Preview
1 Kimberly Pallen (SBN 288605)
kimberly.pallen@withersworldwide.com
2 Christopher N. LaVigne (NYBN 4811121) ELECTRONICALLY
(admitted Pro Hac Vice)
3 christopher.lavigne@withersworldwide.com F I L E D
Superior Court of California,
Withers Bergman LLP County of San Francisco
4 505 Sansome Street, 2nd Floor
San Francisco, California 94111 08/06/2021
Clerk of the Court
5 Telephone: 415.872.3200 BY: EDNALEEN ALEGRE
Facsimile: 415.549 2480 Deputy Clerk
6
Attorneys for Defendants Payward, Inc., a
7 California Corporation d/b/a Kraken; and Kaiser
Ng, an individual
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO
11
12 NATHAN PETER RUNYON, an individual, Case No. CGC-19-581099
13 Plaintiff, PAYWARD’S OBJECTIONS TO THE
DECLARATION OF NATHAN PETER
14 v. RUNYON IN SUPPORT OF OPPOSITION
TO DEFENDANTS’ MOTION FOR
15 PAYWARD, INC., a California Corporation SUMMARY ADJUDICATION
d/b/a KRAKEN; and Kaiser NG, an
16 individual; and DOES 1 through 10, inclusive, REDACTED
17 Defendants. Filed Concurrently with: Memorandum of
Points and Authorities; Defendants’ Response
18 to Plaintiff’s Separate Statement of Additional
Material Facts In Support of Opposition to
19 Defendants’ Motion for Summary
Adjudication; and Reply Declaration of
20 Christopher N. LaVigne in Support
21 Date: August 12, 2021
Time: 9:30 a.m.
22 Dept.: 302
23 The Hon. Ethan P. Schulman, Dept. 302
24
Action Filed: November 26, 2019
25 Trial Date: September 13, 2021
26 Defendants Payward, Inc., a California Corporation d/b/a Kraken; and Kaiser Ng
27 (“Payward”) objects to the April 29, 2021, Declaration of Nathan Peter Runyon (the “Runyon
28 Declaration”) submitted in support of Runyon’s opposition to Payward’s Motion for Summary
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PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION
1 Adjudication.
2 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S
RUNYON DECLARATION OBJECTION RULING
3
1. Runyon Declaration at 2:19-23, Relevance. Cal. Evid. Code § □ Sustained
4
¶5. “This was not the first time 350. This statement is not relevant
5 someone at the office made an to any remaining claims in this □ Overruled
offensive statement about my case. “Runyon consents to entry of
6 veteran status. Once in a meeting summary judgment on his claims
with the Director of Recruiting alleging that he was subjected to
7 and the Legal Administrator, the unlawful harassment based on his
Director or Recruiting asked me status as a veteran (First Cause of
8
if during my time in the Marines Action).” (Runyon Opp. Br. at 1,
9 and overseas I ever killed n.1.) This was the only cause of
anyone. I, once again shocked action alleging Payward acted
10 and severely offended, responded unlawfully regarding Mr.
that her question was Runyon’s veteran status. Runyon’s
11 inappropriate.” remaining claims focus solely on
his arguments that he was
12
terminated due to his disability.
13 Therefore, this purported
statement about Runyon’s time in
14 the Marines, made by someone
other than Mr. Ng and outside the
15 presence of Mr. Ng, is irrelevant
16 to Runyon’s remaining claims.
2. Runyon Declaration at 2:24-3:5, Relevance. Cal. Evid. Code § □ Sustained
17 ¶6. “Over the course of my 350. This statement is not relevant
employment, Ng treated me more to any remaining claims in this □ Overruled
18 harshly than any other Payward case. “Runyon consents to entry of
employee that worked under him. summary judgment on his claims
19 Ng would frequently get angry, alleging that he was subjected to
20 yell, lose his temper and verbally unlawful harassment based on his
attack me. I tried to bring this to status as a veteran (First Cause of
21 Ng’s attention by explaining that Action).” (Runyon Opp. Br. at 1,
Ng yelled at and became angry n.1.) This was the only cause of
22 with me more than anyone else at action alleging Payward acted
work. Ng responded that he unlawfully regarding Mr.
23
thought I could handle it because Runyon’s veteran status. Runyon’s
24 of my military training and remaining claims focus solely on
background. The yelling and his arguments that he was
25 verbal attacks continued to my terminated due to his disability.
dismay. On numerous occasions Therefore, this statement about
26 after Ng would verbally attack Ng’s purported treatment of
me, I would remind him that I Runyon based on Runyon’s
27
was the only one on the team that military history, is irrelevant to
28 he could talk to in this way Runyon’s remaining claims.
