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 PLAINTIFF AND HIS ATTORNEYS OF RECORD:

Defendants hereby submit the following memorandum of points and authorities in opposition to plaintiff's motion for reconsideration of this Court's Order granting defendants, demurrer as to plaintiff's seventh and eighth causes of action.

I

Plaintiff's original complaint for damages was filed on October 15, 1997, regarding an alleged incident at the Peninsula Beverly Hills Hotel on May 16, 1997. Plaintiff filed a first amended complaint on November 21, 1997. In response to plaintiffs first amended complaint, defendants filed a demurrer as to plaintiff's seventh and eighth causes of action for alleged violations of the Unruh Civil Rights Act, Civil Code § 51, et seq.

Plaintiff filed a detailed and extensive opposition to defendants, demurrer. Plaintiff cited to approximately 26 cases and provided approximately 12 pages of discussion in plaintiff's memorandum of points and authorities, regarding the alleged Unruh civil rights violations. After reviewing all of the submitted papers and following oral argument, this Court granted defendants' demurrer as to plaintiff's causes of action for alleged Unruh civil rights violations.

In plaintiff's present motion for reconsideration, plaintiff relies exclusively on the receipt of a copy of an April 11, 1996 letter from the Legislative Council of California entitled "Gender Identity - No. 3178." As will be further discussed below, defendants dispute that Legislative Council opinion No. 3178 adds anything "new or different" to the present discussion. As an initial point, however, plaintiff's motion for reconsideration fails to explain "why" this additional research was not provided at the time of plaintiff's opposition to defendants' demurrer.

The declaration of Larry Shockey, Esq., filed in support of plaintiff's present motion, emphasizes that a copy of the Legislative Council opinion from April 11, 1996 was not received by plaintiff's attorneys until March 24, 1998, obviously after the March 11, 1998 demurrer hearing. Plaintiff fails to provide any testimony in the form of affidavits or declarations, as to the steps that were undertaken by plaintiff's attorneys as to the obtaining of legislative history, prior to the March 11, 1998 demurrer hearing date.

Defendants surmise that the April 11. 1996 legislative opinion was not received by plaintiff's attorneys until after the hearing of defendants' demurrer. Because plaintiff did not research or investigate this area until after defendants, demurrer was granted by this Court. Clearly, Code of Civil Procedure § 1008 precludes plaintiff from attempting to re-argue the original demurrer, with information which was available but not provided by plaintiff to this Court at the time of the March 11, 1998 demurrer hearing. Accordingly, plaintiff's motion for reconsideration fails to meet the procedural requirements of Code of Civil Procedure §1008.

II

As discussed above, defendants emphasize that plaintiff's motion for reconsideration fails to meet the prerequisites of Code of Civil Procedure § 1008(a). Plaintiff does not provide any declaration or affidavit testimony which explains "why,, plaintiff did not discuss legislative opinion No. 3178, when initially opposing defendants' demurrer at the March 11, 1998 demurrer hearing. Code of Civil Procedure § 1008 does not allow plaintiff a "second chance at bat," by performing additional research and investigation of materials which were already available, at the time of the March 11, 1998 hearing. Furthermore, Code of Civil Procedure § 1008(a) requires that "new or different facts, circumstances, or law" be provided to this Court.

In discussing legislative opinion No. 3178, plaintiffs present motion selectively pulls language from the written opinion, i.e., "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]." Plaintiff's motion conspicuously fails to discuss the language of the legislative opinion which immediately follows:

In plaintiff's first amended complaint, plaintiff alleges that he is a person who is transitioning medically, physically and psychologically from one sex to another (see plaintiffs first amended complaint, ¶ 70). Plaintiff acknowledges that on May 16, 1997, he used the women's restroom in the Hotel's lobby. (See plaintiff's first amended complaint, ¶¶ 12 and 13).

As discussed in defendants' demurrer, case law has clearly established that 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. 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 vs.

Blackwell (1987) 189 Cal. App. 3d 91, 95-96, 234 Cal. Rptr. 178. An entrepreneur need nor 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. 113.

Plaintiff 's seventh and eighth causes of action for alleged Unruh civil rights violations contend that defendants' alleged actions were prompted by plaintiff's being a ``transsexual ". On the contrary, defendant's actions were focused on the presence of a man in the woman's restroom. Defendants did not deny plaintiff entry to hotel. Defendants did not refuse to serve plaintiff in the hotel cocktail lounge. As acknowledged by legislative opinion No. 3178 defendants were acting reasonably pursuant to the business exception of the Unruh Civil Rights Act, in attempting to prevent a man from using the women's restroom.

Legislative opinion No. 3178 fails to provide any "new or different facts, circumstances, or law" as required by Code of Civil Procedure § 1008 (a) . In fact, legislative opinion No. 3178 provides further support for defendants' contention that plaintiff does not have any causes of action for alleged violations of the Unruh Civil Rights Act.

Based upon the above, defendants respectfully request this court to deny plaintiff's motion for reconsideration of this Court's granting of defendants' demurrer as to plaintiff ' s seventh and eighth causes of action for alleged violations of the Unruh Civil Rights Act, without leave to amend.

DATED: April 9, 1998

LEWIS, D'AMATO BRISBOIS & BISGAARD LLP

By:___________________________________

RAIMO H. KAASIK

Attorneys for Defendants

PENINSULA BEVERLY HILLS, INC. and LUIS

ALVARADO