Motion to Strike Initial Pleading in NATHAN PETER RUNYON VS. PAYWARD, INC., A CALIFORNIA CORPORATION ET AL| Trellis.Law

On November 26, 2019 a Complaint,Petition 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 Deputy Clerk
Pierce Bainbridge Beck Price & Hecht LLP
6 Christopher N. LaVigne (NY Bar No. 4811121)
(Admitted Pro Hac Vice)
7 clavigne@piercebainbridge.com
277 Park Avenue, 45th Floor
8
New York, NY 10172
9 Tel.: (646) 694-9666
Fax: (646) 968-412
10
Attorneys for Defendants Payward,
11 Inc. d/b/a Kraken and Kaiser NG

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

16 NATHAN PETER RUNYON, an Case No. CGC-19-581099
individual
17 Assigned to the Hon. Ethan P. Schulman
Plaintiff, Courtroom: Room 302
18
v. REPLY IN SUPPORT OF
19 DEFENDANTS PAYWARD, INC.
PAYWARD, INC., a California
Corporation d/b/a/ KRAKEN; and D/B/A KRAKEN’S AND KAISER
20
Kaiser NG, an individual; and NG’S MOTION TO STRIKE
21 DOES 1 through 10, inclusive IRRELEVANT, FALSE OR
IMPROPER MATTER IN THE
22 Defendants. FIRST AMENDED COMPLAINT

23 Hearing Date: March 11, 2020
Hearing Time: 9:30 am
24 Location: Rm. 302
Reservation ID: 02040305-17
25
Compl. filed: November 26, 2019
26 FAC filed: January 6, 2020
27

Reply ISO Defendants’ Motion to Strike
1 I. INTRODUCTION

2 Defendants’ Motion to Strike (“MTS”) is straightforward. It highlights numerous scandalous-

3 sounding and vague allegations that are irrelevant to Plaintiff’s causes of action. In opposing the

4 Motion to Strike, Plaintiff never once illustrates how these allegations are relevant, let alone “funda-

5 mental to Plaintiff’s pleading.” Instead, the Opposition admits the entire point of Defendants’ Mo-

6 tion: the allegations subject to the motion to strike are immaterial to Plaintiff’s discrimination, retal-

7 iation, whistleblower, wrongful termination, or breach of contract causes of action. Plaintiff includes

8 them because they sound salacious and to improperly expand the scope of discovery.

9 Specifically, Plaintiff admits to including allegations immaterial to his causes of action in

10 order to imply that Defendants engaged in amorphous financial crimes (“cooking the books” and

11 “embezzlement”) and to seek improper apex witness discovery from Payward’s Chief Executive Of-

12 ficer, who is neither a defendant nor alleged to be involved in the actions underlying Plaintiff’s causes

13 of action.1 Accordingly, the Court should disallow Plaintiff’s attempt to plead “his entire employ-

14 ment experience with Defendants” and grant Defendants’ motion to strike the immaterial allegations

15 from the First Amended Complaint (“FAC”) and Complaint.

16 II. ARGUMENT

17 A. Plaintiff Does Not, Because He Cannot, Establish Why Inclusion of Pay-
ward’s Physical Address is Necessary to Establish Jurisdiction or Why Inclu-
18 sion of that Address Does Not Violate Plaintiff’s Confidentiality Agreement
19 At the outset, Plaintiff argues that Defendants failed to suggest during the meet-and-confer
20 process that its confidential physical address should be stricken. Plaintiff claims that he first learned
21 about Plaintiff’s objection when Payward filed its Motion to Strike. This is false. Payward notified
22 Plaintiff on December 19, 2020, of its intent to strike the physical address. (See Decl. of Natalie Xifo,
23 Ex. A at 2.). The Parties first conferred over this Motion on December 27, 2020, and Defendants
24 noted their objection to the FAC’s inclusion of Payward’s physical address. On the same day, Plain-
25 tiff acknowledged this objection in writing and explained that the “the statement regarding the
26

