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

On November 26, 2019 a Motion-Secondary 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.

Preview
1 Claire E. Cochran (SBN 222529)
Natalie A. Xifo (SBN 280930)
2 ELECTRONICALLY
LAW OFFICES OF CLAIRE COCHRAN, P.C.
100 Pine Street, Suite 1250 F I L E D
3 Superior Court of California,
San Francisco, CA 94111 County of San Francisco

4 Telephone: (415) 580-6019 02/27/2020
Facsimile: (415) 745-3301 Clerk of the Court
BY: RONNIE OTERO
5 Deputy Clerk

6 Attorneys for Plaintiff
NATHAN PETER RUNYON
7

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN FRANCISCO
10 [UNLIMITED JURISDICTION]
11 Case No. CGC-19-581099
NATHAN PETER RUNYON
12 DECLARATION OF NATALIE A.
Plaintiff, XIFO IN SUPPORT OF
13 PLAINTIFF’S MOTION TO
v. STRIKE AND DEMURRER
14 PAYWARD, INC., a California Corporation
[Filed Concurrently with Declaration
15 d/b/a KRAKEN; and KAISER NG an individual of Natalie A. Xifo, Esq. [Proposed]
and DOES 1-50, inclusive Order and Opposition to Motion to
16 Strike]

17 Defendants.
Date: March 11, 2020
18 Time: 9:30 a.m.
19 Dept.: 302
Reservation ID: 02040305-17
20

28
Page | 1
Declaration of Natalie A. Xifo, Esq., ISO Defendant’s Demurrer and Motion to Strike
1 DECLARATION OF NATALIE A. XIFO, ESQ.

2 I, Natalie A. Xifo, Esq., am an attorney representing licensed to practice law in

3 the State of California and before this Court, and employed at Law Offices of Claire

4 Cochran, PC attorneys of record for Plaintiff, NATHAN PETER RUNYON (“Plaintiff”)

5 in the above-entitled action. I offer this declaration upon my personal knowledge.

6 1. Since the filing of the Demurrer and Motion to Strike, I personally

7 participated in the meet and confer, including in the receipt of the meet and confer letters

8 sent by Defendants as well as telephone conversations. Our meet and confer letters are

9 attached as follows:

10 a. A true and correct copy of the meet and confer letter sent by Defendants

11 on December 19, 2019 is attached as Exhibit A.

12 b. A true and correct copy of the meet and confer letter sent by Plaintiff on

13 December 27, 2019 is attached as Exhibit B.

14 c. A true and correct copy of the meet and confer letter sent by Defendants

15 on January 20, 2020 is attached as Exhibit C.

16 d. A true and correct copy of the meet and confer letter sent by Plaintiff on

17 January 28, 2020 is attached as Exhibit D.

18 2. There is nothing provided in the letters that indicates that the address was

19 private and confidential.

20 3. In addition, a review of Plaintiff’s employment agreement, attached as

21 Exhibit E, and the nondisclosure agreement, attached as Exhibit F, do not include a

22 provision relating to the address.

23 4. Through the process of the meet and confer, Plaintiffs agreed to amend the

24 complaint to remove Defendant Ng from certain causes of action. Despite the meet and

25 confer process, Defendants refused to make any changes or address the issues raised in

26 the meet and confer that were repeated in the Demurrer and Motion to Strike.

27 5. Also, during the meet and confer process, Plaintiff addressed the cases

28 cited by Defendants and informed them that the majority were summary judgment cases
Page | 2
Declaration of Natalie A. Xifo, Esq., ISO Defendant’s Demurrer and Motion to Strike
1 and thus were considered under a different standard. In addition, we addressed some of

2 the issues such as the change of law relating to the workers’ compensation exclusionary

3 privilege and pleading requirements.

4 6. Despite the extensive meet and confer, Plaintiff has been forced to expend

5 numerous legal hours and costs to respond to issues that could have been resolved in the

6 meet and confer process. Plaintiff is concerned that this is the tone being set for the

7 litigation. For example, Plaintiff was not served with the Motion to Strike. When it was

8 raised with Defendants – as it was referenced in the Demurrer – Defendants would not

9 immediately agree to reserve and set the dates for a hearing together. Instead, Defendants

10 filed a statement with the Court making accusations against Plaintiff’s counsel.

11 7. In order to respond to these two Motions, Plaintiff was required to use 18

12 hours of attorney time plus costs. At a blended rate of the attorneys’ rates, the amount

13 requested is $9000.

