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Dept. of Fair Employment and Housing v. Super. Ct. (CA5 F078245 9/9/20) DFEH/Unruh Act/Entry of Judgment [applicable to employment cases]

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.

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.)  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.  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, 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.