27 1
Plaintiff makes one reference to the “CEO” relative to his causes of action in paragraph 105 of the
FAC. But as noted in Defendants’ Motion, we believe that was a typo intended to refer to CFO Kai-
28 ser Ng. (Demurrer at 12 n.8.) Strangely, Plaintiff’s Opposition never clarifies the matter.
–1–
Reply ISO Defendants’ Motion to Strike
1 business address is to address venue and jurisdiction issues.” (See id., Ex. B at 3.) In case any doubt

2 remains, Defendants followed this exchange with a January 20, 2019 meet-and-confer letter, which

3 clearly states that Defendants intend to strike Payward’s physical address, which is not essential “to

4 establish jurisdiction” and is included solely to prejudice Defendants. (See id., Ex. C at 2.) As evident

5 from the citations Defendant supplies to these e-mails, Plaintiff now attaches them to his Opposition,

6 claiming it supports his argument that he was blindsided by Defendants’ address concerns. Plaintiff

7 clearly received notice Defendants intended to strike the address. 2

8 While it is troubling that Plaintiff would dissemble on this procedural point, it also bears no

9 ultimate relevance to whether the Court should strike the address. On the substance of Defendants’

10 address concerns, Plaintiff fails to address Defendants’ argument that Plaintiff need not include the

11 address to establish the Court’s jurisdiction. (MTS at 3:6-11.) Instead, Plaintiff suggests that De-

12 fendants must show that they have been hacked due to the disclosure. This argument misses the

13 point: Payward has legitimate security concerns and, accordingly, keeps its physical address confi-

14 dential. (See MTS at 2:15-3:1, 8:10-25 (setting forth press and SEC articles documenting the threat

15 faced by cryptocurrency exchanges).) Plaintiff’s unnecessary address disclosure has forced Payward

16 to adopt additional expensive security measures. (MTS at 3:9-11.) That Payward has not been hacked

17 is a testament to those efforts. It is not a reason to allow the address to remain publicly viewable in

18 Plaintiff’s pleadings.

19 While pursuing questionably relevant points about the meet-and-confer process and Defend-

20 ants’ security exposure, Plaintiff never addresses the fundamental point: Is there any legitimate reason

21 to include Defendants’ physical address in the Complaint? Because the FAC adequately establishes

22 jurisdiction by alleging that Payward is a “corporation based in San Francisco” and has a San Fran-

23 cisco mailing address, and because publishing Payward’s physical address presents an ongoing secu-

24 rity concern, the Court should remove this address from the pleadings. See Overstock.com, Inc. v.

25 Goldman Sachs Grp., Inc., 231 Cal. App. 4th 471, 500 (2014) (holding confidential materials may be

27 2
Plaintiff’s complaints about the meet-and-confer process are unfounded and duplicitous and should
be rejected. (See Reply in Support of Demurrer at 10:10-25; infra at 5:8-9, 9:20-22.)
28
–2–
Reply ISO Defendants’ Motion to Strike
1 stricken from the complaint).3

