JOHN F. PRENTICE, ESQ. SBN 087606

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 105617

DUCHROW & BARKER, LLP

2828 Donald Douglas Loop North, 2nd Fl.

Santa Monica, CA 90405-2959

Telephone: (310) 581-3506

Attorneys for Plaintiff/Petitioner

TABLE OF AUTHORITIES CITED

Cases ii

Statutes and Other Authority iv

PETITION 1

VERIFICATION 6

MEMORANDUM OF POINTS AND AUTHORITIES

I. Introduction 7

II. Argument 9

A. Petitioner Has No Plain, Speedy or Adequate Remedy

in the Ordinary Course of Law, the Issues Presented are

Important and Compelling, and Respondent’s Order

Will Deprive Petitioner of the Opportunity to Present

a Substantial Portion of Her Case 9

B. Respondent’s Order Granting Defendant’s Demurrer to

Petitioner’s 7th and 8th Causes of Action Was Error 14

1. The Unruh Civil Rights Act is to be Liberally

Construed so as to Effectuate its Purpose 14

2. Respondent Erred in Ruling that the Unruh Civil

Rights Act Does Not Apply to Transsexual or

Transgendered Persons 16

C. Although the Issuance of a Writ is Discretionary

With the Court, it is an Abuse of Discretion to Deny

an Apparently Meritorious Writ Petition, Timely

Presented in a Formally and Procedurally Sufficient

Manner 23

III. Conclusion 25

TABLE OF AUTHORITIES CITED

Page

Babb v. Superior Court (1971)

3 C.3d 841 10, 12, 13

Beaty v. Truck Ins. Exchange (1992, 3rd Dist.)

6 Cal.App.4th 1455 19, 20

Brandt v. Superior Court (1985)

37 Cal.3d 813 12, 13

Cianci v. Superior Court (1985)

40 Cal.3d 903 12, 13, 20, 24

Coulter v. Superior Court (1978)

21 Cal.3d 144 11, 13

Curran v. Mount Diablo Council of the Boys Scouts (1983)

147 Cal.App.3d 712 19

DeLancie v. Superior Court (1982)

31 Cal.3d 865 11, 13

Dowell v. Superior Court (1956)

47 Cal.2d 483, 486-487 [304 P. 677] 24

Environmental Planning & Information Council v. Superior Court (1984)

36 Cal.3d 188 12, 13

Harris v. Capital Growth Investors XIV (1991)

52 Cal.3d 1142 16, 18, 19

Hubert v. Williams (1982)

133 Cal.App.3d Supp. 1 19

In re Cox (1970)

3 Cal.3d 205 15, 16, 19, 20

Page

Jackson v. Superior Court (1994, 1st Dist.)

30 Cal.App.4th 939 14

King v. Hofer (1996, 1st Dist.)

42 Cal.App.4th 678 15, 19

207 Cal.App.3d at p. 1506 19

Marin Count Bd. of Realtors, Inc. v. Palsson (1976)

16 Cal.3d 920 22

May v. Board of Directors (1949)

34 Cal.2d 125, 133-134 [208 P.2d 661] 24

Orloff v. Los Angeles Turf Club (1951)

36 Cal.2d 734 17

Powers v. City of Richmond (1995)

10 Cal.4th 85 23

Rolon v. Kulwitzky (1984)

153 Cal.App.3d 289 19

Roth v. Rhodes (1994, 4th Dist.)

25 Cal.App.4th 530 15, 20

Scally v. Pacific Gas & Electric Co. (1972)

23 Cal.App.3d 806 19

Stencel Aero Engineering Corp. v. Superior Court (1976, 1st Dist.)

56 Cal.App.3d 978 11, 13

Stoumen v. Reilly (1951)

37 Cal.2d 713 18, 19

Wheeler v. St. Joseph Hospital (4th Dist., 1976)

63 Cal.App.3d 345 10

TABLE OF AUTHORITIES CITED

Page

Civil Code

§51 passim

§51.7 passim

Code of Civil Procedure

§1086 9

Cartwright Act, Bus. & Prof. Code §16700, et seq. 13, 21, 22

Appellate Rule 2 3

Tobriner & Grodin, "The Individual and the Public Service Enterprise

in the New Industrial State" (1967) 55 Cal.L.Rev. 1247 17

TO THE HONORABLE PRESIDING JUSTICE AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE COURT OF APPEAL OF THE STATE OF CALIFORNIA:

Petitioner believes this to be a matter of first impression. It involves answering the question: "Are transgender/transsexual individuals, including those who are in transition, entitled to the right to be free from discrimination in public accommodations as set forth in the Unruh Civil Rights Act, Civil Code Sections 51 and 51.7?"

