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 02/01/2022
Clerk of the Court
5 randolphdaar@yahoo.com BY: EDNALEEN ALEGRE
ben.rosenfeld@comcast.net Deputy Clerk
6
7 Attorneys for Plaintiff Synergy Project Management, Inc.
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9 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO
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LAW OFFICE OF BEN ROSENFELD
12 SYNERGY PROJECT MANAGEMENT, Case Nos. CGC-17-560034
INC., Plaintiff, and CGC-19-576488, consolidated.
San Francisco, Ca
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v. PLAINTIFF SYNERGY’S COUNSEL
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BEN ROSENFELD SUPPLEMENTAL
15 CITY AND COUNTY OF SAN FRANCISCO, DECLARATION IN SUPPORT OF
LONDON BREED, MOHAMMED NURU, MOTION FOR LEAVE TO FILE
16 Defendants. FOURTH AMENDED COMPLAINT
______________________________________ AND SUBSTITUTE HARLAN KELLY
17 FOR DEFENDANT DOE #1
18 GHILOTTI BROS., INC., Plaintiff,
Date: February 25, 2022
19 v. Time: 9:30 am.
Dept.: 302
20 SYNERGY PROJECT MANAGEMENT,
INC., a California Corporation, DOES 1-30,
21 Defendants.
22 ______________________________________
23 SYNERGY PROJECT MANAGEMENT,
Cross-Complainant,
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v.
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26 GHILOTTI BROS, INC., ROES 1-20,
Cross-Defendants.
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S UPP D ECL . OF C OUNSEL B EN R OSENFELD ISO M OTION FOR L EAVE TO A MEND C ASE No. CGC-17-560034
1 I, Ben Rosenfeld, declare as follows:
2 1. I am over the age of 18. I am an attorney licensed to practice law throughout the State
3 of California and in this Court. I am co-counsel for Plaintiff Synergy Project Management, Inc.
4 with Attorney Randolph E. Daar. If called as a witness, I could and would testify as follows:
5 2. The purpose of this declaration is to supplement my previously filed (on 1/31/22)
6 declaration in support of Plaintiff Synergy’s motion for leave to amend and file its proposed
7 Fourth Amended Complaint (“proposed 4AC”).
8 3. Because Synergy’s proposed 4AC constitutes a substantial amendment of Synergy’s
9 complaint, and consolidates, and amends, the two complaints that separately contain all of the
10 operative claims and parties in this action, I have summarized, rather than listed word by added
11 word, or word by deleted word, every addition and deletion—a task which would be so
LAW OFFICE OF BEN ROSENFELD
12 voluminous as to be impractical if not impossible. This supplemental declaration should be read
San Francisco, Ca
13 in conjunction with my previously filed (on 1/31/22) declaration, in support of the requirements
14 of California Rule of Court 3.3124:
15 4. Synergy’s proposed amended complaint adds the allegation that working together, the
16 City, Nuru and Kelly and GBI manipulated and mischaracterized the Haight Street Project plans
17 and records so that GBI could receive payment for Synergy's work, and the City could avoid
18 paying Synergy for its work. Synergy also adds a claim for unjust enrichment against GBI based
19 on these allegations.
20 5. As explained in more detail in my January 31, 2022 declaration, the facts and
21 procedural circumstances have substantially changed since Synergy last sought (on March 4
22 2021) and was denied (on April 12, 2021) leave to amend, to add claims and defendants based on
23 information disclosed in the federal wire fraud conspiracy investigations of former SF
24 Department of Public Works (“DPW”) Director Mohammed Nuru, former SF Public Utilities
25 Commission Direct (“SFPUC”) Harlan Kelly, and other City official and cronies, and the
26 subsequent plea and conviction of Mr. Nuru.
