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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, SBN 142234 Superior Court of California,
County of San Francisco
JAIME M. HULING DELAYE, SBN 270784
4 KRISTINE A. POPLAWSKI, SBN 160758 05/27/2022
ARI A. BARUTH, SBN 258418 Clerk of the Court
BY: ANGELICA SUNGA
5 Deputy City Attorneys Deputy Clerk
1390 Market Street, 6th Floor
6 San Francisco, CA 94102-5408
Telephone: (415) 554-3957
7 Facsimile: (415) 437-4644
Email: Jaime.HulingDelaye@sfcityatty.org
8
Attorneys for Defendant
9 CITY AND COUNTY OF SAN FRANCISCO
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SAN FRANCISCO
12 UNLIMITED JURISDICTION
13
SYNERGY PROJECT MANAGEMENT, INC., Case No. CGC-17-560034
14 (Consolidated with Case No. CGC-19-576488)
Plaintiff,
15 DEFENDANT CITY AND COUNTY OF
v. SAN FRANCISCO’S REQUEST FOR
16 JUDICIAL NOTICE IN SUPPORT OF
CITY AND COUNTY OF SAN FRANCISCO, DEMURRER TO SYNERGY PROJECT
17 MANAGEMENT, INC.’S FOURTH
Defendant. AMENDED COMPLAINT
18
GHILOTTI BROS., INC., a California Corporation, Hearing Date: June 23, 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: February 6, 2023
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 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that on June 23, 2022 at 9:30 a.m., or as soon thereafter as the
3 matter may he heard in Department 302 of the above-entitled court, located at 400 McAllister Street,
4 San Francisco, California, Defendant the City and County of San Francisco (“the City”), will and
5 hereby does respectfully ask the Court to take judicial notice of the following materials pursuant to
6 Code of Civil Procedure section 430.70 and Evidence Code sections 451, 452(c), 452(d), and 452(h):
7 1. The Statement of Hearing Officer Findings from the Public Contract Code section 4017
8 administrative hearing on Synergy’s removal from the Haight Street Project (“Statement of Findings”)
9 dated January 8, 2016. A true and correct copy is attached hereto as Exhibit 1, excerpted from the
10 administrative record filed with the California Court of Appeal, First Appellate District, Division One
11 on July 26, 2017 in City and County of San Francisco v. Synergy Project Management, Inc., Case No.
12 A151199. As a public record on file in a judicial action of this state, and as an administrative decision
13 of the City, the Statement of Findings is subject to permissive judicial notice under Evidence Code
14 sections 452(c) (official acts of the executive departments of any state), 452(d) (records of any court of
15 this state), and 452(h) (facts and propositions that are not reasonably subject to dispute and are capable
16 of immediate and accurate determination by resort to sources of reasonably indisputable accuracy).
17 (See Associated Builders and Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352,
18 374 n.4 [taking judicial notice of the transcripts of two public hearings held by a City commission
19 under Evidence Code section 452(c)].)
20 2. Plaintiff Synergy Project Management, Inc. (“Synergy”)’s Petition for Writ of Mandate,
21 filed February 19, 2016 with the San Francisco Superior Court in Synergy Project Management., Inc.
22 v. City and County of San Francisco, Case No. CPF-16-514783. A true and correct copy is attached as
23 Exhibit 2. As a public record on file in a judicial action of this state, Synergy’s Petition for Writ of
24 Mandate is subject to permissive judicial notice under Evidence Code sections 452(d) (records of any
25 court of this state) and 452(h) (facts and propositions that are not reasonably subject to dispute and are
26 capable of immediate and accurate determination by resort to sources of reasonably indisputable
27 accuracy).
28 3. Ghilotti Bros., Inc. (“Ghilotti”)’s Petition for Writ of Mandate, filed March 9, 2016 with the
2
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1 San Francisco Superior Court in Ghilotti Bros., Inc. v. City and County of San Francisco, Case No.
2 CPF-16-514835. A true and correct copy is attached as Exhibit 3. As a public record on file in a
3 judicial action of this state, Ghilotti’s Petition for Writ of Mandate is subject to permissive judicial
4 notice under Evidence Code sections 452(d) (records of any court of this state) and 452(h) (facts and
5 propositions that are not reasonably subject to dispute and are capable of immediate and accurate
6 determination by resort to sources of reasonably indisputable accuracy).
7 4. Notice of Entry of Stipulation and Order to Consolidate Actions, filed September 7, 2016
8 with the San Francisco Superior Court in Synergy Project Management, Inc. v. City and County of San
9 Francisco, Case No. CPF-16-514783. A true and correct copy is attached as Exhibit 4. As an official
10 act of a judicial department of this state, Synergy’s Stipulation and Order to Consolidate Actions is
11 subject to permissive judicial notice under Evidence Code sections 452(c) (official acts of legislative,
12 executive, and judicial departments), 452(d) (records of any court of this state), and 452(h) (facts and
13 propositions that are not reasonably subject to dispute and are capable of immediate and accurate
14 determination by resort to sources of reasonably indisputable accuracy).