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

15 foregoing is true and correct.

16 Executed on February 27, 2020, at Los Angeles, California.

18
19

20 NATALIE A. XIFO, ESQ.
21

28
Page | 3
Declaration of Natalie A. Xifo, Esq., ISO Defendant’s Demurrer and Motion to Strike
Exhibit A
Exhibit B
December 27, 2019
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,
This correspondence will serve as a response to your meet and confer letter provided to
counsel on December 19, 2019 at 8:20 p.m. As you are aware, we responded to your meet and
confer efforts and offered to provide an extension of time to respond due to the holidays. You
declined this offer. As such, we are providing this response.

It must be noted at the onset that there was some misinformation in the email
correspondence. While it is true that the complaint that was filed and served was not “identical”
to the one provided in the demand letter, what is true is that it is largely identical. The point of
this distinction is to not get bogged down by this tangent but to identify that you had every
opportunity to address many of the alleged deficiencies and related issues before the complaint
was even filed. You did not. We have filed. And now we are here having to discuss the merits
of the pleadings during this timeline.

We will respond to the letter in the order it was provided. At the outset, we have
concerns with the tone and manner in which this is being presented. While there are some minor
issues that could have been sorted out during the course of the litigation, the manner in which
this is being presented smacks of gamesmanship and an intent to proceed in a litigious manner.
Of course, we hope that this is not correct and that both parties can reach a resolution in the most
expeditious manner.

Response to Causes of Action Subject to Demurrer

1. You assert that Plaintiff’s Second, Third, Fourth, Fifth, Sixth and Seventh Causes
of Action are subject to demurrer because Plaintiff pled non-conclusory facts in support of his
disability related FEHA claims. In support, you cite Avila v. Cont’l Airlines, Inc., 165
Cal.App.4th 1237 (2008) for the assertion that “vague or conclusory statements revealing an

-1-
100 Pine Street, Suite 1250, San Francisco, California 94111 | 415-580-6019 | claire@clairecochranlegal.com
unspecified incapacity to put an employer on notice of its obligations”. Plaintiff disagrees with
this statement and the application of this case. Avila was a finding under summary judgment, not
demurrer. In addition, California FEHA cases do not have a heightened pleading standard but
rather “‘the plaintiff is required only to set forth the essential facts of his case’ ‘with particularity
sufficient to acquaint a defendant with the nature, source and extent of his cause of action.’” Alch
v. Superior Ct., 122 Cal.App.4th 339, 382 (2004). If you have support for the assertion that
FEHA claims require a heightened pleading standard, please provide it. As it stands, Plaintiff’s
claims are properly pled.

2. You assert that Plaintiff’s Fifth Cause of Action is similarly deficient because
“Plaintiff fails to plead non-conclusory allegations…”. Plaintiff refers you to the response
provided supra as to the pleading standards and requirements relating to FEHA and California
standards. Again, if there is legal support for this argument, please provide it for our
consideration. As it stands, Plaintiff’s claim is properly pled.

3. You assert that Plaintiff’s Eighth Cause of Action is subject to demurrer because
Plaintiff fails to “plead any contractual provision of his employment provision.” A review of
Plaintiff’s complaint identifies that he entered into an agreement when he began his employment,
see Complaint ¶ 100. Further, the complaint identifies in the allegations the changes to the terms
of his employment, which were incorporated by reference, see Complaint ¶ 99. Unless you have
a legal basis for the assertion regarding the purported deficiencies in Plaintiff’s Complaint,
Plaintiff’s Complaint is sufficient for this stage of litigation.

4. You assert that Plaintiff’s Ninth Cause of Action is subject to demurrer because –
and this is somewhat difficult to ascertain – that even assuming arguendo that the vesting
allegations are true, Plaintiff’s claim is subject to a demurrer because he did not allege a specific
law, regulation and the like. In support, you cite Ross v. County of Riverside, 36 Cal.App.5th
580 (2019) for support. A review of Ross indicates that this is a case that was at the summary
judgment phase of litigation and that the court reversed to permit the case to continue. Id. at 593.
Again, if there is a legal basis for your assertion at the pleading and responsive phase, please
provide it for our review.

5. You assert that Plaintiff’s Tenth Cause of Action for wrongful termination in
violation of public policy fails to assert a public policy violated by his termination. Even a
cursory review of his complaint, which was incorporated by reference, identifies several claims
and policies that were violated in the course of his termination. More specifically, Plaintiff pled
a violation of Labor Code § 1102.5, as well as other policies that were implicated during the
course of his termination. Complaint ¶¶ 111-113.

