Dep't of Fair Emp't & Hous. v. Superior Court of Kern Cnty.

• Decision Date: 09 September 2020
• Docket Number: F078245
• Citation: 54 Cal.App.5th 356,269 Cal.Rptr.3d 9
• Parties: DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, Petitioner, v. The SUPERIOR COURT OF KERN COUNTY, Respondent; Cathy's Creations, Inc., et al., Real Parties in Interest.
• Court: California Court of Appeals Court of Appeals

54 Cal.App.5th 356

269 Cal.Rptr.3d 9

DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, Petitioner,

v. The SUPERIOR COURT OF KERN COUNTY, Respondent;Cathy's Creations, Inc., et al., Real Parties in Interest.

F078245

Court of Appeal, Fifth District, California.

Filed September 9, 2020

Xavier Becerra, Attorney General, Michael L. Newman, Assistant Attorney General, Satoshi Yanai, Cherokee DM Melton and Katherine Lehe, Deputy Attorneys General, for Petitioner.

No appearance for Respondent.

Freedom of Conscience Defense Fund, Charles S. LiMandri, Paul M. Jonna, and Jeffrey M. Trissell for Real Parties in Interest.

MEEHAN, J.

INTRODUCTION

This writ presents a question whether the trial court improperly construed the effect of an entry of judgment in an action filed by the Department of Fair Employment and Housing (DFEH) under Government Code section 12974.¹

Section 12974 permits the DFEH, during the course of its investigation of an administrative complaint, to seek a limited court order for provisional relief only, much like the provisional relief that may be sought under Code of Civil Procedure section 527. Indeed, any order for provisional relief granted under section 12974 is to be "issued in accordance with Section 527 of the Code of Civil Procedure." (§ 12974.) To determine whether such provisional relief should issue, courts consider the likelihood the plaintiff will prevail on the merits at trial, and the comparative interim harm the parties are likely to suffer if the relief is either denied or granted. ( IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69–70, 196 Cal.Rptr. 715, 672 P.2d 121.) The provisional relief granted under section 12974 is of limited duration, lasting only until final disposition of the administrative complaint. After completing its investigation of the complaint, the DFEH may elect to file suit under section 12965 for permanent relief on the claims stemming from the administrative complaint.

In this case, the underlying section 12974 civil action was initiated by the DFEH in December 2017 by a petition seeking provisional relief to temporarily enjoin Tastries and Catharine Miller from refusing to sell wedding cakes to same-sex couples.² The petition for relief was based on an administrative complaint filed with the DFEH by Eileen and Mireya Rodriquez-Del Rio, who alleged Tastries had refused to sell them a wedding cake based on their sexual orientation. Tastries maintained it could not be compelled to create and design custom wedding cakes for same-sex weddings under California's public accommodation law, the Unruh Civil Rights Act,³ because compelling such conduct would violate both the free exercise clause and the free speech clause of the First Amendment.

Tastries opposed the DFEH's requests for a temporary restraining order and a preliminary injunction, and both forms of provisional relief were denied by the court. By order in February 2018, the court denied the DFEH's preliminary injunction request based upon Tastries's purported UCRA violation, finding Catharine Miller had an absolute right to refuse to create and design wedding cakes for same-sex couples, which violated her sincerely held religious beliefs.

Thereafter, the DFEH agreed to entry of judgment in the section 12974 action. When the DFEH continued its investigation of the administrative complaint following the court's denial of provisional relief and its entry of judgment, Tastries filed a motion to enforce the judgment arguing the DFEH was precluded from continuing its investigation as the UCRA claim had been finally adjudicated, and judgment had been entered. The court agreed and, in September 2018, ordered that any further investigation by the DFEH be tailored "to the ascertainment and discovery of facts reasonably and rationally calculated to serve as the basis for an argument for modification of the judgment." The trial court also ordered that if the DFEH's investigation caused it to believe further enforcement was necessary, "then any such further proceeding should be brought before this court in the nature of action or petition for modification of the court's original judgment."

The DFEH then filed a petition with this court seeking the issuance of a writ of mandate directing the superior court to set aside and vacate its September 2018 order and enter a new and different order denying in full Tastries's motion to enforce the judgment. The DFEH asserts the trial court's order violated the separation of powers doctrine by proscribing the scope of the DFEH's statutorily required investigation of the administrative complaint, and improperly precluded the DFEH from filing a section 12965 civil action if the DFEH determined it necessary. The DFEH contends the trial court's view of its preliminary injunction order and the nature of the section 12974 action were erroneous, and the judgment in that action cannot preclude the DFEH from performing its statutory duties.

