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1 DAVID CHIU, SBN 189542
City Attorney
2 YVONNE R. MERÉ, SBN 173594 ELECTRONICALLY
Chief Deputy City Attorney F I L E D
3 ELAINE M. O’NEIL, SBN142234 Superior Court of California,
County of San Francisco
JAIME M. HULING DELAYE, SBN 270784
4 ARI A. BARUTH, SBN 258418 02/10/2022
Deputy City Attorneys Clerk of the Court
BY: EDNALEEN ALEGRE
5 1390 Market Street, 6th Floor Deputy Clerk
San Francisco, CA 94102-5408
6 Telephone: (415) 554-3957
Facsimile: (415) 437-4644
7 Email: Jaime.HulingDelaye@sfcityatty.org
8 Attorneys for Defendant
CITY AND COUNTY OF SAN FRANCISCO
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF SAN FRANCISCO
11
UNLIMITED JURISDICTION
12
13 SYNERGY PROJECT MANAGEMENT, INC., Case No. CGC-17-560034
(Consolidated with Case No. CGC-19-576488)
14 Plaintiff,
DEFENDANT CITY AND COUNTY OF
15 v. SAN FRANCISCO’S OPPOSITION TO
PLAINTIFF SYNERGY PROJECT
16 CITY AND COUNTY OF SAN FRANCISCO, MANAGEMENT, INC.’S MOTION FOR
LEAVE TO FILE FOURTH AMENDED
17 Defendant. COMPLAINT AND TO SUBSTITUTE
HARLAN KELLY FOR DOE #1
18
GHILOTTI BROS., INC., a California Corporation, Hearing Date: February 25, 2022
19 Hearing Judge: Hon. Richard Ulmer, Jr.
Plaintiff, Time: 9:30 a.m.
20 Place: Dept. 302
v.
21 Date Action Filed: July 10, 2017
SYNERGY PROJECT MANAGEMENT, INC., a Trial Date: September 19, 2022
22 California Corporation, and DOES 1-30,
23 Defendants.
24 SYNERGY PROJECT MANAGEMENT, a
California Corporation, Cross-Complainant,
25
v.
26
GHILOTTI BROS, INC., a California Corporation,
27 and ROES 1-20,
28 Cross-Defendants.
1
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1 TABLE OF CONTENTS
2 INTRODUCTION ...........................................................................................................................5
BACKGROUND .............................................................................................................................6
3
I. Synergy Has Had the Opportunity to File Four Different Versions of Its
4 Complaint.................................................................................................................6
5 II. This Court Has Twice Denied Synergy Leave to File a Fourth Amended
Complaint Alleging Nearly Identical Facts .............................................................7
6
III. The Federal Courts Have Denied Synergy’s Requests to File a Fourth Amended
7 Complaint on Multiple Occasions ...........................................................................8
LEGAL STANDARD....................................................................................................................10
8
ARGUMENT .................................................................................................................................10
9
I. The Motion Should Be Denied for Failure to Comply with California Rule of
10 Court 3.1324 ..........................................................................................................10
11 II. The Fourth Amended Complaint Is Nearly Identical to the Fourth Amended
Complaint that Synergy Was Twice Denied Leave to File Last Year, and
12 Reconsideration Is Not Warranted .........................................................................12
13 III. Synergy Has Long Known of the “New” Facts Giving Rise to its Proposed
Amendments and Offers no Explanation for its Delay ..........................................13
14 IV. The Ninth Circuit’s Reinstatement of Synergy’s Intentional Interference Claim
Does Not Warrant Leave to Amend.......................................................................14
15
V. Allowing Leave to Amend Would Prejudice the City ...........................................16
16
CONCLUSION ..............................................................................................................................18
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1 TABLE OF AUTHORITIES
2 Cases
3 Atkinson v. Elk Corp.
(2003) 109 Cal.App.4th 739 ......................................................................................................16
4
Estate of Murphy v. Gulf Insurance Co.
5 (1978) 82 Cal.App.3d 304 .........................................................................................................10
6 Green v. Rancho Santa Margarita Mortgage Co.
7 (1994) 28 Cal.App.4th 686 ........................................................................................................18
8 Higgins v. Del Faro
(1981) 123 Cal.App.3d 558 .......................................................................................................16
9
Huff v. Wilkins
10 (2006) 138 Cal.App.4th 732 ......................................................................................................13
11 In re Marriage of Oliverez
(2015) 238 Cal.App.4th 1242 ....................................................................................................14
12
13 Ixchel Pharma, LLC v. Biogen, Inc.
(2020) 9 Cal.5th 1130 ..........................................................................................................15, 16
14
Leader v. Health Industries of America., Inc.
15 (2001) 89 Cal.App.4th 603 ........................................................................................................10
16 Magpali v. Farmers Group, Inc.
(1996) 48 Cal.App.4th 471 ........................................................................................................14
17
P&D Consultants, Inc. v. City of Carlsbad
18
(2010) 190 Cal.App.4th 1332 ....................................................................................................13
19
Record v. Reason
20 (1999) 73 Cal.App.4th 472 ..................................................................................................10, 14
21 Synergy Project Management, Inc. v. City and County of San Francisco
(2019) 33 Cal.App.5th 21 ..........................................................................................................15
22
Synergy Project Management, Inc. v. City and County of San Francisco
23
959 Fed.Appx. 99 (9th Cir. 2021) ............................................................................................6, 9
24
Titan Electric Corp. v. Los Angeles Unified School Dist.
25 (2008) 160 Cal.App.4th 188 ......................................................................................................15
26 Yee v. Mobilehome Park Rental Review Bd.
(1998) 62 Cal.App.4th 1409 ......................................................................................................14
27
28
3
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State Statutes & Codes
1
Code of Civil Procedure
2 § 1008 ........................................................................................................................................14
3 § 1008(a) ....................................................................................................................................14
§ 1008(b) ......................................................................................................................................7
4
Public Contract Code
5 § 4107 ........................................................................................................................................15
6 Rules
7 California Rules of Court
rule 3.1324 ...............................................................................................................................5, 9
8 rule 3.1324(a) .............................................................................................................................10
9 rule 3.1324(b).................................................................................................................10, 11, 12
10 Federal Rules of Civil Procedure
Rule 11 .........................................................................................................................................8
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1 INTRODUCTION
2 In its long-running crusade, Plaintiff Synergy Project Management, Inc. (“Synergy”) has
3 already filed four different complaints in this case alleging wrongdoing by the City and County of San
4 Francisco (“the City”). In addition, it has already had five separate requests to file a fourth amended
5 complaint rejected by three separate courts. This case was filed in 2017. It is time for the pleadings to
6 be closed. This Court should deny this, Synergy’s sixth, request to file a fourth amended complaint.
7 Synergy identifies no changed circumstances that would warrant reconsideration of the Court’s
8 April 12, 2021 Order denying Synergy leave to file a nearly identical proposed fourth amended
9 complaint. That Order denied Synergy’s substantially identical motion on the grounds that Synergy
10 had long been aware of the facts related to the proposed amendment but had failed to justify its
11 lengthy delay in seeking leave to amend. This motion is even more dilatory than the one denied
12 approximately a year ago, and the facts that this most recent iteration of the fourth amended complaint
13 recites are almost entirely verbatim identical to those presented to the Court a year ago, and all of them
14 were known to Synergy long before then.
15 Synergy’s failure to comply with California Rules of Court, rule 3.1324 presents an additional,
16 independent basis for denying the motion. Rule 3.1324 requires (a) an identification of the page,
17 paragraph, and line number of added or deleted allegations, and (b) a declaration explaining when the
18 facts giving rise to the amended allegations were discovered and the reasons why the request for
19 amendment was not made earlier. Synergy fails to satisfy either of these mandatory requirements.