2 B. Plaintiff Admits His Allegations Regarding Payward Executives’ Purported
Personal Relationship Do Not Support Any of His Claims
3
Plaintiff does not dispute that the allegations regarding a purported relationship between Pay-
4
ward’s CBO and CEO bear no relevance to his FEHA claims. Moreover, Plaintiff’s Opposition
5
makes clear these allegations cannot support his California Labor Code § 1102.5 claims. As Defend-
6
ants’ Demurrer explains, a whistleblower claim under § 1102.5 requires that Plaintiff allege “a vio-
7
lation of state or federal statute, or . . . local, state, or federal rule or regulation” that he disclosed to
8
Defendants. Cal. Labor Code § 1102.5(b)-(c). (Demurrer at 11-12 (citing Love v. Motion Indus., Inc.,
9
309 F. Supp. 2d 1128, 1134 (N.D. Cal. 2004) (“Section 1102.5(b) requires the disclosure of a state or
10
federal violation.”)).) This is important: Plaintiff must allege that Defendants are violating the law,
11
not merely doing bad things. He must allege that he objected. And he must allege that he was pun-
12
ished for it. If any of these links in the chain are missing, then it is simply not a whistleblower
13
allegation and it should be struck as irrelevant.
14
Plaintiff never alleges any legal violation in his pleadings and never does so in his Opposition.
15
Instead, Plaintiff restates his conclusory allegation that this purported personal relationship “could
16
create a conflict of interest and issues with the SEC.” (Opp. to MTS at 4:4-5.) Plaintiff never iden-
17
tifies what conflict of interest this purported relationship presents or what “issue” it raises with the
18
SEC.4 This is fatal to Plaintiff’s position: He simply never points to a law that Defendants violated,
19
despite clear caselaw obliging him to do so. See Love, 309 F. Supp. 2d at 1134. And while a different
20
claim might require the further discovery that Plaintiff seeks, when Plaintiff files a whistleblower
21
claim, he is saying that he believed Defendants were violating a statute, rule, or regulation and argued
22
they should stop. If Plaintiff cannot specify the law he believed Defendants are violating now, then
23

24 3
Plaintiff acknowledges the court in Overstock held confidential company materials should have
25 been stricken from the pleadings. (Opp. to MTS at 7:6-8.)
4
In his Opposition—not his Complaint—Plaintiff insinuates there was “an SEC filing that may have
26 related to personal relationships.” (Opp. to MTS at 4:12.) But Defendants acknowledge this filing in
their Motion—indeed, that is apparently how Plaintiff discovered it—and explain that only SEC-
27 registered companies need disclose such purported relationships. (MTS at n.8.) Even with this filing
in hand, Plaintiff notably never points to the law or regulation this alleged personal relationship vio-
28 lated.
–3–
Reply ISO Defendants’ Motion to Strike
1 he clearly did not do it then.

2 Plaintiff’s Opposition also attempts to suggest—though never outright say, because it would

3 run counter to his pleadings—that he raised his concern with Mr. Ng. (Opp. to MTS at 4:15-17.) But

4 the FAC never says that. It says that Plaintiff was concerned about the purported relationship, but

5 never suggests that he voiced his concerns. (FAC ¶ 27.) No matter how loudly Plaintiff thought his

6 concerns, whistleblowing requires that Plaintiff blow the whistle, and he never claims that he did so.

7 Plaintiff attempts to distinguish Oiye and Warner because the former case involved sealing

8 medical records and not a motion to strike pleadings under California Code of Civil Procedure §§

9 435 & 436, and the latter struck a declaration that attacked the reputation and integrity of a party’s

10 lawyer. (Opp. to MTS at 4:20-5:27.) But those cases make clear that “Courts have inherent authority

11 to strike scandalous and abusive statements in pleadings. . . . upon a motion made pursuant to Section

12 435, or at any time in its discretion, and upon terms it deems proper.” Oiye v. Fox, 211 Cal. App. 4th

13 1036, 1070, (2012). Defendants are asking the Court for exactly that. The allegations here are irrel-

14 evant and “contain highly sensitive and potentially embarrassing personal information about individ-

15 uals.” Id. As the court in Warner noted, “[i]t is common practice to strike from the record and

16 suppress matter,” including from “pleadings,” “briefs,” and “other records,” that is “offensive, scan-

17 dalous, scurrilous, and defamatory [and] wholly unnecessary to the proof of defendant’s case.”

18 Warner v. Warner, 135 Cal. App. 2d 302, 303-04 (1955). Plaintiff may dislike the CBO because she

19 allegedly threatened his “livelihood,” but that dislike bears no connection to discrimination based on

20 his veteran status or alleged disability, the alleged breach of contract, or any disclosure of a state or

21 federal violation pursuant to § 1102.5. Accordingly, the Court should strike the allegations regarding

22 this purported personal relationship.

