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F
Syperior Court of California
Ounty of San Francisco
AUG 23 2021
CLERK O: COURT
BY 7
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
NATHAN PETER RUNYON, an individual,
Plaintiff,
Vv.
PAYWARD, INC., a California Corporation
d/b/a KRAKEN; and Kaiser NG, an
individual; and DOES 1 through 10, inclusive,
Defendants.
Case No. CGC-19-581099
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY
ADJUDICATION
Date:
Time:
Dept:
August 23, 2021
9:30 a.m.
302
The Hon. Ethan P. Schulman
November 26, 2019
September 13, 2021
Action Filed:
Trial Date:
Order Granting And Denying In Part Defendants’ Motion for Summary Adjudication
Case No. CGC-19-581099eo Oo YD DHMH F&F YW NY
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Before the Court is Defendants Payward, Inc. and Kaiser Ng’s (“Defendants”) Motion for
Partial Summary Adjudication. Having read and considered the motion, the memoranda and
declarations filed by the parties, and having heard argument of counsel, and good cause appearing,
the Court finds as follows:
Defendants’ motion for summary adjudication is granted in part and denied in part.
Defendants’ unopposed motion is granted as to the first, second, and eighth causes of
action.
Defendants’ motion as to the fifth and seventh causes of action is denied.
The McDonnell Douglas burden-shifting test [McDonnell Douglas Corp. v. Green (1973)
411 U.S. 792], which has been adopted by California courts, “reflects the principle that direct
evidence of intentional discrimination is rare, and that such claims must usually be proved
circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows
discrimination to be inferred from facts that create a reasonable likelihood of bias and are not
satisfactorily explained.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354.)
Defendants meet their initial burden to show a “legitimate, nondiscriminatory” or
“nonretaliatory” reason for Plaintiff's termination. (Id. at 355-356.) Mr. Ng’s declaration states
that Mr. Runyon was terminated “due to his work performance being below expectation, the
numerous interpersonal conflicts he caused with other Payward employees, and, ultimately, his
explicit refusal to continue working.” (Ng. Decl., 52.) Mr. Ng states that the “ultimate reason” he
“decided to fire Mr. Runyon occurred in late July 2019” after a meeting where (1) Plaintiff ranted
about how incapable the accounting team was and that he wanted to move to a different floor
because he did not want to sit near them any more, and (2) Plaintiff stated that he was not going to
do the work Ng had asked him to do. (Ng Decl., [J 60-62.)
Plaintiff meets his burden to show that there is a triable issue as to whether Defendants’
proffered explanation is pretextual. Plaintiff's argument that Defendants’ reasoning is wrong is
insufficient. (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 343 [The employee cannot
simply show that the employer’s decision was wrong or mistaken.”].) Plaintiff, however,
otherwise meets his burden to rebut Defendants’ “facially dispositive showing by pointing to
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Order Granting and Denying In Part Defendants’ Motion for Summary Adjudication Case No. CGC-19-581099oe ND Hw FWY
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evidence which nonetheless raises a rational inference that intentional discrimination occurred.”
(Guz, 24 Cal.4th at 357.) The question at this third step of the test is whether “the evidence in the
summary judgment record places [the defendant employer’s] creditable and sufficient showing of
innocent motive in material dispute by raising a triable issue, i.e., a permissible inference, that, in
fact, [the defendant] acted for discriminatory purposes.” (Jd. at 362.) “Pretext may be inferred
from the timing of the discharge decision, the identity of the decision-maker, or by the discharged
employee's job performance before termination. Pretext may be demonstrated by showing that the
proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge,
or, the proffered reason was insufficient to motivate discharge.” (Hanson v. Lucky Stores, Inc.
(1999) 74 Cal.App.4th 215, 224; see also Hersant v. Department of Social Services (1997) 57
Cal.App.4th 997, 1005 [pretext may be shown by “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for
its action that a reasonable factfinder could rationally find them unworthy of credence, and hence
infere that the employer did not act for [the asserted] non-discriminatory reasons” (citations and
internal quotations omitted)].) Summary judgment for the employer may be appropriate where,
“given the strength of the employer’s showing of innocent reasons, any countervailing
circumstantial evidence of discriminatory motive, even if it may technically constitute a prima
facie case, is too weak to raise a rational inference that discrimination occurred.” (Guz, 24 Cal.4th
at 362.) While Defendants contend that standard is met here as a matter of law, the Court cannot
agree.!
