is only allowed one such challenge per action.
(§ 170.6, subd. (a)(4).) In addition, this peremptory challenge
must be made within 10 days after notice of an all purpose
assignment to that judge. (§ 170.6, subd. (a)(2).) This single
challenge rule also applies where a separate proceeding is merely
a “continuation of the original action out of which it arises and it
involves ‘substantially the same issues’ as the original action.”
(McClenny v. Superior Court (1964) 60 Cal.2d 677, 684
(McClenny); see Jacobs v. Superior Court (1959) 53 Cal.2d 187,
190 (Jacobs).) Thus, because the trial court here deemed
Yannoulatos a continuation of LaFace, it found the peremptory
challenge filed in the latter action untimely.
To conclude that one action is a continuation of another
requires more than a simple determination that the two actions
involve similar parties litigating similar claims. (NutraGenetics,
LLC v. Superior Court (2009) 179 Cal.App.4th 243, 258
(NutraGenetics); Bravo v. Superior Court (2007) 149 Cal.App.4th
1489, 1494 (Bravo).) Rather, there must be a subsequent
proceeding, the gravamen of which is rooted in, or supplementary
to, the initial proceeding. (NutraGenetics, supra, 179 Cal.App.4th
at pp. 252–257.) The second proceeding must involve “the same
parties at a later stage of their litigation with each other, or . . .
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arise out of conduct in or orders made during the earlier
proceeding.” (Id. at p. 257, italics omitted; see also Pickett, supra,
203 Cal.App.4th at p. 893.)
Thus, for example, courts have found the following matters
to be a continuation of an earlier, pending matter: a petition to
modify a child custody order in earlier proceedings (Jacobs,
supra, 53 Cal.2d at p. 190); a contempt proceeding occasioned by
a husband’s violation of visitation and receivership orders in
divorce proceedings (McClenny, supra, 60 Cal.2d at pp. 678–679,
684); and a criminal matter in which the prosecutor dismissed
the first action after unfavorable pretrial rulings, refiled the
same charges under a new case number, and there was “clear
evidence of the District Attorney’s singular intent to avoid an
unfavorable ruling in the prior proceeding” (Birts v. Superior
Court (2018) 22 Cal.App.5th 53, 60.)
By contrast, in NutraGenetics, supra, 179 Cal.App.4th 243,
the plaintiff filed an action against individual defendants who
induced him to invest in a company. When faced with a motion
to compel arbitration and stay the litigation, the plaintiff filed a
second action against the company itself, raising some similar
and some new claims based on the same alleged misconduct. (Id.
at pp. 247-248.) The court held that the trial judge properly
disqualified herself pursuant to peremptory challenge because
the second action was not a continuation of the first. (Ibid.)
The NutraGenetics court reasoned that although the
plaintiffs were identical, and the wrongful conduct alleged was
the same, some defendants and some of the relief sought were
different in the second action. (NutraGenetics, supra, 179
Cal.App.4th at pp. 258–259.) In addition, the second action did
not “arise from conduct in, or involve enforcement or modification
12
of an order in, the first lawsuit.” (Id. at p. 247.) Thus, the second
action was not a continuation of the first. (Ibid.) In sum, the
court reiterated “the underlying principle of the continuation
rule: the second proceeding involves the same parties (on both
sides of the case) as the first proceeding, and the second
proceeding arises out of the first proceeding, not just out of the
same set of facts that gave rise to the first proceeding.” (Id. at p.
254.)
Similarly, in Bravo, supra, 149 Cal.App.4th at p. 1489, a
plaintiff whose first complaint for employment discrimination
was dismissed immediately filed a second complaint against the
same defendant, again alleging employment discrimination
claims. The court found the second action was not a continuation
of the first, because the second complaint addressed
discrimination on dates subsequent to those described in the first
complaint. (Id. at p. 1494.) Nor were two cases considered
continuations of a third when three plaintiffs filed three actions
suing the same defendant for the same manufacturing defect, but
“aris[ing] out of different injuries and damages, occurring in
automobile accidents involving different vehicles at different
times and places, and under different fact patterns” in each of
their vehicles. (Nissan Motor Corp. v. Superior Court (1992) 6
Cal.App.4th 150, 153–154, 155; see also Pickett, supra, 203
Cal.App.4th at p. 894-896 [PAGA action against employer was
not a continuation of a related prior action where the named
plaintiffs were not identical and the second plaintiff sought
additional relief].)
