Case note - California court rules against Bakery and Puts Statute Prohibiting Discrimination Above First Amendment Rights

 

California appellate court makes plain it considers First Amendment protections inferior to state-level statutes against discrimination

 

In Civil Rights Dept. v. Cathy's Creations (March 5, 2025, F08580) the Fifth District of  California refused to properly apply precedent upholding the breadth of First Amendment.  Recall that California all but gutted the First Amendment during the three years of the pandemic, caused by the release of the COVID-19 virus by a lab in Wuhan, China (reference:  the United States Department of Energy and the Central Intelligence Agency) and, indeed, California courts did little to stop the infringement upon freedoms guaranteed by the Bill of Rights.  Nonetheless, the lack of consideration given to the First Amendment in the recent Cathy's Creations opinion is troubling.  As the Fifth District framed the issue:

 

This appeal involves a bakery’s refusal to sell a predesigned white cake, popularly sold for a variety of events, because it was intended for use at the customers’ same-sex wedding reception. The State of California, through the Civil Rights Department (the CRD), filed suit on behalf of real parties in interest Eileen and Mireya Rodriguez-Del Rio (the Rodriguez-Del Rios) when Tastries Bakery (Tastries) refused to provide them the cake for their wedding pursuant to the bakery’s policy that prohibited the sale of any preordered cake for a same-sex couple’s wedding. The case culminated in a bench trial on the CRD’s claim of discrimination under the Unruh Civil Rights Act (Civ. Code, § 51 et seq. (UCRA)), and the free speech and free exercise affirmative defenses of defendants
Tastries, Tastries’s owner Cathy’s Creations, Inc. (Cathy’s Creations), and Cathy’s Creations’s sole shareholder Catharine Miller (Miller) (collectively defendants).2
The trial court concluded there was no violation of the UCRA because the CRD
failed to prove intentional discrimination, and concluded Miller’s referral of the
Rodriguez-Del Rios to another bakery constituted full and equal access under the UCRA.
The trial court proceeded to consider defendants’ affirmative defenses as an alternative matter, and concluded the preparation of a preordered cake by defendants always constitutes expression protected by the federal Constitution’s First Amendment when it is sold for a wedding, and, as applied here, concluded the UCRA compelled defendants to speak a message about marriage to which they objected. . . .

 

One should further recall that in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n (2018) 584 U.S. 617, the United States Supreme Court ruled a bakery could not be forced to make a cake it found offensive and that the Colorado state government had evidenced hostility toward the baker's religious belief when it attempted to force the baker to do so.  As Justice Kennedy succinctly stated, "[w]hen the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires."  However, the Fifth District did not apply the holding in Masterpiece so as to constrain the ability of California to fine and harass Cathy's Creations, explaining:

 

If the mere act of providing and/or delivering a predesigned product for use at a same-sex wedding conveys a message of celebration and endorsement for same-sex
marriage, a baker could potentially refuse to sell any goods or any cakes for same-sex weddings as a protected form of expression; but this would be a denial of goods and services that likely goes “beyond any protected rights of a baker who offers goods and services to the general public .…” (Masterpiece, supra, 584 U.S. at p. 632.) Expanded logically, this reasoning would extend to a whole range of routine products and services provided for a wedding or wedding reception, including those highly visible items like jewelry, makeup and hair design for the wedding party, table centerpieces, stemware and alcohol for a toast, and catering displays. This is tantamount to business establishments being “allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.”
(Id. at p. 634.) If mere product provision to a wedding is considered expressive conduct,
then all wedding vendors could potentially claim their refusal to serve same-sex couples. . . (Id., pp. 56-57.)

 

In other words, Cathy's Creations explained that California could not and should not actually apply the First Amendment, despite the Masterpiece holding from the United States Supreme Court, because if we do then we will not be able to enforce anti-discrimination laws. But this is exactly what the First Amendment does:  puts real limits on the scope of government powers and, of course, as Masterpiece held "anti-discriminaton" laws are not exempt from the purview of the Bill of Rights.

