Demurrer in NATHAN PETER RUNYON VS. PAYWARD, INC., A CALIFORNIA CORPORATION ET AL| Trellis.Law

On November 26, 2019 a Motion,Ex Parte was filed involving a dispute between Runyon, Nathan Peter, and Does 1-50, Inclusive, Ng, Kaiser, Payward, Inc., A California Corporation, for civil in the District Court of San Francisco County.

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1 Pierce Bainbridge Beck Price & Hecht LLP
Andrew E. Calderon (SBN 316673)
2 acalderon@piercebainbridge.com ELECTRONICALLY
355 South Grand Avenue, 44th Floor F I L E D
3 Los Angeles, California 90071 Superior Court of California,
County of San Francisco
Tel: (213) 262-9333
4 Fax: (213) 279-2008 03/04/2020
Clerk of the Court
BY: RONNIE OTERO
5 Christopher N. LaVigne (NY Bar No. 4811121) Deputy Clerk
(Admitted Pro Hac Vice)
6
clavigne@piercebainbridge.com
7 277 Park Avenue, 45th Floor
New York, NY 10172
8 Tel.: (646) 694-9666
Fax: (646) 968-412
9
Attorneys for Defendants Payward,
10 Inc. d/b/a Kraken and Kaiser Ng
11

12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
13

14 NATHAN PETER RUNYON, an Case No. CGC-19-581099
individual
15 Assigned to the Hon. Ethan P. Schulman
Plaintiff, Courtroom: Room 302
16
v.
DECLARATION OF ANDREW
17
PAYWARD, INC., a California CALDERON IN SUPPORT OF
18 Corporation d/b/a/ KRAKEN; and DEFENDANTS PAYWARD, INC.
KAISER NG, an individual; and D/B/A KRAKEN’S REPLY IN
19 DOES 1 through 10, inclusive SUPPORT OF DEFEDANTS’
NOTICE OF DEMURRER AND
20 Defendants. DEMURRER TO FIRST
AMENDED COMPLAINT
21

22 [Filed Concurrently with Reply in
Support of Demurrer]
23
Hearing Date: March 11, 2020
24 Hearing Time: 9:30 am
Location: Rm. 302
25
Reservation ID: 02040305-17
26
Compl. filed: November 26, 2019
27

28
–1–
Declaration of Andrew E. Calderon
1 DECLARATION OF ANDREW E. CALDERON

2 I, Andrew E. Calderon, declare as follows:

3 1. I am an attorney with Pierce Bainbridge Beck Price & Hecht LLP, counsel of record

4 for Defendants Payward, Inc., d/b/a Kraken, and Kaiser Ng (collectively “Defendants”) in this action.

5 I am admitted to the State Bar of California and am authorized to practice before this Court.

6 2. I make this Declaration in support of Defendants’ reply briefs in support of Plaintiff’s

7 Demurrer and Motion to Strike Plaintiff Nathan Runyon (“Plaintiff”)’s First Amended Complaint.

8 3. On February 6, 2020, Plaintiff’s counsel offered her client for deposition during the

9 week of the hearings on the demurrer and motion to strike. Defendants’ counsel did not immediately

10 respond as they conferred with their clients regarding Plaintiff’s offer to take Plaintiff’s deposition

11 before formal discovery had been produced and hearings had not been held on the demurrer and motion

12 to strike.

13 4. On February 10, 2020, Plaintiff’s counsel followed-up regarding their offer for

14 Plaintiff’s early deposition and also suggesting early mediation.

15 5. On February 14, 2020, Defendants’ counsel received Plaintiff’s written discovery

16 requests, including 55 requests for production encompassing broad categories of documents related to

17 many of the irrelevant and scandalous allegations contained in the FAC. A true and correct copy of

18 Plaintiff’s Requests for Production, Set One, are attached hereto as Exhibit 1.

19 6. On February 20, 2020, Defendants’ counsel responded to Plaintiff’s request and

20 informally agreed to take Plaintiff’s deposition on March 13 subject to Plaintiff producing limited

21 discovery at least five days beforehand.