III. Analysis
Ralphs’ central contention is that the two actions involved
“identical” claims because LaFace included the issue of seating
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for self-checkout employees in the first lawsuit, but then
“abandoned” that claim during discovery. Petitioners counter
that LaFace focused only on regular checkstands and never
“address[ed] the rights of employees who are assigned to the self-
checkout station.”
The record before us supports petitioners. The LaFace
complaint alleged a claim on behalf of “checkers and/or cashiers”
and further alleged that “the cubicle area” for those employees
was “sufficiently spacious to provide adequate room to provide a
seat.” Similarly, in her pre-filing notice letter, LaFace claimed
that the “area where cashier duties are performed—a cubicle
with a cash register—is sufficiently large” to accommodate
seating. Ralphs offers no explanation for how this description of
the covered employees’ workstations could be interpreted to
include the self-checkout area. Ralphs also points to the evidence
that LaFace worked in both areas and acknowledged in her
deposition her belief that it would not be feasible to include a
chair for self-checkout attendants. Neither of these facts support
the contention that she included a claim for self-checkout
attendants in her complaint, where it was not otherwise alleged.
Further, Ralphs’ decision in its initial discovery responses to
include information regarding multiple types of checkstands,
including regular and self-check, does not support its contention
that LaFace’s claim included self-checkout areas. We have seen
no evidence that LaFace propounded discovery in the first action
targeted at self-checkout attendants. Notably, when detailing
cashier duties and discussing the feasibility of seating, Ralphs
limited its responses to regular checkstands.
Moreover, when asked about the scope of the case at the
case management conference, LaFace’s counsel responded that
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self-checkout areas were not part of LaFace’s claims. Ralphs’
suggestion that the court asked whether LaFace “would continue
to pursue” a claim regarding self-checkout areas, and that
LaFace’s subsequent “abandonment” of that claim was
memorialized in the court’s minute order is, at best, inaccurate, if
not misleading. Consequently, we find no evidence to support
Ralphs’ claim that LaFace asserted and then abandoned a claim
regarding self-checkout areas in the first lawsuit.
In seeming contradiction to its argument that LaFace
abandoned her self-checkout claim prior to trial in LaFace,
Ralphs also argues that the trial court’s statement of decision
properly included self-checkout areas as a type of front-end
checkstand. As such, it contends the trial court was within its
discretion to find that the claims in Yannoulatos were subsumed
within the claims in LaFace, and therefore the second case was a
continuation of the first one. We disagree.
First, we find no support in the record for the trial court’s
finding that the parties in both actions were identical. LaFace
involved one named plaintiff against Ralphs, while Yannoulatos
involved two plaintiffs. Further, there is no evidence in the
record before us supporting the court’s conclusion that the “group
of allegedly aggrieved employees in LaFace . . . subsumes the
allegedly aggrieved employees” in Yannoulatos. Although it
appears undisputed that a self-checkout attendant is a type of
cashier, and that at least some cashiers, including LaFace,
worked at both types of checkstands, there is no evidence that all
cashiers did so. We find no evidence supporting the implication
that the group of employees covered under Yannoulatos (self-
checkout attendants beginning in November 2018) was identical
to the group covered under LaFace (regular checkstand cashiers
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beginning in June 2015). Notably, although the trial court
recognized the differing time frames of the two complaints, both
Ralphs and the court ignored the issue in their analyses. (See
Bravo, supra, 149 Cal.App.4th at p. 1494 [“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,” and thus was not a continuation of the previous
action].)