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PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION
1 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S
RUNYON DECLARATION OBJECTION RULING
2
because I would not cry or get
3
upset given my time served as a Prejudice. Cal. Evid. Code §
4 Marine and as such, could 352. Because Runyon has
withstand this type of treatment. I voluntarily dismissed his claim of
5 explained that just because I did harassment based on his veteran
not cry did not mean that Ng’s status, and this statement is
6 treatment did not bother me. Ng therefore irrelevant to Runyon’s
continued to verbally harass and remaining disability claims, this
7
attack me because of my wartime statement serves only to paint Mr.
8 veteran status.” Ng in a bad light and should be
excluded because its probative
9 value is substantially outweighed
by the probability that its
10 admission will create substantial
danger of undue prejudice, of
11
confusing the issues, or of
12 misleading the jury.
13 3. Runyon Declaration at 3:7-9, ¶7. Statement Contrary to Previous □ Sustained
“Ng was openly hostile and Admission. This statement in the
14 antagonistic to my repeated Declaration is contrary to an □ Overruled
requests for a reasonable admission or concession made by
15
accommodation for my Runyon during the course of
16 disabilities / medical condition.” discovery. Visueta v. Gen. Motors
Corp. (1991) 234 Cal.App.3d
17 1609, 1613 (“Admissions or
concessions made during the
18 course of discovery govern and
control over contrary declarations
19
lodged at a hearing on a motion
20 for summary judgment.”) Runyon
previously testified that he does
21 not recall any specifics about any
alleged request for any
22 accommodation other than his
“initial” purported request for
23
leave sometime in July 2019,
24 which was granted according to
Runyon’s own testimony. (August
25 6, 2021 Declaration of Christopher
LaVigne in Support of Reply
26 (“LaVigne Reply Decl.”) Ex. 3;
27 Deposition Transcript of Nathan
Peter Runyon dated May 13, 2021
28 (“Runyon May Tr.”) at 513:23-
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PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION
1 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S
RUNYON DECLARATION OBJECTION RULING
2
514:8 (“Are there, like, certain
3
conversations each week that stick
4 out in your mind that you
remember? A. I -- I remember the
5 initial one, bringing it up with
him, telling him why, going
6 through that, and being a little bit
relieved that he approved it and
7
said okay. And then doing
8 everything in my power to ensure
that I can take leave the following
9 month.”); id. at 515:15-23 (“Q.
Okay. I understand your testimony
10 that you raised -- that you
remember raising it to him a lot of
11
times. But I'm just asking for a
12 specific recollection, if you recall
any specific recollection, other
13 than the first one, where you
raised this with Mr. Ng. ‘This’
14 being your leave that he approved
15 for August 1st. A. I remember
getting the approval from him in
16 the beginning of July
timeframe.”); id. at 525:20-25
17 (“Q…. Is the reasonable
accommodation you’re referring
18 to here your PTO from August 1st
19 to August 30th? A. You have to
ask my counsel.”).)
20
Statement Contrary to
21 Allegations in the Complaint.
This statement in the Declaration
22 is contrary to Runyon’s allegations
23 in the First Amended Complaint
(“FAC”), which are considered
24 judicial admissions for the
purposes of summary judgment.
25 Castillo v. Barrera (2007) 146
Cal.App.4th 1317, 1324 (“A
26
defendant moving for summary
27 judgment may rely on the
allegations contained in the
28 plaintiff's complaint, which
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PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION
1 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S
RUNYON DECLARATION OBJECTION RULING
2
constitute judicial admissions. As
3
such they are conclusive
4 concessions of the truth of a
matter and have the effect of
5 removing it from the issues”); see
also Nativi v. Deutsche Bank Nat’l
6 Tr. Co. (2014) 223 Cal.App.4th
261, 290 (“Declarations in
7
opposition to a motion for
8 summary judgment are not a
substitute for amending the
9 pleadings to raise additional
theories of liability”). In his First
10 Amended Complaint, Runyon
alleges only one instance in which
11
he sought leave as accommodation
12 for his disability, and does not
mention any other instance in
13 which he requested medical leave
or any other accommodation.
14 (FAC at 13:11-12 (“Runyon’s
15 Reasonable Request for
Accommodation Led to his
16 Termination”), ¶39.) To the extent
Runyon is attempting to amend his
17 allegation that in February 2019
he cancelled a “week-long
18 vacation for his best friend’s
19 wedding” (FAC ¶21) into a prior
request for medical leave, this
20 attempt is improper and this
statement should be excluded.