6. You assert that Plaintiff’s Eleventh Cause of Action is subject to the Workers’
Compensation Privilege. Claims of intentional infliction of emotional distress based on
intentional infliction of emotional district are not subject to workers’ compensation exclusivity.
See Light v. Dept. of Parks & Recreation, 14 Cal.App.5th 75, 101 (2017).

-2-
100 Pine Street, Suite 1250, San Francisco, California 94111 | 415-580-6019 | claire@clairecochranlegal.com
7. You assert that Plaintiff’s Second, Fourth, Fifth, Seventh, Eighth, Ninth and Tenth
Causes of Action are not subject to supervisor liability. Plaintiff concedes that the individual
supervisor, Ng, is not subject to liability for the claims for discrimination and retaliation. The
issue as to Labor Code § 1102.5 is not settled, as identified in the case provided by Defendants.
In an effort to further this litigation, Plaintiffs will agree to amend his complaint to remove the
individual Defendant Ng from these claims and will conduct appropriate discovery to ascertain
the extent of individual liability and culpability.

Motion to Strike

Plaintiff has reviewed the allegations in the letter and your assertions that these are
subject to a motion to strike for the reasons asserted. In short, these assertions appear
disingenuous. By way of example, the statement regarding the business address is to address
venue and jurisdiction issues. Further, the other allegations are carefully crafted to develop the
concerns Plaintiff was experiencing that ultimately became the basis for his claims.

Plaintiff has diligently reviewed these allegations and does not agree with the
characterization.

We look forward to working this out amicably and proceeding to reaching an efficient
conclusion.

Law Offices of Claire Cochran, P.C.

Claire Cochran
Founder and Principal

cc: Pete Runyon

-3-
100 Pine Street, Suite 1250, San Francisco, California 94111 | 415-580-6019 | claire@clairecochranlegal.com
Exhibit C
Exhibit D
January 28, 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,

This will serve as a response to your meet and confer letter sent to my office on January
20, 2020. In Defendants’ January meet and confer letter, it was noted by you that the arguments
raised largely reflect the exact same issues raised in your prior December 19, 2019 meet and
confer letter. Defendants have only changed one minor argument in this subsequent meet and
confer process, even though Plaintiff amended his Complaint to dismiss the Individual
Defendant from many causes of action. It is evident based upon the tone and statements by
Defendants that this meet and confer attempt is largely perfunctory and without a meaningful
attempt for resolution. In fact, your letter states that, “we reiterated our arguments regarding
Plaintiff’s remaining claims.” (1.20.20 Letter, page. 5.). I am disappointed by this strategy, as it
appears, we will now be disappearing into a battle of paperwork, as opposed to litigating this
case.

In response to your December meet and confer letter, Plaintiff not only provided legal
basis to contradict the statements asserted for both the demurrer and motion to strike, but also
requested legal support for the positions claimed. This is, in fact, compliant with the
requirements of the meet and confer efforts defined in section 430.41 of the Code of Civil
Procedure. (Civ. Proc. § 430.41(1).) Rather than providing valid legal support, Defendants
merely “reiterated” their previously made arguments and stated the intent to file unnecessary and
expensive motions. Accordingly, Plaintiff will request attorneys’ fees and costs to the full
extent permitted. As always, it is Plaintiff’s intent to resolve these issues efficiently and
amicably so the parties can proceed to address the real issues and move forward to the discovery
phase.

Response to Causes of Action Subject to Demurrer

-1-
100 Pine Street, Suite 1250, San Francisco, California 94111 | 415-580-6019 | claire@clairecochranlegal.com
1. You assert that Plaintiff’s Second, Third, Fourth, Fifth, Sixth and Seventh Causes
of Action are subject to demurrer because Plaintiff pled non-conclusory facts in support of his
disability related FEHA claims. In support, you continue to cite Avila v. Cont’l Airlines, Inc.,
165 Cal.App.4th 1237 (2008) for the assertion that “vague or conclusory statements revealing an
unspecified incapacity to put an employer on notice of its obligations”. Plaintiff continues to
disagree with this statement and the application of this case for the same reason as stated in its
December 27, 2019 letter. In his December 27, 2019 letter, Plaintiff stated that Avila was a
finding under summary judgment, not demurrer.

