LEWIS, D'AMATO, BRISBOIS & BISGAARD LLP
TIMOTHY R. GRAVES, State Bar No. 119793
RAIMO H. KAASIK, State Bar No. 144854
221 N. Figueroa Street, Suite 1200
Los Angeles, California 90012-2601
Telephone: (213) 250-1800

Attorneys for Defendants

PENINSULA BEVERLY HILLS, INC.and LUIS ALVARADO

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN::

PLEASE TAKE NOTICE that on March 11, 1998 at 1:30 p m or as soon thereafter as counsel may be heard in Department "B" of the above-captioned court, located at 1725 Main Street, Santa Monica, California, defendants Peninsula Beverly Hills, Inc. and Luis Alvarado will, and hereby do, move for an order sustaining their demurrer to the first amended complaint in the above-captioned matter without leave to amend on the following grounds:

DEMURRER TO THE SEVENTH CAUSE OF ACTION

1. The seventh cause of action fails to state facts sufficient to constitute a cause of action, as required by C.C.P. §425 .10 (a) and §430 . 10 (e) .

DEMURRER TO THE EIGHTH CAUSE OF ACTION

2. The eighth cause of action fails to state facts sufficient to constitute a cause of action as required by C.C.P. §425.10 (a) and §430.1 0 (e).

This demurrer is based upon this notice of demurrer and demurrer, the accompanying memorandum of points and authorities, all pleadings and papers filed herein, all matters of which this court must or may take judicial notice, and on such further evidence and oral argument as may be presented at the hearing of the demurrer.

DATED: February 13, 1998

LEWIS, D'AMATO, BRISBOIS & BISGAARD, LLP

By:_________________________

Christopher R. Green

Attorneys for Defendants

PENINSULA BEVERLY HILLS, INC. and LUIS ALVARADO

 

MEMORANDUM OF POINTS AND AUTHORITIES

 

I. INTRODUCTION

Plaintiff alleges that he/she is a transsexual who was assaulted and battered by the employees of defendant Peninsula Beverly Hills, Inc. while a guest. Among other things, plaintiff alleges violations of the Unruh Civil Rights Act in the seventh and eighth causes of action. As set forth below, plaintiff fails to state facts sufficient to constitute a cause of action for Unruh Civil Rights Act violations. This demurrer should be sustained without leave to amend.

 

II. SUMMARY OF RELEVANT FACTS

Plaintiff alleges that he/she is a transsexual and had lived as a "woman" for more than one year prior to the time of the incident giving rise to the complaint. (First Amended Complaint (hereinafter "FAC"), ¶11.) Specifically, plaintiff alleges that plaintiff is a person who is transitioning medically, physically and psychologically from one sex to another. (FAC, ¶70.) Plaintiff alleges that on May 16, 1997, plaintiff was a guest at the Peninsula Beverly Hills, Inc. (FAC, ¶12.) Plaintiff had gone to the cocktail lounge, known as " The Club". Plaintiff alleges that after conversing with other guests at the bar, plaintiff excused himself/herself and went to the women's restroom. Plaintiff alleges that this was not unusual as plaintiff had used the women's restroom at defendant's hotel on countless prior occasions. (FAC, ¶13.) Plaintiff alleges that as plaintiff exited the women's restroom, six security guards employed by the defendant

hotel wrongfully restrained plaintiff, kicked plaintiff's feet from under plaintiff, and slammed plaintiff's face into the marble floor. (FAC, ¶l4.) Plaintiff alleges that the security guards proceeded to strike plaintiff with their fists and kick plaintiff with their feet, striking plaintiff's face, torso, legs, arms and genital areas. Thereafter, the security guards dragged plaintiff into an area out of public view. (FAC, ¶¶15-16.) Thereafter, plaintiff alleges that the Beverly Hills Police Department arrived, wherein plaintiff was taken into custody and charged with violating Penal Code §242, a battery. (FAC, ¶18. ) After being released by the police department, plaintiff returned to the hotel, wherein the hotel manager demanded that plaintiff immediately check out. 13 Plaintiff alleges that unknown employees illegally entered plaintiff's room, threw plaintiff's possessions into a suitcase and had taken the bags to the registration area of the hotel. (FAC, ¶19.)