20 This is not a “technical gotcha” but rather a meaningful failure. Synergy’s failure to identify the page,
21 paragraph and line number of new or deleted allegations makes it difficult to meaningfully compare
22 how this proposed complaint differs from the operative Third Amended Complaint and the claims
23 recently reinstated by the Ninth Circuit from the Second Amended Complaint which was previously
24 filed in federal court. The absence of an explanation as to why the request for amendment was not
25 made earlier is critical where the “new” facts are at least two years old. No explanation is provided,
26 warranting denial of the motion on the same bases of delay and prejudice that the nearly identical
27 proposed amendment was denied last April.
28
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1 Rather than permit Synergy to file a host of new causes of action based on old facts against
2 new and old defendants alike, the Court should order Synergy to re-file its Second Amended
3 Complaint, previously filed only in federal court, which contains the causes of action against the City
4 that were reinstated on appeal by the Ninth Circuit Court of Appeals and subsequently remanded to
5 this Court by the Northern District of California.
6 BACKGROUND
7 I. Synergy Has Had the Opportunity to File Four Different Versions of Its Complaint
8 Synergy filed the initial complaint in this case in Superior Court on July 10, 2017, but did not
9 serve that complaint. (Declaration of Jaime Huling Delaye in Support of Opposition to Motion for
10 Leave to Amend [“Huling Delaye Dec.”] ¶ 2.) On October 19, 2017, Synergy filed its First Amended
11 Complaint in this Court, containing causes of action against the City, now-Mayor London Breed, and
12 Mohammed Nuru (collectively, the “City Defendants”). 1 (Ibid.) On October 24, 2017, Synergy
13 served that complaint. (Ibid.) City Defendants removed the case to federal court on November 24,
14 2017. (Huling Delaye Dec. ¶ 2 & Ex. A [“Dist. Ct. Dkt.”] at p. 43.) Synergy filed a Second Amended
15 Complaint in the Northern District of California on June 5, 2018, containing state and federal causes
16 of action against City Defendants. (Huling Delaye Dec. ¶ 4 & Dist. Ct. Dkt. at p. 33.) On December
17 31, 2018, the Northern District of California dismissed all state law causes of action pled in the Second
18 Amended Complaint against City Defendants, with prejudice. (Huling Delaye Dec. ¶ 4 & Dist. Ct.
19 Dkt. at pp. 31-32.)
20 On May 26, 2019, Synergy filed a Third Amended Complaint in the Northern District of
21 California containing only federal law claims against the City and adding, for the first time, state law
22 claims against a new defendant, Ghilotti. (Huling Delaye Dec. ¶ 5 & Dist. Ct. Dkt. at p. 26.) On
23 November 21, 2019, the Northern District of California dismissed all remaining federal causes of
24 action pled against the City and ordered the remaining state law claims against Ghilotti remanded to
25 San Francisco Superior Court. (Huling Delaye Dec. ¶ 5 & Dist. Ct. Dkt. at p. 16.) That remand was
26
1
27 Neither London Breed nor Mohammed Nuru remain defendants in this case. The Ninth
Circuit affirmed the dismissal of all causes of action against them. (See Synergy Project Management,
28 Inc. v. City and County of San Francisco, 959 Fed.Appx. 99 (9th Cir. 2021).)
6
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1 recorded in the Register of Actions for this case on November 25, 2019. (Huling Delaye Dec. ¶ 5.)
2
II. This Court Has Twice Denied Synergy Leave to File a Fourth Amended Complaint
3 Alleging Nearly Identical Facts
4 Initially, after the remand of Synergy’s claims against Ghilotti to Superior Court, there was no
5 operative complaint containing causes of action against Ghilotti on file in this Court, as the remanded
6 claims had been filed in the Northern District of California. (Huling Delaye Dec. ¶ 6.) On December
7 27, 2019, the San Francisco Superior Court notified Synergy that it should file the operative Third
8 Amended Complaint against Ghilotti in the San Francisco Superior Court. (Ibid.) Synergy did so on
9 January 31, 2020. (Ibid.) For over two years, Synergy and Ghilotti have litigated the claims outlined
10 in the Third Amended Complaint in this Court. (Ibid.)
11 On January 22, 2021, Synergy filed a motion for leave to file a fourth amended complaint in
12 this Court. (Huling Delaye Dec. ¶ 6 & Ex. B [“January 2021 PFAC”].) That proposed fourth
13 amended complaint recites facts that are almost entirely verbatim identical to the proposed fourth
14 amended complaint that Synergy now seeks leave to file. On February 17, 2021, Judge Shulman
15 denied Synergy’s motion for leave to file the fourth amended complaint. (Huling Delaye Dec. ¶ 9.)
16 On March 5, 2021, Synergy filed a “substantially identical motion” in this Court for leave to
17 file the same fourth amended complaint that was the subject of its previous request. (See Plaintiff’s
18 Counsel Ben Rosenfeld Declaration and CCP § 1008(b) Affidavit in Support of Plaintiff’s Motion for
19 Leave to File Fourth Amended Complaint and Substitute Harland Kelly for Defendant Doe #1
20 [“Rosenfeld Dec.”], Ex. I [“April 12, 2021 Order”].) On April 12, 2021, Judge Shulman denied
21 Synergy’s second motion for leave to file the fourth amended complaint on the basis that “the party
22 had at its disposal the facts related to the amendment but did not act promptly.” (April 12, 2021
23 Order.) The Court also found that allowing the amendment “would be inconsistent with the Presiding
24 Judge’s March 18, 2021 Order, which had denied Synergy’s request to reopen discovery for the stated
25 purpose of “seeking to add defendants and causes of action” and “conduct[ing] further discovery
26 related to the proposed new parties and claims.” (Ibid.)
27
28
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III. The Federal Courts Have Denied Synergy’s Requests to File a Fourth Amended
1 Complaint on Multiple Occasions
2 On August 14, 2019, while City Defendants’ and Ghilotti’s motions to dismiss the Third
3 Amended Complaint were pending before the Northern District of California, Synergy sought leave to
4 modify the case management order (under which pleadings had already closed) and for leave to file a
5 fourth amended complaint, attempting to moot the motions to dismiss the Third Amended Complaint
6 before they could be granted. (Huling Delaye Dec. ¶ 10 & Dist. Ct. Dkt. at p. 19.) That same day, the
7 district court denied the request sua sponte, without prejudice. (Ibid.)
8 On November 21, 2019, the district court granted City Defendants’ motion to dismiss the Third
9 Amended Complaint in its entirety, and ordered the remaining state law claims against Ghilotti be
10 remanded to Superior Court. (Huling Delaye Dec. ¶ 11 & Dist. Ct. Dkt. at p. 16.) In dismissing all
11 claims against the City Defendants with prejudice, the district court denied Synergy leave to file a
12 fourth amended complaint, finding that such amendment would be futile. (Ibid.) The district court
13 thus entered judgment in favor of City Defendants on November 21, 2019. (Ibid.)
