Preview
1 DAVID CHIU, State Bar #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 01/14/2022
Deputy City Attorneys Clerk of the Court
BY: EDNALEEN ALEGRE
5 Fox Plaza, 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 Defendants
CITY AND COUNTY OF SAN FRANCISCO
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO
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UNLIMITED JURISDICTION
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SYNERGY PROJECT MANAGEMENT, INC., Case No. CGC-17-560034
13 (Consolidated with Case No. CGC-19-576488)
Plaintiff,
14 DECLARATION OF JAIME M. HULING-
v. DELAYE IN SUPPORT OF THE CITY
15 AND COUNTY OF SAN FRANCISCO’S
CITY AND COUNTY OF SAN FRANCISCO, OBJECTION TO TRIAL SETTING
16 ORDER AND MOTION TO CONTINUE
Defendant. TRIAL OR, IN THE ALTERNATIVE,
17 FOR SEPARATE TRIALS
GHILOTTI BROS., INC., a California Corporation,
18 Hearing Date: February 3, 2022
Plaintiff, Hearing Judge: Hon. Samuel K. Feng
19 Time: 9:30 a.m.
v. Place: Dept. 206
20
SYNERGY PROJECT MANAGEMENT, INC., a Date Action Filed: July 10, 2017
21 California Corporation, and DOES 1-30, Trial Date: March 7, 2022
22 Defendants.
23 SYNERGY PROJECT MANAGEMENT, a
California Corporation,
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Cross-Complainant,
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v.
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GHILOTTI BROS, INC., a California Corporation,
27 and ROES 1-20,
28 Cross-Defendants.
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JHD Decl ISO CCSF Motion for Separate Trial, Case No. CGC-17-560034 n:\constr\li2021\180435\01573848.docx
1 I, Jaime Huling Delaye, declare as follows:
2 1. I am an attorney admitted to practice law in the State of California and before this
3 Court. I am employed as a Deputy City Attorney with the Office of the City Attorney for the City and
4 County of San Francisco. I am assigned to represent the City and County of San Francisco (“the
5 City”) in the above-captioned litigation. I have personal knowledge of the facts contained herein, and
6 I could and would testify competently thereto.
7 2. Synergy filed the initial complaint in this action against the City Defendants in San
8 Francisco Superior Court on July 10, 2017, but did not serve that complaint on them. On October 19,
9 2017, Synergy filed its First Amended Complaint against City Defendants and on October 24, 2017,
10 served that complaint on them. City Defendants removed the case to federal court on November 24,
11 2017. Synergy filed a Second Amended Complaint in the Northern District of California on June 5,
12 2018, containing state and federal causes of action against City Defendants. On December 31, 2018,
13 the Northern District of California dismissed all state law causes of action pled in the Second
14 Amended Complaint against City Defendants, with prejudice.
15 3. On May 26, 2019, Synergy filed a Third Amended Complaint in the Northern District
16 of California containing only federal law claims against City Defendants and adding, for the first time,
17 state law claims against a new defendant, Ghilotti. Pursuant to the Northern District of California’s
18 June 27, 2018 Scheduling Order, fact discovery between City Defendants and Synergy in the federal
19 case closed on July 1, 2019. (Attached as Exhibit A is a true and correct copy of the June 27, 2018
20 Scheduling Order.) On November 21, 2019, the Northern District of California dismissed all
21 remaining federal causes of action pled against City Defendants and ordered the remaining state law
22 claims against Ghilotti remanded to San Francisco Superior Court. That remand was recorded in the
23 Register of Actions for this case on November 25, 2019.
24 4. Initially after the remand, there was no operative complaint containing causes of action
25 against Ghilotti on file in the San Francisco Superior Court, as the remanded claims had been filed for
26 the first time in the Northern District of California. On December 27, 2019, the San Francisco
27 Superior Court notified Synergy that it should file the operative Third Amended Complaint against
28 Ghilotti in the San Francisco Superior Court. Synergy did so on January 31, 2020. The initial trial
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JHD Decl ISO CCSF Motion for Separate Trial, Case No. CGC-17-560034 n:\constr\li2021\180435\01573848.docx
1 date for claims between Synergy and Ghilotti was set for March 29, 2021. It was continued to August
2 23, 2021 by order of this Court due to a family health matter of Synergy’s previous counsel.
3 5. While Synergy and Ghilotti were litigating the claims between them in this Court,
4 Synergy appealed the District Court’s dismissal of each of its state and federal causes of action against
5 City Defendants to the Ninth Circuit. On June 7, 2021, the Ninth Circuit affirmed the dismissal of all
6 federal causes of action against City Defendants, reversed the dismissal of the intentional interference
7 claim pled against the City and County of San Francisco, and remanded to the District Court for
8 further proceedings to determine in the first instance whether Synergy had pled a necessary element of
9 that cause of action. On July 20, 2021, the Ninth Circuit denied Synergy’s petition for rehearing en
10 banc.
11 6. Prior to the issuance of the Ninth Circuit’s mandate, and while Synergy’s claims
12 against the City were still before the Federal Appellate Court, Synergy and Ghilotti stipulated to a
13 continuance of their trial date. The Joint Ex Parte Application for Stipulated Trial Continuance noted
14 that “[a]s a result of the Ninth Circuit’s June 7, 2021 memorandum order and July 20, 2021 denial of
15 Synergy’s petition, the Parties anticipate that the District Court in Case No. 4:17-cv-06763-JST will
16 imminently remand Synergy’s intentional interference claim against the City to the instant litigation.