27 6. I am informed and believe, an on that basis allege, that the federal complaints against
28 1
S UPP D ECL . OF C OUNSEL B EN R OSENFELD ISO M OTION FOR L EAVE TO A MEND C ASE No. CGC-17-560034
1 Messrs. Nuru and Kelly, coupled with Mr. Nuru’s plea agreement, and other reports and
2 assessments of these investigations, establish Synergy’s grounds to add the allegations and
3 claims set forth in Synergy's Fourth Amended Complaint proposed 4AC, namely: Synergy’s
4 causes of action for conspiracy to interfere with economic advantage, fraudulent concealment,
5 civil racketeering, and unjust enrichment . (See Exhibits B-H attached to Synergy’s Motion for
6 Leave.) I am informed and believe that these documents reveal, inter alia, the following facts
7 supporting Synergy’s amended and added claims: (1) a meeting between Mike Ghilotti, principal
8 of GBI, and Mohammed Nuru in October 2015, in which Ghilotti agreed with the City and Nuru
9 that Synergy should be terminated from working on the Haight Street Project, at the same time
10 Ghilotti was representing to Synergy that he opposed Synergy’s removal; (2)the ‘City Family’s’
11 pay-to-play fraud scheme perpetrated by Nuru, Kelly, former mayor Ed Lee and others; (3)
LAW OFFICE OF BEN ROSENFELD
12 Nuru's unique, complete and unchecked control over DPW projects and contracts, and other City
San Francisco, Ca
13 department construction contracts; (4) Nuru’s and other officials’ use of ‘friends of’
14 organizations to gather and launder bribes and kickbacks from individuals and businesses
15 deemed friends of Nuru and other City family members, in exchange for preferential treatment in
16 contracts by these officials; (5) GBI and Mike Ghilotti's close relationship with Nuru, Ed Lee,
17 and the City; and (6) Nuru and Kelly’s manipulation and mischaracterization of Haight Street
18 Project records so as to allow the City to avoid payment to Synergy, and to allow GBI to receive
19 compensation for Synergy’s work.
20 7. I (and, I am informed and believe, my co-counsel Mr. Daar) first learned of the
21 foregoing details, through the disclosure of several documents first made publicly available with
22 the federal criminal complaint against Nuru, filed January 15, 2020, followed by the affidavit
23 filed with the Balmore Hernandez complaint on June 4, 2020, the Walter Wong information and
24 plea agreement filed on June 23, 2020, the Kelly Complaint filed on November 30, 2020, and the
25 Nuru guilty plea disclosures, published December 17, 2021—all before we substituted into this
26 case on December 28, 2021. Notably, the December 17, 2021 Nuru plea disclosures—revealed
27 more than nine months after Synergy filed its last motion for leave to amend on March 4, 2021—
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S UPP D ECL . OF C OUNSEL B EN R OSENFELD ISO M OTION FOR L EAVE TO A MEND C ASE No. CGC-17-560034
1 provided new detail of Nuru’s admissions to a broad fraud scheme spanning many years and
2 implicating multiple City departments and nonprofits. The Nuru plea disclosures also shed new
3 light on the bribe, kickback and shakedown methods Nuru and Kelly used to commit and conceal
4 the scheme, providing new support for both Synergy’s independent wrongful act allegations, and
5 its new causes of action. Synergy did not, and could not, have known these details prior to
6 Nuru’s plea disclosures.
7 8. Synergy’s 4AC adds the independently wrongful acts in support of Synergy’s existing
8 tortious interference claims against the City, Nuru, and Kelly, and carves out new claims for
9 fraudulent concealment and civil racketeering out of these acts, based on the Ninth Circuit’s June
10 7, 2021 Opinion and remand in this case, citing the California Supreme Court’s recent decision
11 in Ixchel Pharma, LLC v. Biogen, Inc., 470 P.3d 571, 580 (Cal. 2020). I (and, I am informed and
LAW OFFICE OF BEN ROSENFELD
12 believe, my co-counsel Mr. Daar) first learned of the Ninth Circuit’s Opinion arguably
San Francisco, Ca
13 necessitating these amendments after we substituted into this case on December 28, 2021, and in
14 any event, Synergy had no meaningful opportunity or need to amend its pleading to allege these
15 independently wrongful acts against defendants prior to issuance of the Ninth Circuit’s June 7,
16 2021 Opinion, and could not have bolstered them to the degree Synergy now does prior to
17 learning the details of Nuru’s December 17, 2021 plea disclosures anyway.