14 Synergy appealed the judgment against it to the Ninth Circuit. (Huling Delaye Dec. ¶ 11 &
15 Dist. Ct. Dkt. at p. 16.) Synergy’s appeal challenged the district court’s November 21, 2019 Order
16 dismissing its federal claims against City Defendants with prejudice, the earlier August 14, 2019 Order
17 denying without prejudice Synergy’s motion to modify the case management order and for leave to
18 file a fourth amended complaint, and the December 31, 2018 Order dismissing its state claims against
19 the City with prejudice. (Huling Delaye Dec. ¶ 12, Dist. Ct. Dkt. at p. 16, & Ex. C [“Notice of
20 Appeal”].)
21 While Synergy’s appeal was pending before the Ninth Circuit, on February 22, 2021, Synergy
22 filed a motion for relief from judgment before the district court, requesting, inter alia, that the district
23 court issue an indicative ruling to the Ninth Circuit that it should not hear the appeal, and instead
24 remand the case to the district court to allow the filing of the same fourth amended complaint against
25 the City and Ghilotti that the Superior Court had denied it leave to file the week before. (Huling
26 Delaye Dec. ¶ 13 & Dist. Ct. Dkt. at p. 14.) In response, the City took the unusual step of filing a
27 motion for sanctions under rule 11 of the Federal Rules of Civil Procedure against Synergy’s then-
28 counsel and its client on the bases that the filing was presented for an improper purpose, that the
8
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1 claims in the proposed fourth amended complaint are not warranted by existing law, and that the
2 factual claims in the proposed fourth amended complaint lack evidentiary support (i.e., the criminal
3 allegations against Mohammed Nuru and Harlan Kelly are unrelated to Synergy’s removal from the
4 Haight Street or Van Ness Projects, and AzulWorks, Inc. was not awarded the work on the Van Ness
5 Project that Synergy had bid on). (Huling Delaye Dec. ¶ 14 & Dist. Ct. Dkt. at p. 9.) Synergy
6 withdrew its motion for relief from judgment during the Rule 11 safe-harbor period, which mooted the
7 sanctions motion. (Huling Delaye Dec. ¶ 14 & Dist. Ct. Dkt. at p. 7.)
8 On June 7, 2021, the Ninth Circuit affirmed the dismissal of all federal causes of action against
9 City Defendants, reversed the dismissal of the intentional interference claim pled against the City and
10 County of San Francisco, and remanded the case to the district court for further proceedings to
11 determine in the first instance whether Synergy had pled a necessary element of that cause of action.
12 The Ninth Circuit upheld the district court’s denial of leave to amend, holding that it “did not abuse its
13 discretion in dismissing Synergy’s federal claims without leave to amend because amendment would
14 be futile.” (Synergy Project Management, Inc., 959 Fed.Appx. at p. 101.) The Ninth Circuit noted
15 that the district court had not reached the question of whether Synergy had alleged that the City had
16 engaged in an independently wrongful act as part of its intentional interference claim, and “declined to
17 do so in the first instance,” instead, “leav[ing] it to the district court’s discretion to either address this
18 issue on remand or . . . to remand to the state court for resolution.” (Id. at p. 100.) The Ninth Circuit
19 did not grant Synergy leave to amend its intentional interference claim, but rather reinstated them as
20 previously pled. (See ibid.) On July 20, 2021, the Ninth Circuit denied Synergy’s petition for
21 rehearing en banc. (Huling Delaye Dec. ¶ 15.)
22 On August 9, 2021, the Northern District of California remanded the intentional interference
23 claim against the City to the San Francisco Superior Court. (Huling Delaye Dec. ¶ 16.) The
24 intentional interference claim was pled in the Second Amended Complaint, which has only ever been
25 filed in the district court. (Ibid.) The Third Amended Complaint on file in this Court does not contain
26 any causes of action which survived the Ninth Circuit appeal. (Ibid.) Since the remand of Synergy’s
27 intentional interference claim to this Court occurred, there has not been any operative complaint on
28 file against the City. (Ibid.)
9
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1 Rather than filing the Second Amended Complaint in the Superior Court, or seeking to amend
2 the operative Third Amended Complaint with the same claims reinstated by the Ninth Circuit, Synergy
3 seeks once again to file a fourth amended complaint that modifies the claims reinstated by the Ninth
4 Circuit based on entirely new factual predicates and adds five new claims against the City, some of
5 which are also pled against Mohammed Nuru, who was dismissed from this case in 2019, and Harlan
6 Kelly, who has never been a party to this case.
7 LEGAL STANDARD
8 “The trial court has wide discretion in allowing the amendment of any pleading [citations], and
9 as a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or
10 gross abuse of discretion is shown.” (Record v. Reason (1999) 73 Cal.App.4th 472, 486.) The
11 appropriate exercise of that discretion requires the trial court to consider a number of factors, including
12 the conduct of the moving party and the belated presentation of the amendment.” (Leader v. Health
13 Industries of America., Inc. (2001) 89 Cal.App.4th 603, 613.) “The law is well settled that a long
14 deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a
15 significant factor to uphold the trial court’s denial of the amendment.” (Id. at p. 612.) “The law is
16 also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting
17 it may—of itself—be a valid reason for denial.” (Ibid.) “Where inexcusable delay and probable
18 prejudice to the opposing party is indicated, the trial court’s exercise of discretion in denying a
19 proposed amendment should not be disturbed.” (Estate of Murphy v. Gulf Insurance Co. (1978) 82
20 Cal.App.3d 304, 311.)
21 ARGUMENT
I. The Motion Should Be Denied for Failure to Comply with California Rule of Court
22 3.1324
23 California Rules of Court, rule 3.1324(a) provides that a motion to amend a pleading before
24 trial “must state…by page, paragraph, and line number, the deleted allegations…and where, by page,
25 paragraph, and line number, the additional allegations are located.” Rule 3.1324(b) also requires that
26 the declaration supporting the motion for leave to amend must specify “(2) why the amendment is
27 necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and
28 (4) the reasons why the request for amendment was not made earlier.”
10
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1 Synergy’s motion fails to satisfy the mandatory requirements of both rules. First, rather than
2 identifying the page, paragraph, and line number of the allegations deleted and/or added from the
3 operative Third Amended Complaint, Synergy asserts the volume of proposed changes is so great as to
4 render the requirement moot. (See Plaintiff Synergy’s Counsel Ben Rosenfeld Supplemental
5 Declaration in Support of Motion for Leave to File Fourth Amended Complaint and Substitute Harlan
6 Kelly for Defendant Doe #1 [“Rosenfeld Supp. Dec.”] ¶ 3.) No exception exists for voluminous
7 changes. This is a mandatory requirement, and the failure to comply has left the City, Ghilloti, and the
8 Court to hope that they accurately self-identified each of the proposed amendments in evaluating the
9 motion.
10 Synergy’s motion also fails to satisfy California Rules of Court, rule 3.1324(b) because the
11 supporting declaration does not identify why the amendments are necessary and proper. (See
12 Rosenfeld Supp. Dec.) Nor does it identify when the facts giving rise to the amended allegations were
13 discovered by Synergy (as opposed to newly-retained counsel who joined the case less than two
14 months ago). (Ibid.) Instead, the supporting declaration identifies seven documents that form the
15 bases for the amendments. (Ibid.) One of those seven documents is from over two years ago in
16 January 2020, and three others are also from 2020. (See Rosenfeld Dec. Exs. B, C, D & E.) Synergy
17 had full knowledge of each of these documents when it twice moved for leave to file a substantially
18 identical fourth amended complaint in January and March of 2021. At that time, its motion was
19 denied because Synergy “had at its disposal the facts related to the amendment but did not act
20 promptly.” (April 12, 2021 Order.) Synergy’s delay has only increased in the interim.
21 The additional documents now cited by Synergy include a report regarding the Van Ness
22 Project and the Ninth Circuit’s opinion in this case, both of which are from June of 2021 and are eight
23 months old. (See Rosenfeld Dec. Exs. G & H.) The lone document that is less than seven months old
24 is Mr. Nuru’s December 17, 2021 guilty plea. (See Rosenfeld Dec. & Ex. F.) However, the City can
25 find no allegations added to the 2022 version of the proposed fourth amended complaint that reflect
26 any of the “new facts” supposedly discovered in 2021. (Huling Delaye Dec. ¶ 17.) For example, Mr.