23 C. Plaintiff Admits Using these Immaterial Allegations, Including Allegations
Regarding Payward’s Internet Issues in Order to Improperly Seek Apex
24 Discovery From Payward’s Non-Party Executives
25 Tellingly, instead of explaining how Plaintiff’s allegations regarding his complaints to
26
Payward’s CBO—who is not a defendant and has not been accused of wrongdoing—about “poor and
27
slow internet connections in the office” are relevant to any of his causes of action, Plaintiff admits
28
–4–
Reply ISO Defendants’ Motion to Strike
the true purpose of including this allegation and all of the other extraneous factual allegations at issue
1

2 in the Motion to Strike—which Plaintiff makes no real effort to connect to any of his legal claims—

3 are intended as a toehold to seek discovery from Payward’s senior executives, including Payward’s

4 CBO and CEO. (Opp. to MTS at 6:8-26.) True to form, Plaintiff has already issued extensive
5
discovery requests to the CEO and noticed his deposition. Additionally, Plaintiff tried to make his
6
own deposition contingent on the CEO agreeing to be deposed. (March 4 Calderón Decl. ¶ 8.)
7
Plaintiff is now making a premature motion to compel, when the parties have not yet met and
8
conferred on these discovery requests.5
9

10 Moreover, Plaintiff is simply wrong that he is entitled to “broad discovery” from “senior level

11 management.” (Opp. to MTS at 6.) Plaintiff completely ignores California’s well-established Apex
12 Witness Doctrine, which protects “a corporate president, or corporate officer at the apex of the
13
corporate hierarchy,” from discovery “absent a reasonable indication of the officer’s personal
14
knowledge of the case and absent exhaustion of less intrusive discovery methods. Liberty Mut. Ins.
15
Co. v. Superior Court, 10 Cal. App. 4th 1282, 1287 (1992). Here, the pleadings contain no allegations
16

17 that the CEO was involved with or has any material knowledge whatsoever of the alleged incidents

18 supporting his FEHA discrimination and retaliation claims or breach of contract claims. 6

19 Plaintiff’s actions demonstrate that he intends to wield discovery as a cudgel to exert
20 maximum pain on Defendants, regardless whether the discovery bears any connection to his legal
21
claims. While Plaintiff takes issue with having to respond to Defendants’ motions (and with
22
Defendants’ “tone”), the Court should truly be concerned about Plaintiff’s wrongful attempt to drag
23

24 5
The irony of this should not be lost on the Court. Plaintiff spends his Opposition wrongly accusing
25 Defendants of failing to fulfill their meet and confer obligations, and then attempts to shoehorn a
premature motion to compel into his Opposition to the MTS.
26 6
Plaintiff makes one conclusory allegation “that the CEO’s decision to unilaterally make changes
in the stock options program . . . did not accurately reflect the correct vesting schedule.” (FAC ¶
27 105.) Defendants believe this is a typo, as the rest of the Complaint attributes these actions to Pay-
ward’s CFO Kaiser Ng. (See Demurrer at 12.) Plaintiff’s failure to address the issue in his Opposi-
28 tion papers indicates it is a typo.
–5–
Reply ISO Defendants’ Motion to Strike
“senior executives into discovery” in order to gain an advantage in this litigation. (MTS at 10:10-
1

2 18.) Because Plaintiff has not attempted to explain why the allegations regarding his complaints

3 about Payward’s internet connection are relevant to his causes of action, these allegations should be

4 stricken. Mercury Interactive Corp. v. Klein, 158 Cal. App. 4th 60 n. 35 (2007) (observing that
5
unnecessary content in a complaint that went beyond “an allegation of the ultimate facts” should have
6
been stricken); see also Coal. Against Police Abuse v. Superior Court, 170 Cal. App. 3d 888, 901
7
(1985) (noting that courts should prevent discovery of “information that not only is irrelevant but if
8
publicly released could be damaging to reputation and privacy”).
9