15 5. Judgment on Synergy’s Petition for Writ of Mandate, filed on January 11, 2017 by the San
16 Francisco Superior Court in Synergy Project Management, Inc. v. City and County of San Francisco,
17 Case No. CPF-16-514783. A true and correct copy is attached as Exhibit 5. As an official act of a
18 judicial department of this state, the Judgment on Synergy’s Petition for Writ of Mandate is subject to
19 permissive judicial notice under Evidence Code sections 452(c) (official acts of legislative, executive,
20 and judicial departments), 452(d) (records of any court of this state), and 452(h) (facts and
21 propositions that are not reasonably subject to dispute and are capable of immediate and accurate
22 determination by resort to sources of reasonably indisputable accuracy).
23 6. Judgment on Ghilotti’s Petition for Writ of Mandate, filed on December 14, 2016 by the San
24 Francisco Superior Court in Synergy Project Management, Inc. v. City and County of San Francisco,
25 Case No. CPF-16-514783. A true and correct copy is attached as Exhibit 6. As an official act of a
26 judicial department of this state, the Judgment on Ghilotti’s Petition for Writ of Mandate is subject to
27 permissive judicial notice under Evidence Code sections 452(c) (official acts of legislative, executive,
28 and judicial departments), 452(d) (records of any court of this state), and 452(h) (facts and
3
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1 propositions that are not reasonably subject to dispute and are capable of immediate and accurate
2 determination by resort to sources of reasonably indisputable accuracy).
3 7. The City’s Notice of Appeal of the Judgments in Favor of Petitioners Synergy and Ghilotti,
4 filed March 17, 2017 with the San Francisco Superior Court in Synergy Project Management, Inc. v.
5 City and County of San Francisco, Case No. CPF-16-514783. A true and correct copy is attached as
6 Exhibit 7. As a public record on file in a judicial action of this state, the City’s Notice of Appeal is
7 subject to permissive judicial notice under Evidence Code sections 452(d) (records of any court of this
8 state) and 452(h) (facts and propositions that are not reasonably subject to dispute and are capable of
9 immediate and accurate determination by resort to sources of reasonably indisputable accuracy).
10 8. The Court of Appeal, First Appellate District, Division One’s decision in the City’s appeal
11 of the judgments in favor of Synergy’s and Ghilotti’s successful writ petitions, filed March 14, 2019
12 in City and County of San Francisco v. Synergy Project Management, Inc., Case No. A151199. A true
13 and correct copy is attached as Exhibit 8. As the decisional law of this state, the Court of Appeal’s
14 decision is subject to mandatory judicial notice under Evidence Code section 451(a). It is also
15 published as Synergy Project Management, Inc. v. City and County of San Francisco (2019) 33
16 Cal.App.5th 21.
17 9. Stipulation for Amended Judgment Denying Petitions for Writ of Mandate and Awarding
18 Costs and Amended Judgment, filed March 27, 2020 by the San Francisco Superior Court in Synergy
19 Project Management, Inc. v. City and County of San Francisco, Case No. CPF-16-514783. A true and
20 correct copy is attached as Exhibit 9. As an official act of a judicial department of this state, the
21 Stipulation for Amended Judgment Denying Petitions for Writ of Mandate and Awarding Costs and
22 Amended Judgment is subject to permissive judicial notice under Evidence Code sections 452(c)
23 (official acts of legislative, executive, and judicial departments), 452(d) (records of any court of this
24 state), and 452(h) (facts and propositions that are not reasonably subject to dispute and are capable of
25 immediate and accurate determination by resort to sources of reasonably indisputable accuracy).
26 10. The Hearing Officer’s Statement of Decision from the Public Contract Code section 4017
27 administrative hearing on Synergy’s substitution from the Van Ness Project (“Statement of Decision”)
28 dated August 10, 2016. A true and correct copy is attached as Exhibit 10. As an administrative
4
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1 decision of the City, the Statement of Findings is subject to permissive judicial notice under Evidence
2 Code sections 452(c) (official acts of the executive departments of any state) and 452(h) (facts and
3 propositions that are not reasonably subject to dispute and are capable of immediate and accurate
4 determination by resort to sources of reasonably indisputable accuracy). (See Associated Builders and
5 Contractors, supra, 21 Cal.4th at p. 374 n.4 [taking judicial notice of the transcripts of two public
6 hearings held by a City commission under Evidence Code section 452(c)].)
