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1 RANDOLPH E. DAAR (SBN 88195)
BEN ROSENFELD (SBN 203845)
2 PIER 5 LAW OFFICES ELECTRONICALLY
3 3330 Geary Blvd., 3rd Floor East F I L E D
San Francisco, CA 94118 Superior Court of California,
County of San Francisco
4 Tel: (415) 986-5591
Fax: (415) 421-1331 03/21/2022
Clerk of the Court
5 rdaar@pier5law.com BY: ERNALYN BURA
ben.rosenfeld@comcast.net Deputy Clerk
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7 Attorneys for Plaintiff Synergy Project Management, Inc.
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SUPERIOR COURT FOR THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO
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LAW OFFICE OF BEN ROSENFELD
SYNERGY PROJECT MANAGEMENT, Case Nos. CGC-17-560034
12 INC., Plaintiff, and CGC-19-576488, consolidated
San Francisco, Ca
13 v. PLAINTIFF SYNERGY’S NOTICE OF
MOTION AND MOTION TO REOPEN
14
CITY AND COUNTY OF SAN FRANCISCO, DISCOVERY
15 LONDON BREED, MOHAMMED NURU,
Defendants. Date: April 13, 2022
16 ______________________________________ Time: 9:30 am.
Dept.: 302
17 GHILOTTI BROS., INC., Plaintiff,
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v.
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SYNERGY PROJECT MANAGEMENT,
20 INC., a California Corporation, DOES 1-30,
Defendants.
21 ______________________________________
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SYNERGY PROJECT MANAGEMENT,
23 Cross-Complainant,
24 v.
25 GHILOTTI BROS, INC., ROES 1-20,
26 Cross-Defendants.
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P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034
NOTICE
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TO: ALL PARTIES AND THEIR COUNSEL OF RECORD
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PLEASE TAKE NOTICE that on April 13, 2022, at 9:30 am., or as soon thereafter as
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the matter can be heard, in Department 302 of the above-captioned Superior Court, located at
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400 McAllister Street, San Francisco, CA 94102, Plaintiff, Synergy Project Management
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(“Synergy”) will move, and hereby does move, to reopen discovery, in accordance with
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CCP § 2040.050. This motion is based on this Notice and the accompanying Memorandum of
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Points and Authorities; the Declarations of Counsel Ben Rosenfeld and Randolph E. Daar, the
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attached exhibits, any Reply and supporting papers filed in support; any further evidence and
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argument presented at the hearing; and on the papers and pleadings already on file in these cases.
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LAW OFFICE OF BEN ROSENFELD
12 Respectfully Submitted,
San Francisco, Ca
13
RANDOLPH E. DAAR
14 BEN ROSENFELD
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17 Dated: March 21, 2022 By: Ben Rosenfeld
Attorneys for Plaintiff Synergy
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P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034
1 TABLE OF CONTENTS
2 NOTICE ...........................................................................................................................................1
3 TABLE OF AUTHORITIES .......................................................................................................... ii
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MEMORANDUM OF POINTS AND AUTHORITIES .................................................................1
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I. INTRODUCTION ...............................................................................................................1
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II. RELEVANT FACTS AND PROCEDURAL HISTORY ...................................................1
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A. Synergy’s State Law Interference Claims Were Removed To Federal
8 Court And Dismissed At The Outset Of The Federal Proceedings,
Precluding Discovery Related To Those Claims ...........................................................1
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B. Synergy And The City Agreed To Allow Discovery In The Federal
10 Proceedings To Be Completed Even After The Federal Discovery Cutoff
11 Date—But This Never Came To Pass As A Result Of The Federal Court’s
LAW OFFICE OF BEN ROSENFELD
Subsequent Dismissal And Remand Of Synergy’s Interference Claims .......................3
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C. The Federal Court’s Dismissal Of Synergy’s Claims Against The City,
San Francisco, Ca
13 And Its Remand of Synergy’s Claims Against GBI, Precluded Synergy
From Being Able To Take Depositions As Agreed Upon By The Parties ....................4
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D. Revelation Of The Fraud Scheme By City Officials Responsible For The
15 City’s Illegal Termination Of Synergy’s Work On The Subject Contracts ...................4
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E. The Effects Of The Court’s Recent Granting Of The City’s Motion To
17 Continue The Trial, Thereby Permitting The City To File New Dispositive
Motions ..........................................................................................................................5
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F. The Court’s Ruling On Synergy’s Motion For Leave To Amend Is Still
19 Pending ..........................................................................................................................5
20 III. THE PARTIES’ MEET AND CONER EFFORTS .............................................................6
21 IV. ARGUMENT .......................................................................................................................7
22 A. California Law Enshrines Liberal Rules of Discovery ..................................................7
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B. The Circumstances Of This Case, And The Factors Delineated in CCP §
24 2040.050, Favor Reopening Discovery .........................................................................7
25 C. The Court Previously Indicated That Synergy Could Complete Previously-
Promulgated Discovery, And Should Adopt This Indication In Its Ruling .................11
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V. ADDITIONAL DISCOVERY SOUGHT BY PLAINTIFF SYNERGY ..........................12
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CONCLUSION ..............................................................................................................................13
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P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034
1 TABLE OF AUTHORITIES
2 State Cases
3 Austin v. Massachusetts Bonding and Insurance Co. (1961) 56 Cal.2d 596 .................................10
4
Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355 .............................................................7
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Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161 .......................................................7
6
Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165
7 Cal.App.4th 1568 ..................................................................................................................3, 11
8 Williams v. Superior Court (2017) 3 Cal.5th 531 ............................................................................7
9 State Statutes
10 CCP § 2024.020 .............................................................................................................................10
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LAW OFFICE OF BEN ROSENFELD
CCP § 2040.050 .......................................................................................................................3, 7, 8
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San Francisco, Ca
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P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiff Synergy seeks to reopen discovery (as listed in Part V), consistent with:
4 (a) The Court’s February 3, 2022 Order on the City Defendants’ motion continuing the
5 trial of this matter to September 19, 2022, in which the Court states: “[a]ll discovery will depend
6 on Department 302’s order regarding Synergy’s motion to reopen discovery” (Ex. D - 2/3/22
7 Order);
8 (b) The City Defendants’ request, and the Court’s Order, that the trial continuance is in
9 the form of an “initial trial date from which pre-trial motion dates will flow,” which, by
10 operation of CCP § 2024.020, enables defendants to demurrer anew, and move for summary
11 judgment, based upon evidence Synergy must discover and marshal in support of its tortious
LAW OFFICE OF BEN ROSENFELD
12 interference claims based upon a change in law;
San Francisco, Ca
13 (c) California’s broad and liberal statutory discovery framework;
14 (d) The Court’s prior ruling indicating that Synergy should be allowed to complete
15 discovery previously-promulgated, in circumstances where the tangled procedural history of this
16 case has prevented Synergy from doing so;
17 (e) Agreements by defendants to comply with and complete certain discovery;
18 (f) New and ongoing revelations of various City officials’ bribery, kickback, and
19 shakedown scheme, as it bares on the City’s interference with and termination of Synergy’s
20 subcontract work on City projects;
21 (g) The elementary principle favoring resolution of cases on their merits; and
22 (h) The lack of any necessary further delay, or any showing of unfair prejudice to
23 defendants.