17 The Parties anticipate that the City will consequently be re-added as a defendant to this litigation upon
18 remand of Synergy’s intentional interference claim.” Synergy and Ghilotti further noted that “[s]hould
19 the City be remanded to this case as the Parties reasonably anticipate, it is likely that the City will
20 engage in significant motion practice necessitating a continuance of the current trial date.” A true and
21 correct copy of the relevant portions of the Joint Ex Parte Application for a Stipulated Trial
22 Continuance is attached as Exhibit B. The City was not a party to the Joint Ex Parte Application for a
23 Stipulated Trial Continuance, because at that time, all causes of action against the City were pending
24 in Federal Court Case No. 4:17-cv-06763-JST. The City Attorney’s Office did not appear at the ex
25 parte hearing and was not consulted on potential trial dates.
26 7. On July 23, 2021, this Court granted the Joint Ex Parte Application and continued the
27 trial between Ghilotti and Synergy to March 7, 2022. That Order required that any future trial
28 continuances in this case be sought by noticed motion. It further noted, “[d]iscovery is not re-opened.
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JHD Decl ISO CCSF Motion for Separate Trial, Case No. CGC-17-560034 n:\constr\li2021\180435\01573848.docx
1 All discovery, including written discovery and notices of deposition, that was timely served prior to
2 the discovery cut-off based upon the March 29, 2021 trial date in this matter will remain open to allow
3 for completion of that discovery including the motions to compel related the that discovery.” For the
4 Court’s convenience, a true and correct copy of the Court’s July 23, 2021 Order is attached hereto as
5 Exhibit C.
6 8. On August 9, 2021, the Northern District of California remanded the intentional
7 interference claim against the City to the San Francisco Superior Court. The intentional interference
8 claim was pled in the Second Amended Complaint, which has only ever been filed in the District
9 Court. The Third Amended Complaint on file in this Court does not contain any causes of action
10 which survived the Ninth Circuit appeal. Since the remand of the Synergy’s intentional interference
11 claim to this Court occurred, there has not been any operative complaint on file against the City.
12 Accordingly, the City has not been able to file a responsive pleading, nor have the parties been able to
13 engage in motion practice to address the issue that the Ninth Circuit ordered that the trial court address
14 in the first instance.
15 9. The March 7, 2022 trial date would further prejudice the City by depriving it of an
16 opportunity to engage in pre-trial motion practice. The City has not had an opportunity—in any
17 forum—to file a motion for judgment on the pleadings or motion for summary judgment.
18 10. Lead counsel for the City is unavailable on the March 7, 2022 trial date due to pre-
19 planned international travel. Lead counsel for the City has a multi-billion dollar bellwether trial for
20 the federal Opioid MDL beginning on April 25, 2022 in the Northern District of California, which is
21 anticipated to last at least four months.
22 11. On December 28, 2022, new counsel substituted in for Synergy. On January 5, 2022,
23 counsel for the City met and conferred with counsel for Synergy and Ghilotti. Ghilotti’s counsel
24 represented that it would not oppose the motion to the extent it seeks a trial continuance. The City was
25 unable to reach an agreement with Synergy’s counsel.
26 12. The City has not requested any previous trial continuances in this case—either in state
27 or federal court.
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JHD Decl ISO CCSF Motion for Separate Trial, Case No. CGC-17-560034 n:\constr\li2021\180435\01573848.docx
13. There is. at present no complaint on filein the Superior Court that contains li ve claims
2 against the City. The operative pleading in this action. ynergy's Third Amended Complai nt. contains
3 only federal causes of action whose dismissal was affirmed by the Ninth Circuit. The Ninth Circuit
4 reinstated an intentional interference claim against the City that was pied in the econd Amended
5 Complaint that has only ever been filed in federal court. The intentional interference claim was
6 remanded to the Superior Court with instructions for the uperior Court to consider in the first
7 instance whether Synergy has ··'alleged an independently wrongful act" by the Ci ty.'' A true and
8 correct copy of the District Court· s August 4, 202 1 Order Remanding Case is attached hereto as
9 Exhibit 0 .
10 I declare under penalty of perjur) under the laws of the United States that the fo regoing is true
1I and correct. Executed this 7th day of January. 2022 at an Francisco. California.
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JHD Dee l I 0 CCSF Motion for cparate Tria l, Case o . CGC- 17-560034 n:\cons1r\h202 I\1 80435\01573848.docx
EXHIBIT A
Case 3:17-cv-06763-JST Document 54 Filed 06/27/18 Page 1 of 2
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5 UNITED STATES DISTRICT COURT
6 NORTHERN DISTRICT OF CALIFORNIA
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8 SYNERGY PROJECT MANAGEMENT, Case No. 17-cv-06763-JST
INC.,
9 Plaintiff, SCHEDULING ORDER
10 v.
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CITY AND COUNTY OF SAN
12 FRANCISCO, et al.,
Northern District of California
United States District Court
Defendants.
13
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15 The Court hereby sets the following case deadlines pursuant to Federal Rule of Civil
16 Procedure 16 and Civil Local Rule 16-10:
17 Event Deadline
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Deadline to add parties or amend the pleadings1 January 7, 2019
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Expert disclosures June 21, 2019
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Fact discovery cut-off July 1, 2019
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22 Expert rebuttal July 12, 2019
23 Expert discovery cut-off August 2, 2019
24 Deadline to file dispositive motions September 27, 2019
25 Pretrial conference statement due November 22, 2019
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28 After this deadline, a party may still seek amendment, but must demonstrate good cause. Fed. R.
Civ. P. 16(b)(4).
Case 3:17-cv-06763-JST Document 54 Filed 06/27/18 Page 2 of 2
1 Event Deadline
2 December 6, 2019 at
Pretrial conference
2:00 p.m.
3
January 13, 2020 at
4 Trial
8:00 a.m.
5
Estimate of trial length (in days) Eight
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This case will be tried to a jury. Counsel may not modify these dates without leave of
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court. The parties shall comply with the Court’s standing orders, which are available at
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cand.uscourts.gov/jstorders.