7 11. Synergy’s Second Amended Complaint, along with accompanying exhibits, filed in the
8 United States District Court for the Northern District of California on June 5, 2018 in Synergy Project
9 Management, Inc. v. City and County of San Francisco, Case No. 3:17-cv-06763-JST. A true and
10 correct copy is attached as Exhibits 11-1, 11-2, and 11-3. As a public record on file in a judicial
11 action in federal court, Synergy’s Second Amended Complaint and accompanying exhibits are subject
12 to permissive judicial notice under Evidence Code sections 452(d) (records of any court of the United
13 States), and 452(h) (facts and propositions that are not reasonably subject to dispute and are capable of
14 immediate and accurate determination by resort to sources of reasonably indisputable accuracy).
15 12. Notice to State Superior Court of Removal of Action to Federal District Court, filed
16 November 27, 2017 in the San Francisco Superior Court in Synergy Project Management, Inc. v. City
17 and County of San Francisco, Case No. CGC-17-560034. A true and correct copy is attached as
18 Exhibit 12. As a public record on file in a judicial action of this state, the Notice to State Superior
19 Court of Removal of Action to Federal District Court is subject to permissive judicial notice under
20 Evidence Code sections 452(d) (records of any court of this state), and 452(h) (facts and propositions
21 that are not reasonably subject to dispute and are capable of immediate and accurate determination by
22 resort to sources of reasonably indisputable accuracy).
23 13. Order Granting in Part and Denying in Part Motion to Dismiss, filed by the federal district
24 court on May 16, 2018 in Synergy Project Management, Inc. v. City and County of San Francisco,
25 Case No. 3:17-cv-06763-JST. A true and correct copy is attached as Exhibit 13. As the decisional
26 law of the United States, the Order Granting in Part and Denying in Part Motion to Dismiss is subject
27 to mandatory judicial notice under Evidence Code section 451(a). As an official act of a judicial
28 department of the United States, the Order Granting in Part and Denying in Part Motion to Dismiss is
5
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1 also subject to permissive judicial notice under Evidence Code sections 452(c) (official acts of
2 legislative, executive, and judicial departments), 452(d) (records of any court of the United States),
3 and 452(h) (facts and propositions that are not reasonably subject to dispute and are capable of
4 immediate and accurate determination by resort to sources of reasonably indisputable accuracy). It is
5 also available as Synergy Project Management, Inc. v. City and County of San Francisco (N.D. Cal.
6 May 16, 2011), Case No. 17-cv-06763-JST, 2018 WL 2234596.
7 14. Order Granting Motion to Dismiss, filed by the federal district court on December 31, 2018
8 in Synergy Project Management, Inc. v. City and County of San Francisco, Case No. 3:17-cv-06763-
9 JST. A true and correct copy is attached as Exhibit 14. As the decisional law of the United States, the
10 Order Granting Motion to Dismiss is subject to mandatory judicial notice under Evidence Code
11 section 451(a). As an official act of a judicial department of the United States, the Order Granting
12 Motion to Dismiss is also subject to permissive judicial notice under Evidence Code sections 452(c)
13 (official acts of legislative, executive, and judicial departments), 452(d) (records of any court of the
14 United States), and 452(h) (facts and propositions that are not reasonably subject to dispute and are
15 capable of immediate and accurate determination by resort to sources of reasonably indisputable
16 accuracy). It is also available as Synergy Project Management, Inc. v. City and County of San
17 Francisco (N.D. Cal. Dec. 31, 2018) Case No. 17-cv-06763-JST, 2018 WL 6840156.
18 15. Order Granting City Defendants’ Motion to Dismiss and Remanding Case, filed by the
19 federal district court on November 21, 2019 in Synergy Project Management, Inc. v. City and County
20 of San Francisco, Case No. 3:17-cv-06763-JST. A true and correct copy is attached as Exhibit 15.
21 As the decisional law of the United States, the Order Granting City Defendants’ Motion to Dismiss
22 and Remanding Case is subject to mandatory judicial notice under Evidence Code section 451(a). As
23 an official act of a judicial department of the United States, the Order Granting City Defendants’
24 Motion to Dismiss and Remanding Case is also subject to permissive judicial notice under Evidence
25 Code sections 452(c) (official acts of legislative, executive, and judicial departments), 452(d) (records
26 of any court of the United States), and 452(h) (facts and propositions that are not reasonably subject to
27 dispute and are capable of immediate and accurate determination by resort to sources of reasonably
28 indisputable accuracy).
6
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1 16. Judgment in a Civil Case, filed by the federal district court on November 21, 2019 in
2 Synergy Project Management, Inc. v. City and County of San Francisco, Case No. 3:17-cv-06763-JST.
3 A true and correct copy is attached as Exhibit 16. As an official act of a judicial department of the
4 United States, the Judgment in a Civil Case is subject to permissive judicial notice under Evidence
5 Code sections 452(c) (official acts of legislative, executive, and judicial departments), 452(d) (records
6 of any court of the United States), and 452(h) (facts and propositions that are not reasonably subject to
7 dispute and are capable of immediate and accurate determination by resort to sources of reasonably
8 indisputable accuracy).