Under the seventh cause of action, plaintiff alleges Violation of Civil Rights pursuant to Civil Code §51. Plaintiff alleges that as of the date of the incident, defendants and its 20 employees knew that plaintiff was a transsexual. (FAC, ¶70 . ) Plaintiff alleges that the actions of defendants were directly related to plaintiff's status as a transsexual person, in that defendants intended to deprive plaintiff of the full and equal accommodations, advantages, facilities, privileges and services of its business establishment in violation of law. (FAC, ¶71. ) Plaintiff alleges damages as a result of defendants' actions. (FAC, ¶73. )

 

Under the eighth cause of action for Violation of Civil Rights pursuant to Civil Code §51.7, plaintiff duplicates the claims under the seventh cause of action. Specifically, plaintiff alleges that Civil Code §51.7 seeks to protect individuals from violence which is based upon suspect, arbitrary classifications, including sexual orientation and transsexual status, or which is based upon a person's perception that an individual has one or more of those characteristics. (FAC, ¶76.) However, plaintiff alleges that the violence perpetrated by defendants on plaintiff was directly related to plaintiff's status as a transsexual person in violation of law. (FAC, ¶78.)

 

III. PLAINTIFF FAILS TO STATE FACTS SUFFICIENT TO ESTABLISH CLAIMSFOR CIVIL RIGHTS VIOLATIONS BASED ON AN ALLEGED TRANSSEXUAL STATUS

The Unruh Civil Rights Act is set forth in Civil Code §51. It states that all persons are free and equal and are entitled to the full and equal accommodations, advantages, facilities, privileges or services in all business establishments. Civil Code §51. To that end, it prohibits discrimination by business establishments, based upon sex, race, color, religion, ancestry, national origin or disability. In simple terms, the act prohibits all arbitrary discrimination by business establishments. In Re Cox (1970) 3 Cal.3d 205, 216, 90 Cal.Rptr.24.

The act proscribes any form of arbitrary discrimination. Certain types of discrimination have been denominated reasonable and, therefore, not arbitrary. Thus, an entrepreneur need not tolerate customers who damage property, injure others, or otherwise disrupt business. Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 30, 219 Cal.Rptr.133. A business establishment may promulgate reasonable deportment regulations that are rationally related to the services performed and the services provided. In Re Cox (1970) 3 Cal.3d 205, 217, 90 Cal. Rptr.24. This is known as the "nature of the business exception". The significance of the nature of the business exception is that the person’s conduct, as opposed to his or her status, produces the exclusionary actions by the business.

Frantz v. Blackwell (1987) l89 Cal.App.3d 91, 95-96, 234 Cal.Rptr.178. For example, a cemetery may lawfully exclude persons who would damage property, injure others or otherwise disrupt funeral services. The Unruh Act does not require the cemetery to admit these persons and wait until the cause of disruption before asking them to leave. Ross v. Forest Lawn Memorial Park (1984) 153 Cal.App.3d 988, 992-93, 203 Cal.Rptr.468. Additionally, the act does not prohibit a gambling facility from refusing to admit a woman known to it as a compulsive gambler who had manifested a propensity to gamble beyond her means to the detriment of herself and others. Winn v. Monterev Club (1990) 341 Cal.App.3d 789, 797, 168 Cal.Rptr. 878.

Plaintiff fails to plead facts sufficient to establish a violation of the Unruh Act. The gravamen of the seventh and eighth causes of action is that plaintiff suffered discrimination because he/she is a transsexual. Neither Civil Code §51 nor §51.7 identifies transsexualism as a protected class. Indeed, there is no legal authority to support plaintiff’s allegation that transsexuals are a protected class. Furthermore, there is no claim in the complaint that plaintiff was arbitrarily discriminated against due to his/her status as a transsexual. Finally, plaintiff’s own complaint states that plaintiff was instructed to leave the hotel after he/she was arrested by the Beverly Hills Police Department for battery (FAC, ¶19); and, it was not unreasonable to attempt to prevent a male from using the women’s restroom. As set forth above, a violation of the Unruh Act does not lie where a business lawfully excludes persons who would damage property, injure others, or otherwise disrupt the business. Ross, 153 Cal. App.3d at 992-93. Accordingly, plaintiff fails to set forth facts to establish an Unruh Act violation.

 

IV. CONCLUSION

Based upon all of the foregoing, defendants request that this court sustain the demurrer to the seventh and eighth causes of action without leave to amend.

DATED: February 13, 1998

LEWIS, D'AMATO, BRISBOIS & BISGAARD, LLP

By:__________________________

Christopher R. Green

Attorneys for Defendants

PENINSULA BEVERLY HILLS, INC. and LUIS ALVARADO