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The parties must take all necessary steps to conduct discovery, compel discovery, hire
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counsel, retain experts, and manage their calendars so that they can complete discovery in a timely
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manner and appear at trial on the noticed and scheduled dates. All counsel must arrange their
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Northern District of California
United States District Court
calendars to accommodate these dates, or arrange to substitute or associate in counsel who can.
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Trial dates set by this Court should be regarded as firm. Requests for continuance are
14
disfavored. The Court will not consider any event subsequently scheduled by a party, party-
15
controlled witness, expert or attorney that conflicts with the above trial date as good cause to grant
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a continuance. The Court will not consider the pendency of settlement discussions as good cause
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to grant a continuance.
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IT IS SO ORDERED.
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Dated: June 27, 2018
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21 _______________________________________
JON S. TIGAR
22 United States District Judge
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EXHIBIT B
1 TROUTMAN PEPPER HAMILTON SANDERS LLP
JAMES P. DIWIK (State Bar No. 164016)
2 james.diwik@troutman.com
RYAN A. LEWIS (State Bar No. 307253) ELECTRONICALLY
3 ryan.lewis@troutman.com FILED
Three Embarcadero Center, Suite 800 Superior Court of California,
4 San Francisco, CA 94111 County of San Francisco
Telephone: 415.477.5700 07/22/2021
5 Facsimile: 415.477.5710 Clerk of the Court
BY: SANDRA SCHIRO
6 Attorneys for Defendant/Plaintiff/Cross-Defendant Deputy Clerk
GHILOTTI BROS., INC.
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10 CIVIL DIVISION
11 SYNERGY PROJECT MANAGEMENT, Case No. CGC-17-560034 [Consolidated with
INC., Case No. CGC-19-576488]
12
Plaintiff, NOTICE OF JOINT EX PARTE
13 APPLICATION AND JOINT EX PARTE
vs. APPLICATION FOR STIPULATED
14 CONTINUANCE OF TRIAL DATE
CITY AND COUNTY OF SAN
15 FRANCISCO, SAN FRANCISCO Trial Date: August 23, 2021
PUBLIC UTILITIES COMMISSION,
16 SAN FRANCISCO MUNICIPAL
TRANSPORTATION AGENCY, SAN
17 FRANCISCO DEPARTMENT OF
PUBLIC WORKS, LONDON BREED,
18 MOHAMMED NURU, and DOES 1-100,
19 Defendants.
20
GHILOTTI BROS., INC., a California
21 Corporation,
22 Plaintiff,
23 v.
24 SYNERGY PROJECT MANAGEMENT,
INC., a California Corporation, and
25 DOES 1-30,
26 Defendants.
27
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T RO U TMA N PE PPE R
HAM IL TON S A ND E RS LLP
NOTICE OF JOINT EX PARTE APPLICATION AND JOINT EX PARTE APPLICATION FOR STIPULATED
3 EMBARCADERO CENTER, STE. 800
SAN FRANCISCO, CA 94111 CONTINUANCE OF TRIAL DATE
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE THAT on July 23, 2021, at 11:00 a.m. in Department 206 of
3 this Court, located at 400 McAllister Street, San Francisco, CA 94102, or at another date and time
4 convenient for the Court, all parties to this case, i.e., defendant/plaintiff/cross-defendant Ghilotti
5 Bros., Inc., (“GBI”) and plaintiff/defendant/cross-complainant Synergy Project Management, Inc.
6 (“Synergy”) (together, the “Parties”) for good cause will, and hereby do move pursuant to
7 California Rule of Court 3.1332 and Local Rule 6.0.B for an order continuing the trial date in this
8 action to March 7, 2022, or another date convenient for this Court.
9 Pursuant to California Rule of Court 3.1202(a), counsel for the Parties is as follows:
10 TROUTMAN SANDERS LLP LAW OFFICE OF JOHNNY D KNADLER
James P. Diwik, Bar No. 164016 Johnny D. Knadler
11 james.diwik@troutman.com 1527-E Pershing Drive
Ryan A. Lewis, Bar No. 307253 San Francisco, CA 94129
12 ryan.lewis@troutman.com Telephone: (310) 564-6695
Three Embarcadero Center, Suite 800
13 San Francisco, CA 94111
Telephone: 415.477.5700
14 Facsimile: 415.477.5710
15 Counsel for defendant/plaintiff/cross-defendant Counsel for plaintiff/defendant/cross-
Ghilotti Bros., Inc. complainant Synergy Project Management,
16 Inc.
17
The Parties have stipulated to and have been notified of this application in compliance
18
with California Rule of Court 3.1203(a). Declaration of Ryan A. Lewis (“Lewis Dec.”), ¶ 2.
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Because the Parties have stipulated to this continuance, no party will appear to oppose this
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application. Id. There are no other applications for a continuance to disclose under California
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Rule of Court 3.1202(b). The Court has previously granted one request by Synergy to continue
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the trial date in this action, and in a related action the Court previously granted the Parties’
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stipulated request for a trial continuance. Id. ¶ 3.