24 II. RELEVANT FACTS AND PROCEDURAL HISTORY
25 A. Synergy’s State Law Interference Claims Were Removed To Federal
Court And Dismissed At The Outset Of The Federal Proceedings,
26 Precluding Discovery Related To Those Claims
27 The federal proceedings in this case commenced on November 24, 2017, when the City
28 removed this action from this Superior Court to federal court. Thereafter, the district court
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P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034
1 (Northern District of California) granted two successive motions by the City to dismiss Plaintiff
2 Synergy’s interference claims, ultimately with prejudice, on May16, 2018 and December 31,
3 2018, respectively. As a result, the City never answered Synergy’s interference claims, and
4 Synergy never had any opportunity to conduct discovery related to these claims. (Decl. of
5 Plaintiff’s Counsel Ben Rosenfeld, hereto (“Decl. of Counsel Rosenfeld”); Ex. A - City’s
6 Answer to Synergy’s Second Amended Complaint, at ¶¶ 94-132, stating repeatedly with
7 reference to the interference claims: “no response is necessary.”)
8 Synergy propounded written discovery to the City in the federal action, and identified
9 City personnel whose depositions would be sought. (Decl. of Counsel Rosenfeld, ¶ 4.)
10 On February 9, 2019, Synergy filed an unopposed motion while this action was still
11 pending in federal court for leave to file a third amended complaint (“TAC”), which the federal
LAW OFFICE OF BEN ROSENFELD
12 court granted on May 21, 2019. Synergy in fact filed its TAC on May 26, 2019, adding Ghilotti
San Francisco, Ca
13 Bros, Inc. (“GBI”) as a defendant in the federal action. (Id.)
14 Thereafter, Synergy and the City agreed to schedule Synergy’s depositions after the close
15 of discovery in federal court, in order to allow GBI time to appear and participate in the
16 depositions (and thus avoid duplicative discovery). However, the City’s subsequent motion to
17 dismiss Synergy’s TAC, which the federal court granted on November 21, 2019—with a remand
18 of Synergy’s claims against GBI to this Superior Court—precluded Synergy from taking the
19 agreed upon depositions. (Id.)
20 Upon remand to this Court, Synergy’s claims against GBI were consolidated with the still
21 pending litigation in this Court between Synergy and GBI, under this case number. As the City
22 was not yet a party to these proceedings, Synergy could not, and did not, conduct discovery
23 related to its dismissed interference claims, which were then pending appeal before the Ninth
24 Circuit. (Id).
25 On March 18, 2021 this Court granted in part and denied in part a motion by Synergy to
26 continue the trial, setting a trial date of August 23, 2021. In that Order, the Court provided that
27 discovery was not re-opened but that all then-pending discovery, including written discovery and
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P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034
1 noticed depositions, that had been timely served prior to the state discovery cut-off date would
2 remain open to allow for completion of that discovery, including any necessary motions to
3 compel. (Ex. B - March 18/May 19, 2021 Order.)1
4 On April 9, 2021, Synergy moved in this Court to compel further responses from
5 Defendant GBI to discovery requests (regarding Synergy and GBI’s respective claims for
6 damages, and GBI’s communications with the City, Mohammed Nuru, and non-governmental
7 non-profit organizations run by Nuru, Kelly and other City personnel) which Synergy had timely
8 served in this state court action. Both parties agreed that the Superior Court had jurisdiction to
9 hear the motion, and that both parties planned to complete previously-noticed discovery as
10 provided for in the March 18, 2021/May 19, 2021 Order (Ex. B) granting in part and denying in
11 part Synergy’s motion to continue the trial. (Decl. of Counsel Rosenfeld, ¶ 10.)
LAW OFFICE OF BEN ROSENFELD
12 On May 28, 2021, this Court denied Synergy’s motion to compel “without prejudice to
San Francisco, Ca
13 filing a CCP § 2024.50 motion [to reopen discovery], on the grounds that pursuant to Pelton-
14 Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, the
15 Court lacked jurisdiction to hear the motion, as the Presiding Judge’s order continuing the trial
16 had left discovery closed. (Ex. C - 5/28/21 Order; emphasis added.)
17 B. Synergy And The City Agreed To Allow Discovery In The Federal
Proceedings To Be Completed Even After The Federal Discovery
18 Cutoff Date—But This Never Came To Pass As A Result Of The
Federal Court’s Subsequent Dismissal And Remand Of Synergy’s
19 Interference Claims
20 Synergy conducted discovery in federal court (related to its federal claims), comprised of
21 interrogatories, requests for admissions, document requests, and deposition notices. The City
22 responded to Synergy’s document requests with “rolling production” that took over a year,
23 culminating with the City’s promise to complete its production by the scheduled close of
24 discovery (July 1, 2020). However, the City in fact never completed this production, and it failed
25 to produce a majority of the documents it had under review, including responsive documents
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This Order is referred to as the “March 18, 2021/May 19, 2021 Order” because the
27 Order was rendered on March 18, 2021 (as reflected in the register of actions), but signed on
28 May 19, 2021. (Decl. of Counsel Rosenfeld, ¶ 9; Ex. B.)
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P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034
1 from Defendant Mayor Breed. Nor did the City produce a required privilege log describing
2 responsive documents which it was withholding based on claimed privilege. The City has agreed
3 to do so now though. (Decl. of Counsel Rosenfeld, ¶ 4; Decl. of Counsel Daar, ¶ 5.)
4 C. The Federal Court’s Dismissal Of Synergy’s Claims Against The City,
And Its Remand of Synergy’s Claims Against GBI, Precluded
5 Synergy From Being Able To Take Depositions As Agreed Upon By
The Parties
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On February 9, 2019, Synergy filed an unopposed motion while this action was still
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pending in federal court for leave to file a third amended complaint (“TAC”), which the federal
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court granted on May 21, 2019. Synergy in fact filed its TAC on May 26, 2019, adding Ghilotti
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Bros, Inc. (“GBI”) as a defendant. In light of the City’s then delayed document production in
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response to RFPs by Synergy—and in order to allow GBI time to appear and participate in the
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LAW OFFICE OF BEN ROSENFELD
depositions (and thus avoid duplicative depositions)—Synergy and the City agreed to schedule
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Synergy’s depositions after the close of discovery in federal court. However, the City’s
San Francisco, Ca
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subsequent motion to dismiss Synergy’s TAC, which the federal court granted on November 21,
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2019—with a remand of Synergy’s claims against GBI to this Superior Court—precluded
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Synergy from taking the agreed upon depositions. (Decl. of Counsel Rosenfeld, ¶ 7.)
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D. Revelation Of The Fraud Scheme By City Officials Responsible For
17 The City’s Illegal Termination Of Synergy’s Work On The Subject
Contracts
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While Synergy’s dismissed interference claims were pending appeal before the Ninth
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Circuit, the United States Attorney for the Northern District of California revealed an elaborate,
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years-long bribery, kickback, and shakedown scheme operated by Mohammed Nuru, Harlan
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Kelly, and other members of the so-called “City Family,” a group of high level City officials
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connected by close and intimate personal relationships separate from their positions as
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government employees. These disclosures revealed independently wrongful acts which Nuru,
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Kelly, Breed and other City officials engaged in, while interfering with Synergy’s participation
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in the Haight Street and Van Ness Projects. (Decl. of Counsel Rosenfeld, ¶ 5.)
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P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034
E. The Effects Of The Court’s Recent Granting Of The City’s Motion To
1 Continue The Trial, Thereby Permitting The City To File New
2 Dispositive Motions
On June 7, 2021, the Ninth Circuit reversed the federal district court’s dismissal of
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Synergy’s state law interference claims against the City Defendants, but affirmed the dismissal
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of Synergy’s federal claims. On July 21, 2021, this Court granted Synergy and GBI’s stipulated
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request to continue the trial, based on the anticipated consolidation of Synergy’s then-pending
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state law claims against GBI with those against the City revived by the Ninth Circuit. Thereafter,
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on August 4, 2021, the federal district court in fact remanded Synergy’s interference claims
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against the City to this Court. This Court received the remand under this original case number
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August 9, 2021. (Decl. Counsel Rosenfeld, ¶¶ 11-12.)