First, Plaintiff shows that the evidence, viewed as a whole, contains arguably conflicting
evidence as to Defendant’s reasons for termination and his performance, which permits a rational
inference that the proffered reasons by Mr. Ng did not actually motivate the decision. “The
1 In Guz, the Court found this standard was met in large part because the plaintiff employee
“essentially conceded that the reasons cited by Bechtel in support of its motion for summary
judgment . . . were the true reasons why” it decided to eliminate his work unit. (24 Cal.4th at 364;
see also id. [“in his response to Bechtel’s summary judgment motion, Guz made major
concessions to both the plausibility and truthfulness of Bechtel’s proffered reasons”].) Plaintiff
has made no such concession here.
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Order Granting and Denying In Part Defendants’ Motion for Summary Adjudication Case No. CGC-19-581099CoN DH FF BW NY
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plaintiff can defeat a defense motion for summary judgment by showing . . . that the defense
evidence itself permits conflicting inferences...” (Cole v. Town of Los Gatos (2012) 205
Cal.App.4th 749, 756.) At Mr. Ng’s deposition, he stated that he thought it was reasonable for
Plaintiff to ask to move to a different floor. (202:20-22.) And, Mr. Ng stated that after this meeting
he, over Slack “spoke with the executive team and got their support for Mr. Runyon’s
termination.” (Ng. Decl., | 62.) The Slack messages do not mention either interpersonal conflicts
or Mr. Runyon’s refusal to continue working as the bases for his decision to terminate Plaintiff.
Instead, the messages state the sole reason is that Plaintiff “cannot perform at a high level.” (Ng.
Decl., Ex. T.) At his deposition, Mr. Ng did not have an explanation for why the reason he
communicated to the board differed from those set forth in his declaration. (Cochran Decl., Ex. 3,
225:22-227:5 [“I can’t tell you why exactly I didn’t mention it.”].) It is also notable that Plaintiff
asserts that Mr. Ng never told him why he was terminated before this action was filed (Runyon
Deel., {¥ 13, 21); that the company had no formal performance evaluation process; and that in his
one-year evaluation, Mr. Ng did not claim that Plaintiff ‘was not performing the duties of his job
well or raise any issue of interpersonal conflicts. (Jd. {§ 21-24.)
Second, Plaintiff shows pretext based on the timing of the discharge decision. Plaintiff was
terminated on his first day of his leave. (Runyon Decl., § 13.) (See, e.g., Soria v. Univision Radio
Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 594-597 [pretext may be inferred from the timing of
an adverse employment action, taken together with other evidence].)
Third, Plaintiff shows pretext based on the identity of the decision maker and other related
evidence. The sole decision maker here was Mr. Ng, and Plaintiff declares that he faced hostility
from Mr. Ng about leave from.the beginning. “I repeatedly requested a reasonable accommodation
for my anxiety and depression in the form of taking paid time off from work. Ng repeatedly said
that I could take leave but then, when the time came for me to do so, postponed my leave so that I
could complete more work and, as I note below, imposed requirements on me that seriously
inferred with my ability to sleep and, as a result, exacerbated my anxiety, depression and PTSD.”
(Runyon Decl., { 8.) Further, Plaintiff offers evidence that Mr. Ng became aware of his disabled
veteran status in the company’s HR software system, Bamboo, mentioned it to Plaintiff, and
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laughed, commenting, “You don’t look disabled.” (Runyon Decl. ] 4.)? Further, he asserts that
Mr. Ng “treated me more harshly than any other Payward employee that worked under him. Ng
would frequently get angry, yell, lose his temper and verbally attack me.” (Jd. {6.) When
Plaintiff brought this conduct to his attention, “Ng responded that he thought I could handle it
because of my military training and background.” (Jd) Finally, it is notable that Plaintiff's
complaints about his treatment by Ng—that Ng changed the requirements of his position by
substantially increasing his demands on Plaintiff's time, including requiring him to work hours
and to be available very late into the night and very early in the morning, were directly related to
(and, indeed, exacerbated) Plaintiffs medical condition and disabilities. (Id. 9.) This evidence,
taken together, is sufficient for a trier to fact to infer that, as Plaintiff contends, he was subject to
disparate treatment and ultimately was terminated because of his wartime veteran status. (See
Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 151 [Petitioner testified that
Chesnut had told him that he ‘was so old [he] must have come over on the Mayflower’ . . .