Petitioner is a male-to-female transgendered person who was denied public accommodations by Defendants/Real Parties in Interest. Petitioner brought suit against defendants claiming, inter alia, that defendants’ actions violated the Unruh Civil Rights Act, Civil Code sections 51 and 51.7. (Exhibit "A") Defendants filed a demurrer to petitioner’s 7th and 8th causes of action alleging violations of the Act (Exhibits "B" through "E"), which was granted by respondent without leave to amend (Exhibit "D"). Petitioner thereafter filed her motion for reconsideration based upon a newly discovered opinion by the Legislative Counsel’s Office (Exhibit "H," Attachment "A") which stated that it could conceive of no circumstances under which the Act would not protect transgender people (Exhibits "E" through "J") which respondent denied. (Exibit "K.")

Petitioner, who was a registered guest of defendant hotel, was severely beaten by six hotel security guards as she emerged from a public women’s restroom located in a public hallway across from the hotel’s pub. Defendants’ conduct was premised upon petitioner’s appearance and her status as a transgendered woman. Petitioner was a paying guest of the hotel at the time of the occurrence.

Petitioner, Terri Nicole Hess, respectfully petitions this Court for a writ of mandate, prohibition or other extraordinary relief, directed to respondent court, and by this verified petition alleges that:

WHEREFORE, petitioner prays that:

1. This prayer should be deemed notice that petitioner seeks a preemptory writ in the first instance restraining the respondent court, its officers and agents, and all persons acting by and through its orders from taking any further steps or proceedings, including trial, in the above-captioned action and directing and compelling respondent court to vacate its order granting defendant’s demurrer.

2. An alternative writ of prohibition issue directing and requiring respondent court to act as set forth above, or in the alternative, to show cause before this court at a specified time and place why it should not be absolutely and forever restrained from taking any further proceedings against or making any other orders affecting petitioner in the proceedings described until further order of this court.

3. An alternative writ of mandate issue directing and requiring respondent court to act in the manner set forth above or, in the alternative, to show cause before this court at a specified time and place why the relief prayed for should not be granted.

Respectfully submitted,

Dated: July 8, 1998 PRENTICE & SCOTT

_________________________________

LARRY R. SHOCKEY

Attorneys for Petitioner/Plaintiff

VERIFICATION

I am the petitioner in this action. All facts alleged in the above petition, not otherwise supported by citations to the record, exhibits or other documents, are true of my own personal knowledge. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed this ___ day of July, 1998, in San Francisco, California.

_________________________________

TERRI NICOLE HESS

This matter involves answering, for the first time, the question: "Are transgender/transsexual individuals, including those who are in transition, entitled to the right to be free from discrimination in public accommodations as set forth in the Unruh Civil Rights Act, Civil Code Sections 51 and 51.7?"

Petitioner herein is a transsexual, transitioning from male to female. At the time of the incident, petitioner had been living as a woman for more than one year, was completely dressed in female attire, was participating in psychological counseling and taking prescribed medication, and was a registered guest of the defendant hotel. Petitioner had patronized the establishment on numerous occasions prior to this incident, and defendants knew that petitioner was a transsexual woman.

On the date in question, petitioner used the public women’s restroom, which is located in an area of defendant hotel to which the public has access, across a hallway from the hotel pub, which serves as the nearest women’s restroom facility for female pub patrons. The pub is also open to the public.

When petitioner emerged from the public women’s restroom she was immediately and brutally beaten by six hotel security guards who then had her arrested and charged with battery. When petitioner returned from the police station and attempted to return to her room, she was stopped by hotel staff who had packed petitioner’s belongings in her absence, and had them waiting for her at the front desk. Even though petitioner had pre-paid for her room, defendants demanded that she immediately check out without a refund.

Defendants’ sole basis for denying public accommodations to petitioner, and for perpetrating a battery upon her, was her transgender status. Defendants admit they knew petitioner was a transsexual woman, as defendants state in their memorandum of points and authorities in support of their demurrer. (Exhibit "B") Defendants demurred to petitioner’s 7th and 8th causes of action only, asserting that petitioner could not prevail because she could not show that transsexuals are protected by the Unruh Civil Rights Act. Defendants also claimed a "nature of the business exception" to the protections afforded by Unruh, claiming that it was appropriate to promulgate and enforce regulations preventing men from using women’s restroom facilities. But petitioner is not a man in women’s clothing, she is a transsexual woman.