Analysis

 

Even if one were to factually distinguish this case from the cake-baking case ruled upon by the United States Supreme Court, the discussion and holding in Cathy's Creations is troubling.  First Amendment protections permit persons to refuse to voluntarily engage in actions which require speech and that they find offensive and/or violate their religious beliefs should be of the utmost consideration in terms of any court's legal analysis.  But Justice Meehan and his two colleagues dismissed application of these crucial limits on government power because to do so would render null a state statute prohibiting discrimination.  The justification was rather slim, resting on the silly notion that though baking a cake requires care and skill (and, as I would add, a bit of love) such care and skill is not "expressive:"

Because we conclude the cake defendants refused to provide in this instance was not an expressive activity protected by the First Amendment, defendants’ free speech defense fails. A huge number of routinely produced goods in the stream of commerce are designed with attention to aesthetic details that may reflect the designer’s sense of color, balance and perspective, and while those elements might be viewed as artistic features, they are primarily applied and intended for broad appeal and profitability—not as a medium for self-expression. While a routinely produced and multi-purpose cake like the one here might be baked and decorated with skill and creativity, we cannot conclude it is inherently expressive. (Id., p. 57.)

 

In other words, the Court's analysis is fundamentally flawed because it failed to apply the analysis mandated by Masterpiece.  Instead, it made it very clear a state-mandated prescription against discrimination must take precedence over Federal protections because, well, otherwise, the state law could not be given its full intended effect.  

 

This begs the question:  when will religious freedom and freedom of speech be restored to California?  And an even better question:  why do those who favor unlimited government power seem especially keen on harassing small businesses that do not have the resources to fight back?

 

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Gaslighting update - perhaps the most massive cover-up in world history

 

Gaslighting on a global scale - the origins of COVID-19 in a laboratory in Wuhan China

As we have discussed, gaslighting — whether in litigation, governance, or corporate communications — involves not simply spreading a falsehood but doing everything possible to encourage anyone stating the truth to doubt their own sense of reality and/or have others doubt the sanity of the person doubting the falsehood.  See our prior posts discussing several examples of gaslighting:

 

• https://appellatespectator.blogspot.com/2024/08/first-post-in-our-series-gaslighting.html
• https://appellatespectator.blogspot.com/2024/08/second-post-in-our-series-gaslighting.html
• https://appellatespectator.blogspot.com/2024/08/third-post-in-our-series-gaslighting.html
• https://appellatespectator.blogspot.com/2024/11/gaslighting-post-election-update.html

During the Biden/Harris administration, we were told that if we believed COVID originated in a Chinese lab we were racist, xenophobic, and prone to believe conspiracy theories.  No matter the fact the World Health Organization and the Communist Part of China were less than forthright, the legacy corporate media and the Biden/Harris administration made it clear:  if you thought the “lab leak” theory was the most likely explanation for COVD-19 you were censored on social media (at the express urging of the Biden Administration) and therefore your posts and tweets were limited in terms of dissemination; more to the point, it was likely your YouTube videos were demonetized. The problem, of course, was you for believing the lab leak theory, and not China's cover-up regarding a novel virus that killed more than 100 million persons and appeared out of nowhere.

However, as of March 21st the gas-lighting has ended and President Trump and his Republican administration have shone some light on this sordid attempt at government manipulation of the public discourse.  Central Intelligence Agency analysis dating back to the Biden administration has now been made public, and, well, wouldn’t you know it, the most likely source was a leak from a laboratory in Wuhan China. 

As the stenographers for the prior administration, the New York Times (https://www.nytimes.com/2025/01/25/us/politics/cia-covid-lab-leak.html) recently reported after Trump took office:

C.I.A. Now Favors Lab Leak Theory to Explain Covid’s Origins

 

A new analysis that began under the Biden administration is released by the C.I.A.’s new director, John Ratcliffe, who wants the agency to get “off the sidelines” in the debate.

But, you, of course, were irresponsible and anti-Chinese if you looked at the same evidence and came to the same conclusion that the CIA did when Mr. Biden was President.

 

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Update - California Appellate Trends for 2023

Two words come to mind in summing up trends in appellate law for the past year: stability and continuity.  Neither the California Supreme Court nor the six District Courts of Appeal veered off in a totally surprising direction.  Indeed, the Supreme Court issued a relatively modest 55 total majority opinions - this being modest in total number but not necessarily in terms of the breadth of the opinions - for the legal year 2022-2023.

Despite the trend toward stability and continuity, we do have a new Supreme Court Chief Justice, the Hon. Justice Patricia Guerrero.  She was nominated by Governor Newsome as Chief Justice and was elected by the people on November 8, 2023. Justice Guerrero replaces the well-regarded Justice Tani G. Cantil-Sakauye, who served as a Chief Justice for 12 years.  The former Chief Justice spent the last few years navigating the pandemic and the resulting closing and re-opening of our courts and the resulting modifications of California judicial procedure.  