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On February 3, 2022, the Court (Department 206, PJ Feng) granted the City’s motion to
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LAW OFFICE OF BEN ROSENFELD
continue the trial to September 19, 2022, which the Court designated “an initial trial date from
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which pre-trial motion dates will flow.” At the same time, the Court specified that its new trial
San Francisco, Ca
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setting should not be construed as constraining Synergy’s ability to reopen discovery, but rather
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that “[a]ll discovery will depend on Department 302’s order regarding Synergy’s motion to
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reopen discovery.” (Ex. D - 2/3/22 Order; Decl. Counsel Rosenfeld, ¶ 13.)
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For the sake of efficiency, Synergy and the City defendants agreed that Synergy would
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move to reopen discovery after the Court (Dept. 302) ruled on Synergy’s then pending motion
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for leave to file a Fourth Amended Complaint and the parties had met and conferred regarding
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the scope of further discovery and Synergy’s motion to reopen. These parties further agreed that
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the City would not argue any delay by Synergy in the meantime, in any opposition to Synergy’s
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motion to re-open discovery. (Decl. of Counsel Rosenfeld, ¶ 15.)
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F. The Court’s Ruling On Synergy’s Motion For Leave To Amend Is
23 Still Pending
24 On February 24, 2022, the Court (Dept. 302) issued a tentative ruling granting in part
25 Synergy’s motion for leave to amend. The Court heard Synergy’s motion the next day on
26 February 25, 2022, and took the matter under submission. On March 1, 2022, the Court (Clerk of
27 Dept. 302) asked Synergy to furnish a verbatim version in Microsoft Word of the Court’s TR,
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P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034
1 which Synergy did, through counsel, on March 2, 2022. As of this date, the Court’s decision on
2 Synergy’s motion for leave to amend is still pending.
3 III. THE PARTIES’ MEET AND CONER EFFORTS
4 Counsel for all of the parties met and conferred by phone on March 17, 2022. The parties
5 narrowed but did not resolve their disputes. Specifically:
6 Defendant GBI agreed to follow the Court’s March 18, 2021/May 19, 2021 Order, which
7 provided, in relevant part:
8 3. Discovery is not re-opened. All discovery, including written discovery
9 and notices of deposition, that was timely served prior to the discovery
cutoff based on the March 29, 2021 trial date will remain open to allow for
10 completion of that discovery including the motions to compel related to
that discovery.
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LAW OFFICE OF BEN ROSENFELD
(Ex. B.)
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The City Defendants agreed to produce a privilege of documents responsive to Synergy’s
San Francisco, Ca
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prior written discovery which the City withheld based on assertions of privilege.
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The City Defendants agreed to produce documents related to the City’s contract with and
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payments to Van Ness Street Project subcontractor Azul Works, Inc. (but not communications
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between Azul Works or its representatives and City officials, which Synergy intends to seek).
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The City did not agree, and in fact represented that it would oppose, Synergy’s interest in
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deposing Mayor London Breed, former SFDPW Director Mohammed Nuru (whose depositions
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were noticed in the federal proceedings but did not take place, as discussed above, and former
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SFPUC Director Harlan Kelly, whose involvement in the “City family” fraud scheme was not
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disclosed until after Synergy’s interference claims were dismissed and the City was dismissed as
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a defendant.
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The City indicated that it too wants to conduct discovery toward Synergy.
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The scope of discovery must necessarily depend on the scope of amendment of Synergy’s
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complaint which the Court ultimately allows, vel non.
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Synergy asked the City and GBI to stipulate to allow this motion to be heard on shortened
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time. Defendants declined.
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P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034
1 (See Decl. of Plaintiff’s Counsel Randolph E. Daar, ¶¶ 3-10.)
2 IV. ARGUMENT
3 Good cause exists to reopen discovery in order to allow Synergy to conduct discovery
4 directed to its interference claims, and to complete previously-promulgated discovery which both
5 the Court already indicated it would be inclined to allow.
A. California Law Enshrines Liberal Rules of Discovery
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In the absence of privilege, the right to discovery in California is broad, and must be
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construed liberally in order to enable parties to ascertain the strength of their case, prepare for
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trial, and conduct a trial on the merits at which the truth can be determined. Williams v. Superior
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Court (2017) 3 Cal.5th 531, 538. The California Supreme Court has instructed that trial courts
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should issue discovery orders reflective of California’s liberal statutory discovery policies, and
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LAW OFFICE OF BEN ROSENFELD
that failure to do so can constitute an abuse of discretion:
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A trial court must be mindful of the Legislature's preference for discovery
San Francisco, Ca
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over trial by surprise, must construe the facts before it liberally in favor of
14 discovery, may not use its discretion to extend the limits on discovery
beyond those authorized by the Legislature, and should prefer partial to
15 outright denials of discovery. [Citation.] A reviewing court may not use
16 the abuse of discretion standard to shield discovery orders that fall short:
“Any record which indicates a failure to give adequate consideration to
17 these concepts is subject to the attack of abuse of discretion, regardless of
the fact that the order shows no such abuse on its face.”
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Williams, 3 Cal.5th at 540, citing Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 383-
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384, and quoting Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 171.
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B. The Circumstances Of This Case, And The Factors Delineated in
21 CCP § 2040.050, Favor Reopening Discovery
22 CCP § 2040.050 states in pertinent part:
23 (a) On motion of any party, the court may grant leave to complete discovery
proceedings, or to have a motion concerning discovery heard, closer to the
24 initial trial date, or to reopen discovery after a new trial date has been set. This
25 motion shall be accompanied by a meet and confer declaration under Section
2016.040.
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(b) In exercising its discretion to grant or deny this motion, the court shall take
27 into consideration any matter relevant to the leave requested, including, but
not limited to, the following:
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P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034
1 (1) The necessity and the reasons for the discovery.
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(2) The diligence or lack of diligence of the party seeking the discovery or
3 the hearing of a discovery motion, and the reasons that the discovery was
not completed or that the discovery motion was not heard earlier.
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(3) Any likelihood that permitting the discovery or hearing the discovery
5 motion will prevent the case from going to trial on the date set, or
6 otherwise interfere with the trial calendar, or result in prejudice to any
other party.
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(4) The length of time that has elapsed between any date previously set,
8 and the date presently set, for the trial of the action.
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Here, the circumstances and history of this case, and the factors delineated in
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CCP § 2040.050, favor granting Synergy’s motion to reopen discovery.
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LAW OFFICE OF BEN ROSENFELD
1&2. Synergy has not had an opportunity to conduct and
12 complete discovery pertaining to its interference claims
As explained above, Synergy has not had a reasonable opportunity to conduct discovery
San Francisco, Ca
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related to its interference claims. These claims were dismissed at the outset of the federal case,
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and remained dismissed throughout the district court proceedings. In fact, the City has not even
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answered Synergy’s interference claims. Thus, for example, Synergy has not been afforded the
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opportunity to propound basic California form (including contention) interrogatories, which can
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only follow a defendant’s answer.
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The only discovery Synergy was able to conduct related to its interference claims during
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the federal proceedings is that discovery that overlapped with the federal claims, which, as
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explained above, was not completed. Discovery which Synergy did not have a chance to
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complete includes:
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• Discovery relating specifically to Synergy’s interference claims, including
23 contention interrogatories and related requests for information and materials
24 approved by the Judicial Council related to the City’s answer to (and presumed
denial of) the paragraphs alleging Synergy’s interference claims, and related to
25 the City’s asserted affirmative defenses, if any, to those claims (where the City
has yet to answer);
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• obtaining the privilege log which the City has agreed to but still has not produced;
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P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034
• challenging any such assertions of privilege on motion which Synergy believes it
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should be entitled to challenge; and
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• taking depositions which the parties agreed Synergy could conduct, but which
3 Synergy could not take once the federal district court dismissed all of Synergy’s
claims against the City and remanded Synergy’s state law claims against GBI to
4 this Court.
