Case Number: BC509247 Hearing Date: June 09, 2014 Dept: 46

Posted 6-5-2014

Case Number: BC509247
CHARLES DAY VS PARTY POP INTERNATIONAL
Filing Date: 05/17/2013
Case Type: Wrongful Termination (General Jurisdiction)
Status: Pending
Future Hearings

06/09/2014 at 08:31 am in department 46 at 111 North Hill Street, Los Angeles, CA 90012

(*1) Conference-Case Management – *See CMC order following ruling on demurrer.
(2) OSC regarding Dismissal Regarding Avi Datner and Party Pop International. This OSC is discharged as there is a proof of service as to each that was filed on 05.29.2014.
(3) Shula Datner’s DEMURRER TO First Amended Complaint (“FAC”)
The demurrer is directed to only the 2nd, 4th, and 6th causes of action. The demurrer is overruled as to the 2nd and 4th causes of action but is sustained with 20 days leave to amend as to the 6th cause of action. The court notes that the FAC does not attach a copy of the Right to Sue letter, merely the “Complaint for Discrimination,” which should be remedied with the filing of the Second Amended Complaint.
The 2nd and 4th causes of action for Harassment Based Upon Race and Harassment Based Upon Religion, respectively, have been adequately pled in the FAC and the allegations that were stated in the FAC are not sham pleadings. Both causes of action require a pleading showing a concerted pattern of harassment of a repeated, routine, or a generalized nature and that the alleged conduct constituted an “unreasonable abusive or offensive work-related environment or adversely affect the reasonable employee’s ability to do his or her job. (e.g. Davis v. Monsanto Chem. Co. (6th Cir. 1988) 858 F. 2nd 345, 359.) The allegations at the FAC at page 2, lines 17-21 of the FAC that Shula Datner called Plaintiff a “monkey” on a daily basis is sufficient to state a claim under the requirements of Davis. The allegations regarding the belittlement and harassment regarding Plaintiff’s religion as stated at page 2:36 to page 3:6 are sufficient to meet the requirements relative to religious harassment.
The court recognizes the rule prohibiting contradictory facts and positions in pleadings but the court does not interpret the allegations in the Complaint as meeting the requirements of a sham pleading. The first complaint referred to the same racially harassing conduct (“monkey”) but did not specify the frequency of the conduct – the FAC states that the conduct was daily; same with the religious harassment (“only true religion”) which, in the FAC, now refers to this conduct as being daily. The specification of the conduct as daily meets the requirement of a “repeated, routine, or a generalized” harassing conduct and is not considered to be a “sham” pleading.
The allegations in the 6th amended complaint, however, are not sufficiently clear to state a cause of action for Hostile Work Environment. It appears that this allegation (as stated at page 3, lines 10 and 11) is related, in part, to Plaintiff’s contentions that he witnessed Party Pop’s supervisory employees sexually harassing other employees and individual defendants making inappropriate sexual remarks at sales meetings.” Much more specificity and detail is required to meet the requirements of pleading that the employer “knew or should have known” of “unwelcome” harassment“ of Plaintiff based upon sex” that was “so severe and pervasive” as to “alter the conditions of Plaintiff’s employment” and “create an abusive work environment.” (See Thompson vs. City of Monrovia (2010) 186 Cal.App.4h 860, 876.)
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Regarding the case management order, the court attaches in the following pages the CMC order. The court will set the case for trial on 05/20/2014 with an FSC on 05/08/2014.

CASE MANAGEMENT ORDER
Case Number: BC509247
CHARLES DAY VS PARTY POP INTERNATIONAL
Trial and Final Status Conference

Trial is set for 05/20/2015 at 9:30 a.m. in Department 46.

Final Status Conference is set for 05/08/2015 at 8:30 a.m. in Department 46.

Jury Instructions and Verdict Form

The Court settles jury instruction and the verdict form at the Final Status Conference. A jury panel will not be ordered until the instructions and verdict form are settled.
Counsel and self-represented parties with authority to agree on jury instructions and the verdict form shall meet and confer in person within thirty (30) days of the Final Status Conference regarding jury instructions and a special verdict form with interrogatories. All counsel and self-represented parties shall bring to that meeting their requested jury instructions and special verdict form with interrogatories.
As required by LASC Local Rule 3.25(g)(7), counsel and self-represented parties shall present at the Final Status Conference one joint set of agreed jury instructions, one joint set of disputed jury instructions and one joint agreed special verdict with interrogatories. Jury instructions must be formatted as required by Cal. Rules of Court (CRC) 2.1055.
Any disputed jury instructions that is not a form instruction as approved by BAJI or CACI shall contain a citation to the case in support of the instruction with a page citation to the portion of the case that supports the instruction. If federal or out-of-state citations are included, a copy of the entire case must be lodged with the court in accordance with CRC 3.1113(i).

Motions in Limine

Motions in limine shall be noticed pursuant to CCP §1005(b) to be hear at the Final Status Conference and shall comply with LASC Rules 3.25(g)(2) and 3.57.

Counsel shall seek and obtain from the Court an alternate briefing schedule if it is not possible to notice a motion in limine for the Final Status Conference on 16 days notice, such as motions in limine regarding expert witnesses.

Witness and Exhibit Lists

Witness and exhibits lists shall be filed and served in compliance with LASC Local Rule 3.25(f)(1).

Motions

Objections to evidence filed in connection with any motion shall be in the format required by CRC 3.1354(b). Counsel shall lodge a proposed order on objections in the format specified in CRC 3.1354(c). Objections must be filed and proposed orders lodged at the time of the opposition or reply brief or objections will be waived.
All citations to federal or out of state authorities shall be accompanied by lodged out of state authorities in the format specified by CRC 3.1113(i).
No more than one (1) summary judgment/adjudication to be filed per party.

Trial

On the first date of trial, all counsel and self-represented parties will bring to court five sets of three ring binders containing exhibits. Exhibits must be sequentially numbered, starting from the number 1, on the lower right side of each page.
Counsel and self-represented parties are to assign trial exhibit numbers so there are no duplicate exhibit numbers.
Counsel and self-represented parties are ordered to meet and confer so that exhibits not in dispute can be admitted at the beginning of each party’s case.
Counsel and, where applicable, parties and witnesses, shall comply with LASC Local Rules 3.70 – 3.193.

Other Orders

Dated:

_____________________
FREDERICK C. SHALLER
Judge of the Superior Court