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Good cause exists for a continuance of the trial date in this action under California Rule of
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Court 3.1332 and Local Rule 6.0.B. On June 7, 2021, the United States Court of Appeals for the
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Ninth Circuit in Case No. 19-17558, captioned Synergy Project Management, Inc. v. City and
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County of San Francisco, et al, issued a memorandum order remanding an intentional
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T RO U TMA N PE PPE R
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HAM IL TON S A ND E RS LLP
NOTICE OF JOINT EX PARTE APPLICATION AND JOINT EX PARTE APPLICATION FOR STIPULATED
3 EMBARCADERO CENTER, STE. 800
SAN FRANCISCO, CA 94111 CONTINUANCE OF TRIAL DATE
1 interference claim asserted by Synergy against the City and County of San Francisco (“City”) to
2 the United States District Court for the Northern District of California, Case No. 4:17-cv-06763-
3 JST, captioned Synergy Project Management, Inc. v. City and County of San Francisco, et al. On
4 July 20, 2021, the Ninth Circuit denied Synergy’s petition for panel rehearing and rehearing en
5 banc. As a result of the Ninth Circuit’s June 7, 2021 memorandum order and July 20, 2021
6 denial of Synergy’s petition, the Parties anticipate that the District Court in Case No. 4:17-cv-
7 06763-JST will imminently remand Synergy’s intentional interference claim against the City to
8 the instant litigation. The Parties anticipate that the City will consequently be re-added as a
9 defendant to this litigation upon remand of Synergy’s intentional interference claim. Should the
10 City be remanded to this case as the Parties reasonably anticipate, it is likely that the City will
11 engage in significant motion practice necessitating a continuance of the current trial date. To
12 conserve judicial resources, and in anticipation of (1) Synergy’s intentional interference claim
13 being remanded to this action, and (2) the City being re-added as a defendant to this action, the
14 Parties stipulate that the trial in this action be continued to March 7, 2022 in Department 206, or
15 to a date and time convenient for the Court.
16 Further, a continuance is appropriate because (1) of the proximity of the current August
17 23, 2021 trial date; (2) the Court has previously granted only one request by Synergy to continue
18 the trial date in this action, and in a related action the Court has previously granted a stipulated
19 request for a trial continuance; (3) the length of the requested continuance is appropriate for
20 determination of the City’s remanded status in this action; (4) a continuance is the most
21 appropriate means to address the City’s remanded status; (5) no party or witness will suffer
22 prejudice as a result of a continuance; and (6) the Parties agree that a continuance is necessary.
23 The Parties base this application on this Ex Parte Notice of Application and Ex Parte
24 Application, the attached Memorandum of Points and Authorities, the Declaration of Ryan A.
25 Lewis, the filed stipulation to continue trial by the Parties, the documents and records in the
26 Court’s file, and any oral argument that may be presented at the hearing on this matter. (Lewis
27 Dec., ¶¶ 4-7).
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-2-
T RO U TMA N P E PPER
NOTICE OF JOINT EX PARTE APPLICATION AND JOINT EX PARTE APPLICATION FOR STIPULATED
H A M ILT ON S A ND E RS LLP
3 EMBARCADERO CENTER, STE. 800 CONTINUANCE OF TRIAL DATE
SAN FRANCISCO, CA 94111
1 Dated: July 22,2021 TROUTMAN PEPPER HAMILTON SANDERS LLP
2
3 By:
JAMES P. DIWIK
4 RYAN A. LEWIS
Attorneys for Defendant/Plaintiff/Cross-Defendant
5 GHILOTTI BROS., INC.
6
7 Dated: July 21, 2021 LAW OFFICES OF JOHNNY D. KNADLER
8
9 By: /s/
Johnny D. Knadler
10 Attorneys for Plaintiff/Defendant/Cross-
Complainant
11 SYNERGY PROJECT MANAGEMENT,
INC.
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T RO U TMA N P E PPER
NOTICE OF JOINT EX PARTE APPLICATION AND JOINT EX PARTE APPLICATION FOR STIPULATED
H A M ILT ON S A ND E RS LLP
3 EMBARCADERO CENTER, STE. 800 CONTINUANCE OF TRIAL DATE
SAN FRANCISCO, CA 94111
EXHIBIT C
EXHIBIT D
Case 4:17-cv-06763-JST Document 181 Filed 08/04/21 Page 1 of 2
1
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 SYNERGY PROJECT MANAGEMENT, Case No. 17-cv-06763-JST
INC.,
8 Plaintiff, ORDER REMANDING CASE
9 v. Re: ECF No. 179
10
CITY AND COUNTY OF SAN
11 FRANCISCO, et al.,
Defendants.
12
Northern District of California
United States District Court
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14 On June 7, 2021, the Ninth Circuit affirmed in part and vacated in part the Court’s orders
15 granting Defendants’ motions to dismiss, denying leave to amend, and entering final judgment.
16 Synergy Project Mgmt., Inc. v. City and County of San Francisco, No. 19-17558, -- Fed. Appx --,
17 2021 WL 2311946, at *1 (9th Cir. June 7, 2021). The Ninth Circuit affirmed this Court’s
18 dismissal of Plaintiff Synergy Project Management, Inc.’s federal claims without leave to amend.
19 Id. at *1-2. As to Synergy’s state law intentional interference claim, the Ninth Circuit
20 acknowledged an intervening California court decision under which Defendant City and County of
21 San Francisco “could potentially be liable under a tortious interference theory,” although “only if
22 Synergy alleged an independently wrongful act” by the City. Id. at *1. It was left to this Court’s
23 discretion “to either address this issue on remand or, because no federal claims will remain, to
24 remand the claim to state court for resolution.” Id. (citing Carnegie-Mellon Univ. v. Cohill, 484
25 U.S. 343, 357 (1988); 28 U.S.C. § 1367(c)(3)). Synergy filed a petition for rehearing and
26 rehearing en banc, which the Ninth Circuit denied, and the mandate issued on July 28, 2021. ECF