In its January 2020 letter, Defendants’ additionally rely on Rope v. Auto-Chlor System of
Washington, Inc., 220 Cal.App.4th 635, 659 (2013) for the assertion that the demurrer was
affirmed because the disability claim asserted by plaintiff failed to “demonstrate an impairment
that constitutes a physical disability according to the statutory definition.” This reliance is
simply wrong for numerous reasons. First, the Rope court admitted that the case was “highly
unusual fact circumstances” (Id.), unlike the present case. Second, the Rope decision was
overturned on one significant level which was to broaden the protection of disability
discrimination cases brought under the FEHA to “when an individual makes a request for
reasonable accommodations … regardless of whether the request was granted.” See Assembly
Bill 987, section (1)(d).

As already identified in its December 27, 2019 letter, California FEHA cases do not have
a heightened pleading standard but rather “‘the plaintiff is required only to set forth the essential
facts of his case’ ‘with particularity sufficient to acquaint a defendant with the nature, source and
extent of his cause of action.’” Alch v. Superior Ct., 122 Cal.App.4th 339, 382 (2004). Any
demurrer should and would fail if brought under these stated assertions.

2. In response to Plaintiff’s Fifth Cause of Action, you merely reiterate your exact
same argument based upon “non-conclusory allegations…”. Plaintiff again refers you to the
response provided supra as to the pleading standards and requirements relating to FEHA and
California standards. Defendants again failed to provide any actual legal support for this
argument. The citations to sections 12926(j)(1) and 12940(h) of the Government Code do not
provide support for this position. This claim is properly pled.

3. Again, Defendants “reiterated” the exact same argument. As such, Plaintiff refers
you to the December 27, 2019 response: You assert that Plaintiff’s Eighth Cause of Action is
subject to demurrer because Plaintiff fails to “plead any contractual provision of his employment
provision.” A review of Plaintiff’s amended complaint identifies that he entered into an
agreement when he began his employment, see Amended Complaint ¶ 100. Further, the
complaint identifies in the allegations the changes to the terms of his employment, which were
incorporated by reference, see id. ¶ 99. Unless you have a legal basis for the assertion regarding
the purported deficiencies in Plaintiff’s Amended Complaint, it is sufficient for this stage of
litigation.

4. Again, Defendants “reiterated” the exact same argument. As such, Plaintiff refers

-2-
100 Pine Street, Suite 1250, San Francisco, California 94111 | 415-580-6019 | claire@clairecochranlegal.com
you to the December 27, 2019 response: You assert that Plaintiff’s Ninth Cause of Action is
subject to demurrer because – and this is somewhat difficult to ascertain – that even assuming
arguendo that the vesting allegations are true, Plaintiff’s claim is subject to a demurrer because
he did not allege a specific law, regulation and the like. In support, you cite Ross v. County of
Riverside, 36 Cal.App.5th 580 (2019) for support. A review of Ross indicates that this is a case
that was at the summary judgment phase of litigation and that the court reversed to permit the
case to continue. Id. at 593. Again, if there is a legal basis for your assertion at the pleading and
responsive phase, please provide it for our review.

5. Again, Defendants “reiterated” the exact same argument. As such, Plaintiff refers
you to the December 27, 2019 response: You assert that Plaintiff’s Tenth Cause of Action for
wrongful termination in violation of public policy fails to assert a public policy violated by his
termination. Even a cursory review of his complaint, which was incorporated by reference,
identifies several claims and policies that were violated in the course of his termination. More
specifically, Plaintiff pled a violation of Labor Code § 1102.5, as well as other policies that were
implicated during the course of his termination. See e.g. Amended Complaint ¶¶ 111-113.

6. In Defendants’ January 20, 2010 letter, Defendants do not reiterate the argument
previously asserted as to workers’ compensation exclusivity as Plaintiff demonstrated it was not
correct. Instead, Defendants now asserts that Plaintiff fails “to identify factual allegations that
rise to the level of outrageous and extreme conduct required by this tort.” In support, Defendants
rely on Vasquez v. Franklin Management Real Estate Fund, Inc., 222 Cal.App.4th 819, 832-833
(2013) for the correct statement that to avoid a demurrer, “plaintiff must allege with great
specificity the acts which he or she believes are so extreme as to exceed all bounds of that
usually tolerated in a civilized community.” However, what Vasquez also demonstrates is a
case in which workers’ compensation exclusivity was still a viable defense and the court
was determining what would be covered through the compensation bargain and which
conduct would be treated under this tort. Id. at 833. Defendants appears to have
acknowledged the error of the workers’ compensation exclusivity and this case must be read
accordingly.

