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 the matter may be heard in Department "B" of the above-captioned court, located at 1725 Main Street, Santa Monica, California, defendant Peninsula Beverly Hills, Inc. will,and hereby does, move this Court, pursuant to Code of Civil Procedure §§435 and 436 for an order striking the following portions of plaintiff's first amended complaint:

1. The entirety of paragraph 25 of plaintiff's first amended complaint, page 5, lines 8 through 10;
2. The entirety of paragraph 29 of plaintiff's first amended complaint, page 5, lines 21 through 22;
3. The entirety of paragraph 36 of plaintiff's first amended complaint, page 7, lines 4 through 6;
4. The entirety of paragraph 50 of plaintiff's first amended complaint, page 8, lines 21 through 24;
5. The entirety of paragraph 3 of plaintiff's prayer, page 14, line8.

This motion is made upon the grounds that plaintiff fails to allege the elements of oppression, fraud or malice and/or specific conduct constituting ratification by a corporate defendant, to establish punitive damages.

This motion is based upon this notice of motion and motion, the accompanying memorandum of points and authorities, all pleadings and papers on file in this action and upon such additional oral and/or written argument as the Court may permit at the time of hearing.

DATED: February 13, 1998

LEWIS, D'AMATO, BRISBOIS & BISGAARD, LLP

By:_______________________________

Christopher R. Green

Attorneys for Defendants

PENINSULA BEVERLY HILLS, INC. and LUIS ALVARADO

Plaintiff alleges that he/she is a transsexual who was assaulted and battered by employees of defendant Peninsula Beverly Hills, Inc. while a guest. In paragraphs 25, 2S, 36, 50 and paragraph 3 of plaintiff's prayer of the first amended complaint, plaintiff requests punitive damages against defendants. However, plaintiff fails to plead specific facts demonstrating malice, oppression or fraud as to defendants, fails to plead advance knowledge of the unfitness of the employee or conscious disregard of the rights or safety of others, and fails to set forth facts or allegations demonstrating employer ratification. Finally, there is no allegation of action or inaction on the part of a corporate officer, director, or managing agent. Accordingly, defendants request that this court strike all portions of the plaintiff's first amended complaint regarding punitive damages.

(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

(b) An employee shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employee, unless the employee had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded, or was personally guilty of oppression, fraud or malice. With respect to a corporate employer, the advanced knowledge and conscious disregard, authorization, ratification or act of oppression, fraud or malice must be on the part of an officer, director or managing agent of the corporation.

(c) As used in this section, the following definitions shall apply: (1) "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) "Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intent on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

A pleading alleging punitive damages must allege facts and not conclusions of law. Logan v. SCRTD (1982) 136 Cal. 3d 116, 185 Cal. Rptr. 878. It is especially critical that an award of punitive damages be based upon something more than mere allegations because punitive damages are an extraordinary remedy. They are not a remedy which is favored by law; thus, they should be granted only with the greatest caution. Beck v. State Farm Mutual Auto Ins. Co. (1976) 54 Cal.App.3d 347, 355, 126 Cal.Rptr.602. The allegation that an intentional tort was not committed is not sufficient on its own to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud or malice, but the facts must be alleged in the pleading to support such claims. Grieves v. Superior Court (1984) 157 Cal.APP.3d 159, 203 Cal.Rptr.556. Malice sufficient to sustain an award of punitive damages is pled when a plaintiff alleges with factual particularity that defendants had a conscious, probable and evil intent to vex, injure or annoy plaintiff for the sole purpose of obtaining satisfaction from inflicting injury. Tresemer v. Varke (1978) 86 Cal.App.3d 656, 150 Cal. Rptr. 384.

Plaintiff clearly fails to plead facts sufficient to support a claim for punitive damages. Plaintiff fails to plead with any factual particularity allegations regarding specific conduct of defendant Alvarado that could constitute malice, oppression or fraud. Further, as defendant Peninsula Beverly Hills, Inc. is a corporate employer, plaintiff fails to plead that the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud or malice was on the part of an officer, director or managing agent of a corporation. Thus, plaintiff's allegation that he is entitled to punitive damages from defendants should be stricken in their entirety.

For all of the foregoing reasons, plaintiff's punitive damage allegations should be stricken in their entirety.

DATED: February 13, 1998

LEWIS, D'AMATO, BRISBOIS & BISGAARD, LLP

By:_______________________________

PENINSULA BEVERLY HILLS, INC. and LUIS ALVARADO