Filed 9/9/20 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, F078245 Petitioner, (Super. Ct. No. BCV-17-102855) v. OPINION THE SUPERIOR COURT OF KERN COUNTY, Respondent; CATHY’S CREATIONS, INC., et al., Real Parties in Interest. ORIGINAL PROCEEDINGS; in mandate. David R. Lampe, Judge. 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. -ooOoo- 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.) 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 1 All further statutory references are to the Government Code, unless otherwise indicated. 2 Catharine Miller owns and operates Tastries through a company called Cathy’s Creations, Inc. (collectively referred to as Tastries). 2. 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 ...
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