Preview
Claire E. Cochran (SBN 222569)
Natalie A, Xifo (SBN 280930)
LAW OFFICES OF CLAIRE COCHRAN, P.C.
100 Pine Street, Suite 1250
San Francisco, CA 94111
Telephone: (415) 580-6019
Facsimile: (415) 745-3301
Attorneys for Plaintiff
NATHAN PETER RUNYON
FLL by BaD
Sept Seurtenge ene
MAR 1 4: 2020
CLERK OF THE deel :
BY jepuly Cle
SUPERIOR COURT OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
[UNLIMITED JURISDICTION]
NATHAN PETER RUNYON, an individual
Case No.: CGC-19-581099
Plaintiff, |] ORDER RE DEFENDANTS’
NOTICE OF DEMURRER TO
v. PLAINTIFF’S FIRST AMENDED
: COMPLAINT
PAYWARD, INC., a California Corporation
d/b/a KRAKEN; and KAISER NG an Date: March 11, 2020
individual; and DOES 1-50, inclusive Time: 9:30 a.m.
Dept.: 302
Defendants.
ORDER
Defendants’, PAYWARD, INC. d/b/a KRAKEN (“Payward”) and KAISER NG (“Ng”)
(collectively hereafter “Defendants”) Notice of Demurrer to Plaintiff's, NATHAN PETER
RUNYON, (“Plaintiff”) First Amended Complaint in the above entitled action came on for hearing
on March 11, 2020 at 8:30 a.m. in Department 302 of the San Francisco Superior Court. Plaintiff
appeared through his attorney of record, Claire Cochran, Esq. of Law Offices of Claire Cochran,
P.C. Defendants appeared through their attorney Christopher LaVigne (admitted Pro Hac Vice).
Upon considering Defendants’ Notice of Demurrer, the Declaration of Andrew Calderon,
Esq., the Memorandum of Points and Authorities, Plaintiffs opposition and Defendants’ Reply
pleadings it appears to the satisfaction of the Court that Defendants Demurrer is overruled as to the
1
[22.8P-SSER] ORDER RE DEFENDANTS’ NOTICE OF DEMURRER
RUNYON v. PAYWARD, INC, and KAISER NG
CASE NO. CGC-19-581099Co me ND WH RF YW YY
Rw oN NNN Se we Se oe oe ee
second through tenth causes of action, and is sustained with 20 days leave to amend as to the
eleventh cause of action.
1. Defendants’ demurrer to all the FEHA causes of action on the basis of Plaintiffs
alleged disability is overruled. “To survive a demurrer, the complaint need only allege facts
sufficient to state a cause of action; each evidentiary fact that might eventually form part of the
plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53
Cal.4th 861, 872.) Plaintiff's allegations are sufficient, and Defendants do not cite authority holding
otherwise. First, Plaintiff adequately alleges that he has a disability. “Runyon set up his [Human
Resources software system] and added his . . . disabled veteran status. Runyon has been diagnosed
with depression and anxiety.” (FAC { 36; see also id. § 39 [“depression, insomnia and anxiety”].)
Contrary to Defendants’ contention, Rope v. Auto-Chlor System of Washington, Inc. (2013) 220
Cal.App.4th 635, superseded by statute on other grounds, does not support their position, since
there the plaintiff did not allege that he was physically disabled, but “only that he anticipated
becoming disabled for some time after the organ donation.” (Jd, at 659.) Defendants do not show
that as a matter of law the conditions from which Plaintiff alleges he suffers are not disabilities
under FEHA. (See, e.g., Auburn Woods | Homeowners Ass’n v. FEHC (2004) 121 Cal.App.4th
1578, 1592-1593 [“Numerous cases under state and federal law have held that depression and its
related manifestations can meet the definition of disability under antidiscrimination laws.”].)
