D. Defendants' Demurrer Must Be Overruled as Plaintiff Has Stated Facts Sufficient to State a Cause of Action for Violation Civil Code §51.7.  11

III. CONCLUSION  12

TABLE OF CASES CITED

Beaty v. Truck Ins. Exchange

(1992, 3rd Dist.) 6 Cal.App.4th 1455 7, 13

Blank v. Kirwan

(1985) 39 Cal.3d 311 3

Committee on Children's Television, Inc. v. General Foods Corp.

(1983) 35 Cal.3d 197 3

Curran v. Mount Diablo Council of the Boys Scouts

(1983) 147 Cal.App.3d 712 7, 13

Del E. Webb Corp. v. Structural Materials Co.

(1981) 123 Cal.App.3d 593 3, 5, 12

Frantz v. Blackwell

(1987) 189 Cal.App.3d 91 10, 11, 14

Harris v. Capital Growth Investors XIV

(1991) 52 Cal.3d 1142 6, 7, 13

Harris v. Mothers Against Drunk Driving

(1995) 40 Cal.App.4th 16 4, 12

Hubert v. Williams

(1982) 133 Cal.App.3d Supp. 1, 5 7, 13

Ibister v. Boy's Club of Santa Cruz, Inc.

(1985) 40 Cal.3d 72 5

In re Cox

(1970) 3 Cal.3d 205 6, 7, 9, 10

Jackson v. Superior Court

(1994, 1st Dist.) 30 Cal.App.4th 939 4, 5, 11, 12, 13

King v. Hofer

(1996, 1st Dist.) 42 Cal.App.4th 678 6, 13

King v. Mortimer

(1948) 83 Cal.App. 2d 153 3

Koire v. Metro Car Wash

(1985) 40 Cal.3d 24 9

Lawrence v. Walzer & Gabrielson

207 Cal.App.3d 1506 6

Marina Point, Ltd v. Wolfson

(1982) 30 Cal.3d 721 9, 14

Orloff v. Los Angeles Turf Club

(1951) 36 Cal.2d 734 10

Rolon v. Kulwitzky

(1984) 153 Cal.App.3d 289 6, 7, 13

Ross v. Forest Lawn Memorial Park

(1984) 153 Cal.App.3d 988 9, 10

Roth v. Rhodes

(1994, 4th Dist.) 25 Cal.App.4th 530 6, 7, 13

Scally v. Pacific Gas & Electric Co.

(1972) 23 Cal.App.3d 806 6

Serrano v. Priest

(1971) 5 Cal.3d 584 3, 5, 12

Stoumen v. Reilly

(1951) 37 Cal.2d 713 7, 8, 13

Warfield v. Peninsula Golf & Country Club

(1995) 10 Cal.4th 594 4, 5

Wynn v. Monterey Club

(1980) 111 Cal.App.3d 789 10

STATUTES CITED

Code of Civil Procedure §452 3

Civil Code §51 11

Civil Code §51.7 11, 14

Unruh Civil Rights Act passim

OTHER AUTHORITY CITED

Weil& Brown, California Practice Guide: Civil Procedure Before Trial

(1995 Ed.), p. 7-22 §7:49 3

JOHN F. PRENTICE, ESQ. SBN 87606
LARRY R. SHOCKEY, ESQ. SBN 167783
PRENTICE & SCOTT
433 Turk Street
San Francisco, CA 94102
Telephone: (415) 292-1660
Facsimile: (415) 776-4237

DAVID J. DUCHROW, ESQ. SBN
2828 Donald Douglas Loop North, 2nd Fl.
Santa Monica, CA 90404-2959
Telephone: (310) 581-3506
Facsimile: (310) 581-3508

Attorneys for Plaintiff

SUPERIOR COURT FOR THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES, WEST DISTRICT

TERRI NICOLE HESS, Plaintiff, vs. PENINSULA BEVERLY HILLS, INC., a Delaware Corporation, PENINSULA BEVERLY HILLS MANAGEMENT, INC. a Delaware Corporation, LUIS ALVERADO, individually and in his capacity as Director of Security, JOSEPH VELEZ, DON KIREMIT, DONALD TURK and DOES 1 - 50, Defendants. _________________________________

No. SC049485 PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO DEFENDANT'S DEMURRER DATE: MARCH 11, 1998 TIME: 1:30 P.M. DEPT: B

I. INTRODUCTION

Plaintiff herein is a transsexual, transitioning from male to female. At the time of the incident, plaintiff had been living as a woman for more than one year, was completely dressed in female attire, and was a registered guest of the defendant hotel. Plaintiff had patronized the establishment on numerous occasions prior to this incident.