18 9. Synergy’s proposed 4AC makes other changes throughout, including syntactical edits,
19 to clarify and streamline the pleading, and to conform it to the law of the case, such as removing
20 Synergy’s claim for exemplary damages against GBI.
21 10. Neither the existing defendants, nor former defendant Nuru, nor proposed defendant
22 Kelly (substituted for Doe #1) would be surprised nor unduly or unfairly prejudiced by the
23 proposed amendments, where they actively concealed their criminal acts, and where Synergy’s
24 proposed new allegations relate back to its original complaint. Furthermore, since Synergy
25 intends to introduce this independent wrongful act evidence against defendants in support of its
26 existing tortious interference claims against defendants vis-à-vis the Haight Street Project, these
27 proposed amendments by Synergy will not add to the evidence introduced at trial on either the
28 3
S UPP D ECL . OF C OUNSEL B EN R OSENFELD ISO M OTION FOR L EAVE TO A MEND C ASE No. CGC-17-560034
1 tortious interference claims, or Synergy’s proposed new unjust enrichment claim against GBI. In
2 addition, since the City has moved to continue the trial of this matter for at least six months
3 (without opposition from GBI or Synergy as to this time frame), Synergy’s proposed 4AC will
4 not have the effect, if Synergy’s request is granted, of delaying the trial or unduly prejudicing
5 any of the defendants. Granting Synergy’s motion for leave to file its 4AC would have the effect
6 of supporting resolution of all of Synergy’s claims and causes of action on the merits, and
7 vindicating the important principle of redressing corruption and collusion by the named, and
8 sought to be named, city officials.
9 11. I swear under penalty of perjury under the laws of the State of California that the
10 foregoing is true and correct, except as to those matters stated on information and belief, and as
11 to those matters, I believe them to be true.
LAW OFFICE OF BEN ROSENFELD
12 Sworn and subscribed to at San Francisco, California on February 1, 2022.
San Francisco, Ca
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Respectfully Submitted,
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17 Ben Rosenfeld
Attorney for Plaintiff Synergy
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S UPP D ECL . OF C OUNSEL B EN R OSENFELD ISO M OTION FOR L EAVE TO A MEND C ASE No. CGC-17-560034
PROOF OF SERVICE
1
2 I, the undersigned, hereby declare and state that I am over the age of 18, employed in the
City of San Francisco, California, and not a party to the within action. My business address is
3 115 ½ Bartlett Street, San Francisco, CA 94110.
4 On the date(s) set forth below, I caused or will cause the following document(s)
5 PLAINTIFF SYNERGY’S COUNSEL BEN ROSENFELD SUPPLEMENTAL
6 DECLARATION IN SUPPORT OF MOTION FOR LEAVE TO FILE FOURTH
AMENDED COMPLAINT AND SUBSTITUTE HARLAN KELLY FOR
7 DEFENDANT DOE #1
8 to be served via the following methods, on the following recipients:
9
X Email
10 ___ U.S.P.S. First Class or Priority Mail
___ U.S.P.S. Express Mail
11 X Personal Delivery
LAW OFFICE OF BEN ROSENFELD
___ Facsimile
12
Jaime Huling Delaye, DCA James Diwik, Esq.
San Francisco, Ca
13
Ari A. Baruth, DCA Rya Lewis, Esq.
14 San Francisco City Attorney’s Office troutman pepper
1390 Market Street, 6th Floor Three Embarcadero Center, Suite 800
15 San Francisco, CA 94102 San Francisco, CA 94111
Jaime.HulingDelaye@sfcityatty.org James.Diwik@troutman.com
16 Ari.Baruth@sfcityatty.org Ryan.Lewis@troutman.com
17 Attorneys for City Defendants Attorneys for Defendant Ghilotti Bros., Inc
18 I declare under penalty of perjury under the laws of the State of California that the
19 foregoing is true and correct. Executed on February 1, 2022, at San Francisco, California.