10 D. Plaintiff’s Allegations Regarding Non-Party Employee Incompetence Are
Not Relevant and Should be Stricken
11
Plaintiff argues the allegations regarding two allegedly incompetent non-party Payward
12
employees (see, e.g., FAC ¶¶ 18-19, 21) are relevant because they relate “to his entire employment
13
experience.” (Opp. to MTS at 7:8-10.) Again, this kitchen-sink pleading approach cuts directly
14
against California’s requirement that Plaintiff’s pleadings contain a “statement of the facts
15
constituting the cause of action, in ordinary and concise language.” Mercury Interactive Corp., 158
16
Cal. App. 4th at 60, n. 35 (2007) (citing Cal. Code Civ. Pro. § 425.10). The notion that by excluding
17
these employees’ names from the pleadings Plaintiff has protected their identities from being revealed
18
through discovery, summary judgment, and trial is unfounded.
19
Plaintiff further argues these allegations demonstrate he was not terminated for work product
20
issues. But the pleadings are replete with other instances of Plaintiff’s alleged competence and work
21
ethic, and the particular allegations regarding other employees’ alleged incompetence are
22
unnecessary, irrelevant, and designed to malign Defendants. Accordingly, the Court should strike
23
these allegations. See id. (stating the trial court should have struck allegations containing “far more
24
than simply an allegation of the ultimate facts ‘in ordinary and concise language’ setting forth the
25
cause of action” and that contained “irrelevant, . . . or improper matter”).
26

28
–6–
Reply ISO Defendants’ Motion to Strike
E. Plaintiff Again Reveals His Allegations Regarding Gendered Bathrooms are
1 Irrelevant and Serve as a Platform for Unwarranted Discovery
2 Plaintiff’s argument as to why his allegations regarding Payward’s refusal to install genderless
3 bathrooms (see, e.g., FAC ¶ 24) boils down to: it was an “issue[] that arose during Plaintiff’s
4 employment.” (Opp. to MTS at 7:20-21.) This is not sufficient to overcome Defendants’ motion to
5 strike. Plaintiff does not assert a gender discrimination claim and includes this allegation solely to
6 sully Defendants as bad actors and, again, to “conduct pertinent discovery relating” to this issue. (Id.
7 at 7:28). Accordingly, this allegation should be stricken. (See MTS at 9-10 (citing cases).)
8 F. Plaintiff’s Vague Allegations of Financial Improprieties Remain Irrelevant to
Plaintiff’s Causes of Action and Are Admittedly Included to Seek Unwar-
9 ranted Broad Discovery into Payward’s Expansive Business
10 Plaintiff alleges that (1) Payward has committed sanctions violations (FAC ¶ 28); (2)
11 Payward’s bank balances did not reconcile (id. ¶ 29); (3) Payward submitted improper audit responses
12 (id. ¶ 20); and (4) Mr. Ng used Plaintiff’s home address “on legal, licensing and banking documents.”
13 (Id. ¶ 23.) But these allegations go beyond the “ultimate facts” supporting his asserted causes of
14 action. First, Plaintiff never suggests that these allegations support any of his FEHA claims. Indeed,
15 he cannot, because none relate to a protected activity under FEHA. (See Demurrer at 9:7-10:9 (citing
16 Nejadian v. Cty. of Los Angeles, 40 Cal. App. 5th 703, 723 (2019), reh’g denied (Oct. 31, 2019)
17 (holding that to engage in FEHA-protected activity the alleged conduct must result “in the violation
18 of statutes, rules, or regulations prohibiting discrimination in employment or housing”)).)
19 Second, they cannot support Plaintiff’s § 1102.5 claims because: (1) Plaintiff pleads in his
20 FAC that his § 1102.5 claim is premised on his disagreement with Mr. Ng regarding employee stock
21 option vesting schedules—not anything else; and (2) Plaintiff fails to plead that he suffered any
22 adverse employment action raising these other allegations. Plaintiff’s allegations supporting his §
23 1102.5 claims focus solely on his allegations that Mr. Ng improperly altered employee stock option
24 vesting schedules. (See FAC ¶¶ 105-197.) Again, to be a whistleblower with a claim, Plaintiff must
25 have blown the whistle about a legal violation and have been punished for it. Plaintiff never claims
26 that he complained about the audit responses or address use. Indeed, even taking Plaintiff’s own
27