27 Nuru’s guilty plea is nowhere mentioned in the newest iteration of the fourth amended complaint.
28 (Ibid.) The allegations against Mr. Nuru were known at least two years ago, and the guilty plea is
11
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1 irrelevant to Synergy’s proposed amendments.
2 All of the allegations added by the fourth amended complaint that is now before the Court were
3 known to Synergy or could have been discovered by Synergy more than a year ago, when the Court
4 last denied Synergy’s request for leave to file a fourth amended complaint. This is particularly the
5 case where, as here, Synergy had years to conduct party discovery against the City, Mr. Nuru, and
6 Ghilotti, during a time when Mr. Kelly was a City employee. A declaration attaching predominately
7 aged documents without any explanation as to how these documents give rise to “new” facts illustrates
8 Synergy’s failed compliance with California Rules of Court, rule 3.1324(b), and warrants denial of its
9 motion.
10 II. The Fourth Amended Complaint Is Nearly Identical to the Fourth Amended Complaint
that Synergy Was Twice Denied Leave to File Last Year, and Reconsideration Is Not
11 Warranted
12 Through this motion, Synergy is essentially asking for reconsideration of Judge Schulman’s
13 two 2021 Orders denying it leave to file a substantially identical fourth amended complaint. This new
14 version of the fourth amended complaint is largely a cut-and-paste of the fourth amended complaint
15 Synergy was denied leave to file last year. (See Huling Delaye Dec. Exs. B & D.) For example, it
16 even retains the same greyed-out font on paragraph 141 (last year numbered as paragraph 139).
17 (Compare Rosenfeld Dec. Ex. A with Huling Delaye Dec. Exs. B & C.) The City’s comparison of the
18 2021 fourth amended complaint and the 2022 fourth amended complaints have identified only the
19 following minor differences in the facts alleged:
20 Additions. Current paragraphs 11, 14, the phrase “despite repeated pressure from government
21 officials” in paragraph 35, current paragraphs 78, 82 through 86, the phrase “and that the entire project
22 was consequently redesigned” in paragraph 105, the phrase “days later” in paragraph 116, the phrase
23 “or other subcontractors” in paragraph 129, paragraph 153.
24 Deletions. Prior paragraphs 11 and 12, half of current paragraph 19, prior paragraphs 75
25 through 78, prior paragraphs 83 and 88, and phrases throughout attaching referenced public documents
26 as exhibits (from paragraphs currently numbered 49, 53, 59, and previously numbered paragraph 88).
27 Moreover, the new causes of action alleged are also largely the same as those Synergy was
28
12
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1 previously denied leave to add to this case: 2
2 The fourth cause of action for fraudulent concealment against the City and proposed new
3 defendants Mohammed Nuru (who was dismissed from this action over two years ago) and Harlan
4 Kelly is verbatim identical to the Fraudulent Concealment cause of action that Synergy twice asked
5 this Court for leave to file last year, except that one paragraph (previously between paragraphs 198 and
6 199) has been deleted from it.
7 The sixth cause of action for unjust enrichment is the same as the cause of action that Synergy
8 twice sought leave to file last year, except that it is now pled against Nuru and Kelly, and adds
9 paragraph 210.
10 The seventh and eighth causes of action for racketeering are verbatim identical to the causes of
11 action that Synergy twice sought leave to file last year, except that they are now pled against Nuru and
12 Kelly.
13 None of these changes Synergy proposes to make are warranted by new circumstances or facts
14 that became known in the year that has passed since the Court last denied Synergy’s request for leave
15 to amend. The Court’s prior reasoning in denying Synergy’s last two motions for leave to amend,
16 Synergy “had at its disposal the facts related to the amendment but did not act promptly” is equally, if
17 not more applicable today. (April 12, 2021 Order.) There is no reason for the Court to reconsider this
18 independent basis for the Court’s prior denials.
19
III. Synergy Has Long Known of the “New” Facts Giving Rise to its Proposed Amendments
20 and Offers no Explanation for its Delay
21 This Court previously found that “Synergy had long been aware of the facts related to the
22 proposed amendment but had failed to justify its lengthy delay in seeking leave to amend.” (April 12,
23 2021 Order.) In so holding, it stated:
24 A request to amend a complaint is properly denied where, as here, the party had
at its disposal the facts related to the amendment but did not act promptly. (See
25 P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345
[upholding denial of leave to amend complaint where party had knowledge of
26 relevant authority for ten months before seeking leave to amend]; Huff v. Wilkins
27
2
The fifth cause of action for breach of contract against Ghilotti is substantively identical to
28 the Breach of Contract cause of action already contained in the operative Third Amended Complaint.
13
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(2006) 138 Cal.App.4th 732, 746 [upholding denial of motion to amend
1 complaint where plaintiff “failed to offer any explanation for his delay in seeking
leave to amend.”]; Record v. Reason (1999) 73 Cal.App.4th 472, 486-487
2 [affirming denial of motion to amend complaint due to unwarranted delay where
plaintiff had knowledge of the circumstances on which he based the amended
3 complaint almost three years before he sought leave to amend]; Yee v.
Mobilehome Park Rental Review Bd. (1998) 62 Cal.App.4th 1409, 1428
4 [upholding denial of leave to amend where the proposed amendments were
offered more than two years after the original complaint was filed and shortly
5 before a final resolution of the case]; Magpali v. Farmers Group, Inc. (1996) 48
Cal.App.4th 471, 486-487 [upholding denial of amendment where amendment
6 was proposed nearly two years after the complaint was originally filed, and
plaintiff did not give an explanation for not pleading the proposed claim in the
7 original complaint or for bringing the request to amend so late].) (Ibid.)
8 As previously noted, none of the minor changes between the 2021 version of the fourth
9 amended complaint and the 2022 version of the fourth amended complaint reflect facts learned by
10 Synergy in the past year. The appearance of new counsel for Synergy in December of 2021, and new
11 counsel’s views on how to best present previously-known facts do not constitute a change in
12 circumstance warranting reconsideration under Code of Civil Procedure section 1008.
13 In denying Synergy’s motions to amend last year, the Court also noted that “granting the
14 motion would be inconsistent with” the Presiding Judge’s March 18, 2021 Order “explicitly reject[ing]
15 Synergy’s request to reopen discovery.” (Ibid.) The reason Synergy asserted at that time for needing
16 further discovery was “seeking to add defendants and causes of actions.” (Ibid.) Judge Schulman
17 noted that Synergy’s 2021 motion for leave to file an amended complaint “seeks relief that would be
18 inconsistent with that order, and therefore may not be granted. (See Code Civ. Proc., § 1008, subd. (a)
19 [motion for reconsideration must be addressed to “the same judge or court that made the order”]; In re
20 Marriage of Oliverez (2015) 238 Cal.App.4th 1242, 1247 [“A trial court’s discretion to reconsider
21 another judge’s prior ruling is necessarily narrow and usually only appropriate when the prior judge is
22 unavailable.”].) His reasoning is equally true today, especially in light of the fact that Synergy has
23 indicated it will again move to reopen discovery if its instant motion is granted. (Huling Delaye Dec.
24 ¶ 19.)
25
IV. The Ninth Circuit’s Reinstatement of Synergy’s Intentional Interference Claim Does Not
26 Warrant Leave to Amend
27 Synergy argues that the Ninth Circuit’s order reinstating Synergy’s intentional interference
28 claim and ordering that the trial court consider in the first instance whether that claim meets the
14
CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx
1 pleading requirements of Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130, somehow
2 warrants the proposed amendments. However, Ixchel only applies to tortious interference with
3 contract claims. It provides absolutely no basis to allow the filing of entirely new, conspiracy, 3
4 fraudulent concealment, or racketeering claims. Consequently, the Ninth Circuit’s 2021 Order and
5 Ixchel are entirely irrelevant to Synergy’s request to add new causes of action three (conspiracy to
6 interfere with prospective economic advantage), four (fraudulent concealment), six (unjust
7 enrichment), seven and eight (racketeering) and provide no support for it.