21
22 4. Runyon Declaration at 3:9-14, Statement Contrary to Previous □ Sustained
23 ¶8. “I repeatedly requested a Admission. This statement in the
reasonable accommodation for Declaration is contrary to an □ Overruled
24 my anxiety and depression in the admission or concession made by
form of taking paid time off from Runyon during the course of
25 work. Ng repeatedly said that I discovery. Visueta v. Gen. Motors
could take leave but then, when Corp. (1991) 234 Cal.App.3d
26
the time came for me to do so, 1609, 1613 (“Admissions or
27 postponed my leave so that I concessions made during the
could complete more work and, course of discovery govern and
28 as I note below, imposed control over contrary declarations
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PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION
1 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S
RUNYON DECLARATION OBJECTION RULING
2
requirements on me that seriously lodged at a hearing on a motion
3
inferred with my ability to sleep for summary judgment.”) Runyon
4 and, as a result, exacerbated my previously testified that he does
anxiety, depression and PTSD.” not recall any specifics about any
5 alleged request for any
accommodation other than his
6 “initial” purported request for
leave sometime in July 2019,
7
which was granted according to
8 Runyon’s own testimony.
(LaVigne Reply Decl. Ex. 3,
9 Runyon May Tr. at 513:23-514:8
(“Are there, like, certain
10 conversations each week that stick
out in your mind that you
11
remember? A. I -- I remember the
12 initial one, bringing it up with
him, telling him why, going
13 through that, and being a little bit
relieved that he approved it and
14 said okay. And then doing
15 everything in my power to ensure
that I can take leave the following
16 month.”); id. at 515:15-23 (“Q.
Okay. I understand your testimony
17 that you raised -- that you
remember raising it to him a lot of
18 times. But I'm just asking for a
19 specific recollection, if you recall
any specific recollection, other
20 than the first one, where you
raised this with Mr. Ng. ‘This’
21 being your leave that he approved
for August 1st. A. I remember
22 getting the approval from him in
23 the beginning of July
timeframe.”); id. at 525:20-25
24 (“Q…. Is the reasonable
accommodation you’re referring
25 to here your PTO from August 1st
to August 30th? A. You have to
26
ask my counsel.”).)
27
28 Statement Contrary to
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PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION
1 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S
RUNYON DECLARATION OBJECTION RULING
2
Allegations in the Complaint.
3
This statement in the Declaration
4 is contrary to Runyon’s allegations
in the First Amended Complaint,
5 which are considered judicial
admissions for the purposes of
6 summary judgment. Castillo v.
Barrera (2007) 146 Cal.App.4th
7
1317, 1324 (“A defendant moving
8 for summary judgment may rely
on the allegations contained in the
9 plaintiff's complaint, which
constitute judicial admissions. As
10 such they are conclusive
concessions of the truth of a
11
matter and have the effect of
12 removing it from the issues”); see
also Nativi v. Deutsche Bank Nat’l
13 Tr. Co. (2014) 223 Cal.App.4th
261, 290 (“Declarations in
14 opposition to a motion for
15 summary judgment are not a
substitute for amending the
16 pleadings to raise additional
theories of liability”). In his First
17 Amended Complaint, Runyon
alleges only one instance in which
18 he sought leave as accommodation
19 for his disability, and does not
mention any other instance in
20 which he requested medical leave
or any other accommodation.
21 (FAC at 13:11-12 (“Runyon’s
Reasonable Request for
22 Accommodation Led to his
23 Termination”), ¶39.) To the extent
Runyon is attempting to amend his
24 allegation that in February 2019
he cancelled a “week-long
25 vacation for his best friend’s
wedding” (FAC ¶21) into a prior
26
request for medical leave, this
27 attempt is improper and this
statement should be excluded.