Further, petitioner introduced evidence that Chesnut was the actual decisionmaker behind his
firing.”]; Reid v. Google, Inc. (2010) 50 Cal.4th 512, 542 [when combined with other evidence of
pretext, an otherwise stray remark may create an ensemble that is sufficient to defeat summary
judgment” (citation omitted)]; see Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th
1168, 1186-1187, 1192 [while employer had a legitimate, nondiscriminatory reason for
discharging plaintiff that was nonpretextual, evidence was susceptible to reasonable inferences
that discriminatory animus also contributed to plaintiffs termination, thus creating a disputed
issue of material fact sufficient to defeat the motion for summary judgment].)
Accordingly, Defendants’ motion as to the third, fourth, and sixth causes of action, based
entirely on Defendants’ argument that there is no triable issue of fact as to the reason for
Plaintiffs termination, is denied.
? Defendants’ evidentiary objections to the Runyon declaration are overruled. While Plaintiff's
deposition testimony and the first amended complaint do not provide information that supports
Plaintiff's declaration, the declaration does not contradict them.
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Order Granting and Denying In Part Defendants’ Motion for Summary Adjudication Case No. CGC-19-581099oem IN KD HW FF BY
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Defendants’ motion as to the ninth and tenth causes of action for whistleblowing are
granted. “A claim for violation of Labor Code section 1102.5 requires . . . the plaintiff [to] show
(1) the plaintiff engaged in protected activity, (2) the defendant subjected the plaintiff to an
adverse employment action, and (3) there is a causal link between the two. ... An employee
engages in activity protected by the statute when the employee discloses reasonably based
suspicions of illegal activity. To have a reasonably based suspicion of illegal activity, the
employee must be able to point to some legal foundation for his suspicion—some statute, rule or
regulation which may have been violated by the conduct he disclosed.” (Ross v. County of
Riverside (2019) 36 Cal.App.Sth 580, 591-592; see also Mokler v. County of Orange (2007) 157
Cal.App.4th 121, 139.) Plaintiff provides no evidence of a specific rule or law he thought was
violated. The complaint simply alleges that the “the CEO’s decision to unilaterally make changes
in the stock options program . . . was illegal.” (Compl. § 105.) Plaintiff's declaration states “I
reasonably believed that Ng’s action in changing, without the Board’s authorization and approval,
Employee 5’s stock option vesting schedule from the four-year schedule approved by the Board to
a six-year schedule unlawful.” ({48.) Plaintiffs declaration does not identify a legal foundation.
Plaintiff's opposition otherwise does not raise any such basis. As for Plaintiff's argument on his
reported violations of the OFAC rules, the complaint does not allege that P was terminated for
reporting these violations. (FAC {fj 105, 107.) “The scope of issues material in a summary
adjudication motion are delimited by the pleadings, which are supposed to aver the ultimate facts
which constitute the cause of action or defense thereto.” (Westlye v. Look Sports, Inc. (1993) 17
Cal.App.4th 1715, 1738.) Plaintiff's cause of action for wrongful termination in violation of public
policy is based entirely on violation of the public policy expressed in Labor Code section 1102.5.
(FAC f 111.) According, summary adjudication is also granted as to the tenth cause of action.
IT IS SO ORDERED. EL ty P (f/p—
Date: August 23, 2021 B “Vg
Hon. Ethan P. Schulman
SUDGE OF THE SUPERIOR COURT
6
Order Granting and Denying In Part Defendants’ Motion for Summary Adjudication Case No. CGC-19-581099CGC-19-581099 NATHAN PETER RUNYON VS. PAYWARD, INC., A CALIFORNIA
CORPORATION ET AL
I, the undersigned, certify that I am an employee of the Superior Court of California, County Of San Francisco and not
a party to the above-entitled cause and that on August 23, 2021 I electronically served the foregoing order on the
following counsel of record by causing a copy thereof to be sent by email to the email addresses listed below.