9 17. Synergy’s Notice of Appeal, filed in the federal district court on December 19, 2019 in
10 Synergy Project Management, Inc. v. City and County of San Francisco, Case No. 3:17-cv-06763-JST.
11 A true and correct copy is attached as Exhibit 17. As a public record on file in a judicial action in a
12 federal court, Synergy’s Notice of Appeal is subject to permissive judicial notice under Evidence Code
13 sections 452(d) (records of any court of the United States) and 452(h) (facts and propositions that are
14 not reasonably subject to dispute and are capable of immediate and accurate determination by resort to
15 sources of reasonably indisputable accuracy).
16 18. Synergy’s Claim Against the City, submitted on October 23, 2020. A true and correct copy
17 is attached as Exhibit 18. As a claim filed with the City, Synergy’s Claim Against the City is subject
18 to permissive judicial notice under Evidence Code sections 452(c) (official acts of legislative,
19 executive, and judicial departments) and 452(h) (facts and propositions that are not reasonably subject
20 to dispute and are capable of immediate and accurate determination by resort to sources of reasonably
21 indisputable accuracy). (See Franchise Tax Bd. LLC Tax Refund Cases (2018) 25 Cal.App.5th 369,
22 379 n.4 [taking judicial notice of claims filed with a public entity and citing Associated Builders and
23 Contractors, supra., 21 Cal.4th at p. 374 n.4 (taking judicial notice of local government records)].)
24 19. The City’s Notice of Action Upon Synergy’s Claim, dated November 30, 2020. A true and
25 correct copy is attached as Exhibit 19. As an official act of the City, the City’s Notice of Action Upon
26 Synergy’s Claim is subject to permissive judicial notice under Evidence Code sections 452(c) (official
27 acts of legislative, executive, and judicial departments) and 452(h) (facts and propositions that are not
28 reasonably subject to dispute and are capable of immediate and accurate determination by resort to
7
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1 sources of reasonably indisputable accuracy). (See Franchise Tax Bd. LLC Tax Refund Cases, supra,
2 25 Cal.App.5th at p. 379 n.4 [taking judicial notice of claims filed with a public entity and citing
3 Associated Builders and Contractors, supra, 21 Cal.4th at p. 374 n.4 (taking judicial notice of local
4 government records)].)
5 20. Synergy’s Amended Claim Against the City, submitted on February 8, 2021. A true and
6 correct copy is attached as Exhibit 20. As a claim filed with the City, Synergy’s Amended Claim
7 Against the City is subject to permissive judicial notice under Evidence Code sections 452(c) (official
8 acts of legislative, executive, and judicial departments) and 452(h) (facts and propositions that are not
9 reasonably subject to dispute and are capable of immediate and accurate determination by resort to
10 sources of reasonably indisputable accuracy). (See Franchise Tax Bd. LLC Tax Refund Cases, supra,
11 25 Cal.App.5th at p. 379 n.4 [taking judicial notice of claims filed with a public entity and citing
12 Associated Builders and Contractors, supra, 21 Cal.4th at p. 374 n.4 (taking judicial notice of local
13 government records)].)
14 21. The United States Court of Appeals for the Ninth Circuit’s decision in Case No. 19-17558,
15 filed June 7, 2021 by the Ninth Circuit Court of Appeals in Synergy Project Management, Inc. v. City
16 and County of San Francisco, Case No. 19-17558. A true and correct copy is attached as Exhibit 21.
17 As the decisional law of the United States, the decision is subject to mandatory judicial notice under
18 Evidence Code section 451(a). It is also published as Synergy Project Management, Inc. v. City and
19 County of San Francisco (2021) 859 Fed.Appx. 99.
20 22. Order Remanding Case, filed by the federal district court on August 4, 2021 in Synergy
21 Project Management, Inc. v. City and County of San Francisco, Case No. 3:17-cv-06763-JST. A true
22 and correct copy is attached as Exhibit 22. As an official act of a judicial department of the United
23 States, the Order Remanding Case is subject to permissive judicial notice under Evidence Code
24 sections 452(c) (official acts of legislative, executive, and judicial departments), 452(d) (records of
25 any court of the United States), and 452(h) (facts and propositions that are not reasonably subject to
26 dispute and are capable of immediate and accurate determination by resort to sources of reasonably
27 indisputable accuracy).