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23 Ben Rosenfeld, Attorney
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P ROOF OF S ERVICE C ASE No. CGC-17-560034
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 02/01/2022 Clerk of the Court 5 randolphdaar@yahoo.com BY: EDNALEEN ALEGRE ben.rosenfeld@comcast.net Deputy Clerk 6 7 Attorneys for Plaintiff Synergy Project Management, Inc. 8 9 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 LAW OFFICE OF BEN ROSENFELD 12 SYNERGY PROJECT MANAGEMENT, Case Nos. CGC-17-560034 INC., Plaintiff, and CGC-19-576488, consolidated. San Francisco, Ca 13 v. PLAINTIFF SYNERGY’S COUNSEL 14 BEN ROSENFELD SUPPLEMENTAL 15 CITY AND COUNTY OF SAN FRANCISCO, DECLARATION IN SUPPORT OF LONDON BREED, MOHAMMED NURU, MOTION FOR LEAVE TO FILE 16 Defendants. FOURTH AMENDED COMPLAINT ______________________________________ AND SUBSTITUTE HARLAN KELLY 17 FOR DEFENDANT DOE #1 18 GHILOTTI BROS., INC., Plaintiff, Date: February 25, 2022 19 v. Time: 9:30 am. Dept.: 302 20 SYNERGY PROJECT MANAGEMENT, INC., a California Corporation, DOES 1-30, 21 Defendants. 22 ______________________________________ 23 SYNERGY PROJECT MANAGEMENT, Cross-Complainant, 24 v. 25 26 GHILOTTI BROS, INC., ROES 1-20, Cross-Defendants. 27 28 S UPP D ECL . OF C OUNSEL B EN R OSENFELD ISO M OTION FOR L EAVE TO A MEND C ASE No. CGC-17-560034 1 I, Ben Rosenfeld, declare as follows: 2 1. I am over the age of 18. I am an attorney licensed to practice law throughout the State 3 of California and in this Court. I am co-counsel for Plaintiff Synergy Project Management, Inc. 4 with Attorney Randolph E. Daar. If called as a witness, I could and would testify as follows: 5 2. The purpose of this declaration is to supplement my previously filed (on 1/31/22) 6 declaration in support of Plaintiff Synergy’s motion for leave to amend and file its proposed 7 Fourth Amended Complaint (“proposed 4AC”). 8 3. Because Synergy’s proposed 4AC constitutes a substantial amendment of Synergy’s 9 complaint, and consolidates, and amends, the two complaints that separately contain all of the 10 operative claims and parties in this action, I have summarized, rather than listed word by added 11 word, or word by deleted word, every addition and deletion—a task which would be so LAW OFFICE OF BEN ROSENFELD 12 voluminous as to be impractical if not impossible. This supplemental declaration should be read San Francisco, Ca 13 in conjunction with my previously filed (on 1/31/22) declaration, in support of the requirements 14 of California Rule of Court 3.3124: 15 4. Synergy’s proposed amended complaint adds the allegation that working together, the 16 City, Nuru and Kelly and GBI manipulated and mischaracterized the Haight Street Project plans 17 and records so that GBI could receive payment for Synergy's work, and the City could avoid 18 paying Synergy for its work. Synergy also adds a claim for unjust enrichment against GBI based 19 on these allegations. 20 5. As explained in more detail in my January 31, 2022 declaration, the facts and 21 procedural circumstances have substantially changed since Synergy last sought (on March 4 22 2021) and was denied (on April 12, 2021) leave to amend, to add claims and defendants based on 23 information disclosed in the federal wire fraud conspiracy investigations of former SF 24 Department of Public Works (“DPW”) Director Mohammed Nuru, former SF Public Utilities 25 Commission Direct (“SFPUC”) Harlan Kelly, and other City official and cronies, and the 26 subsequent plea and conviction of Mr. Nuru. 27 6. I am informed and believe, an on that basis allege, that the federal complaints against 28 1 S UPP D ECL . OF C OUNSEL B EN R OSENFELD ISO M OTION FOR L EAVE TO A MEND C ASE No. CGC-17-560034 1 Messrs. Nuru and Kelly, coupled with Mr. Nuru’s plea agreement, and other reports and 2 assessments of these investigations, establish Synergy’s grounds to add the allegations