Dnt
Date: August 23, 2021 By: SEAN KANE
CHRISTOPHER N. LAVIGNE, ESQ.
christopher. lavigne@withersworldwide.com
PIERCE BAINBRIDGE BECK PRICE & HECHT LLP
277 PARK AVENUE, 45TH FLOOR
NEW YORK, NY 10172
CLAIRE E, COCHRAN, ESQ.
claire@clairecochranlegal.com
LAW OFFICES OF CLAIRE COCHRAN
100 PINE STREET, SUITE 1250
SAN FRANCISCO, CA 94111
Certificate of Service — Form C00005010
Preview
F Syperior Court of California Ounty of San Francisco AUG 23 2021 CLERK O: COURT BY 7 Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO NATHAN PETER RUNYON, an individual, Plaintiff, Vv. PAYWARD, INC., a California Corporation d/b/a KRAKEN; and Kaiser NG, an individual; and DOES 1 through 10, inclusive, Defendants. Case No. CGC-19-581099 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY ADJUDICATION Date: Time: Dept: August 23, 2021 9:30 a.m. 302 The Hon. Ethan P. Schulman November 26, 2019 September 13, 2021 Action Filed: Trial Date: Order Granting And Denying In Part Defendants’ Motion for Summary Adjudication Case No. CGC-19-581099eo Oo YD DHMH F&F YW NY N oo as BURRRERBBHRBSPEeSeWABOEBTR ETS Before the Court is Defendants Payward, Inc. and Kaiser Ng’s (“Defendants”) Motion for Partial Summary Adjudication. Having read and considered the motion, the memoranda and declarations filed by the parties, and having heard argument of counsel, and good cause appearing, the Court finds as follows: Defendants’ motion for summary adjudication is granted in part and denied in part. Defendants’ unopposed motion is granted as to the first, second, and eighth causes of action. Defendants’ motion as to the fifth and seventh causes of action is denied. The McDonnell Douglas burden-shifting test [McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792], which has been adopted by California courts, “reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354.) Defendants meet their initial burden to show a “legitimate, nondiscriminatory” or “nonretaliatory” reason for Plaintiff's termination. (Id. at 355-356.) Mr. Ng’s declaration states that Mr. Runyon was terminated “due to his work performance being below expectation, the numerous interpersonal conflicts he caused with other Payward employees, and, ultimately, his explicit refusal to continue working.” (Ng. Decl., 52.) Mr. Ng states that the “ultimate reason” he “decided to fire Mr. Runyon occurred in late July 2019” after a meeting where (1) Plaintiff ranted about how incapable the accounting team was and that he wanted to move to a different floor because he did not want to sit near them any more, and (2) Plaintiff stated that he was not going to do the work Ng had asked him to do. (Ng Decl., [J 60-62.) Plaintiff meets his burden to show that there is a triable issue as to whether Defendants’ proffered explanation is pretextual. Plaintiff's argument that Defendants’ reasoning is wrong is insufficient. (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 343 [The employee cannot simply show that the employer’s decision was wrong or mistaken.”].) Plaintiff, however, otherwise meets his burden to rebut Defendants’ “facially dispositive showing by pointing to 2 Order Granting and Denying In Part Defendants’ Motion for Summary Adjudication Case No. CGC-19-581099oe ND Hw FWY YW NN NY DY Be Bee Be ee ee eB evidence which nonetheless raises a rational inference that intentional discrimination occurred.” (Guz, 24 Cal.4th at 357.) The question at this third step of the test is whether “the evidence in the summary judgment record places [the defendant employer’s] creditable and sufficient showing of innocent motive in material dispute by raising a triable issue, i.e., a permissible inference, that, in fact, [the defendant] acted for discriminatory purposes.” (Jd. at 362.) “Pretext may be inferred from the timing of the discharge decision, the identity of the decision-maker, or by the discharged employee's job performance before termination. Pretext may be demonstrated by showing that the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224; see also Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 [pretext may be shown by “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infere that the employer did not act for [the asserted] non-discriminatory reasons” (citations and internal quotations omitted)].) Summary judgment for the employer may be appropriate where, “given the strength of the employer’s showing of innocent reasons, any countervailing circumstantial evidence of discriminatory motive, even if it may technically constitute a prima facie case, is too weak to raise a rational inference that discrimination occurred.” (Guz, 24 Cal.4th at 362.) While Defendants contend that standard is met here as a matter of law, the Court cannot