28 23. Order Granting in Part Plaintiff’s Motion for Leave to File Fourth Amended Complaint,
8
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1 filed on March 24, 2022 in the San Francisco Superior Court in this action. A true and correct copy is
2 attached as Exhibit 23. As an official act of a judicial department of this state, the Order Granting in
3 Part Plaintiff’s Motion for Leave to File Fourth Amended Complaint is subject to permissive judicial
4 notice under Evidence Code sections 452(c) (official acts of legislative, executive, and judicial
5 departments), 452(d) (records of any court of this state), and 452(h) (facts and propositions that are not
6 reasonably subject to dispute and are capable of immediate and accurate determination by resort to
7 sources of reasonably indisputable accuracy).
8 24. Synergy’s Claim Against the City, submitted on January 5, 2017. A true and correct copy
9 is attached as Exhibit 24. As a claim filed with the City, Synergy’s Claim Against the City is subject
10 to permissive judicial notice under Evidence Code sections 452(c) (official acts of legislative,
11 executive, and judicial departments) and 452(h) (facts and propositions that are not reasonably subject
12 to dispute and are capable of immediate and accurate determination by resort to sources of reasonably
13 indisputable accuracy). (See Franchise Tax Bd. LLC Tax Refund Cases, supra, 25 Cal.App.5th at p.
14 379 n.4 [taking judicial notice of claims filed with a public entity and citing Associated Builders and
15 Contractors, supra, 21 Cal.4th at p. 374 n.4 (taking judicial notice of local government records)].)
16 The relevance of each document discussed above is set forth in the Memorandum of Points and
17 Authorities in Support of the City’s Demurrer to Synergy’s Fourth Amended Complaint. Based on the
18 foregoing, Defendant respectfully requests that this Court take judicial notice of the above documents.
19
Dated: May 27, 2022
20 DAVID CHIU
City Attorney
21 YVONNE R. MERÉ
Chief Deputy City Attorney
22 ELAINE M. O’NEIL
JAIME M. HULING DELAYE
23 KRISTINE A. POPLAWSKI
ARI A. BARUTH
24 Deputy City Attorneys
25 By: /S/ JAIME M. HULING DELAYE
JAIME M. HULING DELAYE
26
Attorneys for Defendants
27
CITY AND COUNTY OF SAN FRANCISCO
28
9
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EXHIBIT 1
No. A151199
IN THE COURT OF APPEAL
FOR THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT, DIVISION ONE
CITY AND COUNTY OF SAN FRANCISCO,
Appellant,
v.
SYNERGY PROJECT MANAGEMENT, INC.; GHILOTTI BROS., INC.,
Respondents.
On Appeal from the Superior Court for the County of San Francisco
Honorable Harold E. Kahn
Case No. CPF-16-514783
ADMINISTRATIVE RECORD (TABS 125 TO 126) OF
RESPONDENT SYNERGY PROJECT
MANAGEMENT, INC.
Received
Matthew K. Yan (SBN 257918)
Kris A. Cox (SBN 136504)
Erin H. Reding (SBN 252691)
MOSCONE EMBLIDGE & OTIS LLP
by
220 Montgomery Street, Suite 2100
San Francisco, California 94104 First
Telephone: (415) 362-3599
Facsimile: (415) 362-7332
District
Attorneys for Respondent
SYNERGY PROJECT MANAGEMENT, INC.
Court of Appeal
1 HEARING OFFICER ADMINISTRATIVE HEARING
2
CITY AND COUNTY OF SAN FRANCISCO
3
4 IN THE MATTER OF )
)
5 SYNERGY PROJECT MANAGEMENT, INC.’S )
OBJECTIONS TO NOTICE OF SUBSTITUTION )