22 7. On February 20, 2020, Defendants received a notice for the deposition of Payward’s

23 CEO and request to produce documents via mail. The deposition was unilaterally scheduled for April

24 15, 2020. A true and correct copy of Plaintiff’s notice of deposition and request for documents to

25 Payward’s CEO is attached hereto as Exhibit 2.

26 8. On February 21, 2020, Plaintiff’s counsel sent a castigating letter accusing Defendants’

27 counsel of violating various discovery rules in their informal correspondence regarding the conditions

28 in which Defendants would agree to take Plaintiff’s early deposition. Plaintiff’s counsel also attempted
–1–
Declaration of Andrew E. Calderon
1 to condition Plaintiff’s deposition on an agreement that depositions for Mr. Ng and Payward’s CEO

2 would proceed as noticed. Defendants’ counsel was surprised by the tone and accusatory nature of the

3 letter considering it was Plaintiff’s counsel who repeatedly tried to bait Defendants into taking

4 Plaintiff’s early deposition without any preconditions. It was also surprising that Plaintiff was now

5 attempting to make his deposition contingent on other depositions occurring when it was Plaintiff’s

6 offer—not Defendant’s request—that Plaintiff sit for an early deposition. A true and correct copy of

7 Plaintiff’s February 21 letter is attached hereto as Exhibit 3.

8 9. On February 24, 2020, Defendants’ counsel responded via email attaching requests for

9 production and a deposition notice for Plaintiff. Defendants’ counsel also explained that Plaintiff’s

10 attempt to notice the deposition of Payward’s CEO was an improper apex deposition. Plaintiff’s

11 counsel responded the same day that they would do their best to request the requested documents

12 before Plaintiff’s deposition and stating that they would move to compel the CEO’s deposition. A true

13 and correct copy of the February 6-24 email correspondence between counsel for Plaintiff and

14 Defendants is attached hereto as Exhibit 4.

15 I declare under penalty of perjury under the laws of the State of California that the foregoing

16 is true and correct and that it was executed on March 4, 2020 in Los Angeles , California.

17
___________________________
18 Andrew E. Calderon
19

28
–2–
Declaration of Andrew E. Calderon
Exhibit 1
Exhibit 2
Exhibit 3
February 21, 2020
VIA EMAIL ONLY

Christopher N. LaVigne
Andrew Calderón
355 S. Grand Avenue, 44th Floor
Los Angeles, CA 90071
clavigne@piercebainbridge.com
acalderon@piercebainbridge.com

Re: Pete Runyon v. Payward, Inc. dba Kraken, et. al.
Dear Mr. LaVigne,
On February 6, 2020, I emailed you suggesting you take my client’s deposition while you
were in California for Defendant’s Motion for Demurrer. Absent a response from you, I followed
up with you on February 10, 2020. Yet, you waited until yesterday, February 20, 2020, after the
close of business, to inform us you would take Mr. Runyon’s deposition on March 13, 2020 and
your “taking of Mr. Runyon’s deposition is conditioned upon production” of a slew of documents
no later than March 8, 2020. Your email advising us of a date for Mr. Runyon’s deposition along
with a request for a production of documents does not comply with the Code of Civil Procedure
sections 2025.220 and 2025.270. You selected a date without bothering to first a meet and
confirm with our firm, you failed to identify where and what time Mr. Runyon’s deposition
would occur and you seek a production of documents five days before the deposition can even
proceed.

Your failure to properly serve a Notice of Taking Deposition and Request for Production
of Documents twenty days before March 13, 2020, does not require my firm to accommodate
you and your demands. By simply agreeing to your request would prejudice our client from
being able to serve objections and respond within the statutory deadline afforded to him.
Moreover, there is no authority that allows you to demand a document production five days
before a deposition. In California deponents are only obligated to produce them at the time of the
deposition; or alternatively, you had every opportunity to send this list in a Request for
Production of Documents 30 days before the deposition thus providing you with the desired
documents before taking Mr. Runyon’s deposition. You failed on both fronts and sent a haughty
email demanding that we comply with your demands or a deposition would not proceed.

Irrespective of your decision to ignore the CCP and the tone of your email, our client
desires to move this case forward. As such, we are willing to produce my client for a deposition
1

100 Pine Street, Suite 1250, San Francisco, California 94111 | 415-580-6019 | claire@clairecochranlegal.com
on March 13, 2020 at 10:00 a.m. as long as you properly serve a Notice of Taking Deposition
and Request for Production of Documents no later than Monday, February 24, 20201. In an effort
to move this deposition forward in good faith, no later than March 10, 2020, we will agree to
produce Plaintiff’s Responses and Responsive Documents earlier than required under the Code.