Defendants’ arguments raise issues of fact that are improper at this stage. (See Kailikole v. Palomar
Cmty. Coll. Dist. (S.D. Cal. 2019) 384 F.Supp.3d 1185, 1193 [The Court declines to make a
factual determination as to whether the Plaintiff’s anxiety was severe enough to qualify” as a limit
on major life activity in review of a motion to dismiss]; cf. Higgins-Williams v. Sutter Medical
Foundation (2015) 237 Cal.App.4th 78, 83-86 [case decided on summary judgment, not at the
demurrer stage].) In any event, Plaintiff adequately alleges that his disability limited his ability to
participate in a major life activity such as work. (See Soria v. Univision Radio Los Angeles,
Inc. (2016) 5 Cal.App.5th 570, 587 [where pleading adequately put defendant on notice that
plaintiff claimed discrimination based on an ailment that limited a major life activity, it was
defendant’s obligation through discovery to learn she factual grounds for this theory of liability
[PROPOSED] ORDER RE DEFENDANTS’ NOTICE OF DEMURRER
RUNYON v. PAYWARD, INC. and KAISER NG
CASE NO. CGC-19-581099before moving for summary judgment].) Second, Plaintiff sufficiently alleges defendants’
knowledge of his disability. “Kraken knew Plaintiff had a medical disability.” (FAC § 51; see
also id. 36 [allegation that defendant Ng commented on plaintiff's disabled veteran status].)
Defendants do not cite any authority supporting their argument that more details, including how the
employer had knowledge, are required at the pleading stage.
2. Defendants’ demurrer to the fifth cause of action for retaliation in violation of FEHA
is overruled. The court rejects Defendants’ argument that Plaintiff did not engage in protected
activity. Government Code section 12940(m) makes it an unlawful employment practice “[fJor an
employer or other entity covered by this part to, in addition to the employee protections provided
pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting
accommodation under this subdivision, regardless of whether the request was granted.” In enacting
this provision in 2015, the Legislature made clear that a request for an accommodation constitutes
protected activity. (See Moore v. Regents of University of California (2016) 248 Cal.App.4th 216,
245-246.) Defendant’s reliance on the holding in Moore (Dem. at 9) is misplaced, since the
retaliation claim involved there arose out of conduct that occurred before that amendment was
enacted. (See id. at 246-248 [Because the recent amendment is prospective in application, in
2011, at the time Moore alleges Defendant engaged in the asserted retaliation, the law was
consistent with the holding of Rope ....”].) Here, Plaintiff alleges that in July 2019, he identified a
medical condition and attempted to exercise his paid time off to manage the side effects of his
disability, and was terminated in retaliation for doing so. (FAC J 39, 76.)
3. Defendants’ demurrer to the eighth cause of action for breach of the covenant of
good faith and fair dealing is overruled. Defendants argue that termination in an at-will employment
cannot be the basis of a breach. However, Plaintiff also alleges that “Defendants . . . altered the
terms and conditions of Plaintiff's employment through various new and different duties...” (FAC
{ 100.) Defendants provide no argument that such allegations are insufficient to state a claim. Thus,
the cause of action is not susceptible to demurrer, as Defendants fail to meet their burden to show
that no theory alleged is sufficient to support a breach of covenant claim. (See Quelimane Co. v.
Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 [“If the complaint states a cause of action
[22228SED]-ORDER RE DEFENDANTS’ NOTICE OF DEMURRER
RUNYON vy. PAYWARD, INC. and KAISER NG
CASE NO. CGC-19-581099Cm NY DH BR WH
No oN NN NB Be Be Be Be eB ewe em Se ke
BRRAERBBKRHEBRSESEWRBDRESERAS
under any theory, regardless of the title under which the factual basis for relief is stated, that aspect
of the complaint is good against a demurrer.”]; Daniels v. Select Portfolio Servicing, Inc. (2016)
246 Cal.App.4th 1150, 1167 [“Ordinarily, a general demurrer may not be sustained . . . as to a
portion of a cause of action.”].)
4. Defendants’ demurrer to the ninth cause of action for wrongful termination in
violation of Labor Code § 1102.5 is overruled. Plaintiff's allegations are sufficient. “Plaintiff
engaged in a protected activity of reporting that the CEO’s decision to unilaterally make changes in
the stock options program . . . was illegal.” (FAC 105.) Defendants provide no support for their
argument that identification of a specific rule or statute that supports the illegality of the behavior
complained about is a pleading requirement. (Cf. Love v. Motion Industries, Inc. (N.D. Cal. 2004)