6 FOR SAN FRANCISCO DEPARTMENT OF PUBLIC ) STATEMENT OF HEARING
WORKS PROJECT NO. PCE15018/2264J(R), ) OFFICER FINDINGS
7 PAVEMENT RENOVATION, SEWER )
REPLACEMENT AND WATER MAIN ) HEARING: Dec. 9, 2015
8 INSTALLATION – HAIGHT AND HAYES STREETS ) RECORD CLOSED: Dec. 16, 2015
9 _____________________________________________________
INTRODUCTION
10
11 This case involves San Francisco Department of Public Works Project No.
12 PCE15018/2264J(R), the pavement renovation, sewer replacement, and water main installation of
13 Haight and Hayes Streets in San Francisco (“the Project”). The prime contractor on the Project is
14 Ghilotti Brothers, Inc. (“GBI”). GBI’s primary subcontractor on the Project is Synergy Project
15 Management, Inc. (“Synergy”). Work on the Project began on April 27, 2015.
16 Based on a variety of safety issues and other problems, on October 9, 2015, the San Francisco
17 Department of Public Works (“Public Works”) invoked Article 4, Section 4.04 of the contract with
18 GBI to demand that GBI substitute another subcontractor for Synergy pursuant to Section 4107(a)(7)
19 of the Public Contract Code. (Exh. 70.) Public Works informed Synergy of its demand to GBI by
20 letter dated October 14, 2015, stating that for “multiple safety violations” the City determined “the
21 work performed by Synergy is substantially unsatisfactory and not in substantial accordance with the
22 plans and specifications . . . .” (Exh. 71.) Public Works provided Synergy the opportunity to submit
23 objections to the substitution demand and request a hearing on the objections. Synergy submitted
24 objections. The undersigned agreed to serve as hearing officer and held a public hearing on December
25 9, 2015, in Room 263 at San Francisco City Hall, 1 Dr. Carlton B. Goodlett Place, San Francisco,
26 California. Public Works and the undersigned apprised GBI of the proceeding. Public Works and
27
28
In the Matter of Synergy Project Management Inc.’s Objections to DPW Notice of Page 1 of 23
Substitution – Hearing Officer’s Findings
2472
1 Synergy appeared and were represented by counsel. The parties presented witnesses and evidence
2 regarding Public Works’ substitution demand.
3 Synergy and GBI object to this proceeding, contending that it is unlawful under Section 4107
4 of the Public Contract Code, because only a prime contractor may invoke Section 4107 to request
5 substitution of a subcontractor, and GBI has not sought to substitute Synergy. 1 Synergy and GBI
6 contend that Public Works improperly commenced this proceeding, and the undersigned lacks
7 jurisdiction to proceed and issue a decision. The undersigned disagrees. Section 4107(a)(7)
8 anticipates that a public entity may initiate a proceeding based on its determination that a
9 subcontractor’s work was substantially unsatisfactory. Interpreting Section 4107(a)(7) in the manner
10 proposed by Synergy and GBI leads to an absurd result: a public entity having no control over the
11 subcontractors working on its project. This interpretation does not comport with the language or intent
12 of the statute. Moreover, the contract between GBI and Public Works incorporates the Section 4107
13 procedure, which separately provides a basis for this proceeding. And finally, even if Section 4107 is
14 not directly applicable and is not applied by virtue of the contract, Section 4107 does not prohibit an
15 administrative proceeding offered for a subcontractor to object to a public entity’s removal
16 determination.
17 As explained herein, the undersigned finds that Public Works established by a preponderance
18 of the evidence2 that Synergy’s work on the project was “substantially unsatisfactory and not in
19 substantial accordance with the plans and specifications.” Public Works established, among other
20 things, that Synergy caused five gas line breaks, at least four of which resulted from Synergy’s unsafe
21 practices. Public Works also established that Synergy improperly shored trenches on multiple
22 occasions, which could have led to street collapse, trench collapse, and the injury or death of workers
23 or members of the public. Indeed, shoring problems caused one of the gas line breaks. Synergy’s
24
1
25 GBI submitted an objection dated December 2, 2015. On December 16, 2015, the parties
and GBI submitted further briefing on this issue at the request of the hearing officer, which the
26 undersigned considered.
2
27 See Evid. Code § 115 (“Except as otherwise provided by law, the burden of proof requires
proof by a preponderance of the evidence.) The undersigned has located no law requiring a higher
28 standard of proof for this proceeding.
In the Matter of Synergy Project Management Inc.’s Objections to DPW Notice of Page 2 of 23
Substitution – Hearing Officer’s Findings
2473
1 failure to properly store equipment led to a pedestrian trip and fall. Its workers also engaged in highly
2 dangerous conduct when they dangled the Synergy foreman by his ankles into an open manhole with
3 no safety equipment or traffic control. And there were many other safety problems, as discussed fully
4 below. All of this occurred within little more than five months.
5 The undersigned is persuaded that Public Works’ substitution determination is supported by
6 sufficient evidence.
7 ISSUES BEFORE THE HEARING OFFICER
8 1. Does the hearing officer have jurisdiction to determine whether Public Works has
9 presented sufficient evidence to support its substitution demand?
10 2. Did Public Works prove that Synergy’s work on the Haight and Hayes Street Project
11 was “substantially unsatisfactory and not in substantial accordance with the plans and specifications”?
12 JURISDICTION FOR THIS PROCEEDING
13 Synergy and GBI contend that the undersigned lacks jurisdiction to proceed, because Public
14 Works improperly invoked Section 4107 of the Public Contract Code to initiate this proceeding. They
15 assert that the only entity permitted to request a substitution of Synergy under Section 4107 is GBI, the
16 prime contractor. Synergy and GBI also argue that Section 4.04 of the contract between the City and
17 GBI, which states the City may demand substitution of a subcontractor, is unlawful. Consequently,
18 Synergy and GBI assert that the undersigned did not have jurisdiction to hold a hearing and that the
19 only proper decision is to dismiss this case. Indeed, on December 21, 2015, after participating in the
20 hearing, Synergy belatedly filed a motion to dismiss.