and 3 claims set forth in Synergy's Fourth Amended Complaint proposed 4AC, namely: Synergy’s 4 causes of action for conspiracy to interfere with economic advantage, fraudulent concealment, 5 civil racketeering, and unjust enrichment . (See Exhibits B-H attached to Synergy’s Motion for 6 Leave.) I am informed and believe that these documents reveal, inter alia, the following facts 7 supporting Synergy’s amended and added claims: (1) a meeting between Mike Ghilotti, principal 8 of GBI, and Mohammed Nuru in October 2015, in which Ghilotti agreed with the City and Nuru 9 that Synergy should be terminated from working on the Haight Street Project, at the same time 10 Ghilotti was representing to Synergy that he opposed Synergy’s removal; (2)the ‘City Family’s’ 11 pay-to-play fraud scheme perpetrated by Nuru, Kelly, former mayor Ed Lee and others; (3) LAW OFFICE OF BEN ROSENFELD 12 Nuru's unique, complete and unchecked control over DPW projects and contracts, and other City San Francisco, Ca 13 department construction contracts; (4) Nuru’s and other officials’ use of ‘friends of’ 14 organizations to gather and launder bribes and kickbacks from individuals and businesses 15 deemed friends of Nuru and other City family members, in exchange for preferential treatment in 16 contracts by these officials; (5) GBI and Mike Ghilotti's close relationship with Nuru, Ed Lee, 17 and the City; and (6) Nuru and Kelly’s manipulation and mischaracterization of Haight Street 18 Project records so as to allow the City to avoid payment to Synergy, and to allow GBI to receive 19 compensation for Synergy’s work. 20 7. I (and, I am informed and believe, my co-counsel Mr. Daar) first learned of the 21 foregoing details, through the disclosure of several documents first made publicly available with 22 the federal criminal complaint against Nuru, filed January 15, 2020, followed by the affidavit 23 filed with the Balmore Hernandez complaint on June 4, 2020, the Walter Wong information and 24 plea agreement filed on June 23, 2020, the Kelly Complaint filed on November 30, 2020, and the 25 Nuru guilty plea disclosures, published December 17, 2021—all before we substituted into this 26 case on December 28, 2021. Notably, the December 17, 2021 Nuru plea disclosures—revealed 27 more than nine months after Synergy filed its last motion for leave to amend on March 4, 2021— 28 2 S UPP D ECL . OF C OUNSEL B EN R OSENFELD ISO M OTION FOR L EAVE TO A MEND C ASE No. CGC-17-560034 1 provided new detail of Nuru’s admissions to a broad fraud scheme spanning many years and 2 implicating multiple City departments and nonprofits. The Nuru plea disclosures also shed new 3 light on the bribe, kickback and shakedown methods Nuru and Kelly used to commit and conceal 4 the scheme, providing new support for both Synergy’s independent wrongful act allegations, and 5 its new causes of action. Synergy did not, and could not, have known these details prior to 6 Nuru’s plea disclosures. 7 8. Synergy’s 4AC adds the independently wrongful acts in support of Synergy’s existing 8 tortious interference claims against the City, Nuru, and Kelly, and carves out new claims for 9 fraudulent concealment and civil racketeering out of these acts, based on the Ninth Circuit’s June 10 7, 2021 Opinion and remand in this case, citing the California Supreme Court’s recent decision 11 in Ixchel Pharma, LLC v. Biogen, Inc., 470 P.3d 571, 580 (Cal. 2020). I (and, I am informed and LAW OFFICE OF BEN ROSENFELD 12 believe, my co-counsel Mr. Daar) first learned of the Ninth Circuit’s Opinion arguably San Francisco, Ca 13 necessitating these amendments after we substituted into this case on December 28, 2021, and in 14 any event, Synergy had no meaningful opportunity or need to amend its pleading to allege these 15 independently wrongful acts against defendants prior to issuance of the Ninth Circuit’s June 7, 16 2021 Opinion, and could not have bolstered them to the degree Synergy now does prior to 17 learning the details of Nuru’s December 17, 2021 plea disclosures anyway. 