27 No. 179.
28 Since no federal claims in this case remain, the Court declines to exercise jurisdiction over
Case 4:17-cv-06763-JST Document 181 Filed 08/04/21 Page 2 of 2
1 Synergy’s state law intentional interference claim. The case is hereby remanded to San Francisco
2 County Superior Court.
3 IT IS SO ORDERED.
4 Dated: August 4, 2021
______________________________________
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JON S. TIGAR
6 United States District Judge
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United States District Court
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Preview
1 DAVID CHIU, State Bar #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 01/14/2022 Deputy City Attorneys Clerk of the Court BY: EDNALEEN ALEGRE 5 Fox Plaza, 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 Defendants CITY AND COUNTY OF SAN FRANCISCO 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 UNLIMITED JURISDICTION 12 SYNERGY PROJECT MANAGEMENT, INC., Case No. CGC-17-560034 13 (Consolidated with Case No. CGC-19-576488) Plaintiff, 14 DECLARATION OF JAIME M. HULING- v. DELAYE IN SUPPORT OF THE CITY 15 AND COUNTY OF SAN FRANCISCO’S CITY AND COUNTY OF SAN FRANCISCO, OBJECTION TO TRIAL SETTING 16 ORDER AND MOTION TO CONTINUE Defendant. TRIAL OR, IN THE ALTERNATIVE, 17 FOR SEPARATE TRIALS GHILOTTI BROS., INC., a California Corporation, 18 Hearing Date: February 3, 2022 Plaintiff, Hearing Judge: Hon. Samuel K. Feng 19 Time: 9:30 a.m. v. Place: Dept. 206 20 SYNERGY PROJECT MANAGEMENT, INC., a Date Action Filed: July 10, 2017 21 California Corporation, and DOES 1-30, Trial Date: March 7, 2022 22 Defendants. 23 SYNERGY PROJECT MANAGEMENT, a California Corporation, 24 Cross-Complainant, 25 v. 26 GHILOTTI BROS, INC., a California Corporation, 27 and ROES 1-20, 28 Cross-Defendants. 1 JHD Decl ISO CCSF Motion for Separate Trial, Case No. CGC-17-560034 n:\constr\li2021\180435\01573848.docx 1 I, Jaime Huling Delaye, declare as follows: 2 1. I am an attorney admitted to practice law in the State of California and before this 3 Court. I am employed as a Deputy City Attorney with the Office of the City Attorney for the City and 4 County of San Francisco. I am assigned to represent the City and County of San Francisco (“the 5 City”) in the above-captioned litigation. I have personal knowledge of the facts contained herein, and 6 I could and would testify competently thereto. 7 2. Synergy filed the initial complaint in this action against the City Defendants in San 8 Francisco Superior Court on July 10, 2017, but did not serve that complaint on them. On October 19, 9 2017, Synergy filed its First Amended Complaint against City Defendants and on October 24, 2017, 10 served that complaint on them. City Defendants removed the case to federal court on November 24, 11 2017. Synergy filed a Second Amended Complaint in the Northern District of California on June 5, 12 2018, containing state and federal causes of action against City Defendants. On December 31, 2018, 13 the Northern District of California dismissed all state law causes of action pled in the Second 14 Amended Complaint against City Defendants, with prejudice. 15 3. On May 26, 2019, Synergy filed a Third Amended Complaint in the Northern District 16 of California containing only federal law claims against City Defendants and adding, for the first time, 17 state law claims against a new defendant, Ghilotti. Pursuant to the Northern District of California’s 18 June 27, 2018 Scheduling Order, fact discovery between City Defendants and Synergy in the federal 19 case closed on July 1, 2019. (Attached as Exhibit A is a true and correct copy of the June 27, 2018 20 Scheduling Order.) On November 21, 2019, the Northern District of California dismissed all 21 remaining federal causes of action pled against City Defendants and ordered the remaining state law 22 claims against Ghilotti remanded to San Francisco Superior Court. That remand was recorded in the 23 Register of Actions for this case on November 25, 2019. 24 4. Initially after the remand, there was no operative complaint containing causes of action 25 against Ghilotti on file in the San Francisco Superior Court, as the remanded claims had been filed for 26 the first time in the Northern District of California. On December 27, 2019, the San Francisco 27 Superior Court notified Synergy that it should file the operative Third Amended Complaint against 28 Ghilotti in the San Francisco Superior Court. Synergy did so on January 31, 2020. The initial trial 2 JHD Decl ISO CCSF Motion for Separate Trial, Case No. CGC-17-560034 n:\constr\li2021\180435\01573848.docx 1 date for claims between Synergy and Ghilotti was set for March 29, 2021. It was continued to August 2 23, 2021 by order of this Court due to a family health matter of Synergy’s previous counsel. 3 5. While Synergy and Ghilotti were litigating the claims between them in this Court, 4 Synergy appealed the District Court’s dismissal of each of its state and federal causes of action against 5 City Defendants to the Ninth Circuit. On June 7, 2021, the Ninth Circuit affirmed the dismissal of all 6 federal causes of action against City Defendants, reversed the dismissal of the intentional interference 7 claim pled against the City and County of San Francisco, and remanded to the District Court for 8 further proceedings to determine in the first instance whether Synergy had pled a necessary element of 9 that cause of action. On July 20, 2021, the Ninth Circuit denied Synergy’s petition for rehearing en 10 banc. 11 6. Prior to the issuance of the Ninth Circuit’s mandate, and while Synergy’s claims 12 against the City were still before the Federal Appellate Court, Synergy and Ghilotti stipulated to a 13 continuance of their trial date. The Joint Ex Parte Application for Stipulated Trial Continuance noted 14 that “[a]s a result of the Ninth Circuit’s June 7, 2021 memorandum order and July 20, 2021 denial of 15 Synergy’s petition, the Parties anticipate that the District Court in Case No. 4:17-cv-06763-JST will 16 imminently remand Synergy’s intentional interference claim against the City to the instant litigation. 