28
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PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION
1 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S
RUNYON DECLARATION OBJECTION RULING
2
5. Runyon Declaration at 3:14-4:1, Statement Contrary to Previous □ Sustained
3
¶9. “Instead of accommodating Admission. This statement in the
4 my need for time off, Ng changed Declaration is contrary to an □ Overruled
the requirements of my position admission or concession made by
5 by substantially increasing his Runyon during the course of
demands on my time. In discovery. Visueta v. Gen. Motors
6 particular, Ng increasingly Corp. (1991) 234 Cal.App.3d
required me to work hours and be 1609, 1613 (“Admissions or
7
available very late into the night concessions made during the
8 and very early in the morning – course of discovery govern and
requirements that did not exist control over contrary declarations
9 when I started work for Payward. lodged at a hearing on a motion
Ng was fond of saying that he for summary judgment.”) Runyon
10 only slept two hours a night. As a previously testified that he does
consequence, he expected me to not recall any specifics about any
11
be available to communicate with alleged request for any
12 him and address issues that when accommodation other than his
he was up and working which, “initial” purported request for
13 frequently, severely interfered leave sometime in July 2019,
with my ability to sleep. By way which was granted. (LaVigne
14 of example, he would constantly Reply Decl. Ex. 3, Runyon May
15 send me messages late at night Tr. at 513:23-514:8 (“Are there,
and early in the morning, for like, certain conversations each
16 example, at 1:30 a.m., demanding week that stick out in your mind
an immediate response on the that you remember? A. I -- I
17 issue that Ng had raised. That remember the initial one, bringing
constant interference with my it up with him, telling him why,
18 ability to sleep, in turn, going through that, and being a
19 exacerbated my anxiety and little bit relieved that he approved
depression. I explained to Ng that it and said okay. And then doing
20 sleep was vital to the ability to everything in my power to ensure
function and actually gave him a that I can take leave the following
21 book entitled “Why We Sleep.” month.”); id. at 515:15-23 (“Q.
In response, he said that he Okay. I understand your testimony
22 needed just two hours of sleep a that you raised -- that you
23 night and, if I did not want to remember raising it to him a lot of
make myself available when he times. But I'm just asking for a
24 wanted me to be available, he specific recollection, if you recall
would find someone else who any specific recollection, other
25 would. Thus, instead of than the first one, where you
accommodating my disabilities raised this with Mr. Ng. ‘This’
26
and granting my request for time being your leave that he approved
27 off, Ng made extraordinarily for August 1st. A. I remember
unreasonable demands on me.” getting the approval from him in
28 the beginning of July
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PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION
1 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S
RUNYON DECLARATION OBJECTION RULING
2
timeframe.”).) Runyon testified
3
that the only requests Ng placed
4 on his approval of Runyon’s
purported request for medical
5 leave were that “all my work was
taken care of and I had somebody
6 as backup for what needed to be
done.” (LaVigne Reply Decl. Ex.
7
3, Runyon May Tr. at 507:10-
8 508:10 (“Q. So explain the rest of
your conversation. A. I asked him
9 if he would approve it, if it was
okay. He confirmed that it's okay
10 as long as I had -- all my work
was taken care of and I had
11
somebody as backup for what
12 needed to be done. So given that
the 1st of August with -- one of
13 my big -- larger duties was the
revenue, and given that August 1st
14 is a Thursday, right, and knowing
15 that the revenue is done at the end
of the month, so I had a couple
16 days to actually finish that and still
be available. So that way, the
17 other duties that I was taking care
of, which was the cap table, was
18 taken care of, because I just --
19 there had been a new board vote.
And I was dealing with this other
20 issue of how to resolve these other
issues with the board vote and not
21 being sure that I wanted to take
that other stuff on. So it's part of --
22 a lot of that. Got his input and
23 feedback on whether he thought
that plan was okay. He approved
24 it. Said to put it into the system,
which I did. I did the subsequent
25 meetings with him. I kept making
sure -- following up, making sure
26
that he's aware of taking this time
27 off. If there's any issues or
concerns, let me know, you know,
28 so I had time to take care of
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PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION
1 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S
RUNYON DECLARATION OBJECTION RULING
2
them.”).)
3
4 Statement Contrary to
Allegations in the Complaint.
5 This statement in the Declaration
is contrary to Runyon’s allegations
6 in the First Amended Complaint,
which are considered judicial
7
admissions for the purposes of
8 summary judgment. Castillo v.