Based on our client’s knowledge of various confidential aspects concerning Kraken and
its executives we suggest we enter into a Stipulation for a Protective Order before we proceed
with the deposition. We do not want our client to be accused of violating any alleged
“confidentiality” provisions identified in the Kraken Confidentiality Agreement he signed prior
to his employment.

Lastly, our client’s deposition may only proceed based on the understanding and
agreement that Messrs. Ng and Powell’s deposition are proceeding, as they were properly
noticed for, on April 14 and April 15, 2020.

We look forward to your response.

Law Offices of Claire Cochran, P.C.

Claire Cochran
Founder and Principal

cc: Pete Runyon

1
Pursuant to CCP section 2025.270 you are required to serve us by today, Friday, February 21, 2020,
however, as a professional courtesy we are willing to provide you with an extension of time to serve
Defendants’ Notice of Taking Deposition and Request for Production of Documents.
2

100 Pine Street, Suite 1250, San Francisco, California 94111 | 415-580-6019 | claire@clairecochranlegal.com
Exhibit 4
Tuesday, March 3, 2020 at 17:16:25 Paciﬁc Standard Time

Subject: Re: Runyon v. Payward, Inc et al.: Mo6on Appearance
Date: Monday, February 24, 2020 at 5:22:11 PM Paciﬁc Standard Time
From: Claire Cochran
To: Christopher LaVigne
CC: Natalie Xifo, Andrew Calderon

I accept service of the deposi6on no6ce via email. We will do our best to get you documents in advance of the
deposi6on per your 6meline.

I will respond to the other points tomorrow, including providing a protec6ve order.

Note, it is our conten6on that Jesse is highly relevant to this li6ga6on. We will move to compel Jesse’s deposi6on.
Our client’s deposi6on tes6mony will only further this argument.

Thank You,

--
Claire Cochran
Principal & Founder

The Law Oﬃces of Claire Cochran
100 Pine Street, Ste 1250
San Francisco, California 94111
Phone: 415-580-6019
www.clairecochranlegal.com

On Feb 24, 2020, at 5:11 PM, Christopher LaVigne wrote:

Claire and Natalie,

A]ached please ﬁnd Payward’s Requests for Produc6on of Documents and No6ce of Taking
Deposi6on of Mr. Runyon. Per our previous email, we have no6ced Mr. Runyon’s deposi6on
con6ngent on receipt of the documents iden6ﬁed in requests 9-13, 16, 18, 23, 29, and 47-58.
We ask that you produce these documents by March 9, 2020. Given the hearing on March 11, if
we do not receive these documents un6l late on March 10, we will eﬀec6vely have only a day
and half to prepare for Mr. Runyon’s deposi6on.

We agreed to take Mr. Runyon’s deposi6on and informally requested documents prior to that
deposi6on in response to your informal sugges6on that we take Mr. Runyon’s deposi6on early
while we are in San Francisco for the Court’s hearing. You neglect to men6on in your recent
le]er that your sugges6ons were made less than 30 days prior to that hearing, which was
originally scheduled for March 5, 2020. Even if we had served the no6ce of deposi6on and
requests for produc6on on February 6, Mr. Runyon’s deposi6on would have fallen before your
deadline to respond to those requests for produc6on.

You have essen6ally ﬂipped your oﬀer on its head and are now requiring that to depose Mr.
Runyon early we must serve formal no6ce of deposi6on and requests for produc6on and agree

Page 1 of 5
to Mr. Ng’s and Mr. Powell’s deposi6ons. Please conﬁrm that you will accept email service of
the a]ached no6ce and requests for produc6on on behalf of Mr. Runyon. A copy of these
documents will follow by mail.

Addi6onally, we agree to Mr. Ng’s deposi6on, though we are working to conﬁrm Mr. Ng’s
availability on April 14. However, as is clear from Defendants’ demurrer and mo6on to strike,
we do not agree to make Mr. Powell available for deposi6on as Mr. Powell is completely
irrelevant to any of Mr. Runyon’s claims. We see your a]empt to depose Mr. Powell for what it
is: an improper apex deposi6on.

Lastly, we agree that a protec6ve order make sense for both par6es in this ma]er. Do you have
a proposed protec6ve order that you have used in this court? If so, I think it makes sense for
you to send us a drai and we will review it. If not, we can drai one and send it to you.

Please conﬁrm if Mr. Runyon remains amenable to being deposed on March 13, as we need to
solidify travel plans.