Aside from defendants’ bare contention that petitioner’s conduct created a "disturbance" at defendants’ business, nowhere in the record is there evidence of any such disturbance. Petitioner has stated in her first amended complaint that she was in the pub talking with another woman patron, and that she spoke with another woman in the restroom immediately prior to being beaten. (Exhibit "A", ¶ 13; Exhibit "C," p. 2, lines 1-5.) Neither of these women complained about petitioner. Neither did the bartender who served petitioner.

Petitioner was not charged with having committed lewd conduct for having used the women’s restroom, as one might have imagined, had defendants really believed petitioner was creating a disturbance. Rather, petitioner was only charged with having committed a battery, albeit in self-defense, on a security guard. In fact, the only evidence of a disturbance are petitioner’s allegations that she was set upon in a public hallway, in front of the pub and several witnesses, by six security guards and severely beaten before being dragged off to a loading dock where her life was threatened.

Because defendants denied petitioner public accommodation in: 1) the rental of a hotel room, and 2) the use of restroom facilities; and because defendants threatened petitioner with violence, and actually did commit violence against her based upon her status or perceived status, defendants should not be allowed to assert that their denial of accommodation to, and physical violence toward, petitioner is justified by any deportment regulation.

Code of Civil Procedure §1086 requires that a writ be issued where there is no "plain, speedy and adequate remedy, in the ordinary course of law." In the case at bar, petitioner filed her complaint for damages, containing eight causes of action against defendants. Respondent’s order granting defendants’ demurrer is a final order which as to petitioner’s 7th and 8th causes of action which will prevent her from pursuing those claims in court. Therefore, unless this court grants review of petitioner’s writ petition, she will be without any plain, speedy, or adequate remedy.

Petitioner holds a beneficial interest in the outcome of her lawsuit and will suffer irreparable harm if she is precluded from pursuing her remedies under the Unruh Act, pursuant to the orders issued by respondent. As noted in Wheeler v. St. Joseph Hospital (4th Dist., 1976) 63 Cal.App.3d 345, 363:

Although the Court of Appeals is reluctant to exercise its discretion to review rulings at the pleading stage of a lawsuit, the Court has been willing to do so where the issues presented are compelling, important, of a constitutional nature, or the trial court’s ruling would deprive the requesting party of the opportunity to present a substantial portion of his or her case.

In Babb v. Superior Court (1971) 3 C.3d 841, the court granted extraordinary review of a trial court’s denial of a demurrer to a cross-complaint for malicious prosecution, stating:

This Court also found circumstances which would warrant the issuance of a writ in determining whether a party was entitled to an award of punitive damages, reasoning: "The question whether they are recoverable, or not, will have a material effect upon the scope of the issues to be tried and of permissible pretrial discovery in such matters as the wealth of the defendants." Stencel Aero Engineering Corp. v. Superior Court (1976, 1st Dist.) 56 Cal.App.3d 978, 984. Later, in Coulter v. Superior Court (1978) 21 Cal.3d 144, the Court granted review to determine whether Business and Professions Code section 25602, governing the serving of intoxicating beverages to obviously intoxicated individuals, applied to non-commercial situations. In holding that it did, the Supreme Court overruled the trial court which had sustained demurrers without leave to amend with regard to plaintiff’s causes of action.

In 1982, the Supreme Court again granted extraordinary review in DeLancie v. Superior Court (1982) 31 Cal.3d 865. There, plaintiffs in a class action lawsuit against the San Mateo Sheriff’s Department alleged that the department’s routine monitoring and recording of the conversations between jail inmates and persons on the outside was not for security purposes, but was utilized to gather evidence for criminal prosecutions. The trial court sustained demurrers to plaintiff’s tenth, eleventh and twelfth causes of action, all based upon constitutional grounds, without leave to amend. The court found that mandamus was appropriate "because the issues presented were matters of general importance, and the trial court’s order would bar such issues from being heard on the merits." Id., p. 870.

In Environmental Planning & Information Council v. Superior Court (1984) 36 Cal.3d 188, defendant/petitioner sought review of the trial court’s denial of its motion for summary judgement. Petitioner had circulated a newsletter criticizing plaintiff’s editorial policy, and encouraging people not to patronize advertisers in plaintiff’s newspaper. Plaintiff brought suit seeking to enjoin petitioner’s actions, seeking punitive and compensatory damages. The Court found that extraordinary review at the pleading stage was warranted "because . . . the infringement upon defendants’ constitutional rights of free speech would be implicated if the action were permitted to proceed." Id., p. 190.