Some relatively straightforward trends continued this year, including strictly holding arbitrators to the relevant standards related to disclosure, bias, misconduct, etc.  The days when trial courts might "rubber stamp" an arbitration award and fail to seriously consider allegations against the arbitrator and the parties would then expect an appellate court to defer to the trial court's confirmation of the arbitration award are largely gone. (See, e.g,., FCM v. Grove Phan, holding an adverse credibility determination based largely upon the need for a translator constituted "bias" by the arbitrator)

California courts are also working through a host of issues related to COVID-19 and coverage.  For example, Endeavor v. HDI Global held that a standard liability policy did not cover losses from the pandemic because there was no "direct" physical loss or damage.

Indeed, this very issue is now pending before the California Supreme Court in Another Planet Entertainment, L.L.C. v. Vigilent Insurance Co., wherein the Ninth Circuit Court of Appeal certified the following question:

Can the actual or potential presence of the COVID-19 virus on an insured’s premises constitute ‘direct physical loss or damage to property’ for purposes of coverage under a commercial property insurance policy?

For a preview of the next term of the California Supreme Court, please see the court's summary of pending cases.

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Short take away - Policy does not cover COVID-19 losses as there is no direct physical loss or damage (Endeavor v. HDI Global)

Short take away - Second District sides with insurer as to much-litigated COVID coverage issues currently before the California Supreme Court

The Second District, Division Two has ruled in favor of an insurance company denying coverage to an entertainment entity for losses from the COVID-19, or SARS CoV-2, virus. (Endeavor v. HDI Global (Sept. 21, 2023) B323865) Endeavor had a commercial liability insurance policy with HDI which required that, for there to be coverage:

(1) there be an “[i]nsured physical loss or damage” to some property, and (2) this physical loss or damage to some property “occur within [1 or 10] statute mile[s] from [Endeavor’s] premises. . . .

Endeavor maintained the inclusion of the phrase "event" in another clause in the policy obviated the requirement that all losses include "physical loss of damage" to tangible property and sued insurer HDI when coverage was denied.  A demurrer challenged Endeavor's entire complaint, and this demurrer was sustained, without leave to amend, by the Hon. Elaine Lu, Judge of the Los Angeles County Superior Court.

Upon appeal Justice Hoffstadt wrote an opinion affirming the trial court and interpreting the policy as requiring not merely an event but also actual physical damage.  As the Endeavor opinion noted at the outset, issues as to whether 1) loss of property, rather than mere loss of use of property, is required for coverage, and 2) whether the absorption of COVID-19 on the surface of the property qualifies for coverage as a "loss," are both currently pending before the California Supreme Court:

This question is one on which the Courts of Appeal have split, and is pending before our Supreme Court in John’s Grill, Inc. v. The Hartford Financial Services Group, Inc. (2022) 86 Cal.App.5th 1195 (John’s Grill), review granted Mar. 29, 2023, S278481, and Another Planet Entertainment, LLC v. Vigilant Ins. Co. (9th Cir. 2022) 56 F.4th 730, request for certification granted Mar. 1, 2023, S277893. Until that Court provides guidance, we side with the vast majority of cases holding that direct physical loss or damage to property, rather than mere loss of the property’s use, is a prerequisite for coverage. We further hold that two of the clauses in the policy here—namely, extension clauses dealing with orders by civil authorities and with impediments to access—do not, by their addition of the word “event,” eliminate the requirement of direct physical loss or damage to property.

Second, has “direct physical loss or damage to property” been sufficiently pled where, as here, the policy holder alleges that the virus that causes COVID-19 has either been deposited onto or “adsorbed” to the surface of the policy holder’s property? The Courts of Appeal have split on this question as well, and that question is pending before our Supreme Court in Shusha, Inc. v. Century-National Ins. Co. (2022) 87 Cal.App.5th 250 (Shusha), review granted Apr. 19, 2023, S278614. Until that Court provides guidance, we side with those cases holding that the ephemeral existence of COVID-19 or its predecessor virus on property does not constitute “direct physical loss or damage to property” as a matter of law. (Id., pp. 2-3.)

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Employer owes no duty to employee's spouse to prevent employee's exposure to COVID-19 (Kuciemba v. Victory)

Though an employee’s wife may sue the employer in tort, no duty is owed to the spouse to prevent COVID exposure to the employee

A unanimous California Supreme Court has ruled in favor of an employer whose alleged negligence caused the employee to become exposed to COVID-19 who in turn exposed his wife. (Kuciemba v. Victory Woodworks, Inc. (July 6, 2023) S274191.)  Plaintiff and appellant Corby Kuciemba brought suit and defendant and respondent Victory Woodworks filed a demurrer arguing, inter alia, that the wife’s“exclusive remedy” against the employer was a claim under the Worker’s Compensation system.  After the United States District Court for the Northern District of California granted a motion to dismiss the action under Federal Rules of Civil Procedure, rule 12(b)(6), plaintiff appealed to the Ninth Circuit Court of Appeal certified the following questions of law to the California Supreme Court which it deemed necessary to decide the appeal:

(1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act (WCA; Lab. Code, § 3200 et seq.) bar the spouse’s negligence claim against the employer? (2) Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members? (Id., p. 1.)