18 9. Synergy’s proposed 4AC makes other changes throughout, including syntactical edits, 19 to clarify and streamline the pleading, and to conform it to the law of the case, such as removing 20 Synergy’s claim for exemplary damages against GBI. 21 10. Neither the existing defendants, nor former defendant Nuru, nor proposed defendant 22 Kelly (substituted for Doe #1) would be surprised nor unduly or unfairly prejudiced by the 23 proposed amendments, where they actively concealed their criminal acts, and where Synergy’s 24 proposed new allegations relate back to its original complaint. Furthermore, since Synergy 25 intends to introduce this independent wrongful act evidence against defendants in support of its 26 existing tortious interference claims against defendants vis-à-vis the Haight Street Project, these 27 proposed amendments by Synergy will not add to the evidence introduced at trial on either the 28 3 S UPP D ECL . OF C OUNSEL B EN R OSENFELD ISO M OTION FOR L EAVE TO A MEND C ASE No. CGC-17-560034 1 tortious interference claims, or Synergy’s proposed new unjust enrichment claim against GBI. In 2 addition, since the City has moved to continue the trial of this matter for at least six months 3 (without opposition from GBI or Synergy as to this time frame), Synergy’s proposed 4AC will 4 not have the effect, if Synergy’s request is granted, of delaying the trial or unduly prejudicing 5 any of the defendants. Granting Synergy’s motion for leave to file its 4AC would have the effect 6 of supporting resolution of all of Synergy’s claims and causes of action on the merits, and 7 vindicating the important principle of redressing corruption and collusion by the named, and 8 sought to be named, city officials. 9 11. I swear under penalty of perjury under the laws of the State of California that the 10 foregoing is true and correct, except as to those matters stated on information and belief, and as 11 to those matters, I believe them to be true. LAW OFFICE OF BEN ROSENFELD 12 Sworn and subscribed to at San Francisco, California on February 1, 2022. San Francisco, Ca 13 Respectfully Submitted, 14 15 16 17 Ben Rosenfeld Attorney for Plaintiff Synergy 18 19 20 21 22 23 24 25 26 27 28 4 S UPP D ECL . OF C OUNSEL B EN R OSENFELD ISO M OTION FOR L EAVE TO A MEND C ASE No. CGC-17-560034 PROOF OF SERVICE 1 2 I, the undersigned, hereby declare and state that I am over the age of 18, employed in the City of San Francisco, California, and not a party to the within action. My business address is 3 115 ½ Bartlett Street, San Francisco, CA 94110. 4 On the date(s) set forth below, I caused or will cause the following document(s) 5 PLAINTIFF SYNERGY’S COUNSEL BEN ROSENFELD SUPPLEMENTAL 6 DECLARATION IN SUPPORT OF MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT AND SUBSTITUTE HARLAN KELLY FOR 7 DEFENDANT DOE #1 8 to be served via the following methods, on the following recipients: 9 X Email 10 ___ U.S.P.S. First Class or Priority Mail ___ U.S.P.S. Express Mail 11 X Personal Delivery LAW OFFICE OF BEN ROSENFELD ___ Facsimile 12 Jaime Huling Delaye, DCA James Diwik, Esq. San Francisco, Ca 13 Ari A. Baruth, DCA Rya Lewis, Esq. 14 San Francisco City Attorney’s Office troutman pepper 1390 Market Street, 6th Floor Three Embarcadero Center, Suite 800 15 San Francisco, CA 94102 San Francisco, CA 94111 Jaime.HulingDelaye@sfcityatty.org James.Diwik@troutman.com 16 Ari.Baruth@sfcityatty.org Ryan.Lewis@troutman.com 17 Attorneys for City Defendants Attorneys for Defendant Ghilotti Bros., Inc 18 I declare under penalty of perjury under the laws of the State of California that the 19 foregoing is true and correct. Executed on February 1, 2022, at San Francisco, California. 20 21 22 23 Ben Rosenfeld, Attorney 24 25 26 27 28 1 P ROOF OF S ERVICE C ASE No. CGC-17-560034