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 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF HER MOTION FOR RECONSIDERATION

DATE: APRIL 16, 1998

TIME: 1:30 P.M.

DEPT: B


I.Legislative Counsel Opinion #3178 Constitutes Different Law, Circumstances or Facts Under CCP §1008(a).

It is evident from plaintiff's memorandum of points and authorities in opposition to defendants' demurrer and from counsel's declaration in support of plaintiff's motion for reconsideration that diligent efforts were made to discover all relevant aspects of the legislative history of the Unruh Act. As pointed out by defendants, plaintiff cited 26 cases in support of her contention that the Legislature intended the Act be construed as broadly as possible, and that the categories listed in the Act are illustrative and not exhaustive. Jackson v. Superior Court (1994, 1st Dist.) 30 Cal.App.4th 936, 940; 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.

At the time of the filing of her response to defendants' demurrer, plaintiff was unaware that the Legislative Counsel's Office rendered opinions, or that those opinions were available to her. Therefore, notwithstanding her diligent efforts, plaintiff was completely unaware of the existence of the cited opinion until, as stated by her counsel, she was advised of its existence by Assemblywoman Kuehl's office on March 24, 1998.

Legislative Counsel Opinion 3178 constitutes different law, circumstances or facts as required by CCP §1008(a). Plaintiff need only state the nature of the new or different law, circumstances or facts. There is no requirement, as alleged by defendants, that plaintiff state why said opinion was not previously discussed. Nevertheless, it is apparent on the face of plaintiff's moving papers and supporting declaration, that notwithstanding her diligent efforts, the opinion was not in her possession prior to the hearing on the demurrer, and that it was brought to her attention subsequent thereto by Assemblywoman Kuehl's office.

It is interesting indeed that, in reaching its opinion that it could conceive of no circumstances under which the Unruh Act would not apply to transgendered and transsexual persons, the Legislative Counsel's Office relied upon the same legal reasoning, the same cases, and the same legislative history as that relied upon by plaintiff in urging this court to reach the same conclusion.

II. Defendants Have Pursued a Broad Status-Based Exclusionary Policy That Operates to Deprive Plaintiff of the Services of the Business Enterprise to Which Section 51 Grants "All Persons" Access.

Defendants violated Unruh in at least two instances: 1) when they denied plaintiff the use of public restroom facilities on its premises based upon her status (CCP §51); and, 2) when defendants' agents, employees or representatives beat plaintiff senseless based upon her status, or perceived status, as a transgendered person who had just used the public women's restroom (CCP § 51.7). Defendants my not promulgate business regulations which result in discrimination based upon an individual's personal characteristics. Roth v. Rhodes (1994, 4th Dist.) 25 Cal.App.4th 530, 539.

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.( Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 96, quoting from Marina Point, Ltd v. Wolfson (1982) 30 Cal.3d 721, 740.)

Contrary to defendants' transparent denials, their actions in denying accommodations to, and in perpetrating violence upon, plaintiff, were based upon her status, or perceived status as a person who was transsexual or transgendered. As such, defendants' actions constitute a clear violation of the Unruh Civil Rights Act, and the court should reconsider and rescind its order granting defendants' demurrer to plaintiff's seventh and eighth causes of action.

III. Conclusion

For the above and foregoing reasons, plaintiff's motion for reconsideration should be granted.

Respectfully submitted.

DATED: April 13, 1998 PRENTICE & SCOTT

__________________________________

LARRY R. SHOCKEY

Attorneys for Plaintiff