On the date in question, plaintiff had been engaged in conversation in the hotel pub, and had excused herself to use the women's public restroom, something she had done on countless prior events. Plaintiff used the public restroom without incident and spoke with a woman patron inside. However, when plaintiff emerged from the public restroom on this occasion, she was immediately set upon by six hotel security guards who brutally beat her and had her arrested for battery. When plaintiff returned from the police station and attempted to return to her room, she was stopped by hotel staff who had packed plaintiff's belongings in her absence, and had them waiting for her at the front desk. Notwithstanding that plaintiff had pre-paid for her room, they demanded that she immediately check out without a refund.

The sole basis upon which defendants' employees confronted plaintiff as she exited the public restroom is that she is a transsexual. Defendants admit they knew plaintiff was a person transitioning from one gender to another, as defendants state in their memorandum of points and authorities. It is their contention that it was inherently reasonable to prevent a man from using the women's bathroom. The fact that plaintiff had committed no public offense prior to entering the public restroom is obvious from the absence of any mention of same in the resulting police report, as well as the absence of any charges in that regard. It is likewise enlightening that there is no mention of plaintiff having created any disturbance at defendants' business as the result of her activities. The guards' sole purpose for confronting plaintiff was her transsexual status, and the defendants' actions with regard thereto were discriminatory and unlawful.

Defendants file their demurrer as to plaintiff's 7th and 8th causes of action only. Defendants assert in their demurrer that plaintiff cannot prevail because she cannot show that she, as a transsexual, is an individual who is protected by the Unruh Civil Rights Act. Defendants further assert that plaintiff has pled no facts supporting her contention that her treatment by defendants was because of her transsexual status. Finally, defendants attempt to claim a "nature of the business exception" to the protections afforded by Unruh. Defendants cannot prevail because plaintiff has alleged that the defendants' actions were motivated because of her transsexual status, or defendants' perception that plaintiff was transsexual; because the Unruh Act should be liberally construed to include transsexualism; and because defendants threatened plaintiff with violence, and committed violence against her based upon her status or perceived status. Defendants cannot assert that their denial of accommodation to and physical violence toward plaintiff is justified by any "reasonable deportment regulation."

II. POINTS, AUTHORITIES AND ARGUMENTS

A. Defendant's Motion for Demurrer Must Be Denied as Plaintiff Has Stated a Cause of Action upon Which Relief May Be Granted.

In ruling on demurrer, the court must take Plaintiff's factual allegations as true. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604). The question of plaintiff's ability to prove the allegations, or possible difficulties in making such proof, is of no concern in ruling on a demurrer. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213). Complaints must be construed "liberally . . . with a view to substantial justice between the parties." (CCP § 452).

For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Serrano v. Priest (1971) 5 Cal.3d 584, 591). Leave to amend a complaint is routinely granted. "Unless an original complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion." (King v. Mortimer (1948) 83 Cal.App. 2d 153, 158).

A demurrer may be used to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318). A demurrer can be utilized where the complaint itself is incomplete or discloses some defense that would bar recovery. (Weil& Brown, California Practice Guide: Civil Procedure Before Trial (1995 Ed.), p. 7-22 §7:49).

B. Defendants' Demurrer must Be Overruled Because Plaintiff Has Stated Facts Sufficient to Establish a Cause of Action for Discrimination for Purposes of the Unruh Act, Civil Code §51.

Defendants admit that they are a business establishment, for purposes of the Unruh Civil Rights Act, as such the Act is applicable to them. Defendants make no argument to the contrary, nor do they present any authority which would indicate otherwise. This is so because the Act clearly does apply to defendants.