Thank you,

—
Christopher N. LaVigne, Partner
Pierce Bainbridge Beck Price & Hecht LLP

277 Park Avenue, 45th Floor
New York, NY 10172
clavigne@piercebainbridge.com
P: (646) 694-9666

Boston | Cleveland | Los Angeles | New York | Washington, D.C.

This message, including attachments, is confidential and may contain information protected by the attorney-client
privilege or work product doctrine. If you are not the addressee, any disclosure, copying, distribution, or use of the
contents of this message is prohibited. If you have received this email in error, please destroy it and notify me
immediately.

From: Natalie Xifo
Date: Friday, February 21, 2020 at 5:03 PM
To: Christopher LaVigne
Cc: Claire Cochran , Andrew Calderon

Subject: Runyon v. Payward, Inc et al.: Mo6on Appearance

Dear Mr. LaVigne,

A]ached please ﬁnd correspondence of today’s date regarding the above referenced ma]er.

Page 2 of 5
On Feb 20, 2020, at 6:30 PM, Christopher LaVigne
wrote:

Claire,

Media6on is not on the table at this 6me. Regarding your client's deposi6on, we
will take his deposi6on on March 13, 2020, subject to his produc6on of the limited,
and preliminary, discovery set forth below, and without waiving our clients’
rights or prejudicing our clients’ ability to depose him again aier receiving full and
proper discovery.

Our taking of Mr. Runyon’s deposi6on is condi6oned upon produc6on, at least 5
days in advance of the deposi6on (by March 8), of the following preliminary
documents:

I. Military Service Records
a. DD Form 4—Mr. Runyon’s Armed Forces Enlistment/Reenlistment
Document
b. DD Form 2807-1—Report of Mr. Runyon’s Medical History
c. DD Form 214—Unredacted Long Form Report of Mr. Runyon’s
Separa6on from the Armed Forces
d. VA Form 21-526—Mr. Runyon’s Applica6on for Disability
Compensa6on
e. VA Form-0781—Mr. Runyon’s Statement in Support of Claim for PTSD
II.Medical Records
a. Any and all medical records that document any medical condi6on that
forms the basis of a cause of ac6on in Plain6ﬀ’s Complaint, or that
relate to any medical condi6on cons6tu6ng a disability alleged in
Plain6ﬀ’s Complaint.
b. Any and all documenta6on of any physical, emo6onal, or mental
condi6on experienced by Plain6ﬀ that required an accommoda6on
during his employment with Payward that is the subject of Plain6ﬀ’s
Complaint.
c. Any and all records of medical treatment obtained by Plain6ﬀ as the
result of any incident alleged in the Complaint.
III.Payward Documents
a. Any documents or property belonging to, issued by, or owned by
Payward, Inc., or any documents or property issued or provided to
Plain6ﬀ during his employment with Payward, Inc., retained or
possessed by Plain6ﬀ upon the expira6on of his employment with

Page 3 of 5
possessed by Plain6ﬀ upon the expira6on of his employment with
Payward, Inc.
b. Any notes or documents made or possessed by Plain6ﬀ substan6a6ng
Plain6ﬀ’s claims in his Complaint.
c. These requests should be interpreted broadly to include those items
set forth in Sec6on 2031.010 et seq. of the California Code of Civil
Procedure, as well as those items falling within the deﬁni6on of
“wri6ngs” under Sec6ons 250, 255, and 260 of the California Evidence
Code, and falling within the deﬁni6on of “electronically stored
informa6on” under Sec6on 2016.020 of the California Code of Civil
Procedure.

These limited document requests, and your produc6on to us of any of these
documents, do not operate as a waiver of any of our clients’ rights, or prejudice
our clients’ ability in any way, to propound formal requests for produc6on under
CA Code of Civil Procedure § 2031.010 et seq.

Addi6onally, we received your client’s RFPs to Payward, Inc., dated February 14,
2020. They appear to be iden6cal to those RFPs dated February 7, 2020, and
mailed to our client, but not sent to us. For purposes of responding to these RFPs,
we will treat the RFPs dated February 14 as the opera6ve requests.

Thank you,

—
Christopher N. LaVigne, Partner
Pierce Bainbridge Beck Price & Hecht LLP

277 Park Avenue, 45th Floor
New York, NY 10172
clavigne@piercebainbridge.com
P: (646) 694-9666

Boston | Cleveland | Los Angeles | New York | Washington, D.C.

This message, including attachments, is confidential and may contain information protected by the
attorney-client privilege or work product doctrine. If you are not the addressee, any disclosure, copying,
distribution, or use of the contents of this message is prohibited. If you have received this email in error,
please destroy it and notify me immediately.