The issue of the recoverability of attorneys’ fees in bad faith insurance litigation was deemed to be of sufficient importance for the grant of extraordinary review at the pleading stage in Brandt v. Superior Court (1985) 37 Cal.3d 813. Citing Babb, supra, the court reiterated its reluctance to exercise extraordinary review, but found the issue sufficiently "compelling" and "of widespread interest" to grant review.

Finally, in Cianci v. Superior Court (1985) 40 Cal.3d 903 the court granted extraordinary review to consider the appropriateness of the trial court’s sustaining of defendant’s demurrer, in order to resolve two issues: 1) whether enforcement of RICO claims was within the exclusive jurisdiction of the federal courts (a matter of first impression for California Courts); and, 2) whether the Cartwright Act applied to the medical profession. The Court found both of these issues to be of "significant" importance both to the professions and to the general public due to their impact on the interests of consumers in the state.

As can be seen from the foregoing discussion, the Court has previously exercised its discretion to review by extraordinary writ under the following circumstances: 1) the propriety of cross-complaints alleging malicious prosecution [Babb (1971), supra]; 2) the recoverability of punitive damages [Stencel (1976), supra]; 3) the applicability of B&PC section 25602 [Coulter (1978) supra]; 4) the constitutionality of prisoner monitoring [DeLancie (1982), supra]; 5) infringement upon first amendment speech [Environmental Planning (1984), supra]; 6) the recoverability of attorneys’ fees in insurance bad faith cases [Brandt (1985), supra]; and, 7) applications of RICO and the Cartwright Act to the medical profession [Cianci (1985), supra], among others.

The circumstances surrounding the instant matter are certainly no less compelling, important, or of widespread interest. The Unruh Civil Rights Act was enacted by the Legislature to ensure that all individuals have equal access to public accommodations and to prohibit all forms of arbitrary discrimination by business establishments. (See discussion, infra.) To deny accommodations based on transgender or transsexual status is discrimination based upon arbitrary classification. Such conduct is made illegal under the statute and cannot be allowed to go unpunished.

California Civil Code §51 states, in pertinent part:

Section 51.7, in relevant part, states:

"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. The language of the Unruh Civil Rights Act has always been liberally construed by the courts. Id. In keeping with that holding, the courts have, over the years, held that the classifications listed 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.) 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 fact, the recently adopted §51.7 contains a broader, more inclusive list of protected classifications than contained in §51, indicating that the Legislature was adopting the broader scope of protected classifications adopted by the courts. Furthermore, the highlighted language from §51.7, supra, was adopted by the Legislature following court decisions containing this interpretation of the Act.

In further support of petitioner’s position is 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, 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]." (Exhibit "H,." Attachment "A.")

In reaching this conclusion, the Legislative Counsel’s office analyzed the Supreme Court’s holding in Harris v. Capital Growth Investors XIV, infra. Expounding upon the principle of statutory interpretation of ejusdem generis, the court’s 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.

In re Cox (1970) 3 Cal.3d 205 is most instructive in this area. In 1968, Mr. Cox and a young male friend, who wore long hair and unconventional clothing, were ordered to leave a shopping center in San Rafael, California by a security guard. Later, while sitting on a communal bench provided by the shopping center for use by its patrons, and drinking a soft drink which had been purchased at the center, plaintiff and his friend were arrested and charged with violating a municipal ordinance making it unlawful for a person to remain on a commercial premises after being ordered to leave by a person who is "in charge." That ordinance exempted situations which would create a violation of the Unruh Civil Rights Act. Finding that the shopping center performed a valuable public function, the court held that it could no more exclude individuals who wore long hair or unconventional dress than it could blacks or other persons based upon race or political affiliation. Id., pp.217-218.

The Unruh Act, originally enacted in 1897, codifies early common law decisions regarding what constituted public or common callings. Initially these consisted of business such as restaurants, hotels, blacksmiths and tailor shops. Id., p. 212, citing Tobriner & Grodin, "The Individual and the Public Service Enterprise in the New Industrial State" (1967) 55 Cal.L.Rev. 1247, 1250. As originally enacted, the Act was limited to "all citizens" and listed various business establishments which were covered. In 1919, the Legislature extended the Act to public conveyances, and in 1923, to places where soft drinks or ice cream are sold. Id., p. 213. But, in 1959, fearing that courts were interpreting the language of the Act too narrowly, amended the Act to apply to "all business of every kind whatsoever." Id.