5
(Decl. of Counsel Rosenfeld, ¶ 15.)
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During the federal proceedings, Synergy and the City agreed to complete discovery
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concerning Synergy’s interference claims after the then-set close of discovery, in order to allow
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newly-added defendant GBI to appear and participate in discovery. This was a reasonable and
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prudent decision that served judicial economy, by avoiding duplication of discovery and
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avoiding the formal litigation of discovery disputes that could be resolved informally. (Decl. of
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LAW OFFICE OF BEN ROSENFELD
Counsel Rosenfeld, ¶ 7.)
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Meanwhile, Synergy did not, and could not, have conducted discovery related to Messrs.
San Francisco, Ca
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Nuru’s, Kelly’s, and other City officials’ bribery/kickback/shakedown scheme as it bares on the
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City’s interference with and termination of Synergy’s subcontract work on City projects, because
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the “City Family” scheme was not disclosed until beginning in January 2020 (with Mohammed
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Nuru’s arrest on federal fraud charges—after the federal court fully and finally dismissed
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Synergy’s claims against the City on November 21, 2019. (Decl. Counsel Rosenfeld, ¶ 5.) It
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would be perverse to permit the City to prevent Synergy from obtaining relevant information
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about this scheme as a result of Nuru’s and Kelly’s criminal conduct and fraudulent concealment
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of the facts pertaining thereto.
21 3. With trial still six months away, Synergy has ample
22 time to complete discovery, and defendants will not be
unduly prejudiced in the legal meaning of that term
23 Synergy is prepared to conduct diligent and telegraphed discovery pertaining to its
24 interference allegations, whether the Court allows Synergy to amend to plead these allegations as
25 independently wrongful acts and/or independent legal claims, as the nature and quanta of
26 discovery and proof at trial is the same in either event.
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P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034
1 The City should not be heard to argue that allowing Synergy to gather proof in support of
2 allegations Synergy is entitled to make based on a change in law (the requirement to plead and
3 prove independently wrongful acts in support of its interference claims), and on new material
4 factual revelations, will prejudice the City.
5 Neither the existing defendants, nor former defendant Mohammed Nuru, nor Harlan
6 Kelly substituted for a Doe defendant would be surprised or unduly or unfairly prejudiced by the
7 discovery sought, where they actively concealed their criminal acts, and where Synergy’s
8 proposed new allegations relate back to its original complaint. “A defendant unaware of the suit
9 against him by a fictitious name is in no worse position if, in addition to substituting his true
10 name, the amendment makes other changes in the allegations on the basis of the same general set
11 of facts.” Austin v. Massachusetts Bonding and Insurance Co. (1961) 56 Cal.2d 596, 602.
LAW OFFICE OF BEN ROSENFELD
12 The City itself six months after this case was received on remand from the federal court
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13 on August 9, 2021 to move to on January 7, 2022 to continue the trial, in the form of “initial
14 trial date from which pre-trial motion dates will flow.” (2/3/22 Order- emphasis added.)
15 According to the Court’s February 3, 2022 Order—and by operation of CCP § 2024.020—
16 defendants’ new “initial trial date” allows them to file a third demurrer (and a subsequent
17 summary judgment motion) based on the very same change in law based upon which Synergy of
18 necessity has sought leave to amend.
19 Not only would it not prejudice defendants to allow Synergy to conduct discovery related
20 to the independently wrongful acts it alleges, it would plainly prejudice Synergy, and be
21 manifestly unjust, to allow the City to demurrer and move for summary judgment based upon the
22 same change in law and the facts Synergy must marshal to satisfy this change in the law.
23 4. Synergy has been diligent in trying to put this tangled
case on track toward trial
24
The tangled procedural history of this case—including the fact that no single pleading
25
contains all of the extant claims and defendants or conforms to the law of the case—in the wake
26
of the loss and reinstatement of Synergy’s tortious interference claims against the City, and the
27
new California pleading requirement flagged by the Ninth Circuit—is no fault of Synergy’s. As
28
10
P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034
1 discussed above, Synergy has been diligent in prosecuting its claims—in the federal district
2 court, in the Ninth Circuit, and now (again) in this Court—including by sequencing its motions
3 for leave to amend and to reopen discovery, in two different departments, as required by the
4 Court’s rules and decisions.
5 For the sake of efficiency, Synergy and the City agreed that Synergy would wait to move
6 to reopen discovery after the Court (Dept. 302) ruled on Synergy’s still pending motion for leave
7 to amend, and the parties had met and conferred regarding the scope of further discovery. These
8 parties agreed that the City would not argue any delay by Synergy in the meantime as a basis for
9 opposing Synergy’s motion to reopen discovery. (Decl. Counsel Rosenfeld, ¶ 15.) Synergy in
10 fact pressed for the parties to meet and confer beginning on March 8, 2022, culminating in a
11 detail meet and confer (phone) conference on March 17, 2022. (Decl. Counsel Daar, ¶ 2.) In the
LAW OFFICE OF BEN ROSENFELD
12 interests of time and efficiency, Synergy has elected to file this motion even though the Court’s
San Francisco, Ca
13 ruling on Synergy’s motion for leave to amend is still pending.
14 C. The Court Previously Indicated That Synergy Could Complete
Previously-Promulgated Discovery, And Should Adopt This
15 Indication In Its Ruling
16 In its March 18, 2021/May 19, 2021 Order granting in part Synergy’s motion to continue
17 the trial, the Court stated that discovery was not reopened, but that the parties could complete
18 discovery that was timely promulgated before the discovery cutoff, but which the parties were
19 unable to complete due to the facts and circumstances underlying the Court’s decision to
20 continue the trial date. (Ex. B - 3/18/21/5/19/21 Order.) However, in deciding Synergy’s
21 subsequent motion to compel on May 5, 2021, the Court determined that because its March 18,
22 2021/May 19, 2021 Order did not reopen discovery, it lacked jurisdiction to hear the motion
23 pursuant to Pelton-Shepherd Industries, Inc., supra, 165 Cal.App.4th 1568. (Ex. C – 5/28/21
24 Order.)
25 In Pelton, the Court of Appeal determined that a trial court had erred in issuing discovery
26 sanctions following a motion to compel brought after the deadline, without first determining that
27 good cause existed to extend the deadline for motions to compel. Here, in contrast, Synergy
28 contends that in allowing timely-issued discovery to proceed, the court implicitly included the
11
P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034
1 right to compel that same discovery. This makes sense, because if motions to compel regarding
2 such discovery are disallowed, the parties would lack any means to enforce the Court’s order
3 permitting such discovery to be completed.
4 For this reason, Synergy asks that the Court incorporate into its ruling on this motion its
5 prior indication, on March 18, 2021/May 19, 2021, that Synergy should be entitled to complete
6 previously-promulgated discovery. (Ex. B.) Furthermore, the Court’s (Dept. 206’s) February 3,
7 2022 Order provides that the scope of discovery should be decided freshly by the Court (Dept.
8 302), based upon Synergy’s instant motion to reopen.
