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Barely two weeks after tackling the issue of same-sex marriage during oral arguments, the California Supreme Court on Wednesday unanimously agreed to review a gay rights case that raises questions about businesses’ ability to discriminate based on marital status. The court also granted review in cases that could determine whether sex offender registration is required for someone who performs oral sex with a minor and whether lawyers and their experts could be disqualified from a case for failing to disclose that they had obtained an opponent’s confidential documents. The discrimination case involves two lesbians — B. Birgit Koebke and Kendall French — who sued San Diego’s Bernardo Heights Country Club after being told they didn’t qualify for a family membership because they were not a married couple. The women, unable to marry under current state law, sued on the basis that the club had violated the state’s Unruh Civil Rights Act. San Diego’s Fourth District Court of Appeal sided with the women in March, but not on the equal rights issue. Instead, the court held that the two had raised a triable issue of fact as to whether the club had violated its bylaws by giving family memberships to heterosexual couples without verifying their marriages. The ruling let Koebke and French go ahead with a suit. But in seeking review by the high court, Jon Davidson, senior counsel in the Los Angeles office of New York’s Lambda Legal Defense and Education Fund, argued that wasn’t enough. If the Fourth District ruling stands, he wrote, “numerous forms of discrimination prohibited by the Unruh Act will be able to be accomplished through the use of exclusionary ‘proxy’ criteria, and same-sex couples in our state will be subject to financial and dignitary injuries in ways that grievously conflict with current California public policy.” In response, the club’s lawyer insisted that the case isn’t about gay rights, but about whether businesses can distinguish between married and unmarried couples of all orientations. “Obviously, both men and women and heterosexuals and homosexuals make up the class of individuals who are single,” Richard Bergstrom III, a partner in Morrison & Foerster’s San Diego office, wrote. “Thus, limiting membership benefits of single individuals does not constitute disparate treatment based on sex or sexual orientation.” Koebke had purchased an $18,000 membership at the Bernardo Heights Country Club, which allowed her family access to the club’s facilities. But the club wouldn’t recognize French as her legal spouse — even though they had been domestic partners for more than a decade — and required French to purchase a separate membership. After the two sued, San Diego County Superior Court Judge Charles Hayes granted summary judgment to the club, and the appeal court agreed with club lawyers that the Bernardo Heights bylaws treated all individuals alike. “No unmarried couples are entitled to family membership benefits,” Justice Gilbert Nares wrote, “regardless of the sex or sexual orientation of the partners comprising those couples.” That angered Lambda’s Davidson, who said at the time that the ruling highlighted the need for legalized same-sex marriages. “It’s one more reason why gay people will forever be put into second-class status as long as they can’t marry,” he said. The case is Koebke v. Bernardo Heights Country Club, S124179. In the oral sex case, the high court agreed to address a split in the appeal courts by reviewing People v. Hofsheier, S124636, in which San Jose’s Sixth District ruled in April that a 22-year-old man should not be required to register as a sex offender after pleading guilty to felony oral copulation with a 16-year-old. Last week, Sacramento’s Third District upheld sex-offender registration for a Siskiyou County man convicted of oral copulation with a minor, though it questioned the Legislature’s logic. Also on Wednesday, the high court unanimously granted review in a case in which a state appeal court had disqualified a Los Angeles lawyer — and all his experts — from an accident case after determining that he had acted unethically by not disclosing he had obtained an opponent’s confidential documents. The February decision by Riverside’s Fourth District dismissed Raymond Johnson from representing plaintiffs in a vehicle rollover case in which he had acquired handwritten notes of a meeting between defense lawyers and their experts — then used them for impeachment purposes during depositions. “The record shows that, rather than informing opposing counsel of his inadvertent discovery,” Justice Barton Gaut wrote, “Johnson surreptitiously copied the document, disseminated it to the key players of plaintiffs’ legal team and made full use of the privileged document.” The court’s ruling, unusual for its disqualification of experts, contradicted the First District’s 1993 ruling in Aerojet-General v. Transport Indemnity, 18 Cal.4th 996, which held that lawyers who discover a privileged document are “duty-bound” to use the unprivileged portions. In seeking review, Norman Pine, a partner in Sherman Oaks’ Pine & Pine, said the Supreme Court has never addressed the ethical and legal obligations that arise when a lawyer inadvertently acquires possibly privileged material. “In the modern era of near-instant communications where information flows rapidly through every medium imaginable (e.g., e-mail, fax, Internet, etc.),” he wrote, “lawyers need to know exactly what their duties are when they receive information not intended for them.” In response, Bingham McCutchen partner John Reese argued that the lower courts were correct in disqualifying Johnson. “The trial court fulfilled its duty to ‘control the conduct of ministerial officers and other persons in pending judicial proceedings’ and ‘preserve public trust in the scrupulous administration of justice and the integrity of the Bar,” he wrote. “Any lesser sanction would reward plaintiffs’ counsel for their violation of the law.” The case is Rico v. Mitsubishi Motors, S123808.

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