Pickett v. Superior Court

KUMAR, J.,^* Concurring.

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].)

I agree with the parties’ representations at oral argument that Code of Civil Procedure section 170.6 did not require the transfer of Bright’s case, i.e., the original action, to another judge. However, a detailed analysis of such a transfer is unnecessary because Bright is not a party to the instant petition and her lawsuit was dismissed.

The petition of real party in interest for review by the Supreme Court was denied May 9, 2012, S201301.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.