"The [Unruh Civil Rights] Act is to be given a liberal construction with a view to effectuating its purposes." Jackson v. Superior Court (1994, 1st Dist.) 30 Cal.App.4th 939, 940. In Harris v. Mothers Against Drunk Driving (1995) 40 Cal.App.4th 16, the court enumerated several factors to be considered in determining whether an organization has sufficient businesslike attributes to be a business establishment within the meaning of the Unruh Civil Rights Act. Those factors include:

1. what, if any, business benefits one may derive from membership; 2. the number and nature of paid staff; 3. whether the organization has physical facilities, and if so, whether those facilities are incidental to the purposes and programs of the organization; 4. what are the purposes and activities of the organization; 5. the extent to which the organization is open to the public; 6. whether there are any fees or dues for participation or membership, and if so, what percentage of those involved in the organization pay them; and 7. the nature of the organization's structure. Courts are not limited to inquiries from this list. Id., p. 20.

The court went on to state that, by inclusion of the words "all" and "of every kind whatsoever," the term "business establishment" was used in the broadest sense reasonably possible, and further, that an organization cannot escape from being included as a business establishment merely because it is private or nonprofit. Id., p.21. Certainly, even ostensibly "private" clubs have been found to be business establishments subject to the Act. In Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, the court dealt with the issue of a plaintiff's exclusion from membership in a private club based on gender. There the court found that

the business transactions that are conducted regularly on the club's premises with persons who are not members of the club are sufficient in themselves to bring the club within the reach of section 51's broad reference to "all business establishments of every kind whatsoever." Id., p. 621. [Emphasis in original.]

In support of the above finding, the court noted that the club maintained on its premises golf and tennis pro shops which were open to the general public. Members of the public were allowed to take lessons from professionals and were allowed to utilize club facilities in doing so. The club also sponsored events which were also open to the public, such as golf and tennis tournaments, fashion shows, special luncheons and dinners. Id., pp. 600-602.

Similarly, the court's holding in Ibister v. Boy's Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72, held that the Legislature's use of the words "all" and "of every kind whatsoever" should be interpreted in the "broadest sense reasonably possible. [citation omitted] Indeed, the Unruh Act was adopted out of concern that the courts were construing the 1897 public accommodations statute too strictly." [Emphasis added.] Id., p. 78. Defendants provide hotel accommodations to the public. Their restaurants and cocktail lounges and not for hotel guests only, but are open to the public. The restroom facilities which are on premises are open for use by patrons of those facilities, namely, members of the public. Clearly, defendants cannot make any colorable argument that they are excluded from coverage by the Act.

As stated above, in ruling on a demurrer, the court must accept as true all facts alleged in plaintiff's complaint. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604; Serrano v. Priest (1971) 5 Cal. 3d 584, 591.) Therefore, accepting as it must, plaintiff's allegations that defendants' treatment of her was based upon her status as a transsexual person, the only question left for determination by the court is whether the broad language of the Act can be interpreted to include plaintiff in its protection. The answer to that question is "yes."

The language of the Unruh Civil Rights Act has always been liberally construed by the courts. (Jackson v. Superior Court (1994, 1st Dist.) 30 Cal.App.4th 936, 940.) This finding, cited both in pre- and post-amendment decisions, is clear evidence that the liberal construction of the statute is a tenet which has not changed over the years, and should not now be abandoned.

In keeping with that holding, the courts have, over the years, held that the listing of classifications in the Act are merely illustrative, not exhaustive or restrictive. (In re Cox (1970) 3 Cal.3d 205; Roth v. Rhodes (1994, 4th Dist.) 25 Cal.App.4th 530; King v. Hofer (1996, 1st Dist.) 42 Cal.App.4th 678.) In the seminal case of Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, plaintiffs were female heads-of-households who were denied the lease of a residence because they did not meet certain financial criteria of the landlord. In that case, the court declined to find a discrimination-by-adverse-impact violation of the Act so long as the landlord's financial criteria were applied to all applicants. In analyzing the language of the statute, the court sought "to give meaning to every word and phrase in the statute to accomplish a result consistent with the legislative purpose, i.e., the object to be achieved and the evil to be prevented by the legislation." Id., p. 1159. In so doing, the court relied upon the jurisprudence maxim of ejusdem generis, which seeks to ascertain common characteristics among things of the same kind, class, or nature when they are catalogued in legislative enactments, stating:

The principle of ejusdem generis holds that "where general words following the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. [It] is based on the obvious reason that if the [writer] had intended the general words to be used in their unrestricted sense, [he or she] would not have mentioned the particular things or classes of things which would in that event become mere surplusage." (Lawrence v. Walzer & Gabrielson, supra, 207 Cal.App.3d at p. 1506, quoting Scally v. Pacific Gas & Electric Co. (1972) 23 Cal.App.3d 806, 819 [100 Cal.Rptr. 501].) Id., p. 1160.

In King v. Hofer, supra, the court took note that since the decision in Cox, the Act had been judicially construed to encompass several unexpressed classifications, to wit: "unconventional dress or physical appearance, families with children, persons under 18, and homosexuality." Id. p. 682, citing Harris, supra. It is therefore clear that sexual orientation is a protected classification under the act. (See Rolon v. Kulwitzky (1984) 153 Cal.App.3d 289, 292; Curran v. Mount Diablo Council of the Boys Scouts (1983) 147 Cal.App.3d 712; Hubert v. Williams (1982) 133 Cal.App.3d Supp. 1, 5; see also Stoumen v. Reilly (1951) 37 Cal.2d 713, 716-717), and, by logical extension, so is transsexualism a protected classification. For purposes of the court's discussion of sexual orientation in Beaty v. Truck Ins. Exchange (1992, 3rd Dist.) 6 Cal.App.4th 1455, the court stated, "[w]e use the term "sexual orientation" to refer generally to a person's sexual habits, practices, predilections, or compulsions with respect to heterosexuality, homosexuality, etc." Id., p. 1460, fn. 3.

As stated in Cox, the Legislature intended, by enactment of the Unruh Civil Rights Act, to prohibit all forms of arbitrary discrimination by business establishments. Id., p. 216. In Roth v. Rhodes (1994, 4th Dist.) 25 Cal.App.4th 530, 539, the court held that:

In spite of this broad language, all these cases involve "discrimination based on personal characteristics similar to the statutory classifications of race, sex, religion, etc. . . ." [Citing Harris, supra.] . . . In reviewing the legislative history of California's civil rights statutes, the [Harris] court concluded, "In order to give significance to the Legislature's specific and repeated emphasis on these categories . . . , we must ascertain their common element. The categories involve personal . . . characteristics--a person's geographical origin, physical attributes, and personal beliefs." [Harris, p. 1160]

It is therefore obvious, given the discussion above, the court's construction of the classes of individuals who are protected by the Act under ejusdem generis, and its definition of "sexual orientation" as enunciated in Beaty, supra, as "refer[ring] generally to a person's sexual habits, practices, predilections, or compulsions with respect to heterosexuality, homosexuality, etc.," that transsexualism is a physical attribute having to do with one's sexual orientation, and as such is included under the umbrella of protections afforded by the Act.

C. Defendants May Not Adopt Business Regulations Which Discriminate Against Individuals Based on Arbitrary and Unjustified Grounds.

In their memorandum of points and authorities in support of their demurrer [MP&A, p. 7], defendants argue that "it was not unreasonable to attempt to prevent a male from using the women's restroom." Id., p. 7. In the instant matter, plaintiff identifies as a woman. Plaintiff registered under her legal name of Terri Nicole Hess, and paid for the room with a credit card under the same name. As far as plaintiff was concerned, she was a woman. Therefore, the only public restroom available for her use was the women's public restroom. If defendants were truly concerned about the disruption of their business, as they contend, they should have considered the potential for disruption had plaintiff, dressing as a woman, and appearing to be a woman, utilized the men's public restroom.

What, then is the alternative for a transsexual, such as plaintiff? To not use the public restroom while she was in the hotel bar, which was open to the public? To be relegated to return to her room to use the private restroom (and if so, why should she be required to do so when other women [and for that matter, male] patrons would not be expected to do so)? Or maybe, plaintiff and all other transsexuals just should not patronize defendants' properties. Because, after all, isn't that what defendants are saying by way of their demurrer? Isn't defendants' discriminatory and violent treatment of plaintiff a clear message to plaintiff and to all transsexuals, "We don't want your business"? Denying the use of public restroom facilities is a clear and unequivocal denial of equal accommodations to plaintiff and constitutes a violation of the letter, as well as, of the spirit of the Act.