309 F.Supp.2d 1128, 1134-1135 [case decided on summary judgment].)
5. Defendants’ demurrer to the tenth cause of action for wrongful termination in
violation of public policy is overruled. “The relevant authorities both in California and throughout
the country establish that when an employer’s discharge of an employee violates fundamental
principles of public policy, the discharged employee may maintain a tort action and recover
damages traditionally available in such actions.” (Tameny v. Atl. Richfield Co. (1980) 27 Cal. 3d
167, 170.) Plaintiffs claim here is termination for whistleblowing regarding allegedly illegal
activity, which is protected under Lab. Code § 1102.5. (FAC { 112.) Defendants do not cite any
authority holding that § 1102.5’s protections, as a matter of law, are not ones of public policy, and
ignore on-point authority that holds otherwise. (See, e.g., Diego v. Pilgrim United Church of
Christ (2014) 231 Cal.App.4th 913, 922-23 [“the Supreme Court has stated that the purpose of
section 1102.5(b) ‘is to “encourag[e] workplace whistle-blowers to report unlawful acts without
fearing retaliation.”””]; McVeigh v. Recology S.F. (2013) 213 Cal.App.4th 443, 468 [“California's
general whistleblower statute . . reflects the broad public policy interest in encouraging workplace
whistle-blowers to report unlawful acts without fearing retaliation.”].)
6. Defendants’ demurrer to the eleventh cause of action for intentional infliction of
emotional distress is sustained with leave to amend. “In order to avoid a demurrer, the plaintiff
must allege with ‘great[ ] specificity’ the acts whigh he or she believes are so extreme as to exceed
{PROPRESED] ORDER RE DEFENDANTS’ NOTICE OF DEMURRER
RUNYON v. PAYWARD, INC. and KAISER NG
CASE NO, CGC-19-58109918
all bounds of that usually tolerated in a civilized community.” (Vasquez v. Franklin Mgmt. Real
Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) The complaint generally alleges only that
“Defendants engaged in outrageous . . . conduct.” (FAC 116.) Plaintiffs opposition argues that
numerous acts are alleged throughout the complaint, and incorporated in the cause of action for
IIED, such as “being regularly harassed . . . being required to not sleep but take courses . . . [and]
being mocked...” (PIf.’s Opp. 15:11-13.) However, “(liability for intentional infliction of
emotional distress does not extend to mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities.” (Baker v. Fox & Assoc. (2015) 240 Cal.App.4th 333, 355; see
also Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 945-946 [neither supervisor’s
“inappropriate but not severe” comments regarding plaintiff's obesity nor his official actions rose to
the level of “outrageous conduct beyond the bounds of human decency”); Janken v. GM Hughes
Electronics (1996) 46 Cal.App.4th 55, 80 [personnel management decisions” cannot support a
claim of ITED even if undertaken with discriminatory motive].) These allegations fail to constitute a
cause of action for ITED. Plaintiff has 20 days leave to amend.
IT IS SO ORDERED.
vatea: MY //. Lyw Fh wij
f 7 YODGE OF THE SUPERIOR COURT
ETHAN P. SCHULMAN
5
{PROPOSED] ORDER RE DEFENDANTS’ NOTICE OF DEMURRER
RUNYON v. PAYWARD, INC. and KAISER NG
CASE NO. CGC-19-581099
Preview
Claire E. Cochran (SBN 222569) Natalie A, Xifo (SBN 280930) LAW OFFICES OF CLAIRE COCHRAN, P.C. 100 Pine Street, Suite 1250 San Francisco, CA 94111 Telephone: (415) 580-6019 Facsimile: (415) 745-3301 Attorneys for Plaintiff NATHAN PETER RUNYON FLL by BaD Sept Seurtenge ene MAR 1 4: 2020 CLERK OF THE deel : BY jepuly Cle SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO [UNLIMITED JURISDICTION] NATHAN PETER RUNYON, an individual Case No.: CGC-19-581099 Plaintiff, |] ORDER RE DEFENDANTS’ NOTICE OF DEMURRER TO v. PLAINTIFF’S FIRST AMENDED : COMPLAINT PAYWARD, INC., a California Corporation d/b/a KRAKEN; and KAISER NG an Date: March 11, 2020 individual; and DOES 1-50, inclusive Time: 9:30 a.m. Dept.: 302 Defendants. ORDER Defendants’, PAYWARD, INC. d/b/a KRAKEN (“Payward”) and KAISER NG (“Ng”) (collectively hereafter “Defendants”) Notice of Demurrer to Plaintiff's, NATHAN PETER RUNYON, (“Plaintiff”) First Amended Complaint in the above entitled action came on for hearing on March 11, 2020 at 8:30 a.m. in Department 302 of the San Francisco Superior Court. Plaintiff appeared through his attorney of record, Claire Cochran, Esq. of Law Offices of Claire Cochran, P.C. Defendants appeared through their attorney Christopher LaVigne (admitted Pro Hac Vice). Upon considering Defendants’ Notice of Demurrer, the Declaration of Andrew Calderon, Esq., the Memorandum of Points and Authorities, Plaintiffs opposition and Defendants’ Reply pleadings it appears to the satisfaction of the Court that Defendants Demurrer is overruled as to the 1 [22.8P-SSER] ORDER RE DEFENDANTS’ NOTICE OF DEMURRER RUNYON v. PAYWARD, INC, and KAISER NG CASE NO. CGC-19-581099Co me ND WH RF YW YY Rw oN NNN Se we Se oe oe ee second through tenth causes of action, and is sustained with 20 days leave to amend as to the eleventh cause of action. 