North Coast Women

SUPREME COURT CASES

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North Coast Women

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D045438A

Case Date: 06/14/2006

Preview:Filed 3/14/06 Opinion on rehearing

CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

NORTH COAST WOMEN'S CARE MEDICAL GROUP, INC. et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

D045438 (San Diego County Super. Ct. No. GIC770165)

GUADALUPE T. BENITEZ, Real Party in Interest.

Proceedings in mandate after the superior court granted a motion for summary adjudication. Ronald S. Prager, Judge. Petition granted.

DiCaro, Coppo & Popcke, Robert C. Coppo, Gabriele M. Prater; and Robert H. Tyler, Douglas L. Edgar, Timothy Chandler for Petitioners North Coast Women's Care Medical Group, Inc., Christine Z. Brody and Douglas K. Fenton. Duane Morris and Mitchell Lathrop for Catholic Exchange, Inc., and Human Life International as Amici Curiae on behalf of Petitioners. Karen Dean Milam for Christian Medical and Dental Association as Amicus Curiae on behalf of Petitioners. Thelen Reid & Priest and Curtis A. Cole for California Medical Association as Amicus Curiae on behalf of Petitioners. No appearance for Respondent. O'Melveny & Meyers, Robert C. Welsh, Margaret C. Carroll, Lee K. Fink, Jennifer C. Pizer and Albert C. Gross for Real Party in Interest Guadalupe T. Benitez. Winston & Strawn, Benjamin Russell Martin and Gail Standish for AntiDefamation League; American Academy of HIV Medicine; American Medical Students Association; Asian Pacific American Legal Center of Southern California; Bienestar Human Services; California Latinas for Reproductive Justice; California Pan-Ethnic Health Network; California Women's Law Center; Coalition for Humane Immigrant Rights of Los Angeles; Gay and Lesbian Medical Association; International Association of Physicians in AIDS Care; Latino Coalition for a Healthy California; M Mautner Project; National Center for Lesbian Rights; Mexican American Legal Defense and Educational Fund; and National Health Law Program; as Amici Curiae on behalf of Real Party in Interest. 2

Plaintiff Guadalupe Benitez filed the instant action against North Coast Women's Care Medical Group, Inc. (North Coast) and two of its employee physicians, Dr. Christine Brody and Dr. Douglas Fenton (collectively defendants), based on the physicians' alleged refusal to perform intrauterine insemination (IUI) on her because of her sexual orientation. Among other causes of action, Benitez alleged that defendants' denial of services to her violated California's Unruh Civil Rights Act (the Unruh Act or the Act). Defendants asserted their federal and state constitutional rights to the free exercise of religion as an affirmative defense. The court granted Benitez's motion for summary adjudication of that affirmative defense and defendants filed a petition for writ of mandate challenging that order. We conclude the summary adjudication was erroneous because evidence presented by defendants in opposition to Benitez's motion raises a triable issue of fact as to whether Dr. Brody's and Dr. Fenton's religiously-based refusal to perform IUI for Benitez was based on her marital status and not her sexual orientation, and marital status discrimination was not prohibited by the Unruh Act when defendants' alleged violation of the Act occurred. FACTUAL AND PROCEDURAL BACKGROUND Benitez received health insurance through defendant Sharp Health Plan (Sharp) as a benefit of her employment, and North Coast contracted with Sharp to provide obstetrical and gynecological services to Sharp enrollees.1 After Benitez tried

1 Benitez's first amended complaint, her operative pleading, includes a cause of action against Sharp for breach of contract to provide Benitez medical benefits under an employees' benefit plan. However, Sharp is not a party to these proceedings. 3

unsuccessfully for about two years to become pregnant through intravaginal insemination (IVI) performed at home, her primary care physician referred her to North Coast for fertility treatment. In August 1999, Benitez began fertility treatment with Dr. Brody. Benitez informed Dr. Brody of her sexual orientation at their first meeting. Dr. Brody told Benitez that if her treatment reached the point where IUI was the next recommended step, Dr. Brody would not perform the procedure because it would be against her religious beliefs. Dr. Brody's explanation of why her religious beliefs precluded her from performing IUI for Benitez is a matter of dispute. Benitez claims Dr. Brody told her it was against her religious beliefs to perform IUI for a lesbian. Dr. Brody claims she told Benitez it was against her religious beliefs to perform IUI for any unmarried woman, regardless of sexual orientation, and she was certain Dr. Fenton would share her religious convictions regarding the IUI issue because they attended the same church.2 In any event, Dr. Brody told Benitez that other doctors at North Coast would be available to perform IUI on Benitez if it became necessary, and with that understanding, Benitez began treatment with her. Dr. Brody's initial treatment plan called for Benitez to take the medication Clomid to stimulate her ovaries to produce and release eggs, and to continue to perform IVI at home for three monthly cycles. According to Benitez, the next step in Dr. Brody's plan,

2 Dr. Brody claims she told Benitez that with the exception of participating in IUI, she would provide care to Benitez from ovulation induction through term delivery.

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if she was not pregnant after three cycles of self-insemination, was to undergo a number of cycles of taking Clomid followed by IUI at North Coast. In accordance with that plan, Benitez performed IVI at home for three cycles using frozen sperm from an anonymous donor purchased at a sperm bank. After Benitez completed those cycles, Dr. Brody recommended that before progressing to IUI, Benitez undergo a hysterosalpingogram (HSG)

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