The California Supreme Court assumed, for purposes of its opinion, that the facts plead were indeed true.  Plaintiff alleged negligence on the part of the husband’s employer which led to his exposure to COVID at a job site and, in turn, exposure to plaintiff, his wife:

On May 6, 2020, Robert Kuciemba began working for defendant Victory Woodworks, Inc. (Victory) at a construction site in San Francisco. About two months later, without taking precautions required by the county's health order, Victory transferred a group of workers to the San Francisco site from another location where they may have been exposed to the virus. After being required to work in close contact with these new workers, Robert became infected. (Id., p. 3; footnotes omitted.)

Plaintiff also alleged she became ill with COVID and therefore required hospitalization.

The Supreme Court concluded the doctrine of Workers Compensation Exclusivity did not bar the wife’s complaint

While it did not ultimately change the outcome of the case, the Supreme Court agreed with appellant on the issue of workers’ compensation exclusivity.  Kuciemba thus held the suit by the wife was not barred by the fact her husband was the employee of the defendant, meaning the employer could be sued by the wife in a tort action.

Of course, in Kuciemba the wife’s suit was arguably “derivative” of her husband’s exposure to COVID.  Nonetheless, the Supreme Court found workers’ compensation was not her “exclusive remedy.”  Her claim was not “derivative” of his injury because, unlike a claim for loss of consortium, the claim of the wife depended on the husband’s exposure to COVID but not actual work-place injury to the husband: 

Accordingly, Victory's sole focus on viral transmission as a factual “but for” cause is misplaced. For the derivative injury rule to apply, Robert's infection must not only be the factual cause of Corby's illness; Corby's claim must also be “legally dependent on injuries suffered by” Robert. Robert's infection may have been a necessary factual step in the causal chain that led to Corby's illness. But it is not necessary for Corby to allege or prove injury to Robert to support her own negligence claim. The difference becomes clear when her claim is compared to a derivative claim like loss of consortium. If Corby had sought recovery for loss of consortium, she would have been required to prove that an injury to her spouse, Robert, in turn injured her by affecting their marital relationship. To support her negligence claim here against Victory, however, she need only show that Robert was exposed to the virus at the workplace and carried it home to her. (Id., p. 11; emphasis added)

This ruling was in accord with See’s Candies, Inc. v. Superior Court (2021) 73 Cal. App. 5th 66 (review denied April, 13, 2022, S272923).  It should be noted the Court of Appeal opinion in Sees was decided after the Ninth Circuit had already certified its question to the California Supreme Court.

However, dismissal of the suit was proper as no duty of due care was owed to the plaintiff by her husband’s employer

The wife being able to sue her husband’s employer in tort, the case then turned upon the second issue related to duty.  The Supreme Court explained that the scope of duty in California is statutorily-defined by Civil Code section 1714(a), stating broadly that “everyone” owes a duty of care “to another:” 

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

In Rowland v. Christian (1968) 69 Cal. 2d 108, the Supreme Court held that not all persons owe a duty of due care to all other persons in all circumstances.  As the Supreme Court later clarified, Rowland provides there are several considerations that, when balanced by the court, may justify an exception to the general duty of reasonable care embodied in section 1714. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764.)  These “Rowland factors” include, as Cabral explained, all of the following: 

. . . [T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (Id., p. 771.)

Cabral further explained that despite the landmark holding in Rowland, courts only balance these factors and consider whether or not a duty of due care is owed where there are clear “public policy reasons” for doing so because “in the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where ‘clearly supported by public policy.’ [Citations.]” (Id., quoting Rowland, 69 Cal. 2d at 112.) 