9 V. ADDITIONAL DISCOVERY SOUGHT BY PLAINTIFF SYNERGY
10 Based on the foregoing, Synergy needs and seeks at least the following further
11 discovery:2
LAW OFFICE OF BEN ROSENFELD
12 • “All discovery, including written discovery and notices of deposition, that was timely
served prior to the discovery cutoff based on the March 29, 2021 trial date,” per the
San Francisco, Ca
Preview
1 RANDOLPH E. DAAR (SBN 88195) BEN ROSENFELD (SBN 203845) 2 PIER 5 LAW OFFICES ELECTRONICALLY 3 3330 Geary Blvd., 3rd Floor East F I L E D San Francisco, CA 94118 Superior Court of California, County of San Francisco 4 Tel: (415) 986-5591 Fax: (415) 421-1331 03/21/2022 Clerk of the Court 5 rdaar@pier5law.com BY: ERNALYN BURA ben.rosenfeld@comcast.net Deputy Clerk 6 7 Attorneys for Plaintiff Synergy Project Management, Inc. 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 LAW OFFICE OF BEN ROSENFELD SYNERGY PROJECT MANAGEMENT, Case Nos. CGC-17-560034 12 INC., Plaintiff, and CGC-19-576488, consolidated San Francisco, Ca 13 v. PLAINTIFF SYNERGY’S NOTICE OF MOTION AND MOTION TO REOPEN 14 CITY AND COUNTY OF SAN FRANCISCO, DISCOVERY 15 LONDON BREED, MOHAMMED NURU, Defendants. Date: April 13, 2022 16 ______________________________________ Time: 9:30 am. Dept.: 302 17 GHILOTTI BROS., INC., Plaintiff, 18 v. 19 SYNERGY PROJECT MANAGEMENT, 20 INC., a California Corporation, DOES 1-30, Defendants. 21 ______________________________________ 22 SYNERGY PROJECT MANAGEMENT, 23 Cross-Complainant, 24 v. 25 GHILOTTI BROS, INC., ROES 1-20, 26 Cross-Defendants. 27 28 P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034 NOTICE 1 2 TO: ALL PARTIES AND THEIR COUNSEL OF RECORD 3 PLEASE TAKE NOTICE that on April 13, 2022, at 9:30 am., or as soon thereafter as 4 the matter can be heard, in Department 302 of the above-captioned Superior Court, located at 5 400 McAllister Street, San Francisco, CA 94102, Plaintiff, Synergy Project Management 6 (“Synergy”) will move, and hereby does move, to reopen discovery, in accordance with 7 CCP § 2040.050. This motion is based on this Notice and the accompanying Memorandum of 8 Points and Authorities; the Declarations of Counsel Ben Rosenfeld and Randolph E. Daar, the 9 attached exhibits, any Reply and supporting papers filed in support; any further evidence and 10 argument presented at the hearing; and on the papers and pleadings already on file in these cases. 11 LAW OFFICE OF BEN ROSENFELD 12 Respectfully Submitted, San Francisco, Ca 13 RANDOLPH E. DAAR 14 BEN ROSENFELD 15 16 17 Dated: March 21, 2022 By: Ben Rosenfeld Attorneys for Plaintiff Synergy 18 19 20 21 22 23 24 25 26 27 28 1 P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034 1 TABLE OF CONTENTS 2 NOTICE ...........................................................................................................................................1 3 TABLE OF AUTHORITIES .......................................................................................................... ii 4 MEMORANDUM OF POINTS AND AUTHORITIES .................................................................1 5 I. INTRODUCTION ...............................................................................................................1 6 II. RELEVANT FACTS AND PROCEDURAL HISTORY ...................................................1 7 A. Synergy’s State Law Interference Claims Were Removed To Federal 8 Court And Dismissed At The Outset Of The Federal Proceedings, Precluding Discovery Related To Those Claims ...........................................................1 9 B. Synergy And The City Agreed To Allow Discovery In The Federal 10 Proceedings To Be Completed Even After The Federal Discovery Cutoff 11 Date—But This Never Came To Pass As A Result Of The Federal Court’s LAW OFFICE OF BEN ROSENFELD Subsequent Dismissal And Remand Of Synergy’s Interference Claims .......................3 12 C. The Federal Court’s Dismissal Of Synergy’s Claims Against The City, San Francisco, Ca 13 And Its Remand of Synergy’s Claims Against GBI, Precluded Synergy From Being Able To Take Depositions As Agreed Upon By The Parties ....................4 14 D. Revelation Of The Fraud Scheme By City Officials Responsible For The 15 City’s Illegal Termination Of Synergy’s Work On The Subject Contracts ...................4 16 E. The Effects Of The Court’s Recent Granting Of The City’s Motion To 17 Continue The Trial, Thereby Permitting The City To File New Dispositive Motions ..........................................................................................................................5 18 F. The Court’s Ruling On Synergy’s Motion For Leave To Amend Is Still 19 Pending ..........................................................................................................................5 20 III. THE PARTIES’ MEET AND CONER EFFORTS .............................................................6 21 IV. ARGUMENT .......................................................................................................................7 22 A. California Law Enshrines Liberal Rules of Discovery ..................................................7 23 B. The Circumstances Of This Case, And The Factors Delineated in CCP § 24 2040.050, Favor Reopening Discovery .........................................................................7 25 C. The Court Previously Indicated That Synergy Could Complete Previously- Promulgated Discovery, And Should Adopt This Indication In Its Ruling .................11 26 V. ADDITIONAL DISCOVERY SOUGHT BY PLAINTIFF SYNERGY ..........................12 27 CONCLUSION ..............................................................................................................................13 28 i P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034 1 TABLE OF AUTHORITIES 2 State Cases 3 Austin v. Massachusetts Bonding and Insurance Co. (1961) 56 Cal.2d 596 .................................10 4 Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355 .............................................................7 5 Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161 .......................................................7 6 Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 7 Cal.App.4th 1568 ..................................................................................................................3, 11 8 Williams v. Superior Court (2017) 3 Cal.5th 531 ............................................................................7 9 State Statutes 10 CCP § 2024.020 .............................................................................................................................10 11 LAW OFFICE OF BEN ROSENFELD CCP § 2040.050 .......................................................................................................................3, 7, 8 12 San Francisco, Ca 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiff Synergy seeks to reopen discovery (as listed in Part V), consistent with: 4 (a) The Court’s February 3, 2022 Order on the City Defendants’ motion continuing the 5 trial of this matter to September 19, 2022, in which the Court states: “[a]ll discovery will depend 6 on Department 302’s order regarding Synergy’s motion to reopen discovery” (Ex. D - 2/3/22 7 Order); 8 (b) The City Defendants’ request, and the Court’s Order, that the trial continuance is in 9 the form of an “initial trial date from which pre-trial motion dates will flow,” which, by 10 operation of CCP § 2024.020, enables defendants to demurrer anew, and move for summary 11 judgment, based upon evidence Synergy must discover and marshal in support of its tortious LAW OFFICE OF BEN ROSENFELD 12 interference claims based upon a change in law; San Francisco, Ca 13 (c) California’s broad and liberal statutory discovery framework; 14 (d) The Court’s prior ruling indicating that Synergy should be allowed to complete 15 discovery previously-promulgated, in circumstances where the tangled procedural history of this 16 case has prevented Synergy from doing so; 17 (e) Agreements by defendants to comply with and complete certain discovery; 18 (f) New and ongoing revelations of various City officials’ bribery, kickback, and 19 shakedown scheme, as it bares on the City’s interference with and termination of Synergy’s 20 subcontract work on City projects; 21 (g) The elementary principle favoring resolution of cases on their merits; and 22 (h) The lack of any necessary further delay, or any showing of unfair prejudice to 23 defendants. 