17 The Parties anticipate that the City will consequently be re-added as a defendant to this litigation upon 18 remand of Synergy’s intentional interference claim.” Synergy and Ghilotti further noted that “[s]hould 19 the City be remanded to this case as the Parties reasonably anticipate, it is likely that the City will 20 engage in significant motion practice necessitating a continuance of the current trial date.” A true and 21 correct copy of the relevant portions of the Joint Ex Parte Application for a Stipulated Trial 22 Continuance is attached as Exhibit B. The City was not a party to the Joint Ex Parte Application for a 23 Stipulated Trial Continuance, because at that time, all causes of action against the City were pending 24 in Federal Court Case No. 4:17-cv-06763-JST. The City Attorney’s Office did not appear at the ex 25 parte hearing and was not consulted on potential trial dates. 26 7. On July 23, 2021, this Court granted the Joint Ex Parte Application and continued the 27 trial between Ghilotti and Synergy to March 7, 2022. That Order required that any future trial 28 continuances in this case be sought by noticed motion. It further noted, “[d]iscovery is not re-opened. 3 JHD Decl ISO CCSF Motion for Separate Trial, Case No. CGC-17-560034 n:\constr\li2021\180435\01573848.docx 1 All discovery, including written discovery and notices of deposition, that was timely served prior to 2 the discovery cut-off based upon the March 29, 2021 trial date in this matter will remain open to allow 3 for completion of that discovery including the motions to compel related the that discovery.” For the 4 Court’s convenience, a true and correct copy of the Court’s July 23, 2021 Order is attached hereto as 5 Exhibit C. 6 8. On August 9, 2021, the Northern District of California remanded the intentional 7 interference claim against the City to the San Francisco Superior Court. The intentional interference 8 claim was pled in the Second Amended Complaint, which has only ever been filed in the District 9 Court. The Third Amended Complaint on file in this Court does not contain any causes of action 10 which survived the Ninth Circuit appeal. Since the remand of the Synergy’s intentional interference 11 claim to this Court occurred, there has not been any operative complaint on file against the City. 12 Accordingly, the City has not been able to file a responsive pleading, nor have the parties been able to 13 engage in motion practice to address the issue that the Ninth Circuit ordered that the trial court address 14 in the first instance. 15 9. The March 7, 2022 trial date would further prejudice the City by depriving it of an 16 opportunity to engage in pre-trial motion practice. The City has not had an opportunity—in any 17 forum—to file a motion for judgment on the pleadings or motion for summary judgment. 18 10. Lead counsel for the City is unavailable on the March 7, 2022 trial date due to pre- 19 planned international travel. Lead counsel for the City has a multi-billion dollar bellwether trial for 20 the federal Opioid MDL beginning on April 25, 2022 in the Northern District of California, which is 21 anticipated to last at least four months. 22 11. On December 28, 2022, new counsel substituted in for Synergy. On January 5, 2022, 23 counsel for the City met and conferred with counsel for Synergy and Ghilotti. Ghilotti’s counsel 24 represented that it would not oppose the motion to the extent it seeks a trial continuance. The City was 25 unable to reach an agreement with Synergy’s counsel. 26 12. The City has not requested any previous trial continuances in this case—either in state 27 or federal court. 28 4 JHD Decl ISO CCSF Motion for Separate Trial, Case No. CGC-17-560034 n:\constr\li2021\180435\01573848.docx 13. There is. at present no complaint on filein the Superior Court that contains li ve claims 2 against the City. The operative pleading in this action. ynergy's Third Amended Complai nt. contains 3 only federal causes of action whose dismissal was affirmed by the Ninth Circuit. The Ninth Circuit 4 reinstated an intentional interference claim against the City that was pied in the econd Amended 5 Complaint that has only ever been filed in federal court. The intentional interference claim was 6 remanded to the Superior Court with instructions for the uperior Court to consider in the first 7 instance whether Synergy has ··'alleged an independently wrongful act" by the Ci ty.'' A true and 8 correct copy of the District Court· s August 4, 202 1 Order Remanding Case is attached hereto as 9 Exhibit 0 . 10 I declare under penalty of perjur) under the laws of the United States that the fo regoing is true 1I and correct. Executed this 7th day of January. 2022 at an Francisco. California. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 JHD Dee l I 0 CCSF Motion for cparate Tria l, Case o . CGC- 17-560034 n:\cons1r\h202 I\1 80435\01573848.docx EXHIBIT A Case 3:17-cv-06763-JST Document 54 Filed 06/27/18 Page 1 of 2 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 SYNERGY PROJECT MANAGEMENT, Case No. 17-cv-06763-JST INC., 9 Plaintiff, SCHEDULING ORDER 10 v. 11 CITY AND COUNTY OF SAN 12 FRANCISCO, et al., Northern District of California United States District Court Defendants. 