Similarly, reliance on Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590
(1990) should be similarly avoided. Not only was Fisher a decision made during the time that
workers’ compensation exclusivity was a viable defense, but also, the allegations cited in Fisher
are not comparable to those in Plaintiff’s Amended Complaint. In Fisher, the allegations
included ones such as not seeing patients but acknowledged that “if properly pled, sexual
harassment will constitute the outrageous behavior element of a cause of action for intentional
infliction of emotional distress. Id. at 858. Plaintiff’s Amended Complaint adequately pleads
both the FEHA claims and the outrageous conduct beyond “mere indignities.”
As such, this claim is adequately pled and should and must be allowed to proceed.

Motion to Strike

Essentially, Defendants have re-iterated their prior letter to Plaintiff. As it seems that
-3-
100 Pine Street, Suite 1250, San Francisco, California 94111 | 415-580-6019 | claire@clairecochranlegal.com
Defendants are attempting to bring baseless motion work to obfuscate litigation, Plaintiff will
also reiterate the reasoning behind the allegations included in the complaint – these allegations
were carefully crafted to develop and demonstrate the concerns Plaintiff was experiencing that
ultimately became the basis for his claims. As before, Plaintiff has diligently reviewed these
allegations and does not agree with the characterization(s) made by Defendants.

Both of Defendants’ meet and confer letters demonstrate a tone that illustrates the intent
is to file baseless motions rather than meaningfully meet and confer. Plaintiff has provided ample
bases to demonstrate the error in the assertions raised, repeatedly. In response to a request for
additional legal support of its claims, Defendants have provided law that has been either
superseded by statute or is incomplete in its application due to the development of the law. If
Defendants persist in filing, Plaintiff will request attorneys’ fees and sanctions. Of course, it is
always the hope that the parties can resolve these issues without unnecessary motion practice.
We look forward to your response.

Law Offices of Claire Cochran, P.C.

Claire Cochran
Founder and Principal

cc: Pete Runyon

-4-
100 Pine Street, Suite 1250, San Francisco, California 94111 | 415-580-6019 | claire@clairecochranlegal.com
Exhibit E
Exhibit F
1 PROOF OF SERVICE

2 I am a citizen of the United States. My business address is 100 Pine Street Suite 1250, San
Francisco, CA 94111. I am employed in the county of San Francisco where this service occurs. I
3 am over the age of 18 years and am not a party to the within cause.
4
On February 27, 2020. I served the following document(s) described as:
5
• DECLARATION OF NATALIE A. XIFO IN SUPPORT OF PLAINTIFF’S MOTION
6 TO STRIKE AND DEMURRER
 BY MAIL: I am readily familiar with my employer’s normal business practice of
7 collection and processing of correspondence for mailing. Under that practice,
correspondence is deposited with the U.S. Postal Service that same day in a sealed
8 envelope(s) with first-class mail postage thereon fully prepaid at San Francisco,
California, in the ordinary course of business.
9
BY FILE & SERVE EXPRESS: I served said document(s) by transmitting true and
10 complete copies of same to each of the parties named below, sending the electronic
files to the e-mail addresses they provided through their Internet Service Provider and
11 E-Mail Programs, using the court-mandated filing electronic filing service, File &
Serve Express.
12 BY FAX: I served said document(s) by transmitting via facsimile from facsimile
number (415) 276-1976 to the facsimile number(s) set forth below, or as stated on the
13 attached service list, on this date before 5:00 p.m. A statement that this document was
successfully transmitted without error is hereby attached to the Proof of Service.
14
 BY ELECTRONIC SERVICE: I served said document(s) by transmitting true and
15 complete copies of same to each of the parties named below, sending the electronic
files to the e-mail addresses they provided through their Internet Service Provider.
16
Pierce Bainbridge Beck Price & Hecht LLP
17 Christopher N. LaVigne/ Andrew E. Calderon
355 South Grand Avenue, 44th Floor
18
Los Angeles, California 90071
19
20 I declare under penalty of perjury under the laws of the State of California that the above
is true and correct. Executed on February 27, 2020, at San Francisco, California.
21

23 _____________________________
PAMELA GERSTEIN
24

PROOF OF SERVICE

Case Info

Judge

Samuel K. Feng Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

February 27, 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

For full print and download access, please subscribe at https://www.trellis.law/.

Motion-Secondary: NATHAN PETER RUNYON VS. PAYWARD, INC., A CALIFORNIA CORPORATION ET AL

Preview

Related Topics

Case Info

Parties