8 What’s more, in its appeal, Synergy explic
Preview
1 DAVID CHIU, SBN 189542 City Attorney 2 YVONNE R. MERÉ, SBN 173594 ELECTRONICALLY Chief Deputy City Attorney F I L E D 3 ELAINE M. O’NEIL, SBN142234 Superior Court of California, County of San Francisco JAIME M. HULING DELAYE, SBN 270784 4 ARI A. BARUTH, SBN 258418 02/10/2022 Deputy City Attorneys Clerk of the Court BY: EDNALEEN ALEGRE 5 1390 Market Street, 6th Floor Deputy Clerk San Francisco, CA 94102-5408 6 Telephone: (415) 554-3957 Facsimile: (415) 437-4644 7 Email: Jaime.HulingDelaye@sfcityatty.org 8 Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 UNLIMITED JURISDICTION 12 13 SYNERGY PROJECT MANAGEMENT, INC., Case No. CGC-17-560034 (Consolidated with Case No. CGC-19-576488) 14 Plaintiff, DEFENDANT CITY AND COUNTY OF 15 v. SAN FRANCISCO’S OPPOSITION TO PLAINTIFF SYNERGY PROJECT 16 CITY AND COUNTY OF SAN FRANCISCO, MANAGEMENT, INC.’S MOTION FOR LEAVE TO FILE FOURTH AMENDED 17 Defendant. COMPLAINT AND TO SUBSTITUTE HARLAN KELLY FOR DOE #1 18 GHILOTTI BROS., INC., a California Corporation, Hearing Date: February 25, 2022 19 Hearing Judge: Hon. Richard Ulmer, Jr. Plaintiff, Time: 9:30 a.m. 20 Place: Dept. 302 v. 21 Date Action Filed: July 10, 2017 SYNERGY PROJECT MANAGEMENT, INC., a Trial Date: September 19, 2022 22 California Corporation, and DOES 1-30, 23 Defendants. 24 SYNERGY PROJECT MANAGEMENT, a California Corporation, Cross-Complainant, 25 v. 26 GHILOTTI BROS, INC., a California Corporation, 27 and ROES 1-20, 28 Cross-Defendants. 1 CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx 1 TABLE OF CONTENTS 2 INTRODUCTION ...........................................................................................................................5 BACKGROUND .............................................................................................................................6 3 I. Synergy Has Had the Opportunity to File Four Different Versions of Its 4 Complaint.................................................................................................................6 5 II. This Court Has Twice Denied Synergy Leave to File a Fourth Amended Complaint Alleging Nearly Identical Facts .............................................................7 6 III. The Federal Courts Have Denied Synergy’s Requests to File a Fourth Amended 7 Complaint on Multiple Occasions ...........................................................................8 LEGAL STANDARD....................................................................................................................10 8 ARGUMENT .................................................................................................................................10 9 I. The Motion Should Be Denied for Failure to Comply with California Rule of 10 Court 3.1324 ..........................................................................................................10 11 II. The Fourth Amended Complaint Is Nearly Identical to the Fourth Amended Complaint that Synergy Was Twice Denied Leave to File Last Year, and 12 Reconsideration Is Not Warranted .........................................................................12 13 III. Synergy Has Long Known of the “New” Facts Giving Rise to its Proposed Amendments and Offers no Explanation for its Delay ..........................................13 14 IV. The Ninth Circuit’s Reinstatement of Synergy’s Intentional Interference Claim Does Not Warrant Leave to Amend.......................................................................14 15 V. Allowing Leave to Amend Would Prejudice the City ...........................................16 16 CONCLUSION ..............................................................................................................................18 17 18 19 20 21 22 23 24 25 26 27 28 2 CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx 1 TABLE OF AUTHORITIES 2 Cases 3 Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739 ......................................................................................................16 4 Estate of Murphy v. Gulf Insurance Co. 5 (1978) 82 Cal.App.3d 304 .........................................................................................................10 6 Green v. Rancho Santa Margarita Mortgage Co. 7 (1994) 28 Cal.App.4th 686 ........................................................................................................18 8 Higgins v. Del Faro (1981) 123 Cal.App.3d 558 .......................................................................................................16 9 Huff v. Wilkins 10 (2006) 138 Cal.App.4th 732 ......................................................................................................13 11 In re Marriage of Oliverez (2015) 238 Cal.App.4th 1242 ....................................................................................................14 12 13 Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130 ..........................................................................................................15, 16 14 Leader v. Health Industries of America., Inc. 15 (2001) 89 Cal.App.4th 603 ........................................................................................................10 16 Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471 ........................................................................................................14 17 P&D Consultants, Inc. v. City of Carlsbad 18 (2010) 190 Cal.App.4th 1332 ....................................................................................................13 19 Record v. Reason 20 (1999) 73 Cal.App.4th 472 ..................................................................................................10, 14 21 Synergy Project Management, Inc. v. City and County of San Francisco (2019) 33 Cal.App.5th 21 ..........................................................................................................15 22 Synergy Project Management, Inc. v. City and County of San Francisco 23 959 Fed.Appx. 99 (9th Cir. 2021) ............................................................................................6, 9 24 Titan Electric Corp. v. Los Angeles Unified School Dist. 25 (2008) 160 Cal.App.4th 188 ......................................................................................................15 26 Yee v. Mobilehome Park Rental Review Bd. (1998) 62 Cal.App.4th 1409 ......................................................................................................14 27 28 3 CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx State Statutes & Codes 1 Code of Civil Procedure 2 § 1008 ........................................................................................................................................14 3 § 1008(a) ....................................................................................................................................14 § 1008(b) ......................................................................................................................................7 4 Public Contract Code 5 § 4107 ........................................................................................................................................15 6 Rules 7 California Rules of Court rule 3.1324 ...............................................................................................................................5, 9 8 rule 3.1324(a) .............................................................................................................................10 9 rule 3.1324(b).................................................................................................................10, 11, 12 10 Federal Rules of Civil Procedure Rule 11 .........................................................................................................................................8 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx 1 INTRODUCTION 2 In its long-running crusade, Plaintiff Synergy Project Management, Inc. (“Synergy”) has 3 already filed four different complaints in this case alleging wrongdoing by the City and County of San 4 Francisco (“the City”). In addition, it has already had five separate requests to file a fourth amended 5 complaint rejected by three separate courts. This case was filed in 2017. It is time for the pleadings to 6 be closed. This Court should deny this, Synergy’s sixth, request to file a fourth amended complaint. 