agree.! First, Plaintiff shows that the evidence, viewed as a whole, contains arguably conflicting evidence as to Defendant’s reasons for termination and his performance, which permits a rational inference that the proffered reasons by Mr. Ng did not actually motivate the decision. “The 1 In Guz, the Court found this standard was met in large part because the plaintiff employee “essentially conceded that the reasons cited by Bechtel in support of its motion for summary judgment . . . were the true reasons why” it decided to eliminate his work unit. (24 Cal.4th at 364; see also id. [“in his response to Bechtel’s summary judgment motion, Guz made major concessions to both the plausibility and truthfulness of Bechtel’s proffered reasons”].) Plaintiff has made no such concession here. 3 Order Granting and Denying In Part Defendants’ Motion for Summary Adjudication Case No. CGC-19-581099CoN DH FF BW NY NY Se Be Be Be Be Be ee ee BNSRRRBBHE BB Ge DRDRESEKR|SS plaintiff can defeat a defense motion for summary judgment by showing . . . that the defense evidence itself permits conflicting inferences...” (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756.) At Mr. Ng’s deposition, he stated that he thought it was reasonable for Plaintiff to ask to move to a different floor. (202:20-22.) And, Mr. Ng stated that after this meeting he, over Slack “spoke with the executive team and got their support for Mr. Runyon’s termination.” (Ng. Decl., | 62.) The Slack messages do not mention either interpersonal conflicts or Mr. Runyon’s refusal to continue working as the bases for his decision to terminate Plaintiff. Instead, the messages state the sole reason is that Plaintiff “cannot perform at a high level.” (Ng. Decl., Ex. T.) At his deposition, Mr. Ng did not have an explanation for why the reason he communicated to the board differed from those set forth in his declaration. (Cochran Decl., Ex. 3, 225:22-227:5 [“I can’t tell you why exactly I didn’t mention it.”].) It is also notable that Plaintiff asserts that Mr. Ng never told him why he was terminated before this action was filed (Runyon Deel., {¥ 13, 21); that the company had no formal performance evaluation process; and that in his one-year evaluation, Mr. Ng did not claim that Plaintiff ‘was not performing the duties of his job well or raise any issue of interpersonal conflicts. (Jd. {§ 21-24.) Second, Plaintiff shows pretext based on the timing of the discharge decision. Plaintiff was terminated on his first day of his leave. (Runyon Decl., § 13.) (See, e.g., Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 594-597 [pretext may be inferred from the timing of an adverse employment action, taken together with other evidence].) Third, Plaintiff shows pretext based on the identity of the decision maker and other related evidence. The sole decision maker here was Mr. Ng, and Plaintiff declares that he faced hostility from Mr. Ng about leave from.the beginning. “I repeatedly requested a reasonable accommodation for my anxiety and depression in the form of taking paid time off from work. Ng repeatedly said that I could take leave but then, when the time came for me to do so, postponed my leave so that I could complete more work and, as I note below, imposed requirements on me that seriously inferred with my ability to sleep and, as a result, exacerbated my anxiety, depression and PTSD.” (Runyon Decl., { 8.) Further, Plaintiff offers evidence that Mr. Ng became aware of his disabled veteran status in the company’s HR software system, Bamboo, mentioned it to Plaintiff, and 4 . Order Granting and Denying In Part Defendants’ Motion for Summary Adjudication Case No. CGC-19-581099co ON DH FW NY y ee BRR RR BEBRES FRE WAKDESEHES laughed, commenting, “You don’t look disabled.” (Runyon Decl. ] 4.)? Further, he asserts that Mr. Ng “treated me more harshly than any other Payward employee that worked under him. Ng would frequently get angry, yell, lose his temper and verbally attack me.” (Jd. {6.) When Plaintiff brought this conduct to his attention, “Ng responded that he thought I could handle it because of my military training and background.” (Jd) Finally, it is notable that Plaintiff's complaints about his treatment by Ng—that Ng changed the requirements of his position by substantially increasing his demands on Plaintiff's time, including requiring him to work hours and to be available very late into the night and very early in the morning, were directly related to (and, indeed, exacerbated) Plaintiffs medical condition and disabilities. (Id. 9.) This evidence, taken together, is sufficient for a trier to fact to infer that, as Plaintiff contends, he was subject to disparate treatment and ultimately was terminated because of his wartime