Furthermore, defendants did not attempt to prevent plaintiff from using the women's public restroom as they contend in their MP&A, at p. 7. Rather, they waited until she came out of the public restroom, where they physically assaulted and battered plaintiff, in full public view. At no time did defendants inform or warn plaintiff that she could not use the public women's restroom facilities, but instead, that she should use the men's restroom. In fact, had they done so would have been further evidence of their discriminatory intent. Finally, defendants point to no disruption in their business caused by transsexuals' use of their public restroom facilities.

In Stoumen v. Reilly (1951) 37 Cal.2d 713, defendant had a business regulation which excluded homosexuals as customers. In finding that homosexuals were covered by the Act, the court stated:

Members of the public of lawful age have a right to patronize a public restaurant and bar so long as they are acting properly and are not committing illegal and immoral acts; the proprietor has no right to exclude or eject a person "except for good cause," and if he does so without good cause he is liable in damages.

In re Cox (1970) 3 Cal.3d 205, is cited by defendants in support of their illogical contention that it may develop regulations which would prohibit plaintiff from utilizing its public restroom facilities. While it may be true that a business may adopt regulations regarding a patron's conduct, any such regulations must be rationally related to the services performed and the facilities which are provided. In re Cox (1970) 3 Cal.3d 205, 212. In California, establishments which serve alcoholic beverages must furnish public restroom facilities to its customers. It is therefore inherently unreasonable, and illegal, for defendants to deny this accommodation to plaintiff. Koire v. Metro Car Wash (1985) 40 Cal.3d 24, also cited by defendants, also stands for the proposition that a business may adopt reasonable regulations regarding a customer's conduct. In that case, plaintiff, an 18 year old male, was charged more than women who used various car washes, and was charged admission to a bar on ladies' night, when the women were charged nothing. Plaintiff brought suit under the Unruh Act. Defendants argued that the pricing differentials were reasonable business regulations. Disregarding defendants' arguments, the court held:

Most often, the nature of the business enterprise or the facilities provided has been asserted as a basis for upholding a discriminatory practice only when there is a strong public policy in favor of such treatment. (See Marina Point, supra, 30 Cal.3d at pp. 742-743.) Public policy may be gleaned by reviewing other statutory enactments. For example, it is permissible to exclude children from bars or adult bookstores because it is illegal to serve alcoholic beverages or to distribute "harmful matter" to minors. (Id., at pa. 741, citing Bus. & Prof. Code, §25658 and Pen. Code, §313.1.) This sort of discrimination is not arbitrary because it is based on a "compelling societal interest" (Marina Point, Ltd v. Wolfson (1982) 30 Cal.3d 721, at p. 743) and does not violate the [Unruh] Act. Id., p. 31.

Defendants also cite Ross v. Forest Lawn Memorial Park (1984) 153 Cal.App.3d 988, but this case does not support their arguments either. In that case, plaintiff brought suit because the cemetery failed to provide the family with a private cemetery, in accordance with their wishes. Plaintiff's daughter, prior to her death, had been a "punk rocker," and family members were concerned that punk rocker friends would attend and disrupt the services.⁽¹⁾ Defendants raised the Unruh Act as a defense, alleging that the services and burial were public, and to have denied access would have been a violation of the Act. The court found that "[g]iven the sensitive nature of the services offered by the cemetery, a policy permitting private funerals" by which only invited individuals could attend was a reasonable regulation, rationally related to the services performed. Id., p. 993.

Wynn v. Monterey Club (1980) 111 Cal.App.3d 789, cited by defendants, upheld a casino's decision to bar from its premises a woman who was a known problem gambler. (See also Orloff v. Los Angeles Turf Club (1951) 36 Cal.2d 734.) Recognizing the precedent set in Cox, supra, that the restrictions must be rationally related to the business being conducted or the facilities and services being provided, the court in Wynn nonetheless held that:

The overriding issue is always whether the denial of access to public accommodation is based on race, sex, religion or other arbitrary and unjustified grounds." [Emphasis added.] Id., p. 797.