7 Synergy identifies no changed circumstances that would warrant reconsideration of the Court’s 8 April 12, 2021 Order denying Synergy leave to file a nearly identical proposed fourth amended 9 complaint. That Order denied Synergy’s substantially identical motion on the grounds that Synergy 10 had long been aware of the facts related to the proposed amendment but had failed to justify its 11 lengthy delay in seeking leave to amend. This motion is even more dilatory than the one denied 12 approximately a year ago, and the facts that this most recent iteration of the fourth amended complaint 13 recites are almost entirely verbatim identical to those presented to the Court a year ago, and all of them 14 were known to Synergy long before then. 15 Synergy’s failure to comply with California Rules of Court, rule 3.1324 presents an additional, 16 independent basis for denying the motion. Rule 3.1324 requires (a) an identification of the page, 17 paragraph, and line number of added or deleted allegations, and (b) a declaration explaining when the 18 facts giving rise to the amended allegations were discovered and the reasons why the request for 19 amendment was not made earlier. Synergy fails to satisfy either of these mandatory requirements. 20 This is not a “technical gotcha” but rather a meaningful failure. Synergy’s failure to identify the page, 21 paragraph and line number of new or deleted allegations makes it difficult to meaningfully compare 22 how this proposed complaint differs from the operative Third Amended Complaint and the claims 23 recently reinstated by the Ninth Circuit from the Second Amended Complaint which was previously 24 filed in federal court. The absence of an explanation as to why the request for amendment was not 25 made earlier is critical where the “new” facts are at least two years old. No explanation is provided, 26 warranting denial of the motion on the same bases of delay and prejudice that the nearly identical 27 proposed amendment was denied last April. 28 5 CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx 1 Rather than permit Synergy to file a host of new causes of action based on old facts against 2 new and old defendants alike, the Court should order Synergy to re-file its Second Amended 3 Complaint, previously filed only in federal court, which contains the causes of action against the City 4 that were reinstated on appeal by the Ninth Circuit Court of Appeals and subsequently remanded to 5 this Court by the Northern District of California. 6 BACKGROUND 7 I. Synergy Has Had the Opportunity to File Four Different Versions of Its Complaint 8 Synergy filed the initial complaint in this case in Superior Court on July 10, 2017, but did not 9 serve that complaint. (Declaration of Jaime Huling Delaye in Support of Opposition to Motion for 10 Leave to Amend [“Huling Delaye Dec.”] ¶ 2.) On October 19, 2017, Synergy filed its First Amended 11 Complaint in this Court, containing causes of action against the City, now-Mayor London Breed, and 12 Mohammed Nuru (collectively, the “City Defendants”). 1 (Ibid.) On October 24, 2017, Synergy 13 served that complaint. (Ibid.) City Defendants removed the case to federal court on November 24, 14 2017. (Huling Delaye Dec. ¶ 2 & Ex. A [“Dist. Ct. Dkt.”] at p. 43.) Synergy filed a Second Amended 15 Complaint in the Northern District of California on June 5, 2018, containing state and federal causes 16 of action against City Defendants. (Huling Delaye Dec. ¶ 4 & Dist. Ct. Dkt. at p. 33.) On December 17 31, 2018, the Northern District of California dismissed all state law causes of action pled in the Second 18 Amended Complaint against City Defendants, with prejudice. (Huling Delaye Dec. ¶ 4 & Dist. Ct. 19 Dkt. at pp. 31-32.) 20 On May 26, 2019, Synergy filed a Third Amended Complaint in the Northern District of 21 California containing only federal law claims against the City and adding, for the first time, state law 22 claims against a new defendant, Ghilotti. (Huling Delaye Dec. ¶ 5 & Dist. Ct. Dkt. at p. 26.) On 23 November 21, 2019, the Northern District of California dismissed all remaining federal causes of 24 action pled against the City and ordered the remaining state law claims against Ghilotti remanded to 25 San Francisco Superior Court. (Huling Delaye Dec. ¶ 5 & Dist. Ct. Dkt. at p. 16.) That remand was 26 1 27 Neither London Breed nor Mohammed Nuru remain defendants in this case. The Ninth Circuit affirmed the dismissal of all causes of action against them. (See Synergy Project Management, 28 Inc. v. City and County of San Francisco, 959 Fed.Appx. 99 (9th Cir. 2021).) 6 CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx 1 recorded in the Register of Actions for this case on November 25, 2019. (Huling Delaye Dec. ¶ 5.) 2 II. This Court Has Twice Denied Synergy Leave to File a Fourth Amended Complaint 3 Alleging Nearly Identical Facts 4 Initially, after the remand of Synergy’s claims against Ghilotti to Superior Court, there was no 5 operative complaint containing causes of action against Ghilotti on file in this Court, as the remanded 6 claims had been filed in the Northern District of California. (Huling Delaye Dec. ¶ 6.) On December 7 27, 2019, the San Francisco Superior Court notified Synergy that it should file the operative Third 8 Amended Complaint against Ghilotti in the San Francisco Superior Court. (Ibid.) Synergy did so on 9 January 31, 2020. (Ibid.) For over two years, Synergy and Ghilotti have litigated the claims outlined 10 in the Third Amended Complaint in this Court. (Ibid.) 11 On January 22, 2021, Synergy filed a motion for leave to file a fourth amended complaint in 12 this Court. (Huling Delaye Dec. ¶ 6 & Ex. B [“January 2021 PFAC”].) That proposed fourth 13 amended complaint recites facts that are almost entirely verbatim identical to the proposed fourth 14 amended complaint that Synergy now seeks leave to file. On February 17, 2021, Judge Shulman 15 denied Synergy’s motion for leave to file the fourth amended complaint. (Huling Delaye Dec. ¶ 9.) 16 On March 5, 2021, Synergy filed a “substantially identical motion” in this Court for leave to 17 file the same fourth amended complaint that was the subject of its previous request. (See Plaintiff’s 18 Counsel Ben Rosenfeld Declaration and CCP § 1008(b) Affidavit in Support of Plaintiff’s Motion for 19 Leave to File Fourth Amended Complaint and Substitute Harland Kelly for Defendant Doe #1 20 [“Rosenfeld Dec.”], Ex. I [“April 12, 2021 Order”].) On April 12, 2021, Judge Shulman denied 21 Synergy’s second motion for leave to file the fourth amended complaint on the basis that “the party 22 had at its disposal the facts related to the amendment but did not act promptly.” (April 12, 2021 23 Order.) The Court also found that allowing the amendment “would be inconsistent with the Presiding 24 Judge’s March 18, 2021 Order, which had denied Synergy’s request to reopen discovery for the stated 25 purpose of “seeking to add defendants and causes of action” and “conduct[ing] further discovery 26 related to the proposed new parties and claims.” (Ibid.) 27 28 7 CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx III. The Federal Courts Have Denied Synergy’s Requests to File a Fourth Amended 1 Complaint on Multiple Occasions 2 On August 14, 2019, while City Defendants’ and Ghilotti’s motions to dismiss the Third 3 Amended Complaint were pending before the Northern District of California, Synergy sought leave to 4 modify the case management order (under which pleadings had already closed) and for leave to file a 5 fourth amended complaint, attempting to moot the motions to dismiss the Third Amended Complaint 6 before they could be granted. (Huling Delaye Dec. ¶ 10 & Dist. Ct. Dkt. at p. 19.) That same day, the 7 district court denied the request sua sponte, without prejudice. (Ibid.) 8 On November 21, 2019, the district court granted City Defendants’ motion to dismiss the Third 9 Amended Complaint in its entirety, and ordered the remaining state law claims against Ghilotti be 10 remanded to Superior Court. (Huling Delaye Dec. ¶ 11 & Dist. Ct. Dkt. at p. 16.) In dismissing all 11 claims against the City Defendants with prejudice, the district court denied Synergy leave to file a 12 fourth amended complaint, finding that such amendment would be futile. (Ibid.) The district court 13 thus entered judgment in favor of City Defendants on November 21, 2019. (Ibid.) 14 Synergy appealed the judgment against it to the Ninth Circuit. (Huling Delaye Dec. ¶ 11 & 15 Dist. Ct. Dkt. at p. 16.) Synergy’s appeal challenged the district court’s November 21, 2019 Order 16 dismissing its federal claims against City Defendants with prejudice, the earlier August 14, 2019 Order 17 denying without prejudice Synergy’s motion to modify the case management order and for leave to 18 file a fourth amended complaint, and the December 31, 2018 Order dismissing its state claims against 19 the City with prejudice. (Huling Delaye Dec. ¶ 12, Dist. Ct. Dkt. at p. 16, & Ex. C [“Notice of 20 Appeal”].) 