March 13, 2014

Summary of March 12, 2014 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, March 12, 2014.  The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.  This week, as we have already noted, the Court granted the Ninth Circuit’s request to answer a certified question of state law.

Review Granted

Burdick v. Superior Court (Sanderson), S215455—Review Granted and Transferred—March 12, 2014

The question presented is whether a trial court’s exercise of personal jurisdiction over a nonresident defendant in a lawsuit alleging defamation via a social networking website violates the Due Process Clause. The plaintiffs, California residents who operate a skin care products company, published a blog post containing derogatory statements about a competing company and its products. The defendant, an Illinois resident and consultant for the plaintiffs’ competitor, challenged plaintiffs’ veracity in a Facebook post. The plaintiffs sued for defamation. The defendant moved to quash service on the ground that he lacked the requisite minimum contacts with California for a California court to assert personal jurisdiction over him.  The trial court denied the motion, and the Court of Appeal denied his subsequent writ petition.

The Supreme Court granted review and transferred the matter to the Court of Appeal, Fourth District, Division Three, with directions to vacate its order denying mandate and to issue an order to show cause why the relief sought in the petition should not be granted in light of Walden v. Fiore (2014) 571 U.S. __ [134 S.Ct. 1115 ].  (Disclosure:  Horvitz & Levy LLP represents the defendant/petitioner in Burdick.)

Review Denied (with dissenting justices)

Parthemore v. Col, S215802—Review Denied [Werdegar, J., voting for review]—March 12, 2014

In this negligence action by a prisoner against an independently contracted prison optometrist, the question presented was whether the plaintiff was required to exhaust administrative remedies before bringing his negligence action in state court. The trial court held that the plaintiff failed to exhaust his administrative remedies, and sustained the defendant’s demurrer without leave to amend.

In a published opinion, Parthemore v. Col (2013)  221 Cal.App.4th 1372, the Court of Appeal, Third District, affirmed and held the requirement for a prisoner to exhaust administrative remedies before seeking relief from the courts applies to claims against a prison’s independent contractors. The court rejected the plaintiff’s argument that, by analogy to the Government Claims Act, claims against independent contractors should be excluded from the exhaustion of administrative remedies requirement. The court reasoned that a plaintiff’s obligation to exhaust administrative remedies was independent of the requirements outlined in the Government Claims Act.  In addition, the regulations governing the state prisons’ administrative grievance process do not expressly exclude claims against independent contractors.



Granted Ninth Circuit’s Request to Answer Certified Question of State Law

Kilby v. CVS Pharmacy, S215614—Request Granted—March 12, 2014

The Supreme Court granted the Ninth Circuit’s request under California Rules of Court, rule 8.548, to answer a certified question of California law.  In a single opinion concerning two cases—Kilby v. CVS Pharmacy, Inc. and Henderson v. JPMorgan Chase Bank NA—the federal court asked for help interpreting two California Wage Orders, which “require that an employer provide ‘suitable seats’ to employees ‘when the nature of the work reasonably permits the use of seats.’ ”  (Kilby v. CVS Pharmacy (9th Cir. 2013) 739 F.3d 1192.)  The putative class plaintiffs in Kilby are store cashiers, while those in Henderson are bank tellers.  In both cases, the plaintiffs alleged that their employers’ failure to provide seats during work hours violated the Wage Orders. The Ninth Circuit has requested answers to the following questions:

“1. Does the phrase ‘nature of the work’ refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe ‘nature of the work’ holistically and evaluate the entire range of an employee’s duties?

“a. If the courts should construe ‘nature of the work’ holistically, should the courts consider the entire range of an employee’s duties if more than half of an employee’s time is spent performing tasks that reasonably allow the use of a seat?

“2. When determining whether the nature of the work ‘reasonably permits’ the use of a seat, should courts consider any or all of the following: the employer’s business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee?

“3. If an employer has not provided any seat, does a plaintiff need to prove what would constitute ‘suitable seats’ to show the employer has violated Section 14(A) [of the Wage Orders]?”

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