Barrera (2007) 146 Cal.App.4th
9 1317, 1324 (“A defendant moving
for summary judgment may rely
10 on the allegations contained in the
plaintiff's complaint, which
11
constitute judicial admissions. As
12 such they are conclusive
concessions of the truth of a
13 matter and have the effect of
removing it from the issues”); see
14 also Nativi v. Deutsche Bank Nat’l
15 Tr. Co. (2014) 223 Cal.App.4th
261, 290 (“Declarations in
16 opposition to a motion for
summary judgment are not a
17 substitute for amending the
pleadings to raise additional
18 theories of liability”). In his First
Preview
1 Kimberly Pallen (SBN 288605) kimberly.pallen@withersworldwide.com 2 Christopher N. LaVigne (NYBN 4811121) ELECTRONICALLY (admitted Pro Hac Vice) 3 christopher.lavigne@withersworldwide.com F I L E D Superior Court of California, Withers Bergman LLP County of San Francisco 4 505 Sansome Street, 2nd Floor San Francisco, California 94111 08/06/2021 Clerk of the Court 5 Telephone: 415.872.3200 BY: EDNALEEN ALEGRE Facsimile: 415.549 2480 Deputy Clerk 6 Attorneys for Defendants Payward, Inc., a 7 California Corporation d/b/a Kraken; and Kaiser Ng, an individual 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 12 NATHAN PETER RUNYON, an individual, Case No. CGC-19-581099 13 Plaintiff, PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN PETER 14 v. RUNYON IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION FOR 15 PAYWARD, INC., a California Corporation SUMMARY ADJUDICATION d/b/a KRAKEN; and Kaiser NG, an 16 individual; and DOES 1 through 10, inclusive, REDACTED 17 Defendants. Filed Concurrently with: Memorandum of Points and Authorities; Defendants’ Response 18 to Plaintiff’s Separate Statement of Additional Material Facts In Support of Opposition to 19 Defendants’ Motion for Summary Adjudication; and Reply Declaration of 20 Christopher N. LaVigne in Support 21 Date: August 12, 2021 Time: 9:30 a.m. 22 Dept.: 302 23 The Hon. Ethan P. Schulman, Dept. 302 24 Action Filed: November 26, 2019 25 Trial Date: September 13, 2021 26 Defendants Payward, Inc., a California Corporation d/b/a Kraken; and Kaiser Ng 27 (“Payward”) objects to the April 29, 2021, Declaration of Nathan Peter Runyon (the “Runyon 28 Declaration”) submitted in support of Runyon’s opposition to Payward’s Motion for Summary W ITHERS B ERGMAN LLP NY28571/0001-US-9735962/5 PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION 1 Adjudication. 2 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S RUNYON DECLARATION OBJECTION RULING 3 1. Runyon Declaration at 2:19-23, Relevance. Cal. Evid. Code § □ Sustained 4 ¶5. “This was not the first time 350. This statement is not relevant 5 someone at the office made an to any remaining claims in this □ Overruled offensive statement about my case. “Runyon consents to entry of 6 veteran status. Once in a meeting summary judgment on his claims with the Director of Recruiting alleging that he was subjected to 7 and the Legal Administrator, the unlawful harassment based on his Director or Recruiting asked me status as a veteran (First Cause of 8 if during my time in the Marines Action).” (Runyon Opp. Br. at 1, 9 and overseas I ever killed n.1.) This was the only cause of anyone. I, once again shocked action alleging Payward acted 10 and severely offended, responded unlawfully regarding Mr. that her question was Runyon’s veteran status. Runyon’s 11 inappropriate.” remaining claims focus solely on his arguments that he was 12 terminated due to his disability. 13 Therefore, this purported statement about Runyon’s time in 14 the Marines, made by someone other than Mr. Ng and outside the 15 presence of Mr. Ng, is irrelevant 16 to Runyon’s remaining claims. 2. Runyon Declaration at 2:24-3:5, Relevance. Cal. Evid. Code § □ Sustained 17 ¶6. “Over the course of my 350. This statement is not relevant employment, Ng treated me more to any remaining claims in this □ Overruled 18 harshly than any other Payward case. “Runyon consents to entry of employee that worked under him. summary judgment on his claims 19 Ng would frequently get angry, alleging that he was subjected to 20 yell, lose his temper and verbally unlawful harassment based on his attack me. I tried to bring this to status as a veteran (First Cause of 21 Ng’s attention by explaining that Action).” (Runyon Opp. Br. at 1, Ng yelled at and became angry n.1.) This was the only cause of 22 with me more than anyone else at action alleging Payward acted work. Ng responded that he unlawfully regarding Mr. 23 thought I could handle it because Runyon’s veteran status. Runyon’s 24 of my military training and remaining claims focus solely on background. The yelling and his arguments that he was 25 verbal attacks continued to my terminated due to his disability. dismay. On numerous occasions Therefore, this statement about 26 after Ng would verbally attack Ng’s purported treatment of me, I would remind him that I Runyon based on Runyon’s 27 was the only one on the team that military history, is