1. Defendants’ demurrer to all the FEHA causes of action on the basis of Plaintiffs alleged disability is overruled. “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Plaintiff's allegations are sufficient, and Defendants do not cite authority holding otherwise. First, Plaintiff adequately alleges that he has a disability. “Runyon set up his [Human Resources software system] and added his . . . disabled veteran status. Runyon has been diagnosed with depression and anxiety.” (FAC { 36; see also id. § 39 [“depression, insomnia and anxiety”].) Contrary to Defendants’ contention, Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, superseded by statute on other grounds, does not support their position, since there the plaintiff did not allege that he was physically disabled, but “only that he anticipated becoming disabled for some time after the organ donation.” (Jd, at 659.) Defendants do not show that as a matter of law the conditions from which Plaintiff alleges he suffers are not disabilities under FEHA. (See, e.g., Auburn Woods | Homeowners Ass’n v. FEHC (2004) 121 Cal.App.4th 1578, 1592-1593 [“Numerous cases under state and federal law have held that depression and its related manifestations can meet the definition of disability under antidiscrimination laws.”].) Defendants’ arguments raise issues of fact that are improper at this stage. (See Kailikole v. Palomar Cmty. Coll. Dist. (S.D. Cal. 2019) 384 F.Supp.3d 1185, 1193 [The Court declines to make a factual determination as to whether the Plaintiff’s anxiety was severe enough to qualify” as a limit on major life activity in review of a motion to dismiss]; cf. Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 83-86 [case decided on summary judgment, not at the demurrer stage].) In any event, Plaintiff adequately alleges that his disability limited his ability to participate in a major life activity such as work. (See Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 587 [where pleading adequately put defendant on notice that plaintiff claimed discrimination based on an ailment that limited a major life activity, it was defendant’s obligation through discovery to learn she factual grounds for this theory of liability [PROPOSED] ORDER RE DEFENDANTS’ NOTICE OF DEMURRER RUNYON v. PAYWARD, INC. and KAISER NG CASE NO. CGC-19-581099before moving for summary judgment].) Second, Plaintiff sufficiently alleges defendants’ knowledge of his disability. “Kraken knew Plaintiff had a medical disability.” (FAC § 51; see also id. 36 [allegation that defendant Ng commented on plaintiff's disabled veteran status].) Defendants do not cite any authority supporting their argument that more details, including how the employer had knowledge, are required at the pleading stage. 2. Defendants’ demurrer to the fifth cause of action for retaliation in violation of FEHA is overruled. The court rejects Defendants’ argument that Plaintiff did not engage in protected activity. Government Code section 12940(m) makes it an unlawful employment practice “[fJor an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.” In enacting this provision in 2015, the Legislature made clear that a request for an accommodation constitutes protected activity. (See Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 245-246.) Defendant’s reliance on the holding in Moore (Dem. at 9) is misplaced, since the retaliation claim involved there arose out of conduct that occurred before that amendment was enacted. (See id. at 246-248 [Because the recent amendment is prospective in application, in 2011, at the time Moore alleges Defendant engaged in the asserted retaliation, the law was consistent with the holding of Rope ....”].) Here, Plaintiff alleges that in July 2019, he identified a medical condition and attempted to exercise his paid time off to manage the side effects of his disability, and was terminated in retaliation for doing so. (FAC J 39, 76.) 