21 While Synergy’s appeal was pending before the Ninth Circuit, on February 22, 2021, Synergy 22 filed a motion for relief from judgment before the district court, requesting, inter alia, that the district 23 court issue an indicative ruling to the Ninth Circuit that it should not hear the appeal, and instead 24 remand the case to the district court to allow the filing of the same fourth amended complaint against 25 the City and Ghilotti that the Superior Court had denied it leave to file the week before. (Huling 26 Delaye Dec. ¶ 13 & Dist. Ct. Dkt. at p. 14.) In response, the City took the unusual step of filing a 27 motion for sanctions under rule 11 of the Federal Rules of Civil Procedure against Synergy’s then- 28 counsel and its client on the bases that the filing was presented for an improper purpose, that the 8 CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx 1 claims in the proposed fourth amended complaint are not warranted by existing law, and that the 2 factual claims in the proposed fourth amended complaint lack evidentiary support (i.e., the criminal 3 allegations against Mohammed Nuru and Harlan Kelly are unrelated to Synergy’s removal from the 4 Haight Street or Van Ness Projects, and AzulWorks, Inc. was not awarded the work on the Van Ness 5 Project that Synergy had bid on). (Huling Delaye Dec. ¶ 14 & Dist. Ct. Dkt. at p. 9.) Synergy 6 withdrew its motion for relief from judgment during the Rule 11 safe-harbor period, which mooted the 7 sanctions motion. (Huling Delaye Dec. ¶ 14 & Dist. Ct. Dkt. at p. 7.) 8 On June 7, 2021, the Ninth Circuit affirmed the dismissal of all federal causes of action against 9 City Defendants, reversed the dismissal of the intentional interference claim pled against the City and 10 County of San Francisco, and remanded the case to the district court for further proceedings to 11 determine in the first instance whether Synergy had pled a necessary element of that cause of action. 12 The Ninth Circuit upheld the district court’s denial of leave to amend, holding that it “did not abuse its 13 discretion in dismissing Synergy’s federal claims without leave to amend because amendment would 14 be futile.” (Synergy Project Management, Inc., 959 Fed.Appx. at p. 101.) The Ninth Circuit noted 15 that the district court had not reached the question of whether Synergy had alleged that the City had 16 engaged in an independently wrongful act as part of its intentional interference claim, and “declined to 17 do so in the first instance,” instead, “leav[ing] it to the district court’s discretion to either address this 18 issue on remand or . . . to remand to the state court for resolution.” (Id. at p. 100.) The Ninth Circuit 19 did not grant Synergy leave to amend its intentional interference claim, but rather reinstated them as 20 previously pled. (See ibid.) On July 20, 2021, the Ninth Circuit denied Synergy’s petition for 21 rehearing en banc. (Huling Delaye Dec. ¶ 15.) 22 On August 9, 2021, the Northern District of California remanded the intentional interference 23 claim against the City to the San Francisco Superior Court. (Huling Delaye Dec. ¶ 16.) The 24 intentional interference claim was pled in the Second Amended Complaint, which has only ever been 25 filed in the district court. (Ibid.) The Third Amended Complaint on file in this Court does not contain 26 any causes of action which survived the Ninth Circuit appeal. (Ibid.) Since the remand of Synergy’s 27 intentional interference claim to this Court occurred, there has not been any operative complaint on 28 file against the City. (Ibid.) 9 CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx 1 Rather than filing the Second Amended Complaint in the Superior Court, or seeking to amend 2 the operative Third Amended Complaint with the same claims reinstated by the Ninth Circuit, Synergy 3 seeks once again to file a fourth amended complaint that modifies the claims reinstated by the Ninth 4 Circuit based on entirely new factual predicates and adds five new claims against the City, some of 5 which are also pled against Mohammed Nuru, who was dismissed from this case in 2019, and Harlan 6 Kelly, who has never been a party to this case. 7 LEGAL STANDARD 8 “The trial court has wide discretion in allowing the amendment of any pleading [citations], and 9 as a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or 10 gross abuse of discretion is shown.” (Record v. Reason (1999) 73 Cal.App.4th 472, 486.) The 11 appropriate exercise of that discretion requires the trial court to consider a number of factors, including 12 the conduct of the moving party and the belated presentation of the amendment.” (Leader v. Health 13 Industries of America., Inc. (2001) 89 Cal.App.4th 603, 613.) “The law is well settled that a long 14 deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a 15 significant factor to uphold the trial court’s denial of the amendment.” (Id. at p. 612.) “The law is 16 also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting 17 it may—of itself—be a valid reason for denial.” (Ibid.) “Where inexcusable delay and probable 18 prejudice to the opposing party is indicated, the trial court’s exercise of discretion in denying a 19 proposed amendment should not be disturbed.” (Estate of Murphy v. Gulf Insurance Co. (1978) 82 20 Cal.App.3d 304, 311.) 21 ARGUMENT I. The Motion Should Be Denied for Failure to Comply with California Rule of Court 22 3.1324 23 California Rules of Court, rule 3.1324(a) provides that a motion to amend a pleading before 24 trial “must state…by page, paragraph, and line number, the deleted allegations…and where, by page, 25 paragraph, and line number, the additional allegations are located.” Rule 3.1324(b) also requires that 26 the declaration supporting the motion for leave to amend must specify “(2) why the amendment is 27 necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and 28 (4) the reasons why the request for amendment was not made earlier.” 10 CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx 1 Synergy’s motion fails to satisfy the mandatory requirements of both rules. First, rather than 2 identifying the page, paragraph, and line number of the allegations deleted and/or added from the 3 operative Third Amended Complaint, Synergy asserts the volume of proposed changes is so great as to 4 render the requirement moot. (See Plaintiff Synergy’s Counsel Ben Rosenfeld Supplemental 5 Declaration in Support of Motion for Leave to File Fourth Amended Complaint and Substitute Harlan 6 Kelly for Defendant Doe #1 [“Rosenfeld Supp. Dec.”] ¶ 3.) No exception exists for voluminous 7 changes. This is a mandatory requirement, and the failure to comply has left the City, Ghilloti, and the 8 Court to hope that they accurately self-identified each of the proposed amendments in evaluating the 9 motion. 10 Synergy’s motion also fails to satisfy California Rules of Court, rule 3.1324(b) because the 11 supporting declaration does not identify why the amendments are necessary and proper. (See 12 Rosenfeld Supp. Dec.) Nor does it identify when the facts giving rise to the amended allegations were 13 discovered by Synergy (as opposed to newly-retained counsel who joined the case less than two 14 months ago). (Ibid.) Instead, the supporting declaration identifies seven documents that form the 15 bases for the amendments. (Ibid.) One of those seven documents is from over two years ago in 16 January 2020, and three others are also from 2020. (See Rosenfeld Dec. Exs. B, C, D & E.) Synergy 17 had full knowledge of each of these documents when it twice moved for leave to file a substantially 18 identical fourth amended complaint in January and March of 2021. At that time, its motion was 19 denied because Synergy “had at its disposal the facts related to the amendment but did not act 20 promptly.” (April 12, 2021 Order.) Synergy’s delay has only increased in the interim. 21 The additional documents now cited by Synergy include a report regarding the Van Ness 22 Project and the Ninth Circuit’s opinion in this case, both of which are from June of 2021 and are eight 23 months old. (See Rosenfeld Dec. Exs. G & H.) The lone document that is less than seven months old 24 is Mr. Nuru’s December 17, 2021 guilty plea. (See Rosenfeld Dec. & Ex. F.) However, the City can 25 find no allegations added to the 2022 version of the proposed fourth amended complaint that reflect 26 any of the “new facts” supposedly discovered in 2021. (Huling Delaye Dec. ¶ 17.) For example, Mr. 27 Nuru’s guilty plea is nowhere mentioned in the newest iteration of the fourth amended complaint. 28 (Ibid.) The allegations against Mr. Nuru were known at least two years ago, and the guilty plea is 11 CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx 1 irrelevant to Synergy’s proposed amendments. 