Then, in 1961, the phrase "all citizens" was replaced with the phrase "all persons," indicating a clear intent to broaden the scope of individuals to whom the Act applied. These revisions followed the court’s decisions in Orloff v. Los Angeles Turf Club (1951) 36 Cal.2d 734, declaring that a race track was a business which was encompassed by the act, and Stoumen v. Reilly (1951) 37 Cal.2d 713, which declared that homosexuals were a protected class under the Act. After tracing and reviewing the Legislative and decisional history of the Act, the court declared:

In the matter at bar, petitioner has been discriminated against based upon her physical characteristics as a transsexual woman. Her decision to dress as a woman, having once been a man, may be deemed unconventional by some, and certainly by defendants--it was the sole basis for their discriminatory conduct toward petitioner.

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:

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.

In 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:

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.

In Cianci, supra, the Court was faced with determining whether the provisions of the Cartwright Act, Business and Professions Code §16700, et seq., which deals with monopolies and restraint of trade, applies to the medical profession even though the medical profession is not included within the language of the statute. There, the Court held:

The Cartwright Act did, however, exempt labor organizations from its provisions. Utilizing the rule of expressio unius est exclusio alterius in reaching its conclusion that the professions were included within the statute, the Court reasoned, therefore, that any group not expressly excluded from the statute should be included. Id. But the Court also looked to the purpose of the statute, which was to promote consumer welfare. It is interesting to note that, unlike in the case at bar, the Cianci Court did not have any direct Legislative history to guide it in reaching its decision, but relied upon a reconstructed history based upon the Cartwright Act’s similarity to the Sherman Act.

Further, in holding that the professions were included in the Act, the Court reasoned:

In the matter at bar, the Unruh Act was enacted to ensure that "all persons" are "entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." The courts have consistently interpreted the Act liberally. Every time the Legislature has amended the Act it has been to increase its scope and the breadth of its protections. The Act is inclusive, and must be read to include petitioner and all transsexual/transgender people. By overruling the trial court’s order granting defendants’ demurrer, this court will be following both the intent of the Legislature as well as the decisional history of this Court and of the Supreme Court.

Finally, defendants would argue that their conduct falls within an exception to the Unruh Act’s requirements, in that businesses are allowed to promulgate reasonable deportment regulations. In this case, defendants argue that it was reasonable to prevent a man from using a restroom designated for the use of women patrons. Defendants further claim that petitioner’s use of said women’s restroom (a public restroom) created a disturbance. To the contrary, the record is completely devoid of any disturbance. Petitioner spoke with a female patron in the restroom. She was not disturbed by petitioner’s presence--because petitioner looked, dressed and acted like a woman. On the other hand, petitioner would certainly have created a disturbance had she used the "men’s" restroom, given her female identity and appearance.

Even if the Court were to determine that defendants’ argument regarding deportment rules was acceptable under these circumstances, it does not give defendants the right to beat petitioner senseless for allegedly having violated their rule. Simply put, defendants’ reasonable deportment argument is pure sophistry. The only disturbance was created by defendants when defendant security personnel beat petitioner in the public hallway. The Court should disregard defendants’ arguments and find in petitioner’s favor.

In Powers v. City of Richmond (1995) 10 Cal.4th 85, 113-114, petitioner’s sought review of the trial court denial of their request for public records under the Public Records Act (Government Code §6250, et seq.). Finding that superior court decision in Public Records Act cases are not appealable, but are subject to review by extraordinary writ, as provided by Government Code §6259, the court held:

The court concluded, holding:

In the case at bar, petitioner has fulfilled these requirements. The order granting defendants’ demurrer is not appealable. Petitioner’s sole means of review is through a petition for extraordinary relief. The rights which petitioner seeks to protect are important, namely, her right not to be discriminated against in her enjoyment of public accommodations and to be free from violence or threat of violence because of her status, or perceived status, as a transsexual woman. The order granting defendants’ demurrer will result in her inability to pursue these important claims in a court of law.

This court should overrule respondent, find that transsexuals fall under the umbrella of protections which are afforded by the Unruh Act, and allow petitioner to prosecute these claims in a court of law. In so doing, this court will be consistent with prior case law, and will further effectuate the intent of the legislature that all persons are entitled to the full and equal accommodations, advantages, facilities, privileges or services in all business establishments.

Her petition is timely filed, and all of the requirements of this appellate court and of state law have been complied with.

For all of the above and foregoing reasons, petitioner: 1) is entitled to the relief sought as she is otherwise without any plain, speedy, or adequate remedy at law, as interlocutory orders are nonappealable; and, 2) is entitled to protection under the Act.

Date: July 8, 1998 PRENTICE & SCOTT

_________________________________

LARRY R. SHOCKEY

Attorneys for Petitioner/Petitioner