In Frantz v. Blackwell (1987) 189 Cal.App.3d 91, the court considered whether defendant's refusal to sell real estate to plaintiff, who had sued and settled against defendant previously, could give rise to a violation of the Unruh Act. Holding that it cannot, the court stated at pp. 95-96:

[E]ntrepreneurs unquestionably possess broad authority to protect their enterprises from improper and disruptive behavior, [and] under the Unruh Act entrepreneurs must generally exercise this legitimate interest directly by excluding those persons who are in fact disruptive. Entrepreneurs cannot pursue a broad status-based exclusionary policy that operates to deprive innocent individuals of the services of the business enterprise to which section 51 grants "all persons" access. [Italics added.] (Quoting from Marina Point, supra, p. 740.)

Therefore, while it may be acceptable to exclude a compulsive gambler from a casino or from a racetrack, said rule being rationally related to the business being conducted, it is not permissible to develop regulations which discriminate based upon arbitrary and unjustified grounds, such as the denial of public restroom facilities to transsexuals. None of the cases cited by defendants have specific application to this case, either on the facts or on the law, as it relates to the facts of this case.

D. Defendants' Demurrer Must Be Overruled as Plaintiff Has Stated Facts Sufficient to State a Cause of Action for Violation Civil Code §51.7.

Civil Code §51.7 states, in pertinent part that:

All persons within the jurisdiction of this stated have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive. [Emphasis added.]

That the Legislature included four additional specific classifications in its enactment of §51.7, is further evidence of that body's intention that the legislation should be interpreted as broadly as possibly. Even greater weight in that regard is the plain meaning of the last sentence of the above quoted paragraph which states that the listed classifications are "illustrative rather than restrictive." This is the same language that has been adopted by the courts in construing the classifications set forth in §51.

Defendants' argument that there is no legal basis for the inclusion of transsexuality in either §§51 or 51.7 is absurd and flies in the face of a long line of legal precedent which mandates that the provisions be given the broadest interpretation possible so as to give effect to the goals of the legislation. (Jackson v. Superior Court (1994, 1st Dist.) 30 Cal.App.4th 936, 940.)

Defendants admit that they took the action they did because plaintiff used the women's public restroom. Their actions were clearly based upon plaintiff's transsexual status, or their perception that she was transsexual. Their actions are therefore discriminatory and unlawful, and cannot go unpunished.

III. CONCLUSION

Plaintiff is a male to female transsexual, who as of the date of this incident had been living openly as a woman for more than one year, dressing only as a woman, adopting a woman's name and utilizing credit card with that name on it. On the date of the incident, plaintiff was a registered guest of the hotel. On that evening, as she had done on numerous other occasions, she patronized the hotel pub, at one point leaving the bar to use the public women's restroom which is provided for the use of the defendant hotels' patrons. When plaintiff exited the public restroom she was severely beaten, and caused to be arrested by, defendant hotels' security guards. The defendants' treatment of plaintiff was because of her status as a transsexual, and as such was a violation of Civil Code §§ 51 and 51.7.

Defendants' demurrer must be overruled because plaintiff has pled facts suffient to state a cause of action. In ruling on demurrer, the court must take Plaintiff's factual allegations as true. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604). For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Serrano v. Priest (1971) 5 Cal.3d 584, 591).

Defendants admit their hotel is a business establishment for purposes of applicability of the Unruh Civil Rights Act. By inclusion of the words "all" and "of every kind whatsoever," the term "business establishment" was used in the broadest sense reasonably possible. Harris v. Mothers Against Drunk Driving (1995) 40 Cal.App.4th 16. Defendants provide hotel accommodations to the public. Their restaurants and cocktail lounges and not for hotel guests only, but are open to the public. The restroom facilities which are on their premises are open for use by patrons of those facilities, namely, members of the public. Clearly, defendants cannot make any colorable argument that they are excluded from coverage by the Act.