irrelevant to 28 he could talk to in this way Runyon’s remaining claims. W ITHERS B ERGMAN LLP NY28571/0001-US-9735962/5 2 PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION 1 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S RUNYON DECLARATION OBJECTION RULING 2 because I would not cry or get 3 upset given my time served as a Prejudice. Cal. Evid. Code § 4 Marine and as such, could 352. Because Runyon has withstand this type of treatment. I voluntarily dismissed his claim of 5 explained that just because I did harassment based on his veteran not cry did not mean that Ng’s status, and this statement is 6 treatment did not bother me. Ng therefore irrelevant to Runyon’s continued to verbally harass and remaining disability claims, this 7 attack me because of my wartime statement serves only to paint Mr. 8 veteran status.” Ng in a bad light and should be excluded because its probative 9 value is substantially outweighed by the probability that its 10 admission will create substantial danger of undue prejudice, of 11 confusing the issues, or of 12 misleading the jury. 13 3. Runyon Declaration at 3:7-9, ¶7. Statement Contrary to Previous □ Sustained “Ng was openly hostile and Admission. This statement in the 14 antagonistic to my repeated Declaration is contrary to an □ Overruled requests for a reasonable admission or concession made by 15 accommodation for my Runyon during the course of 16 disabilities / medical condition.” discovery. Visueta v. Gen. Motors Corp. (1991) 234 Cal.App.3d 17 1609, 1613 (“Admissions or concessions made during the 18 course of discovery govern and control over contrary declarations 19 lodged at a hearing on a motion 20 for summary judgment.”) Runyon previously testified that he does 21 not recall any specifics about any alleged request for any 22 accommodation other than his “initial” purported request for 23 leave sometime in July 2019, 24 which was granted according to Runyon’s own testimony. (August 25 6, 2021 Declaration of Christopher LaVigne in Support of Reply 26 (“LaVigne Reply Decl.”) Ex. 3; 27 Deposition Transcript of Nathan Peter Runyon dated May 13, 2021 28 (“Runyon May Tr.”) at 513:23- W ITHERS B ERGMAN LLP NY28571/0001-US-9735962/5 3 PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION 1 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S RUNYON DECLARATION OBJECTION RULING 2 514:8 (“Are there, like, certain 3 conversations each week that stick 4 out in your mind that you remember? A. I -- I remember the 5 initial one, bringing it up with him, telling him why, going 6 through that, and being a little bit relieved that he approved it and 7 said okay. And then doing 8 everything in my power to ensure that I can take leave the following 9 month.”); id. at 515:15-23 (“Q. Okay. I understand your testimony 10 that you raised -- that you remember raising it to him a lot of 11 times. But I'm just asking for a 12 specific recollection, if you recall any specific recollection, other 13 than the first one, where you raised this with Mr. Ng. ‘This’ 14 being your leave that he approved 15 for August 1st. A. I remember getting the approval from him in 16 the beginning of July timeframe.”); id. at 525:20-25 17 (“Q…. Is the reasonable accommodation you’re referring 18 to here your PTO from August 1st 19 to August 30th? A. You have to ask my counsel.”).) 20 Statement Contrary to 21 Allegations in the Complaint. This statement in the Declaration 22 is contrary to Runyon’s allegations 23 in the First Amended Complaint (“FAC”), which are considered 24 judicial admissions for the purposes of summary judgment. 25 Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1324 (“A 26 defendant moving for summary 27 judgment may rely on the allegations contained in the 28 plaintiff's complaint, which W ITHERS B ERGMAN LLP NY28571/0001-US-9735962/5 4 PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION 1 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S RUNYON DECLARATION OBJECTION RULING 2 constitute judicial admissions. As 3 such they are conclusive 4 concessions of the truth of a matter and have the effect of 5 removing it from the issues”); see also Nativi v. Deutsche Bank Nat’l 6 Tr. Co. (2014) 223 Cal.App.4th 261, 290 (“Declarations in 7 opposition to a motion for 8 summary judgment are not a substitute for amending the 9 pleadings to raise additional theories of liability”). In his First 10 Amended Complaint, Runyon alleges only one instance in which 11 he sought leave as accommodation 12 for his disability, and does not mention any other instance in 13 which he requested medical leave or any other accommodation. 14 (FAC at 13:11-12 (“Runyon’s 15 Reasonable Request for Accommodation Led to his 16 Termination”), ¶39.) To the extent Runyon is attempting to amend his 17 allegation that in February 2019 he cancelled a “week-long 18 vacation for his best friend’s 19 wedding” (FAC ¶21) into a prior request for medical leave, this 20 attempt is improper and this statement should be excluded. 