We agree with the DFEH, and its writ petition shall be granted. In considering the effect of its judgment, the trial court improperly construed its decision on the preliminary injunction request to be a final adjudication of the merits of the underlying administrative complaint. The court had neither jurisdiction under section 12974 nor any inherent authority to undertake a merits-based final determination of the issues in the context of deciding a preliminary injunction request. By erroneously construing its preliminary injunction order as a final adjudication of the merits, the trial court violated the separation of powers doctrine in limiting the scope of the DFEH's investigation and barring the DFEH from filing suit under section 12965.

Our decision to grant the DFEH's writ petition is focused narrowly on procedural grounds. We do not reach the merits of any constitutional question raised in the section 12974 action, which should have been considered only for the purpose of deciding whether provisional relief was warranted. Any merits-based determinations of the ultimate rights of the parties are to be made by the trial court in the first instance in the section 12965 action that is now pending before it.

FACTUAL SUMMARY

I. Facts Alleged in the DFEH's Section 12974 Petition for Provisional Relief

Eileen and Mireya Rodriguez-Del Rio married in December 2016 and had planned to exchange public vows and host a traditional wedding reception in October 2017. In planning for the reception, the couple wished to order a wedding cake. In August 2017, after unsuccessful tastings at other bakeries, the couple visited Tastries to sample wedding cakes. They met with a Tastries employee named Rosemary, who provided them information about Tastries cakes. The couple selected a "simple cake design based on a cake they saw on display at the bakery, and booked a cake tasting" for the following week where they planned to complete the order and pay for the cake.

A week later, the couple arrived at Tastries along with Eileen's mother, Mireya's man of honor and his partner. They greeted Rosemary who apologized to Mireya and informed her that Rosemary's boss was taking over their order. Catharine Miller (Miller), Tastries's owner, asked them what they were looking for and Eileen explained they had already provided their details to Rosemary, and they were there for a tasting and to place an order for their wedding cake. Miller discussed pricing, and told the couple she would provide their order to a competitor bakery (Gimme Some Sugar) because Miller did not condone same-sex marriage. Miller explained to them she regularly refers wedding cake orders for same-sex couples to a competitor baker because she does not condone same-sex marriage. The couple, and the three others with them, left the bakery.

In October 2017, the Rodriguez-Del Rio couple filed a complaint with the DFEH alleging Tastries had violated the UCRA by refusing to provide full and equal services to the couple based solely on their sexual orientation. The DFEH began an independent investigation of the complaint and served discovery requests upon Tastries, along with a copy of the couple's complaint. Based on its preliminary investigation, which included interviewing the complainants and a former Tastries employee, and obtaining a statement from Eileen's mother, the DFEH asserted Tastries has refused to provide full service to same-sex couples since at least 2015. In its petition for provisional relief under section 12974, the DFEH noted it required additional time to complete further discovery, obtain Tastries's response to the complaint's allegations, and conclude its investigation.

II. Procedural Background

On December 13, 2017, while the DFEH's administrative investigation was proceeding, the DFEH filed a petition for provisional relief in the form of a temporary restraining order (TRO) and requested the issuance of an order to show cause regarding the entry of a preliminary injunction under section 12974. The request for a TRO was heard the next day on December 14, 2017, and was denied due to an insufficient exigency; but an order to show cause was issued as to why the DFEH's request for a preliminary injunction should not be granted.

On January 10, 2018, Tastries filed a demurrer to the petition, which the DFEH opposed. Tastries's demurrer and the DFEH's request for a preliminary injunction were heard together on February 2, 2018. Following the hearing, the court overruled Tastries's demurrer, denied the DFEH's request for a preliminary injunction, and ordered Tastries to file an answer within 20 days. In denying the DFEH's request for a preliminary injunction, the court concluded Miller's refusal to design and create the cake was protected by the First Amendment's free speech clause, and the DFEH had failed to establish the state had a sufficiently compelling countervailing interest to justify the intrusion into a protected right.

On February 9, 2018, Tastries filed an anti-SLAPP (strategic lawsuit against public...