veteran status. (See Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 151 [Petitioner testified that Chesnut had told him that he ‘was so old [he] must have come over on the Mayflower’ . . . Further, petitioner introduced evidence that Chesnut was the actual decisionmaker behind his firing.”]; Reid v. Google, Inc. (2010) 50 Cal.4th 512, 542 [when combined with other evidence of pretext, an otherwise stray remark may create an ensemble that is sufficient to defeat summary judgment” (citation omitted)]; see Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1186-1187, 1192 [while employer had a legitimate, nondiscriminatory reason for discharging plaintiff that was nonpretextual, evidence was susceptible to reasonable inferences that discriminatory animus also contributed to plaintiffs termination, thus creating a disputed issue of material fact sufficient to defeat the motion for summary judgment].) Accordingly, Defendants’ motion as to the third, fourth, and sixth causes of action, based entirely on Defendants’ argument that there is no triable issue of fact as to the reason for Plaintiffs termination, is denied. ? Defendants’ evidentiary objections to the Runyon declaration are overruled. While Plaintiff's deposition testimony and the first amended complaint do not provide information that supports Plaintiff's declaration, the declaration does not contradict them. 5 Order Granting and Denying In Part Defendants’ Motion for Summary Adjudication Case No. CGC-19-581099oem IN KD HW FF BY yo ee BNRRRPBBRBSVPSFEVWARDEBTRES Defendants’ motion as to the ninth and tenth causes of action for whistleblowing are granted. “A claim for violation of Labor Code section 1102.5 requires . . . the plaintiff [to] show (1) the plaintiff engaged in protected activity, (2) the defendant subjected the plaintiff to an adverse employment action, and (3) there is a causal link between the two. ... An employee engages in activity protected by the statute when the employee discloses reasonably based suspicions of illegal activity. To have a reasonably based suspicion of illegal activity, the employee must be able to point to some legal foundation for his suspicion—some statute, rule or regulation which may have been violated by the conduct he disclosed.” (Ross v. County of Riverside (2019) 36 Cal.App.Sth 580, 591-592; see also Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 139.) Plaintiff provides no evidence of a specific rule or law he thought was violated. The complaint simply alleges that the “the CEO’s decision to unilaterally make changes in the stock options program . . . was illegal.” (Compl. § 105.) Plaintiff's declaration states “I reasonably believed that Ng’s action in changing, without the Board’s authorization and approval, Employee 5’s stock option vesting schedule from the four-year schedule approved by the Board to a six-year schedule unlawful.” ({48.) Plaintiffs declaration does not identify a legal foundation. Plaintiff's opposition otherwise does not raise any such basis. As for Plaintiff's argument on his reported violations of the OFAC rules, the complaint does not allege that P was terminated for reporting these violations. (FAC {fj 105, 107.) “The scope of issues material in a summary adjudication motion are delimited by the pleadings, which are supposed to aver the ultimate facts which constitute the cause of action or defense thereto.” (Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1738.) Plaintiff's cause of action for wrongful termination in violation of public policy is based entirely on violation of the public policy expressed in Labor Code section 1102.5. (FAC f 111.) According, summary adjudication is also granted as to the tenth cause of action. IT IS SO ORDERED. EL ty P (f/p— Date: August 23, 2021 B “Vg Hon. Ethan P. Schulman SUDGE OF THE SUPERIOR COURT 6 Order Granting and Denying In Part Defendants’ Motion for Summary Adjudication Case No. CGC-19-581099CGC-19-581099 NATHAN PETER RUNYON VS. PAYWARD, INC., A CALIFORNIA CORPORATION ET AL I, the undersigned, certify that I am an employee of the Superior Court of California, County Of San Francisco and not a party to the above-entitled cause and that on August 23, 2021 I electronically served the foregoing order on the following counsel of record by causing a copy thereof to be sent by email to the email addresses listed below. Dnt Date: August 23, 2021 By: SEAN KANE CHRISTOPHER N. LAVIGNE, ESQ. christopher. lavigne@withersworldwide.com PIERCE BAINBRIDGE BECK PRICE & HECHT LLP 277 PARK AVENUE, 45TH FLOOR NEW YORK, NY 10172 CLAIRE E, COCHRAN, ESQ. claire@clairecochranlegal.com LAW OFFICES OF CLAIRE COCHRAN 100 PINE STREET, SUITE 1250 SAN FRANCISCO, CA 94111 Certificate of Service — Form C00005010