Metropolitan News-Enterprise


Thursday, September 10, 2020


Page 1


Court of Appeal:

No Attorney Fees for Bakery That Prevailed in Action Over Same-Sex Wedding Cakes

Opinion Says Later, Specific Statute Prevails Over CCP §1021.5


By a MetNews Staff Writer


A bakery that beat off a bid by the California Department of Fair Employment and Housing for a preliminary injunction to bar it from refusing to sell wedding cakes to same-sex couples was properly denied attorney fees under the private attorney general statute, the Fifth District Court of Appeal held yesterday.

In a separate opinion in the case, the court held that Kern Superior Court Judge David R. Lampe, after denying a preliminary injunction, on First Amendment grounds, had no authority to grant a motion by the bakery for the enforcement of the judgment by barring the department from continuing its investigation.

The trial court’s decision on the preliminary injunction came on Feb. 5, 2018, at a time when a widely-watched case stemming from a Colorado bakery’s refusal to provide a cake for the wedding of two men was before the U.S. Supreme Court. In a 7-2 decision on June 4, 2018, the high court decided in favor of the bakery.

Justice Kathleen Meehan wrote yesterday’s opinions.

Government Code §12974

The Department of Fair Employment and Housing (“DFEH”) brought its action against the bakery under Government Code §12974, a part of the Fair Employment and Housing Act. It provides:

“Whenever a complaint is filed with the department and the department concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this part, the director or his authorized representative may bring a civil action for appropriate temporary or preliminary relief pending final disposition of such complaint.”

The statute goes on to say:

“In civil actions brought under this section, the court, in its discretion, may award to the department reasonable attorney’s fees and costs, including expert witness fees, when it is the prevailing party for the purposes of the order granting temporary or preliminary relief.”

CCP §1021.5

Cathy’s Creations, Inc., which does business in Bakersfield as Tastries, and its owner, Catharine Miller, sought attorney fees under Code of Civil Procedure §1021.5, the private attorney general statute. They appealed from Lampe’s denial of their motion.

Meehan said in her opinion affirming the order:

“Section 12974 contains a unilateral attorneys’ fee provision in favor of the DFEH. In this case, section 12974’s attorneys’ fee provision conflicts with Code of Civil Procedure section 1021.5, and the two statutes cannot reasonably be harmonized. As section 12974 is the more specific, later-enacted statute, it governs. We therefore conclude that a prevailing defendant in a section 12974 action is not entitled to an award of fees against the DFEH under Code of Civil Procedure section 1021.5, and the trial court did not err in denying defendants’ attorneys’ fee request.”

She went on to note that the attorney fee provision was added to §12974 in 2012, and commented:

“The Legislature was no doubt aware of more general reciprocal attorneys’ fee provisions like Code of Civil Procedure section 1021.5 when it expressly chose to codify a unilateral fee provision in the DFEH’s favor for actions under section 12974….We conclude the Legislature intended section 12974’s unilateral fee provision to be a limited exception to an award of attorneys’ fees to prevailing defendants under section 1021.5 in provisional relief actions under section 12974.”

The case is Department of Fair Employment and Housing v. Cathy’s Creations, Inc., F077802.

Also yesterday, the Fifth District granted a writ of mandate commanding the Kern Superior Court to vacate its Sept. 13, 2018 order granting the motion for enforcement of the judgment and to enter an order denying the motion.

Meehan explained:

“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.”

That case is Department of Fair Employment and Housing v. Superior Court, F078245.


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