13 14 15 The Court hereby sets the following case deadlines pursuant to Federal Rule of Civil 16 Procedure 16 and Civil Local Rule 16-10: 17 Event Deadline 18 Deadline to add parties or amend the pleadings1 January 7, 2019 19 Expert disclosures June 21, 2019 20 Fact discovery cut-off July 1, 2019 21 22 Expert rebuttal July 12, 2019 23 Expert discovery cut-off August 2, 2019 24 Deadline to file dispositive motions September 27, 2019 25 Pretrial conference statement due November 22, 2019 26 27 1 28 After this deadline, a party may still seek amendment, but must demonstrate good cause. Fed. R. Civ. P. 16(b)(4). Case 3:17-cv-06763-JST Document 54 Filed 06/27/18 Page 2 of 2 1 Event Deadline 2 December 6, 2019 at Pretrial conference 2:00 p.m. 3 January 13, 2020 at 4 Trial 8:00 a.m. 5 Estimate of trial length (in days) Eight 6 This case will be tried to a jury. Counsel may not modify these dates without leave of 7 court. The parties shall comply with the Court’s standing orders, which are available at 8 cand.uscourts.gov/jstorders. 9 The parties must take all necessary steps to conduct discovery, compel discovery, hire 10 counsel, retain experts, and manage their calendars so that they can complete discovery in a timely 11 manner and appear at trial on the noticed and scheduled dates. All counsel must arrange their 12 Northern District of California United States District Court calendars to accommodate these dates, or arrange to substitute or associate in counsel who can. 13 Trial dates set by this Court should be regarded as firm. Requests for continuance are 14 disfavored. The Court will not consider any event subsequently scheduled by a party, party- 15 controlled witness, expert or attorney that conflicts with the above trial date as good cause to grant 16 a continuance. The Court will not consider the pendency of settlement discussions as good cause 17 to grant a continuance. 18 IT IS SO ORDERED. 19 Dated: June 27, 2018 20 21 _______________________________________ JON S. TIGAR 22 United States District Judge 23 24 25 26 27 28 2 EXHIBIT B 1 TROUTMAN PEPPER HAMILTON SANDERS LLP JAMES P. DIWIK (State Bar No. 164016) 2 james.diwik@troutman.com RYAN A. LEWIS (State Bar No. 307253) ELECTRONICALLY 3 ryan.lewis@troutman.com FILED Three Embarcadero Center, Suite 800 Superior Court of California, 4 San Francisco, CA 94111 County of San Francisco Telephone: 415.477.5700 07/22/2021 5 Facsimile: 415.477.5710 Clerk of the Court BY: SANDRA SCHIRO 6 Attorneys for Defendant/Plaintiff/Cross-Defendant Deputy Clerk GHILOTTI BROS., INC. 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 CIVIL DIVISION 11 SYNERGY PROJECT MANAGEMENT, Case No. CGC-17-560034 [Consolidated with INC., Case No. CGC-19-576488] 12 Plaintiff, NOTICE OF JOINT EX PARTE 13 APPLICATION AND JOINT EX PARTE vs. APPLICATION FOR STIPULATED 14 CONTINUANCE OF TRIAL DATE CITY AND COUNTY OF SAN 15 FRANCISCO, SAN FRANCISCO Trial Date: August 23, 2021 PUBLIC UTILITIES COMMISSION, 16 SAN FRANCISCO MUNICIPAL TRANSPORTATION AGENCY, SAN 17 FRANCISCO DEPARTMENT OF PUBLIC WORKS, LONDON BREED, 18 MOHAMMED NURU, and DOES 1-100, 19 Defendants. 20 GHILOTTI BROS., INC., a California 21 Corporation, 22 Plaintiff, 23 v. 24 SYNERGY PROJECT MANAGEMENT, INC., a California Corporation, and 25 DOES 1-30, 26 Defendants. 27 28 T RO U TMA N PE PPE R HAM IL TON S A ND E RS LLP NOTICE OF JOINT EX PARTE APPLICATION AND JOINT EX PARTE APPLICATION FOR STIPULATED 3 EMBARCADERO CENTER, STE. 800 SAN FRANCISCO, CA 94111 CONTINUANCE OF TRIAL DATE 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE THAT on July 23, 2021, at 11:00 a.m. in Department 206 of 3 this Court, located at 400 McAllister Street, San Francisco, CA 94102, or at another date and time 4 convenient for the Court, all parties to this case, i.e., defendant/plaintiff/cross-defendant Ghilotti 5 Bros., Inc., (“GBI”) and plaintiff/defendant/cross-complainant Synergy Project Management, Inc. 6 (“Synergy”) (together, the “Parties”) for good cause will, and hereby do move pursuant to 7 California Rule of Court 3.1332 and Local Rule 6.0.B for an order continuing the trial date in this 8 action to March 7, 2022, or another date convenient for this Court. 9 Pursuant to California Rule of Court 3.1202(a), counsel for the Parties is as follows: 10 TROUTMAN SANDERS LLP LAW OFFICE OF JOHNNY D KNADLER James P. Diwik, Bar No. 164016 Johnny D. Knadler 11 james.diwik@troutman.com 1527-E Pershing Drive Ryan A. Lewis, Bar No. 307253 San Francisco, CA 94129 12 ryan.lewis@troutman.com Telephone: (310) 564-6695 Three Embarcadero Center, Suite 800 13 San Francisco, CA 94111 Telephone: 415.477.5700 14 Facsimile: 415.477.5710 15 Counsel for defendant/plaintiff/cross-defendant Counsel for plaintiff/defendant/cross- Ghilotti Bros., Inc. complainant Synergy Project Management, 16 Inc. 17 The Parties have stipulated to and have been notified of this application in compliance 18 with California Rule of Court 3.1203(a). Declaration of Ryan A. Lewis (“Lewis Dec.”), ¶ 2. 19 Because the Parties have stipulated to this continuance, no party will appear to oppose this 20 application. Id. There are no other applications for a continuance to disclose under California 21 Rule of Court 3.1202(b). The Court has previously granted one request by Synergy to continue 22 the trial date in this action, and in a related action the Court previously granted the Parties’ 23 stipulated request for a trial continuance. Id. ¶ 3. 