3. Defendants’ demurrer to the eighth cause of action for breach of the covenant of good faith and fair dealing is overruled. Defendants argue that termination in an at-will employment cannot be the basis of a breach. However, Plaintiff also alleges that “Defendants . . . altered the terms and conditions of Plaintiff's employment through various new and different duties...” (FAC { 100.) Defendants provide no argument that such allegations are insufficient to state a claim. Thus, the cause of action is not susceptible to demurrer, as Defendants fail to meet their burden to show that no theory alleged is sufficient to support a breach of covenant claim. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 [“If the complaint states a cause of action [22228SED]-ORDER RE DEFENDANTS’ NOTICE OF DEMURRER RUNYON vy. PAYWARD, INC. and KAISER NG CASE NO. CGC-19-581099Cm NY DH BR WH No oN NN NB Be Be Be Be eB ewe em Se ke BRRAERBBKRHEBRSESEWRBDRESERAS under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.”]; Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167 [“Ordinarily, a general demurrer may not be sustained . . . as to a portion of a cause of action.”].) 4. Defendants’ demurrer to the ninth cause of action for wrongful termination in violation of Labor Code § 1102.5 is overruled. Plaintiff's allegations are sufficient. “Plaintiff engaged in a protected activity of reporting that the CEO’s decision to unilaterally make changes in the stock options program . . . was illegal.” (FAC 105.) Defendants provide no support for their argument that identification of a specific rule or statute that supports the illegality of the behavior complained about is a pleading requirement. (Cf. Love v. Motion Industries, Inc. (N.D. Cal. 2004) 309 F.Supp.2d 1128, 1134-1135 [case decided on summary judgment].) 5. Defendants’ demurrer to the tenth cause of action for wrongful termination in violation of public policy is overruled. “The relevant authorities both in California and throughout the country establish that when an employer’s discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions.” (Tameny v. Atl. Richfield Co. (1980) 27 Cal. 3d 167, 170.) Plaintiffs claim here is termination for whistleblowing regarding allegedly illegal activity, which is protected under Lab. Code § 1102.5. (FAC { 112.) Defendants do not cite any authority holding that § 1102.5’s protections, as a matter of law, are not ones of public policy, and ignore on-point authority that holds otherwise. (See, e.g., Diego v. Pilgrim United Church of Christ (2014) 231 Cal.App.4th 913, 922-23 [“the Supreme Court has stated that the purpose of section 1102.5(b) ‘is to “encourag[e] workplace whistle-blowers to report unlawful acts without fearing retaliation.”””]; McVeigh v. Recology S.F. (2013) 213 Cal.App.4th 443, 468 [“California's general whistleblower statute . . reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without fearing retaliation.”].) 6. Defendants’ demurrer to the eleventh cause of action for intentional infliction of emotional distress is sustained with leave to amend. “In order to avoid a demurrer, the plaintiff must allege with ‘great[ ] specificity’ the acts whigh he or she believes are so extreme as to exceed {PROPRESED] ORDER RE DEFENDANTS’ NOTICE OF DEMURRER RUNYON v. PAYWARD, INC. and KAISER NG CASE NO, CGC-19-58109918 all bounds of that usually tolerated in a civilized community.” (Vasquez v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) The complaint generally alleges only that “Defendants engaged in outrageous . . . conduct.” (FAC 116.) Plaintiffs opposition argues that numerous acts are alleged throughout the complaint, and incorporated in the cause of action for IIED, such as “being regularly harassed . . . being required to not sleep but take courses . . . [and] being mocked...” (PIf.’s Opp. 15:11-13.) However, “(liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Baker v. Fox & Assoc. (2015) 240 Cal.App.4th 333, 355; see also Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 945-946 [neither supervisor’s “inappropriate but not severe” comments regarding plaintiff's obesity nor his official actions rose to the level of “outrageous conduct beyond the bounds of human decency”); Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80 [personnel management decisions” cannot support a claim of ITED even if undertaken with discriminatory motive].) These allegations fail to constitute a cause of action for ITED. Plaintiff has 20 days leave to amend. IT IS SO ORDERED. vatea: MY //. Lyw Fh wij f 7 YODGE OF THE SUPERIOR COURT ETHAN P. SCHULMAN 5 {PROPOSED] ORDER RE DEFENDANTS’ NOTICE OF DEMURRER RUNYON v. PAYWARD, INC. and KAISER NG CASE NO. CGC-19-581099