The broad interpretation of Unruh Civil Rights Act supports the inclusion of transsexualism under the umbrella of protections the Act affords. The language of the Unruh Civil Rights Act has always been liberally construed by the courts (Jackson v. Superior Court (1994, 1st Dist.) 30 Cal.App.4th 936, 940.) and the courts have, over the years, held that the listing of classifications in the Act are merely illustrative, not exhaustive or restrictive. (In re Cox (1970) 3 Cal.3d 205; Roth v. Rhodes (1994, 4th Dist.) 25 Cal.App.4th 530; King v. Hofer (1996, 1st Dist.) 42 Cal.App.4th 678.) Furthermore,It is clear that sexual orientation is a protected classification under the act. (See Rolon v. Kulwitzky (1984) 153 Cal.App.3d 289, 292; Curran v. Mount Diablo Council of the Boys Scouts (1983) 147 Cal.App.3d 712; Hubert v. Williams (1982) 133 Cal.App.3d Supp. 1, 5; see also Stoumen v. Reilly (1951) 37 Cal.2d 713, 716-717), and, by logical extension, so is transsexualism a protected classification. For purposes of the court's discussion of sexual orientation in Beaty v. Truck Ins. Exchange (1992, 3rd Dist.) 6 Cal.App.4th 1455, the court stated, "[w]e use the term "sexual orientation" to refer generally to a person's sexual habits, practices, predilections, or compulsions with respect to heterosexuality, homosexuality, etc." Id., p. 1460, fn. 3.

When plaintiff returned from the police station and attempted to return to her room, she was stopped by hotel staff who had packed plaintiff's belongings in her absence, and had them waiting for her at the front desk. Notwithstanding that plaintiff had pre-paid for her room, they demanded that she immediately check out without a refund. It is therefore obvious, given the discussion above, the court's construction of the classes of individuals who are protected by the Act under ejusdem generis as discussed in Harris, supra, and the court's definition of "sexual orientation" as enunciated in Beaty, supra, that transsexualism is a physical attribute having to do with one's sexual orientation, and as such is included under the umbrella of protections afforded by the Act.

Defendants admit that they knew or perceived that plaintiff was a transsexual, and that those were their motives in preventing her from using the public women's restroom and in having her arrested for an alleged battery. Defendants beat, kicked, seriously injured plaintiff and subjected her to public ridicule, embarassment, and humiliation all on the basis of their knowledge or perception that plaintiff was transsexual. Civil Code §51.7 clearly applies to defendants.

Defendants cannot escape the protections of Unruh by promulgating discriminatory business regulations which exclude some of its customers from the public accommodations generally provided which are not rationally related to the services performed or the facilities which are provided. In Frantz v. Blackwell (1987) 189 Cal.App.3d 91, the court stated at pp. 95-96:

Entrepreneurs cannot pursue a broad status-based exclusionary policy that operates to deprive innocent individuals of the services of the business enterprise to which section 51 grants "all persons" access. [Emphasis in original.] (Quoting from Marina Point, supra, p. 740.)

Defendants' denial of use of a public restroom to plaintiff is based on a status-based exclusionary policy which has deprived plaintiff of the services of the business enterprise to which she would otherwise be entiteled. Defendants cannot rest upon this arbitrary and unjustified grounds for exclusion of plaintiff.

For all of the above and foregoing reasons, defendants' demurrer must be overruled. To the extent the court finds that plaintiff has failed to meet her burden, leave of court is hereby requested for leave to amend.

Respectfully submitted.

Dated: March 2, 1998 PRENTICE & SCOTT

__________________________________

JOHN F. PRENTICE

Attorneys for Plaintiff

__________________________________

LARRY R. SHOCKEY

Attorneys for Plaintiff

1. "Many punk rockers attended both the funeral services in the chapel and the gravesite burial services. Neither their appearance nor comportment was in accord with traditional, solemn funeral ceremonies. Some were in white face makeup and black lipstick. Hair colors ranged from blues and greens to pinks and oranges. Some were dressed in leather and chains and twirled baton-like weapons, while yet another wore a dress decorated with live rats. The uninvited guests were drinking and using cocaine, and were physically and verbally abusive to family members and their guests. A disturbance ensued and grew to the point that police had to be called to restore order." Ross, pp. 991-992.