21 The undersigned finds that jurisdiction exists for this proceeding and rejects the position taken
22 by Synergy and GBI for three reasons.
23 First, the interpretation of Section 4107 of the Public Contract Code proposed by Synergy and
24 GBI does not comport with the language of subsection (a)(7), and it would lead to the absurd result
25 that the awarding authority lacks control over the subcontractors working on its project, irrespective of
26 their performance. The language of the statute and the intent of the statutory scheme do not support
27 this result. Section 4107 of the Public Contract Code provides:
28 A prime contractor whose bid is accepted may not:
In the Matter of Synergy Project Management Inc.’s Objections to DPW Notice of Page 3 of 23
Substitution – Hearing Officer’s Findings
2474
(a) Substitute a person as subcontractor in place of the subcontractor listed
1 in the original bid, except that the awarding authority, or its duly
authorized officer, may, except as otherwise provided in Section 4107.5,
2 consent to the substitution of another person as a subcontractor in any of
the following situations
3
* * * *
4 (7) When the awarding authority, or its duly authorized officer, determines that
the work performed by the listed subcontractor is substantially unsatisfactory
5 and not in substantial accordance with the plans and specifications, or that the
subcontractor is substantially delaying or disrupting the progress of the work.
6
* * * *
7
Prior to approval of the prime contractor’s request for the substitution, the
8 awarding authority, or its duly authorized officer, shall give notice in writing to
the listed subcontractor of the prime contractor’s request to substitute and of the
9 reasons for the request. The notice shall be served by certified or registered mail
to the last known address of the subcontractor. The listed subcontractor who has
10 been so notified has five working days within which to submit written
objections to the substitution to the awarding authority. Failure to file these
11 written objections constitutes the listed subcontractor’s consent to the
substitution.
12
If written objections are filed, the awarding authority shall give notice in writing
13 of at least five working days to the listed subcontractor of a hearing by the
awarding authority on the prime contractor’s request for substitution.
14
Synergy and GBI interpret the provision “[p]rior to approval of the prime contractor’s request . . .” as
15
jurisdictional in nature. According to Synergy and GBI, absent a prime contractor’s request for
16
substitution, there can be no proceeding under Section 4107, and that any such proceeding would be
17
unlawful. They contend that Public Works cannot invoke Section 4107 to provide a subcontractor a
18
procedure to object to Public Works’ determination under subsection (a)(7) that a subcontractor’s
19
work on a project is “substantially unsatisfactory and not in substantial accordance with the plans and
20
specifications . . . .”
21
The undersigned rejects this interpretation of the statute. Under Section 4107, a contractor
22
may not substitute a subcontractor absent the approval of the awarding authority. While it is clear that
23
this approval is ordinarily preceded by a request from the prime contractor, subsection (a)(7)
24
anticipates a substitution dependent on the awardi
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, SBN 142234 Superior Court of California, County of San Francisco JAIME M. HULING DELAYE, SBN 270784 4 KRISTINE A. POPLAWSKI, SBN 160758 05/27/2022 ARI A. BARUTH, SBN 258418 Clerk of the Court BY: ANGELICA SUNGA 5 Deputy City Attorneys Deputy Clerk 1390 Market Street, 6th Floor 6 San Francisco, CA 94102-5408 Telephone: (415) 554-3957 7 Facsimile: (415) 437-4644 Email: Jaime.HulingDelaye@sfcityatty.org 8 Attorneys for Defendant 9 CITY AND COUNTY OF SAN FRANCISCO 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SAN FRANCISCO 12 UNLIMITED JURISDICTION 13 SYNERGY PROJECT MANAGEMENT, INC., Case No. CGC-17-560034 14 (Consolidated with Case No. CGC-19-576488) Plaintiff, 15 DEFENDANT CITY AND COUNTY OF v. SAN FRANCISCO’S REQUEST FOR 16 JUDICIAL NOTICE IN SUPPORT OF CITY AND COUNTY OF SAN FRANCISCO, DEMURRER TO SYNERGY PROJECT 17 MANAGEMENT, INC.’S FOURTH Defendant. AMENDED COMPLAINT 18 GHILOTTI BROS., INC., a California Corporation, Hearing Date: June 23, 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: February 6, 2023 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 RJN ISO Demurrer to Fourth Amended Complaint, Case No. CGC-17-560034 n:\constr\li2021\180435\01598601.docx 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on June 23, 2022 at 9:30 a.m., or as soon thereafter as the 3 matter may he heard in Department 302 of the above-entitled court, located at 400 McAllister Street, 4 San Francisco, California, Defendant the City and County of San Francisco (“the City”), will and 5 hereby does respectfully ask the Court to take judicial notice