21 22 4. Runyon Declaration at 3:9-14, Statement Contrary to Previous □ Sustained 23 ¶8. “I repeatedly requested a Admission. This statement in the reasonable accommodation for Declaration is contrary to an □ Overruled 24 my anxiety and depression in the admission or concession made by form of taking paid time off from Runyon during the course of 25 work. Ng repeatedly said that I discovery. Visueta v. Gen. Motors could take leave but then, when Corp. (1991) 234 Cal.App.3d 26 the time came for me to do so, 1609, 1613 (“Admissions or 27 postponed my leave so that I concessions made during the could complete more work and, course of discovery govern and 28 as I note below, imposed control over contrary declarations W ITHERS B ERGMAN LLP NY28571/0001-US-9735962/5 5 PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION 1 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S RUNYON DECLARATION OBJECTION RULING 2 requirements on me that seriously lodged at a hearing on a motion 3 inferred with my ability to sleep for summary judgment.”) Runyon 4 and, as a result, exacerbated my previously testified that he does anxiety, depression and PTSD.” not recall any specifics about any 5 alleged request for any accommodation other than his 6 “initial” purported request for leave sometime in July 2019, 7 which was granted according to 8 Runyon’s own testimony. (LaVigne Reply Decl. Ex. 3, 9 Runyon May Tr. at 513:23-514:8 (“Are there, like, certain 10 conversations each week that stick out in your mind that you 11 remember? A. I -- I remember the 12 initial one, bringing it up with him, telling him why, going 13 through that, and being a little bit relieved that he approved it and 14 said okay. And then doing 15 everything in my power to ensure that I can take leave the following 16 month.”); id. at 515:15-23 (“Q. Okay. I understand your testimony 17 that you raised -- that you remember raising it to him a lot of 18 times. But I'm just asking for a 19 specific recollection, if you recall any specific recollection, other 20 than the first one, where you raised this with Mr. Ng. ‘This’ 21 being your leave that he approved for August 1st. A. I remember 22 getting the approval from him in 23 the beginning of July timeframe.”); id. at 525:20-25 24 (“Q…. Is the reasonable accommodation you’re referring 25 to here your PTO from August 1st to August 30th? A. You have to 26 ask my counsel.”).) 27 28 Statement Contrary to W ITHERS B ERGMAN LLP NY28571/0001-US-9735962/5 6 PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION 1 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S RUNYON DECLARATION OBJECTION RULING 2 Allegations in the Complaint. 3 This statement in the Declaration 4 is contrary to Runyon’s allegations in the First Amended Complaint, 5 which are considered judicial admissions for the purposes of 6 summary judgment. Castillo v. Barrera (2007) 146 Cal.App.4th 7 1317, 1324 (“A defendant moving 8 for summary judgment may rely on the allegations contained in the 9 plaintiff's complaint, which constitute judicial admissions. As 10 such they are conclusive concessions of the truth of a 11 matter and have the effect of 12 removing it from the issues”); see also Nativi v. Deutsche Bank Nat’l 13 Tr. Co. (2014) 223 Cal.App.4th 261, 290 (“Declarations in 14 opposition to a motion for 15 summary judgment are not a substitute for amending the 16 pleadings to raise additional theories of liability”). In his First 17 Amended Complaint, Runyon alleges only one instance in which 18 he sought leave as accommodation 19 for his disability, and does not mention any other instance in 20 which he requested medical leave or any other accommodation. 21 (FAC at 13:11-12 (“Runyon’s Reasonable Request for 22 Accommodation Led to his 23 Termination”), ¶39.) To the extent Runyon is attempting to amend his 24 allegation that in February 2019 he cancelled a “week-long 25 vacation for his best friend’s wedding” (FAC ¶21) into a prior 26 request for medical leave, this 27 attempt is improper and this statement should be excluded. 28 W ITHERS B ERGMAN LLP NY28571/0001-US-9735962/5 7 PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION 1 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S RUNYON DECLARATION OBJECTION RULING 2 5. Runyon Declaration at 3:14-4:1, Statement Contrary to Previous □ Sustained 3 ¶9. “Instead of accommodating Admission. This statement in the 4 my need for time off, Ng changed Declaration is contrary to an □ Overruled the requirements of my position admission or concession made by 5 by substantially increasing his Runyon during the course of demands on my time. In discovery. Visueta v. Gen. Motors 6 particular, Ng increasingly Corp. (1991) 234 Cal.App.3d required me to work hours and be 1609, 1613 (“Admissions or 7 available very late into the night concessions made during the 8 and very early in the morning – course of discovery govern and requirements that did not exist control over contrary