28
–7–
Reply ISO Defendants’ Motion to Strike
1 claims as entirely true,7 he admits that he was complicit in creating false audit responses and address

2 information. And he never claims that he was fired for any of these matters.

3 Without explaining why or how these other allegations insinuating financial misconduct

4 support his § 1102.5 claims, Plaintiff simply states these allegations “serve as the essential bases” for

5 his claims and points to paragraphs 110-114 of the FAC. However, those allegations illustrate that

6 Plaintiff’s § 1102.5 claims are premised solely his reporting of vesting schedule discrepancies. (FAC

7 ¶ 112 (“Plaintiff engaged in a protected activity when he opposed the changes made to certain

8 employee stock vesting schedules that differed from what the Board of Directors voted. Kraken

9 terminat[ed] Plaintiff for engaging in a protected activity . . . .”).) Additionally, Plaintiff does not

10 allege he suffered any adverse employment actions stemming from these superfluous allegations of

11 financial misconduct. (See Reply in support of Demurrer at 8:10-9:9.) Plaintiff does not dispute that

12 he never alleges he was reprimanded, let alone terminated, for raising alleged OFAC and bank balance

13 reconciliation issues, for being told how to respond to audit questions, or for being told by Ng that

14 Ng wanted to use Plaintiff’s address on legal, licensing, and banking documents. (MTS at 12-13.)

15 Third, Mr. Ng’s alleged statement to Plaintiff that Ng intended to use Plaintiff’s address on

16 legal, licensing, and banking documents does not support Plaintiff’s breach of contract claim, which

17 seeks to enforce—not unwind—the lease agreement. Plaintiff argues his allegations as to Mr. Ng’s

18 motivations for entering the lease agreement are relevant to the “formation and breach of the

19 contract.” (Opp. to MTS at 9:13-21.) Frankly, this is bizarre. Normally the party seeking to avoid

20 the contract—in this case Defendants—would attempt to inject inadmissible parol evidence, while

21 the party enforcing it would remind the Court that the four corners control. That the contract-

22 enforcing Plaintiff seeks to smuggle in extraneous facts suggests that he does so for reasons unrelated

23 to his contract claim.

24 Plaintiff suggests that this evidence may be related to contract formation, but Defendants do

25 not dispute that a contract existed. Plaintiff’s speculation as to why Ng entered into the lease

26 agreement likewise bears no relevance to whether Ng subsequently breached that agreement.

28 7
Which Defendants obviously dispute, but acknowledge as procedurally proper at this stage.
–8–
Reply ISO Defendants’ Motion to Strike
1 Plaintiff’s attempt to contend otherwise illustrates this. The court in Bustamante v. Intuit, Inc.,

2 considered whether the parties had entered into an enforceable contract and concluded “that the

3 undisputed facts here show no meeting of the minds . . . on all material points[, which] prevents the

4 formation of a contract.” 141 Cal. App. 4th 199, 215 (2006) (“[T]he undisputed facts set forth in the

5 moving and opposing papers provided no ‘basis for determining the existence of a breach and for

6 giving an appropriate remedy.’”) Plaintiff attached a signed lease agreement to his pleadings and

7 alleges that Ng has not paid Plaintiff the rent owed under the lease. That sufficiently alleges a breach

8 of contract, with no need for extraneous and salacious details. Id.