24 II. RELEVANT FACTS AND PROCEDURAL HISTORY 25 A. Synergy’s State Law Interference Claims Were Removed To Federal Court And Dismissed At The Outset Of The Federal Proceedings, 26 Precluding Discovery Related To Those Claims 27 The federal proceedings in this case commenced on November 24, 2017, when the City 28 removed this action from this Superior Court to federal court. Thereafter, the district court 1 P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034 1 (Northern District of California) granted two successive motions by the City to dismiss Plaintiff 2 Synergy’s interference claims, ultimately with prejudice, on May16, 2018 and December 31, 3 2018, respectively. As a result, the City never answered Synergy’s interference claims, and 4 Synergy never had any opportunity to conduct discovery related to these claims. (Decl. of 5 Plaintiff’s Counsel Ben Rosenfeld, hereto (“Decl. of Counsel Rosenfeld”); Ex. A - City’s 6 Answer to Synergy’s Second Amended Complaint, at ¶¶ 94-132, stating repeatedly with 7 reference to the interference claims: “no response is necessary.”) 8 Synergy propounded written discovery to the City in the federal action, and identified 9 City personnel whose depositions would be sought. (Decl. of Counsel Rosenfeld, ¶ 4.) 10 On February 9, 2019, Synergy filed an unopposed motion while this action was still 11 pending in federal court for leave to file a third amended complaint (“TAC”), which the federal LAW OFFICE OF BEN ROSENFELD 12 court granted on May 21, 2019. Synergy in fact filed its TAC on May 26, 2019, adding Ghilotti San Francisco, Ca 13 Bros, Inc. (“GBI”) as a defendant in the federal action. (Id.) 14 Thereafter, Synergy and the City agreed to schedule Synergy’s depositions after the close 15 of discovery in federal court, in order to allow GBI time to appear and participate in the 16 depositions (and thus avoid duplicative discovery). However, the City’s subsequent motion to 17 dismiss Synergy’s TAC, which the federal court granted on November 21, 2019—with a remand 18 of Synergy’s claims against GBI to this Superior Court—precluded Synergy from taking the 19 agreed upon depositions. (Id.) 20 Upon remand to this Court, Synergy’s claims against GBI were consolidated with the still 21 pending litigation in this Court between Synergy and GBI, under this case number. As the City 22 was not yet a party to these proceedings, Synergy could not, and did not, conduct discovery 23 related to its dismissed interference claims, which were then pending appeal before the Ninth 24 Circuit. (Id). 25 On March 18, 2021 this Court granted in part and denied in part a motion by Synergy to 26 continue the trial, setting a trial date of August 23, 2021. In that Order, the Court provided that 27 discovery was not re-opened but that all then-pending discovery, including written discovery and 28 2 P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034 1 noticed depositions, that had been timely served prior to the state discovery cut-off date would 2 remain open to allow for completion of that discovery, including any necessary motions to 3 compel. (Ex. B - March 18/May 19, 2021 Order.)1 4 On April 9, 2021, Synergy moved in this Court to compel further responses from 5 Defendant GBI to discovery requests (regarding Synergy and GBI’s respective claims for 6 damages, and GBI’s communications with the City, Mohammed Nuru, and non-governmental 7 non-profit organizations run by Nuru, Kelly and other City personnel) which Synergy had timely 8 served in this state court action. Both parties agreed that the Superior Court had jurisdiction to 9 hear the motion, and that both parties planned to complete previously-noticed discovery as 10 provided for in the March 18, 2021/May 19, 2021 Order (Ex. B) granting in part and denying in 11 part Synergy’s motion to continue the trial. (Decl. of Counsel Rosenfeld, ¶ 10.) LAW OFFICE OF BEN ROSENFELD 12 On May 28, 2021, this Court denied Synergy’s motion to compel “without prejudice to San Francisco, Ca 13 filing a CCP § 2024.50 motion [to reopen discovery], on the grounds that pursuant to Pelton- 14 Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, the 15 Court lacked jurisdiction to hear the motion, as the Presiding Judge’s order continuing the trial 16 had left discovery closed. (Ex. C - 5/28/21 Order; emphasis added.) 17 B. Synergy And The City Agreed To Allow Discovery In The Federal Proceedings To Be Completed Even After The Federal Discovery 18 Cutoff Date—But This Never Came To Pass As A Result Of The Federal Court’s Subsequent Dismissal And Remand Of Synergy’s 19 Interference Claims 20 Synergy conducted discovery in federal court (related to its federal claims), comprised of 21 interrogatories, requests for admissions, document requests, and deposition notices. The City 22 responded to Synergy’s document requests with “rolling production” that took over a year, 23 culminating with the City’s promise to complete its production by the scheduled close of 24 discovery (July 1, 2020). However, the City in fact never completed this production, and it failed 25 to produce a majority of the documents it had under review, including responsive documents 26 1 This Order is referred to as the “March 18, 2021/May 19, 2021 Order” because the 27 Order was rendered on March 18, 2021 (as reflected in the register of actions), but signed on 28 May 19, 2021. (Decl. of Counsel Rosenfeld, ¶ 9; Ex. B.) 3 P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034 1 from Defendant Mayor Breed. Nor did the City produce a required privilege log describing 2 responsive documents which it was withholding based on claimed privilege. The City has agreed 3 to do so now though. (Decl. of Counsel Rosenfeld, ¶ 4; Decl. of Counsel Daar, ¶ 5.) 4 C. The Federal Court’s Dismissal Of Synergy’s Claims Against The City, And Its Remand of Synergy’s Claims Against GBI, Precluded 5 Synergy From Being Able To Take Depositions As Agreed Upon By The Parties 6 On February 9, 2019, Synergy filed an unopposed motion while this action was still 7 pending in federal court for leave to file a third amended complaint (“TAC”), which the federal 8 court granted on May 21, 2019. Synergy in fact filed its TAC on May 26, 2019, adding Ghilotti 9 Bros, Inc. (“GBI”) as a defendant. In light of the City’s then delayed document production in 10 response to RFPs by Synergy—and in order to allow GBI time to appear and participate in the 11 LAW OFFICE OF BEN ROSENFELD depositions (and thus avoid duplicative depositions)—Synergy and the City agreed to schedule 12 Synergy’s depositions after the close of discovery in federal court. However, the City’s San Francisco, Ca 13 subsequent motion to dismiss Synergy’s TAC, which the federal court granted on November 21, 14 2019—with a remand of Synergy’s claims against GBI to this Superior Court—precluded 15 Synergy from taking the agreed upon depositions. (Decl. of Counsel Rosenfeld, ¶ 7.) 16 D. Revelation Of The Fraud Scheme By City Officials Responsible For 17 The City’s Illegal Termination Of Synergy’s Work On The Subject Contracts 18 While Synergy’s dismissed interference claims were pending appeal before the Ninth 19 Circuit, the United States Attorney for the Northern District of California revealed an elaborate, 20 years-long bribery, kickback, and shakedown scheme operated by Mohammed Nuru, Harlan 21 Kelly, and other members of the so-called “City Family,” a group of high level City officials 22 connected by close and intimate personal relationships separate from their positions as 23 government employees. These disclosures revealed independently wrongful acts which Nuru, 24 Kelly, Breed and other City officials engaged in, while interfering with Synergy’s participation 25 in the Haight Street and Van Ness Projects. (Decl. of Counsel Rosenfeld, ¶ 5.) 26 /// 27 /// 28 4 P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034 E. The Effects Of The Court’s Recent Granting Of The City’s Motion To 1 Continue The Trial, Thereby Permitting The City To File New 2 Dispositive Motions On June 7, 2021, the Ninth Circuit reversed the federal district court’s dismissal of 3 Synergy’s state law interference claims against the City Defendants, but affirmed the dismissal 4 of Synergy’s federal claims. On July 21, 2021, this Court granted Synergy and GBI’s stipulated 5 request to continue the trial, based on the anticipated consolidation of Synergy’s then-pending 6 state law claims against GBI with those against the City revived by the Ninth Circuit. Thereafter, 7 on August 4, 2021, the federal district court in fact remanded Synergy’s interference claims 8 against the City to this Court. This Court received the remand under this original case number 9 August 9, 2021. (Decl. Counsel Rosenfeld, ¶¶ 11-12.) 