Page 4 of 5
From: Claire Cochran
Date: Monday, February 10, 2020 at 9:42 AM
To: Christopher LaVigne , Natalie Xifo

Subject: Re: Mo6on Appearance

Hi Chris,

Following up on my below email, shall we get my client's deposi6on on calendar
for when you are local? Also, I need dates for your clients' deposi6ons as well. Let's
get this process moving along. Early media6on? I could have my assistant call Jams
and see if we could get in with a good mediator.

I have 6me to talk this week, what works for you?

Thanks,
--
Claire Cochran
Principal & Founder

The Law Offices of Claire Cochran
100 Pine Street, Ste 1250

San Francisco, California 94111
Phone: 415-580-6019
www.clairecochranlegal.com

This email and any ﬁles transmi0ed with it may contain conﬁden4al informa4on that is legally privileged and is intended
solely for the use of the individual or en4ty to whom they are addressed. If you are not the intended recipient, or a person
responsible for delivering it to the intended recipient, you are hereby no4ﬁed that any disclosure, copying, dissemina4on,
distribu4on, or use of any of the informa4on contained in or a0ached to this transmission is STRICTLY PROHIBITED. If you
have received this email in error please no4fy the sender by reply email and destroy the original transmission and its
a0achments without reading or saving them in any manner.

On Thu, Feb 6, 2020 at 11:42 AM Claire Cochran
wrote:
Chris,

We received your Demurrer. Would you like to kill two birds with one stone and
take my client’s deposi6on when you are here? Try to get into a media6on? Let
me know. I can get on the phone to talk about op6ons.

Thanks,

--
Claire Cochran
Principal & Founder

Page 5 of 5
The Law Oﬃces of Claire Cochran
100 Pine Street, Ste 1250

San Francisco, California 94111
Phone: 415-580-6019
www.clairecochranlegal.com

<2020-02-24 No6ce of Depo - Runyon.pdf>
<2020-02-24 Payward RFPs to Runyon, Set One.pdf>

Page 6 of 5
1 PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

3 I am over the age of 18 and not a party to this action. I am employed in the county

4 where the service occurred; my business address is 355 S. Grand Ave., 44th Floor, Los An-

5 geles, CA 90071.

6 On March 4, 2020, I caused to be served the following documents described as:
DECLARATION OF ANDREW CALDERON IN SUPPORT OF DEFENDANTS
7 PAYWARD, INC. D/B/A KRAKEN’S AND KAISER NG’S NOTICE OF
8 DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT AND
MOTION TO STRIKE
9

10 on the interested parties in this action as stated below:

11 LAW OFFICE OF CLAIRE
COCHRAN, P.C.
12 Claire E. Cochran
13 Natalie A. Xifo
100 Pine Street, Suite 1250
14 San Francisco, CA 94111
Tel: (415) 580-6019
15 Counsel for Plaintiff
16

17 [X] E-SERVICE: By electronic service through One Legal Online Services to counsel
contemporaneous with the electronic filing.
18

19 I declare under penalty of perjury under the laws of the State of California that the

20 above is true and correct

21 Executed on March 4, 2020, at Los Angeles, California.

22
_________________________
23 Grace Chang
24

Proof of Service

Case Info

Judge

Samuel K. Feng Track Judge’s New Case

Case No.

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Document Filed Date

March 04, 2020

Case Filing Date

November 26, 2019

County

Parties

CALDERON, ANDREW E. Attorney for the Defendant
COCHRAN, CLAIRE E. Attorney for the Plaintiff
DOES 1-50, INCLUSIVE Defendant
EMPLOYEE 5 Other
FORD, BRENDAN M. Attorney
LAVIGNE, CHRISTOPHER N. Attorney for the Defendant
NG, KAISER Defendant
PAYWARD, INC., A CALIFORNIA CORPORATION Defendant
RUNYON, NATHAN PETER Plaintiff
STEVENS, GREGORY W. Attorney for the Plaintiff
Natalie Xifo Attorneys for Plaintiffs
Kimberly Pallen Attorneys for Defendants
Claire Eberhard Attorney
Howard Strong Attorneys for Plaintiffs
Eduardo Dominguez Attorney
Aaron Minnis Attorney
Christopher Layne Attorney

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Motion,Ex Parte: NATHAN PETER RUNYON VS. PAYWARD, INC., A CALIFORNIA CORPORATION ET AL

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