9 Plaintiff’s pleadings and arguments have not established how these allegations are material or

10 relevant to any of Plaintiff’s asserted causes of action. Instead, Plaintiff’s Opposition essentially tries,

11 unpersuasively, to amend the pleadings to tie these allegations to Plaintiff’s § 1102.5 claims. 8 Plaintiff

12 again reveals the real reason for including these salacious and irrelevant allegations: to expand

13 discovery into Payward’s business and records. (Opp. to MTS at 7:27-28, 8:28.) Indeed, Plaintiff

14 has already served multiple requests for production aimed at these specific allegations, which would

15 require producing a massive amount of highly sensitive financial information from Payward, a

16 company that provides multiple trading platforms and manages (at least) thousands of financial

17 transactions a day. This is completely unwarranted and entirely beyond the scope of this case. See

18 Overstock.com, Inc., 231 Cal. App. 4th at 500 (“[T]he trial court should welcome a well-honed motion

19 to strike to winnow down . . . irrelevant materials submitted to the court . . .out of a desire to

20 overwhelm and harass an opponent.”) Again, to the extent Plaintiff implies the parties have met and

21 conferred on the scope of their discovery requests to Payward, Ng, and Payward’s CEO (Opp. to MTS

22 at 10:6-9), this is simply not true.

23 For these reasons, the Court should strike from the pleadings Plaintiff’s allegations insinuating

24 that plaintiff engaged in multiple ambiguous financial improprieties unrelated to the alleged stock

25 vesting discrepancies reported by Plaintiff. See, e.g., Beasley v. Lucky Stores, Inc., 400 F. Supp. 3d

26
8
This is improper and should be rejected. Plaintiff had a fulsome preview of Defendants’ Demur-
27 rer and Motion to Strike and has already had one opportunity to amend. He is stuck with the allega-
tions in his pleadings. Oakland Raiders v. Nat'l Football League, 131 Cal. App. 4th 621, 648 (2005)
28 (“A ‘plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.’”).
–9–
Reply ISO Defendants’ Motion to Strike
1 942, 962-963 (N.D. Cal. 2019) (striking allegations from the complaint accusing defendant of

2 unlawful conduct that was immaterial, impertinent, and scandalous material that served solely to

3 prejudice the defendant); Mercury Interactive Corp., 158 Cal. App. 4th at 60, n. 35 (noting allegations

4 beyond the ultimate facts setting forth the cause of action should be stricken); Coal. Against Police

5 Abuse, 170 Cal. App. 3d at 901 (noting that courts have an interest in preventing discovery of

6 irrelevant information).

7 III. CONCLUSION

8 For these reasons, the Motion to Strike should be granted.

9
Dated: March 4, 2020 Respectfully submitted,
10
Pierce Bainbridge Beck Price & Hecht LLP
11

12
By:
13 Andrew E. Calderon
14 Attorneys for Defendants Payward, Inc. d/b/a
Kraken and Kaiser NG
15

28
– 10 –
Reply ISO Defendants’ Motion to Strike
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:

7 REPLY IN SUPPORT OF DEFENDANTS PAYWARD, INC. D/B/A KRA-
KEN’S AND KAISER NG’S MOTION TO STRIKE IRRELEVANT, FALSE
8 OR IMPROPER MATTER IN THE FIRST AMENDED COMPLAINT
9 on the interested parties in this action as stated below:

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

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

18 I declare under penalty of perjury under the laws of the State of California that the
19 above is true and correct
20 Executed on March 4, 2020, at Los Angeles, California.
21
_________________________
22
Grace Chang
23

Proof of Service

Case Info

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Samuel K. Feng Track Judge’s New Case

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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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Complaint,Petition: NATHAN PETER RUNYON VS. PAYWARD, INC., A CALIFORNIA CORPORATION ET AL

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