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 SUPPORT OF MOTION FOR RECONSIDERATION AND REVOCATION OF ITS ORDER GRANTING DEFENDANT'S DEMURRER AS TO HER SEVENTH AND EIGHTH CAUSES OF ACTION WITHOUT LEAVE TO AMEND

DATE: April 16, 1998

TIME: 1:30 P.M.

DEPT: B


I. INTRODUCTION

Plaintiff, a transsexual person, brought this lawsuit seeking to recover damages based, inter alia, upon violations of §§ 51 and 51.7 of the Unruh Civil Rights Act (hereinafter, "Unruh"). Plaintiff alleged that she was denied public accommodations, e.g., the use of public restroom facilities and of hotel room accommodations in violation of §51; and that she was subjected to violence based upon her status, or her perceived status, as a transsexual in violation of §§ 51 and 51.7.

On March 11, 1998, at 1:30 p.m., defendants' demurrer to plaintiff's seventh and eighth causes of action came on for hearing in Department B of the above encaptioned court. At the conclusion of the hearing, the Court sustained the demurrer as to both causes of action without leave to amend.

On March 24, 1998, plaintiff came into possession of additional, different or new legal authority in support of plaintiff's position that gender identity is a protected classification under Unruh. (See, Declaration of Attorney Larry R. Shockey, and Plaintiff's Request for Judicial Notice, Exhibit "A," Legislative Counsel Opinion, Gender Identity #3178.)

II. ARGUMENT

A. Standard For Review of Motion for Reconsideration.

Code of Civil Procedure §1008(a) provides that within 10 days of service of written notice of entry of an order, any party affected thereby may make application for reconsideration of the matter to the court or judge that made the order and that the order be modified, amended, or revoked. Such application shall be based upon new or different facts, circumstances, or law, and shall be supported by affidavit specifying what application was made, when made and to what judge, the order which was entered and the nature of the new or different facts, circumstances or law which are relied upon by the moving party. Therefore, "[a] motion made in accordance with section 1008 must include reference to new or different facts, circumstances, or law before the earlier order may be reconsidered." Bennett v. Suncloud (1997) 56 Cal.App.4th 91, 96; Wilson v. Science Applications International Corp. (1997) 52 Cal.App.4th 1025, 1032.

Additionally, the motion must be heard by the trial judge who entered the order, and it must be accompanied by an explanation for the failure to bring the information to the court's attention earlier. Wilson, supra, p. 1032.

B. Plaintiff Presents Sufficient New and Different Legal Authority to Support Her Motion for Reconsideration and Revocation of the Order Sustaining Defendants' Demurrer to Plaintiff's Seventh and Eighth Causes of Action Without Leave to Amend.

On March 24, 1998, plaintiff received a copy of Legislative Counsel Opinion #3178, prepared at the request of State Senator Milton Marks, on the question of whether gender identity, e.g., transsexuality, transgenderism, or the perception by an individual that his or her sexuality differs from his or her biology(1), is protected by Unruh. In answering this question in the affirmative, the Legislative Counsel's Office stated: "We cannot conceive of any factual situation in which discrimination against a person on the basis of gender identity would not be prohibited by [Unruh]."

In reaching this conclusion, the Legislative Counsel's office analyzed the Supreme Court's holding in Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, cited at length in plaintiff's points and authorities in opposition to defendants' demurrer. Expounding upon the principle of statutory interpretation of ejusdem generis, the courts expansive interpretation of the classifications of protected individuals based upon personal characteristics, and the rule of interpretation disfavoring unreasonable or absurd consequences, the Legislative Counsel determined that gender identity is a personal characteristic which is within the umbrella of protections afforded by Unruh.

III. CONCLUSION

For the above and foregoing reasons, plaintiff urges the court to reconsider and to revoke its previous ruling sustaining defendants' demurrer to her seventh and eighth causes of action without leave to amend.

Respectfully submitted.

Dated: March 24, 1998 PRENTICE & SCOTT

___________________________________

LARRY R. SHOCKEY

Attorneys for Plaintiff

1. "Gender identity" is defined in a September 1994, report by the San Francisco Human Rights Commission following an investigation into discrimination against transgendered people, as "the deeply felt knowledge of an individual that he or she is male or female" in transgendered person, the gender identity and the anatomic sex may not be in alignment. . . . It is the expression of gender identity that results in discrimination because that expression is perceived as conflicting with the expectations placed upon the individual solely because of the form of his or her body, particularly the genitals."