declarations 9 when I started work for Payward. lodged at a hearing on a motion Ng was fond of saying that he for summary judgment.”) Runyon 10 only slept two hours a night. As a previously testified that he does consequence, he expected me to not recall any specifics about any 11 be available to communicate with alleged request for any 12 him and address issues that when accommodation other than his he was up and working which, “initial” purported request for 13 frequently, severely interfered leave sometime in July 2019, with my ability to sleep. By way which was granted. (LaVigne 14 of example, he would constantly Reply Decl. Ex. 3, Runyon May 15 send me messages late at night Tr. at 513:23-514:8 (“Are there, and early in the morning, for like, certain conversations each 16 example, at 1:30 a.m., demanding week that stick out in your mind an immediate response on the that you remember? A. I -- I 17 issue that Ng had raised. That remember the initial one, bringing constant interference with my it up with him, telling him why, 18 ability to sleep, in turn, going through that, and being a 19 exacerbated my anxiety and little bit relieved that he approved depression. I explained to Ng that it and said okay. And then doing 20 sleep was vital to the ability to everything in my power to ensure function and actually gave him a that I can take leave the following 21 book entitled “Why We Sleep.” month.”); id. at 515:15-23 (“Q. In response, he said that he Okay. I understand your testimony 22 needed just two hours of sleep a that you raised -- that you 23 night and, if I did not want to remember raising it to him a lot of make myself available when he times. But I'm just asking for a 24 wanted me to be available, he specific recollection, if you recall would find someone else who any specific recollection, other 25 would. Thus, instead of than the first one, where you accommodating my disabilities raised this with Mr. Ng. ‘This’ 26 and granting my request for time being your leave that he approved 27 off, Ng made extraordinarily for August 1st. A. I remember unreasonable demands on me.” getting the approval from him in 28 the beginning of July W ITHERS B ERGMAN LLP NY28571/0001-US-9735962/5 8 PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION 1 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S RUNYON DECLARATION OBJECTION RULING 2 timeframe.”).) Runyon testified 3 that the only requests Ng placed 4 on his approval of Runyon’s purported request for medical 5 leave were that “all my work was taken care of and I had somebody 6 as backup for what needed to be done.” (LaVigne Reply Decl. Ex. 7 3, Runyon May Tr. at 507:10- 8 508:10 (“Q. So explain the rest of your conversation. A. I asked him 9 if he would approve it, if it was okay. He confirmed that it's okay 10 as long as I had -- all my work was taken care of and I had 11 somebody as backup for what 12 needed to be done. So given that the 1st of August with -- one of 13 my big -- larger duties was the revenue, and given that August 1st 14 is a Thursday, right, and knowing 15 that the revenue is done at the end of the month, so I had a couple 16 days to actually finish that and still be available. So that way, the 17 other duties that I was taking care of, which was the cap table, was 18 taken care of, because I just -- 19 there had been a new board vote. And I was dealing with this other 20 issue of how to resolve these other issues with the board vote and not 21 being sure that I wanted to take that other stuff on. So it's part of -- 22 a lot of that. Got his input and 23 feedback on whether he thought that plan was okay. He approved 24 it. Said to put it into the system, which I did. I did the subsequent 25 meetings with him. I kept making sure -- following up, making sure 26 that he's aware of taking this time 27 off. If there's any issues or concerns, let me know, you know, 28 so I had time to take care of W ITHERS B ERGMAN LLP NY28571/0001-US-9735962/5 9 PAYWARD’S OBJECTIONS TO THE DECLARATION OF NATHAN RUNYON’S MOTION FOR SUMMARY ADJUDICATION 1 OBJECTED-TO PORTION OF GROUNDS FOR COURT’S RUNYON DECLARATION OBJECTION RULING 2 them.”).) 3 4 Statement Contrary to Allegations in the Complaint. 5 This statement in the Declaration is contrary to Runyon’s allegations 6 in the First Amended Complaint, which are considered judicial 7 admissions for the purposes of 8 summary judgment. Castillo v. Barrera (2007) 146 Cal.App.4th 9 1317, 1324 (“A defendant moving for summary judgment may rely 10 on the allegations contained in the plaintiff's complaint, which 11 constitute judicial admissions. As 12 such they are conclusive concessions of the truth of a 13 matter and have the effect of removing it from the issues”); see 14 also Nativi v. Deutsche Bank Nat’l 15 Tr. Co. (2014) 223 Cal.App.4th 261, 290 (“Declarations in 16 opposition to a motion for summary judgment are not a 17 substitute for amending the pleadings to raise additional 18 theories of liability”). In his First