24 Good cause exists for a continuance of the trial date in this action under California Rule of 25 Court 3.1332 and Local Rule 6.0.B. On June 7, 2021, the United States Court of Appeals for the 26 Ninth Circuit in Case No. 19-17558, captioned Synergy Project Management, Inc. v. City and 27 County of San Francisco, et al, issued a memorandum order remanding an intentional 28 T RO U TMA N PE PPE R -1- HAM IL TON S A ND E RS LLP NOTICE OF JOINT EX PARTE APPLICATION AND JOINT EX PARTE APPLICATION FOR STIPULATED 3 EMBARCADERO CENTER, STE. 800 SAN FRANCISCO, CA 94111 CONTINUANCE OF TRIAL DATE 1 interference claim asserted by Synergy against the City and County of San Francisco (“City”) to 2 the United States District Court for the Northern District of California, Case No. 4:17-cv-06763- 3 JST, captioned Synergy Project Management, Inc. v. City and County of San Francisco, et al. On 4 July 20, 2021, the Ninth Circuit denied Synergy’s petition for panel rehearing and rehearing en 5 banc. As a result of the Ninth Circuit’s June 7, 2021 memorandum order and July 20, 2021 6 denial of Synergy’s petition, the Parties anticipate that the District Court in Case No. 4:17-cv- 7 06763-JST will imminently remand Synergy’s intentional interference claim against the City to 8 the instant litigation. The Parties anticipate that the City will consequently be re-added as a 9 defendant to this litigation upon remand of Synergy’s intentional interference claim. Should the 10 City be remanded to this case as the Parties reasonably anticipate, it is likely that the City will 11 engage in significant motion practice necessitating a continuance of the current trial date. To 12 conserve judicial resources, and in anticipation of (1) Synergy’s intentional interference claim 13 being remanded to this action, and (2) the City being re-added as a defendant to this action, the 14 Parties stipulate that the trial in this action be continued to March 7, 2022 in Department 206, or 15 to a date and time convenient for the Court. 16 Further, a continuance is appropriate because (1) of the proximity of the current August 17 23, 2021 trial date; (2) the Court has previously granted only one request by Synergy to continue 18 the trial date in this action, and in a related action the Court has previously granted a stipulated 19 request for a trial continuance; (3) the length of the requested continuance is appropriate for 20 determination of the City’s remanded status in this action; (4) a continuance is the most 21 appropriate means to address the City’s remanded status; (5) no party or witness will suffer 22 prejudice as a result of a continuance; and (6) the Parties agree that a continuance is necessary. 23 The Parties base this application on this Ex Parte Notice of Application and Ex Parte 24 Application, the attached Memorandum of Points and Authorities, the Declaration of Ryan A. 25 Lewis, the filed stipulation to continue trial by the Parties, the documents and records in the 26 Court’s file, and any oral argument that may be presented at the hearing on this matter. (Lewis 27 Dec., ¶¶ 4-7). 28 -2- T RO U TMA N P E PPER NOTICE OF JOINT EX PARTE APPLICATION AND JOINT EX PARTE APPLICATION FOR STIPULATED H A M ILT ON S A ND E RS LLP 3 EMBARCADERO CENTER, STE. 800 CONTINUANCE OF TRIAL DATE SAN FRANCISCO, CA 94111 1 Dated: July 22,2021 TROUTMAN PEPPER HAMILTON SANDERS LLP 2 3 By: JAMES P. DIWIK 4 RYAN A. LEWIS Attorneys for Defendant/Plaintiff/Cross-Defendant 5 GHILOTTI BROS., INC. 6 7 Dated: July 21, 2021 LAW OFFICES OF JOHNNY D. KNADLER 8 9 By: /s/ Johnny D. Knadler 10 Attorneys for Plaintiff/Defendant/Cross- Complainant 11 SYNERGY PROJECT MANAGEMENT, INC. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- T RO U TMA N P E PPER NOTICE OF JOINT EX PARTE APPLICATION AND JOINT EX PARTE APPLICATION FOR STIPULATED H A M ILT ON S A ND E RS LLP 3 EMBARCADERO CENTER, STE. 800 CONTINUANCE OF TRIAL DATE SAN FRANCISCO, CA 94111 EXHIBIT C EXHIBIT D Case 4:17-cv-06763-JST Document 181 Filed 08/04/21 Page 1 of 2 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SYNERGY PROJECT MANAGEMENT, Case No. 17-cv-06763-JST INC., 8 Plaintiff, ORDER REMANDING CASE 9 v. Re: ECF No. 179 10 CITY AND COUNTY OF SAN 11 FRANCISCO, et al., Defendants. 12 Northern District of California United States District Court 13 14 On June 7, 2021, the Ninth Circuit affirmed in part and vacated in part the Court’s orders 15 granting Defendants’ motions to dismiss, denying leave to amend, and entering final judgment. 16 Synergy Project Mgmt., Inc. v. City and County of San Francisco, No. 19-17558, -- Fed. Appx --, 17 2021 WL 2311946, at *1 (9th Cir. June 7, 2021). The Ninth Circuit affirmed this Court’s 18 dismissal of Plaintiff Synergy Project Management, Inc.’s federal claims without leave to amend. 19 Id. at *1-2. As to Synergy’s state law intentional interference claim, the Ninth Circuit 20 acknowledged an intervening California court decision under which Defendant City and County of 21 San Francisco “could potentially be liable under a tortious interference theory,” although “only if 22 Synergy alleged an independently wrongful act” by the City. Id. at *1. It was left to this Court’s 23 discretion “to either address this issue on remand or, because no federal claims will remain, to 24 remand the claim to state court for resolution.” Id. (citing Carnegie-Mellon Univ. v. Cohill, 484 25 U.S. 343, 357 (1988); 28 U.S.C. § 1367(c)(3)). Synergy filed a petition for rehearing and 26 rehearing en banc, which the Ninth Circuit denied, and the mandate issued on July 28, 2021. ECF 27 No. 179. 28 Since no federal claims in this case remain, the Court declines to exercise jurisdiction over Case 4:17-cv-06763-JST Document 181 Filed 08/04/21 Page 2 of 2 1 Synergy’s state law intentional interference claim. The case is hereby remanded to San Francisco 2 County Superior Court. 3 IT IS SO ORDERED. 4 Dated: August 4, 2021 ______________________________________ 5 JON S. TIGAR 6 United States District Judge 7 8 9 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2