Kuciemba grouped these Rowland factors into two categories, to wit, those that involved the foreseeability of harm and those involving public policy.  “Foreseeability” factors are forward-looking and the “public policy” factors are backward-looking. (Id., p. 30.)  The Supreme Court found the Rowland factors involving foreseeability indicated a duty of due care was owed to the plaintiff, but that this was not dispositive.  Rather, the factors related to public policy must also be considered, and these factors did not indicate a duty of due care was owed.  For example, consideration of “prevention of future harm” indicated no duty was owed: 

The next Rowland factor, the “policy of preventing future harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible.”  . . . This factor thus examines both the positive and the negative societal consequences of recognizing a tort duty. Public policy strongly favors compliance with health orders to prevent the spread of COVID-19. Recognizing a duty of care beyond the workplace could enhance employer vigilance in this regard. However, there is only so much an employer can do. Employers cannot fully control the risk of infection because many precautions, such as mask wearing and social distancing, depend upon the compliance of individual employees. Employers have little to no control over the safety precautions taken by employees or their household members outside the workplace. Nor can they control whether a given employee will be aware of, or report, disease exposure. There is also a possibility that imposing a tort duty not covered by workers’ compensation could lead some employers to close down. . . . (Id., p. 38; citations omitted.) 

In summary, the economic and other consequences of imposing a duty upon employers to prevent COVID transmission from their employees to third parties indicated no such duty was owed.  As Justice Corrigan stated succinctly, such a duty could not be imposed because of the broad swatch of potential liability which would result:

. . . [A] duty to prevent secondary COVID-19 infections would extend to all workplaces, making every employer in California a potential defendant. (Id., p. 38; original emphasis.)

Why the discussion of public policy in Kuciemba is important

The Supreme Court opinion in Cabral has been interpreted by many courts something like this: as a general rule, everyone owes everyone else a duty of due care unless there is a crystal-clear public policy reason for not imposing a duty.  In particular, this approach has been used by many trial courts as an excuse to not consider public policy vis a vis the facts of the case even though such is required to rule upon a demurrer and or motion for summary judgment.

Trial courts therefore refuse to dismiss claims by way of demurrer or motion under the rubric the defendant broadly owes the plaintiff a duty of due care, no matter the tenuous nature of fatal causation.  Causation being a question of fact for the jury, the trial court does not conduct any detailed analysis of the facts of the case in terms of whether public policy indicates there should be liability, instead simply finding the case must proceed to a jury trial. 

As discussed in our prior post, one such example is Razoumovitch v. Hudson Ave. LLC (May 1, 2023) B316606.  The Second District, Division Seven held a tenant who accesses a roof area after being locked out of their apartment is owed a “duty of care” by their landlord to prevent injury from re-entering their apartment by attempting to “swing” up to roof ledge not designed to be accessed by tenants.  Razoumovitch concluded the general duty of due care applied because the defense had not shown there were clear public policy considerations that indicated otherwise.  Razoumovitch discussed the oft-cited proposition that someone is not owned a duty of due in regards to warning of an obvious defect.  But it also noted that this rule had a crucial exemption and does not apply where the injury is “foreseeable” because plaintiff has a “necessity” to encounter the harm, citing to Kinsman v. Unocal Corp. (2005) 37 Cal. 4th 659, at 673.

While it would be speculative to say whether or not Razoumovitch would have been decided differently had Kuciemba been decided first, there is considerable language in the latter opinion which may be cited to rebut the contention that every defendant owes a duty of due care to every plaintiff with no exception.  Specifically, the Supreme Court in Kuciemba made it plain the burden to society caused by imposing a duty of due care, and, in particular, imposing a duty under novel circumstances, is an important factor for courts to consider.

Defendants may therefore wish to cite to Kuciemba’s discussion as to the scope of the potential liability imposed, as the Supreme Court aptly noted that virtually every employer in the state would become a potential defendant if a duty were owed by employers to family members to prevent employee exposure to COVID.  

The court continued this analysis by noting the impracticability of imposing liability upon employers given they “cannot fully control the risk of infection because many precautions, such as mask wearing and social distancing, depend upon the compliance of individual employees.” (Id., p. 38.)  Moreover, even though imposing such liability night encourage employers to enact more stringent safety measure, it is also true that measures taken by employers to lessen their liability might impede the delivery of essential services. (Id., p. 43.)  

Courts deciding issues of duty in other contexts should be asked to undertake a detailed public policy analysis -- as part of their ruling upon a demurrer or motion for summary judgment -- with similar rigor rather than simply finding the defendant owes anyone and everywhere a duty of due care under Civil Code section 1714(a).  Where a trial court refuses to do so and the economics of the case warrant such, a writ petition, such as a Petition for Peremptory Writ made pursuant to Code of Civil Procedure section 437c(m)(1), may be filed arguing the trial court did not properly consider the issue of duty as it did not undertake the analysis required by Rowland, Cabral, and Kuciemba.