10 On February 3, 2022, the Court (Department 206, PJ Feng) granted the City’s motion to 11 LAW OFFICE OF BEN ROSENFELD continue the trial to September 19, 2022, which the Court designated “an initial trial date from 12 which pre-trial motion dates will flow.” At the same time, the Court specified that its new trial San Francisco, Ca 13 setting should not be construed as constraining Synergy’s ability to reopen discovery, but rather 14 that “[a]ll discovery will depend on Department 302’s order regarding Synergy’s motion to 15 reopen discovery.” (Ex. D - 2/3/22 Order; Decl. Counsel Rosenfeld, ¶ 13.) 16 For the sake of efficiency, Synergy and the City defendants agreed that Synergy would 17 move to reopen discovery after the Court (Dept. 302) ruled on Synergy’s then pending motion 18 for leave to file a Fourth Amended Complaint and the parties had met and conferred regarding 19 the scope of further discovery and Synergy’s motion to reopen. These parties further agreed that 20 the City would not argue any delay by Synergy in the meantime, in any opposition to Synergy’s 21 motion to re-open discovery. (Decl. of Counsel Rosenfeld, ¶ 15.) 22 F. The Court’s Ruling On Synergy’s Motion For Leave To Amend Is 23 Still Pending 24 On February 24, 2022, the Court (Dept. 302) issued a tentative ruling granting in part 25 Synergy’s motion for leave to amend. The Court heard Synergy’s motion the next day on 26 February 25, 2022, and took the matter under submission. On March 1, 2022, the Court (Clerk of 27 Dept. 302) asked Synergy to furnish a verbatim version in Microsoft Word of the Court’s TR, 28 5 P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034 1 which Synergy did, through counsel, on March 2, 2022. As of this date, the Court’s decision on 2 Synergy’s motion for leave to amend is still pending. 3 III. THE PARTIES’ MEET AND CONER EFFORTS 4 Counsel for all of the parties met and conferred by phone on March 17, 2022. The parties 5 narrowed but did not resolve their disputes. Specifically: 6 Defendant GBI agreed to follow the Court’s March 18, 2021/May 19, 2021 Order, which 7 provided, in relevant part: 8 3. Discovery is not re-opened. All discovery, including written discovery 9 and notices of deposition, that was timely served prior to the discovery cutoff based on the March 29, 2021 trial date will remain open to allow for 10 completion of that discovery including the motions to compel related to that discovery. 11 LAW OFFICE OF BEN ROSENFELD (Ex. B.) 12 The City Defendants agreed to produce a privilege of documents responsive to Synergy’s San Francisco, Ca 13 prior written discovery which the City withheld based on assertions of privilege. 14 The City Defendants agreed to produce documents related to the City’s contract with and 15 payments to Van Ness Street Project subcontractor Azul Works, Inc. (but not communications 16 between Azul Works or its representatives and City officials, which Synergy intends to seek). 17 The City did not agree, and in fact represented that it would oppose, Synergy’s interest in 18 deposing Mayor London Breed, former SFDPW Director Mohammed Nuru (whose depositions 19 were noticed in the federal proceedings but did not take place, as discussed above, and former 20 SFPUC Director Harlan Kelly, whose involvement in the “City family” fraud scheme was not 21 disclosed until after Synergy’s interference claims were dismissed and the City was dismissed as 22 a defendant. 23 The City indicated that it too wants to conduct discovery toward Synergy. 24 The scope of discovery must necessarily depend on the scope of amendment of Synergy’s 25 complaint which the Court ultimately allows, vel non. 26 Synergy asked the City and GBI to stipulate to allow this motion to be heard on shortened 27 time. Defendants declined. 28 6 P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034 1 (See Decl. of Plaintiff’s Counsel Randolph E. Daar, ¶¶ 3-10.) 2 IV. ARGUMENT 3 Good cause exists to reopen discovery in order to allow Synergy to conduct discovery 4 directed to its interference claims, and to complete previously-promulgated discovery which both 5 the Court already indicated it would be inclined to allow. A. California Law Enshrines Liberal Rules of Discovery 6 In the absence of privilege, the right to discovery in California is broad, and must be 7 construed liberally in order to enable parties to ascertain the strength of their case, prepare for 8 trial, and conduct a trial on the merits at which the truth can be determined. Williams v. Superior 9 Court (2017) 3 Cal.5th 531, 538. The California Supreme Court has instructed that trial courts 10 should issue discovery orders reflective of California’s liberal statutory discovery policies, and 11 LAW OFFICE OF BEN ROSENFELD that failure to do so can constitute an abuse of discretion: 12 A trial court must be mindful of the Legislature's preference for discovery San Francisco, Ca 13 over trial by surprise, must construe the facts before it liberally in favor of 14 discovery, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to 15 outright denials of discovery. [Citation.] A reviewing court may not use 16 the abuse of discretion standard to shield discovery orders that fall short: “Any record which indicates a failure to give adequate consideration to 17 these concepts is subject to the attack of abuse of discretion, regardless of the fact that the order shows no such abuse on its face.” 18 Williams, 3 Cal.5th at 540, citing Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 383- 19 384, and quoting Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 171. 20 B. The Circumstances Of This Case, And The Factors Delineated in 21 CCP § 2040.050, Favor Reopening Discovery 22 CCP § 2040.050 states in pertinent part: 23 (a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the 24 initial trial date, or to reopen discovery after a new trial date has been set. This 25 motion shall be accompanied by a meet and confer declaration under Section 2016.040. 26 (b) In exercising its discretion to grant or deny this motion, the court shall take 27 into consideration any matter relevant to the leave requested, including, but not limited to, the following: 28 7 P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034 1 (1) The necessity and the reasons for the discovery. 2 (2) The diligence or lack of diligence of the party seeking the discovery or 3 the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. 4 (3) Any likelihood that permitting the discovery or hearing the discovery 5 motion will prevent the case from going to trial on the date set, or 6 otherwise interfere with the trial calendar, or result in prejudice to any other party. 7 (4) The length of time that has elapsed between any date previously set, 8 and the date presently set, for the trial of the action. 9 Here, the circumstances and history of this case, and the factors delineated in 10 CCP § 2040.050, favor granting Synergy’s motion to reopen discovery. 11 LAW OFFICE OF BEN ROSENFELD 1&2. Synergy has not had an opportunity to conduct and 12 complete discovery pertaining to its interference claims As explained above, Synergy has not had a reasonable opportunity to conduct discovery San Francisco, Ca 13 related to its interference claims. These claims were dismissed at the outset of the federal case, 14 and remained dismissed throughout the district court proceedings. In fact, the City has not even 15 answered Synergy’s interference claims. Thus, for example, Synergy has not been afforded the 16 opportunity to propound basic California form (including contention) interrogatories, which can 17 only follow a defendant’s answer. 18 The only discovery Synergy was able to conduct related to its interference claims during 19 the federal proceedings is that discovery that overlapped with the federal claims, which, as 20 explained above, was not completed. Discovery which Synergy did not have a chance to 21 complete includes: 22 • Discovery relating specifically to Synergy’s interference claims, including 23 contention interrogatories and related requests for information and materials 24 approved by the Judicial Council related to the City’s answer to (and presumed denial of) the paragraphs alleging Synergy’s interference claims, and related to 25 the City’s asserted affirmative defenses, if any, to those claims (where the City has yet to answer); 26 • obtaining the privilege log which the City has agreed to but still has not produced; 27 28 8 P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034 • challenging any such assertions of privilege on motion which Synergy believes it 1 should be entitled to challenge; and 2 • taking depositions which the parties agreed Synergy could conduct, but which 3 Synergy could not take once the federal district court dismissed all of Synergy’s claims against the City and remanded Synergy’s state law claims against GBI to 4 this Court. 