2 All of the allegations added by the fourth amended complaint that is now before the Court were 3 known to Synergy or could have been discovered by Synergy more than a year ago, when the Court 4 last denied Synergy’s request for leave to file a fourth amended complaint. This is particularly the 5 case where, as here, Synergy had years to conduct party discovery against the City, Mr. Nuru, and 6 Ghilotti, during a time when Mr. Kelly was a City employee. A declaration attaching predominately 7 aged documents without any explanation as to how these documents give rise to “new” facts illustrates 8 Synergy’s failed compliance with California Rules of Court, rule 3.1324(b), and warrants denial of its 9 motion. 10 II. The Fourth Amended Complaint Is Nearly Identical to the Fourth Amended Complaint that Synergy Was Twice Denied Leave to File Last Year, and Reconsideration Is Not 11 Warranted 12 Through this motion, Synergy is essentially asking for reconsideration of Judge Schulman’s 13 two 2021 Orders denying it leave to file a substantially identical fourth amended complaint. This new 14 version of the fourth amended complaint is largely a cut-and-paste of the fourth amended complaint 15 Synergy was denied leave to file last year. (See Huling Delaye Dec. Exs. B & D.) For example, it 16 even retains the same greyed-out font on paragraph 141 (last year numbered as paragraph 139). 17 (Compare Rosenfeld Dec. Ex. A with Huling Delaye Dec. Exs. B & C.) The City’s comparison of the 18 2021 fourth amended complaint and the 2022 fourth amended complaints have identified only the 19 following minor differences in the facts alleged: 20 Additions. Current paragraphs 11, 14, the phrase “despite repeated pressure from government 21 officials” in paragraph 35, current paragraphs 78, 82 through 86, the phrase “and that the entire project 22 was consequently redesigned” in paragraph 105, the phrase “days later” in paragraph 116, the phrase 23 “or other subcontractors” in paragraph 129, paragraph 153. 24 Deletions. Prior paragraphs 11 and 12, half of current paragraph 19, prior paragraphs 75 25 through 78, prior paragraphs 83 and 88, and phrases throughout attaching referenced public documents 26 as exhibits (from paragraphs currently numbered 49, 53, 59, and previously numbered paragraph 88). 27 Moreover, the new causes of action alleged are also largely the same as those Synergy was 28 12 CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx 1 previously denied leave to add to this case: 2 2 The fourth cause of action for fraudulent concealment against the City and proposed new 3 defendants Mohammed Nuru (who was dismissed from this action over two years ago) and Harlan 4 Kelly is verbatim identical to the Fraudulent Concealment cause of action that Synergy twice asked 5 this Court for leave to file last year, except that one paragraph (previously between paragraphs 198 and 6 199) has been deleted from it. 7 The sixth cause of action for unjust enrichment is the same as the cause of action that Synergy 8 twice sought leave to file last year, except that it is now pled against Nuru and Kelly, and adds 9 paragraph 210. 10 The seventh and eighth causes of action for racketeering are verbatim identical to the causes of 11 action that Synergy twice sought leave to file last year, except that they are now pled against Nuru and 12 Kelly. 13 None of these changes Synergy proposes to make are warranted by new circumstances or facts 14 that became known in the year that has passed since the Court last denied Synergy’s request for leave 15 to amend. The Court’s prior reasoning in denying Synergy’s last two motions for leave to amend, 16 Synergy “had at its disposal the facts related to the amendment but did not act promptly” is equally, if 17 not more applicable today. (April 12, 2021 Order.) There is no reason for the Court to reconsider this 18 independent basis for the Court’s prior denials. 19 III. Synergy Has Long Known of the “New” Facts Giving Rise to its Proposed Amendments 20 and Offers no Explanation for its Delay 21 This Court previously found that “Synergy had long been aware of the facts related to the 22 proposed amendment but had failed to justify its lengthy delay in seeking leave to amend.” (April 12, 23 2021 Order.) In so holding, it stated: 24 A request to amend a complaint is properly denied where, as here, the party had at its disposal the facts related to the amendment but did not act promptly. (See 25 P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345 [upholding denial of leave to amend complaint where party had knowledge of 26 relevant authority for ten months before seeking leave to amend]; Huff v. Wilkins 27 2 The fifth cause of action for breach of contract against Ghilotti is substantively identical to 28 the Breach of Contract cause of action already contained in the operative Third Amended Complaint. 13 CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx (2006) 138 Cal.App.4th 732, 746 [upholding denial of motion to amend 1 complaint where plaintiff “failed to offer any explanation for his delay in seeking leave to amend.”]; Record v. Reason (1999) 73 Cal.App.4th 472, 486-487 2 [affirming denial of motion to amend complaint due to unwarranted delay where plaintiff had knowledge of the circumstances on which he based the amended 3 complaint almost three years before he sought leave to amend]; Yee v. Mobilehome Park Rental Review Bd. (1998) 62 Cal.App.4th 1409, 1428 4 [upholding denial of leave to amend where the proposed amendments were offered more than two years after the original complaint was filed and shortly 5 before a final resolution of the case]; Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-487 [upholding denial of amendment where amendment 6 was proposed nearly two years after the complaint was originally filed, and plaintiff did not give an explanation for not pleading the proposed claim in the 7 original complaint or for bringing the request to amend so late].) (Ibid.) 8 As previously noted, none of the minor changes between the 2021 version of the fourth 9 amended complaint and the 2022 version of the fourth amended complaint reflect facts learned by 10 Synergy in the past year. The appearance of new counsel for Synergy in December of 2021, and new 11 counsel’s views on how to best present previously-known facts do not constitute a change in 12 circumstance warranting reconsideration under Code of Civil Procedure section 1008. 13 In denying Synergy’s motions to amend last year, the Court also noted that “granting the 14 motion would be inconsistent with” the Presiding Judge’s March 18, 2021 Order “explicitly reject[ing] 15 Synergy’s request to reopen discovery.” (Ibid.) The reason Synergy asserted at that time for needing 16 further discovery was “seeking to add defendants and causes of actions.” (Ibid.) Judge Schulman 17 noted that Synergy’s 2021 motion for leave to file an amended complaint “seeks relief that would be 18 inconsistent with that order, and therefore may not be granted. (See Code Civ. Proc., § 1008, subd. (a) 19 [motion for reconsideration must be addressed to “the same judge or court that made the order”]; In re 20 Marriage of Oliverez (2015) 238 Cal.App.4th 1242, 1247 [“A trial court’s discretion to reconsider 21 another judge’s prior ruling is necessarily narrow and usually only appropriate when the prior judge is 22 unavailable.”].) His reasoning is equally true today, especially in light of the fact that Synergy has 23 indicated it will again move to reopen discovery if its instant motion is granted. (Huling Delaye Dec. 24 ¶ 19.) 25 IV. The Ninth Circuit’s Reinstatement of Synergy’s Intentional Interference Claim Does Not 26 Warrant Leave to Amend 27 Synergy argues that the Ninth Circuit’s order reinstating Synergy’s intentional interference 28 claim and ordering that the trial court consider in the first instance whether that claim meets the 14 CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx 1 pleading requirements of Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130, somehow 2 warrants the proposed amendments. However, Ixchel only applies to tortious interference with 3 contract claims. It provides absolutely no basis to allow the filing of entirely new, conspiracy, 3 4 fraudulent concealment, or racketeering claims. Consequently, the Ninth Circuit’s 2021 Order and 5 Ixchel are entirely irrelevant to Synergy’s request to add new causes of action three (conspiracy to 6 interfere with prospective economic advantage), four (fraudulent concealment), six (unjust 7 enrichment), seven and eight (racketeering) and provide no support for it. 8 What’s more, in its appeal, Synergy explic