Second, the cases did not involve the same claim. The
complaints alleged different harms, which the trial court
acknowledged when describing the cases but rejected by claiming
that self-checkout stations were a “type of front-end checkstand
locations.” Whether or not the self-checkout stations are properly
defined as a type of front-end checkstand, the parties did not
present evidence regarding self-checkout stations at trial in
LaFace. Ralphs has not pointed to any testimony or evidence
about the layout of the self-checkout area, the duties of the self-
checkout attendant, the actions they perform in a typical shift, or
the feasibility of placing a seat in that part of the store. Indeed,
LaFace’s expert did not inspect the self-checkout area and her
attorney expressly declined to question Ralphs’ expert about that
issue at trial, noting that he had “also looked at self-check, but
we’re not going to ask you about that.”
As such, there was no evidence from which the court could
reach any conclusions about the feasibility of seating for self-
checkout attendants. The court’s denial of the peremptory
challenge based on the finding that both cases involved the same
issue of feasibility was an abuse of discretion.
We also disagree with Ralphs that the trial court properly
denied the peremptory challenge because in LaFace it “resolved a
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number of contested factual issues that are material to—if not
dispositive of—the merits of Petitioners’ subsequent action.” The
trial court found that both cases involved the same “questions of
fact and law,” because both cases turned on “the question of
whether the nature of the work of Ralphs cashiers reasonably
permits the use of seats in or at the front-end checkstand
locations at Ralphs stores.” Ralphs further contends, without
support, that the court’s factual findings about the work of
Ralphs’ cashiers “hold true regardless of which particular task
they are performing—working in an employee-run checkstand or
overseeing the self-checkout area.” This argument and the trial
court’s conclusions lack any basis in the record. It is undisputed
that there was no evidence specific to self-checkout at trial.
Moreover, we are not persuaded that the court’s findings in
LaFace regarding cashiers—such as that they are “never idle”
and that the dynamic nature of their work did not reasonably
permit the use of seats—would be applicable to petitioners’
allegations in Yannoulatos regarding self-checkout attendants.
The court’s findings relied on the specific nature of the work
performed by a cashier at a regular checkstand, including the
need for the cashier to move items down the conveyor belt and
bag groceries, as well as the constraints of the physical layout of
the cashier well. In reaching these findings, the court relied
heavily on Ralphs’ expert, whose testimony focused on regular
checkstands and the activities of cashiers working there. None of
these findings would apply to petitioners’ claims regarding self-
checkout attendants.
Whether the court might ultimately reach the same
conclusion for self-checkout attendants, based on the same or
similar factors, does not mean that the court in LaFace resolved
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factual issues applicable to Yannoulatos.5 As the trial court
recognized, a determination whether the “nature of the work
reasonably permits the use of seats” requires the court to
consider the “nature of the work” and the “total tasks and duties
by location.” (Kilby, supra,63 Cal.4th at pp. 18-19.) Thus, the
court in Yannoulatos would have to consider evidence specific to
the nature of the work performed by self-checkout attendants and
the layout of that workstation.
In sum, the evidence supports the conclusion that the two
cases involved similar issues arising from a similar set of facts.
That is insufficient to deem Yannoulatos a continuation of
LaFace. (See NutraGenetics, supra, 179 Cal.App.4th at p. 257
[“the second proceeding must arise out of the first proceeding—
not merely . . . out of the same incidents or events that gave rise
to the first proceeding”].) They are therefore “separate and
distinct cases, entitled to separate challenges under section
170.6.” (Nissan, supra, 6 Cal.App.4th at p. 155.) The trial court’s
denial of the peremptory challenge because Yannoulatos was a
continuation of LaFace was therefore an abuse of its discretion.
DISPOSITION
Let a peremptory writ of mandate issue directing the
respondent court to vacate its order of July 29, 2020 denying
5Similarly,whether petitioners’ claims regarding self-
checkout seating are meritless, as Ralphs contends, is irrelevant
to the issue before us. (See NutraGenetics, supra, 179
Cal.App.4th at pp. 259-260 [The defendant’s contention that the
second complaint was a “sham pleading” and its filing a “flagrant
example of judge shopping” played “little if any part in analyzing
whether [the plaintiff’s] disqualification motion was timely under
the continuation rule.”].)
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petitioners’ peremptory challenge, and enter a new order
granting the challenge. The alternative writ is discharged.
Petitioners are entitled to recover their costs in this proceeding.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
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