5 (Decl. of Counsel Rosenfeld, ¶ 15.) 6 During the federal proceedings, Synergy and the City agreed to complete discovery 7 concerning Synergy’s interference claims after the then-set close of discovery, in order to allow 8 newly-added defendant GBI to appear and participate in discovery. This was a reasonable and 9 prudent decision that served judicial economy, by avoiding duplication of discovery and 10 avoiding the formal litigation of discovery disputes that could be resolved informally. (Decl. of 11 LAW OFFICE OF BEN ROSENFELD Counsel Rosenfeld, ¶ 7.) 12 Meanwhile, Synergy did not, and could not, have conducted discovery related to Messrs. San Francisco, Ca 13 Nuru’s, Kelly’s, and other City officials’ bribery/kickback/shakedown scheme as it bares on the 14 City’s interference with and termination of Synergy’s subcontract work on City projects, because 15 the “City Family” scheme was not disclosed until beginning in January 2020 (with Mohammed 16 Nuru’s arrest on federal fraud charges—after the federal court fully and finally dismissed 17 Synergy’s claims against the City on November 21, 2019. (Decl. Counsel Rosenfeld, ¶ 5.) It 18 would be perverse to permit the City to prevent Synergy from obtaining relevant information 19 about this scheme as a result of Nuru’s and Kelly’s criminal conduct and fraudulent concealment 20 of the facts pertaining thereto. 21 3. With trial still six months away, Synergy has ample 22 time to complete discovery, and defendants will not be unduly prejudiced in the legal meaning of that term 23 Synergy is prepared to conduct diligent and telegraphed discovery pertaining to its 24 interference allegations, whether the Court allows Synergy to amend to plead these allegations as 25 independently wrongful acts and/or independent legal claims, as the nature and quanta of 26 discovery and proof at trial is the same in either event. 27 28 9 P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034 1 The City should not be heard to argue that allowing Synergy to gather proof in support of 2 allegations Synergy is entitled to make based on a change in law (the requirement to plead and 3 prove independently wrongful acts in support of its interference claims), and on new material 4 factual revelations, will prejudice the City. 5 Neither the existing defendants, nor former defendant Mohammed Nuru, nor Harlan 6 Kelly substituted for a Doe defendant would be surprised or unduly or unfairly prejudiced by the 7 discovery sought, where they actively concealed their criminal acts, and where Synergy’s 8 proposed new allegations relate back to its original complaint. “A defendant unaware of the suit 9 against him by a fictitious name is in no worse position if, in addition to substituting his true 10 name, the amendment makes other changes in the allegations on the basis of the same general set 11 of facts.” Austin v. Massachusetts Bonding and Insurance Co. (1961) 56 Cal.2d 596, 602. LAW OFFICE OF BEN ROSENFELD 12 The City itself six months after this case was received on remand from the federal court San Francisco, Ca 13 on August 9, 2021 to move to on January 7, 2022 to continue the trial, in the form of “initial 14 trial date from which pre-trial motion dates will flow.” (2/3/22 Order- emphasis added.) 15 According to the Court’s February 3, 2022 Order—and by operation of CCP § 2024.020— 16 defendants’ new “initial trial date” allows them to file a third demurrer (and a subsequent 17 summary judgment motion) based on the very same change in law based upon which Synergy of 18 necessity has sought leave to amend. 19 Not only would it not prejudice defendants to allow Synergy to conduct discovery related 20 to the independently wrongful acts it alleges, it would plainly prejudice Synergy, and be 21 manifestly unjust, to allow the City to demurrer and move for summary judgment based upon the 22 same change in law and the facts Synergy must marshal to satisfy this change in the law. 23 4. Synergy has been diligent in trying to put this tangled case on track toward trial 24 The tangled procedural history of this case—including the fact that no single pleading 25 contains all of the extant claims and defendants or conforms to the law of the case—in the wake 26 of the loss and reinstatement of Synergy’s tortious interference claims against the City, and the 27 new California pleading requirement flagged by the Ninth Circuit—is no fault of Synergy’s. As 28 10 P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034 1 discussed above, Synergy has been diligent in prosecuting its claims—in the federal district 2 court, in the Ninth Circuit, and now (again) in this Court—including by sequencing its motions 3 for leave to amend and to reopen discovery, in two different departments, as required by the 4 Court’s rules and decisions. 5 For the sake of efficiency, Synergy and the City agreed that Synergy would wait to move 6 to reopen discovery after the Court (Dept. 302) ruled on Synergy’s still pending motion for leave 7 to amend, and the parties had met and conferred regarding the scope of further discovery. These 8 parties agreed that the City would not argue any delay by Synergy in the meantime as a basis for 9 opposing Synergy’s motion to reopen discovery. (Decl. Counsel Rosenfeld, ¶ 15.) Synergy in 10 fact pressed for the parties to meet and confer beginning on March 8, 2022, culminating in a 11 detail meet and confer (phone) conference on March 17, 2022. (Decl. Counsel Daar, ¶ 2.) In the LAW OFFICE OF BEN ROSENFELD 12 interests of time and efficiency, Synergy has elected to file this motion even though the Court’s San Francisco, Ca 13 ruling on Synergy’s motion for leave to amend is still pending. 14 C. The Court Previously Indicated That Synergy Could Complete Previously-Promulgated Discovery, And Should Adopt This 15 Indication In Its Ruling 16 In its March 18, 2021/May 19, 2021 Order granting in part Synergy’s motion to continue 17 the trial, the Court stated that discovery was not reopened, but that the parties could complete 18 discovery that was timely promulgated before the discovery cutoff, but which the parties were 19 unable to complete due to the facts and circumstances underlying the Court’s decision to 20 continue the trial date. (Ex. B - 3/18/21/5/19/21 Order.) However, in deciding Synergy’s 21 subsequent motion to compel on May 5, 2021, the Court determined that because its March 18, 22 2021/May 19, 2021 Order did not reopen discovery, it lacked jurisdiction to hear the motion 23 pursuant to Pelton-Shepherd Industries, Inc., supra, 165 Cal.App.4th 1568. (Ex. C – 5/28/21 24 Order.) 25 In Pelton, the Court of Appeal determined that a trial court had erred in issuing discovery 26 sanctions following a motion to compel brought after the deadline, without first determining that 27 good cause existed to extend the deadline for motions to compel. Here, in contrast, Synergy 28 contends that in allowing timely-issued discovery to proceed, the court implicitly included the 11 P LAINTIFF S YNERGY ’ S M OTION TO R EOPEN D ISCOVERY C ASE No. CGC-17-560034 1 right to compel that same discovery. This makes sense, because if motions to compel regarding 2 such discovery are disallowed, the parties would lack any means to enforce the Court’s order 3 permitting such discovery to be completed. 4 For this reason, Synergy asks that the Court incorporate into its ruling on this motion its 5 prior indication, on March 18, 2021/May 19, 2021, that Synergy should be entitled to complete 6 previously-promulgated discovery. (Ex. B.) Furthermore, the Court’s (Dept. 206’s) February 3, 7 2022 Order provides that the scope of discovery should be decided freshly by the Court (Dept. 8 302), based upon Synergy’s instant motion to reopen. 9 V. ADDITIONAL DISCOVERY SOUGHT BY PLAINTIFF SYNERGY 10 Based on the foregoing, Synergy needs and seeks at least the following further 11 discovery:2 LAW OFFICE OF BEN ROSENFELD 12 • “All discovery, including written discovery and notices of deposition, that was timely served prior to the discovery cutoff based on the March 29, 2021 trial date,” per the San Francisco, Ca