of the following materials pursuant to 6 Code of Civil Procedure section 430.70 and Evidence Code sections 451, 452(c), 452(d), and 452(h): 7 1. The Statement of Hearing Officer Findings from the Public Contract Code section 4017 8 administrative hearing on Synergy’s removal from the Haight Street Project (“Statement of Findings”) 9 dated January 8, 2016. A true and correct copy is attached hereto as Exhibit 1, excerpted from the 10 administrative record filed with the California Court of Appeal, First Appellate District, Division One 11 on July 26, 2017 in City and County of San Francisco v. Synergy Project Management, Inc., Case No. 12 A151199. As a public record on file in a judicial action of this state, and as an administrative decision 13 of the City, the Statement of Findings is subject to permissive judicial notice under Evidence Code 14 sections 452(c) (official acts of the executive departments of any state), 452(d) (records of any court of 15 this state), and 452(h) (facts and propositions that are not reasonably subject to dispute and are capable 16 of immediate and accurate determination by resort to sources of reasonably indisputable accuracy). 17 (See Associated Builders and Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 18 374 n.4 [taking judicial notice of the transcripts of two public hearings held by a City commission 19 under Evidence Code section 452(c)].) 20 2. Plaintiff Synergy Project Management, Inc. (“Synergy”)’s Petition for Writ of Mandate, 21 filed February 19, 2016 with the San Francisco Superior Court in Synergy Project Management., Inc. 22 v. City and County of San Francisco, Case No. CPF-16-514783. A true and correct copy is attached as 23 Exhibit 2. As a public record on file in a judicial action of this state, Synergy’s Petition for Writ of 24 Mandate is subject to permissive judicial notice under Evidence Code sections 452(d) (records of any 25 court of this state) and 452(h) (facts and propositions that are not reasonably subject to dispute and are 26 capable of immediate and accurate determination by resort to sources of reasonably indisputable 27 accuracy). 28 3. Ghilotti Bros., Inc. (“Ghilotti”)’s Petition for Writ of Mandate, filed March 9, 2016 with the 2 RJN ISO Demurrer to Fourth Amended Complaint, Case No. CGC-17-560034 n:\constr\li2021\180435\01598601.docx 1 San Francisco Superior Court in Ghilotti Bros., Inc. v. City and County of San Francisco, Case No. 2 CPF-16-514835. A true and correct copy is attached as Exhibit 3. As a public record on file in a 3 judicial action of this state, Ghilotti’s Petition for Writ of Mandate is subject to permissive judicial 4 notice under Evidence Code sections 452(d) (records of any court of this state) and 452(h) (facts and 5 propositions that are not reasonably subject to dispute and are capable of immediate and accurate 6 determination by resort to sources of reasonably indisputable accuracy). 7 4. Notice of Entry of Stipulation and Order to Consolidate Actions, filed September 7, 2016 8 with the San Francisco Superior Court in Synergy Project Management, Inc. v. City and County of San 9 Francisco, Case No. CPF-16-514783. A true and correct copy is attached as Exhibit 4. As an official 10 act of a judicial department of this state, Synergy’s Stipulation and Order to Consolidate Actions is 11 subject to permissive judicial notice under Evidence Code sections 452(c) (official acts of legislative, 12 executive, and judicial departments), 452(d) (records of any court of this state), and 452(h) (facts and 13 propositions that are not reasonably subject to dispute and are capable of immediate and accurate 14 determination by resort to sources of reasonably indisputable accuracy). 15 5. Judgment on Synergy’s Petition for Writ of Mandate, filed on January 11, 2017 by the San 16 Francisco Superior Court in Synergy Project Management, Inc. v. City and County of San Francisco, 17 Case No. CPF-16-514783. A true and correct copy is attached as Exhibit 5. As an official act of a 18 judicial department of this state, the Judgment on Synergy’s Petition for Writ of Mandate is subject to 19 permissive judicial notice under Evidence Code sections 452(c) (official acts of legislative, executive, 20 and judicial departments), 452(d) (records of any court of this state), and 452(h) (facts and 21 propositions that are not reasonably subject to dispute and are capable of immediate and accurate 22 determination by resort to sources of reasonably indisputable accuracy). 23 6. Judgment on Ghilotti’s Petition for Writ of Mandate, filed on December 14, 2016 by the San 24 Francisco Superior Court in Synergy Project Management, Inc. v. City and County of San Francisco, 25 Case No. CPF-16-514783. A true and correct copy is attached as Exhibit 6. As an official act of a 26 judicial department of this state, the Judgment on Ghilotti’s Petition for Writ of Mandate is subject to 27 permissive judicial notice under Evidence Code sections 452(c) (official acts of legislative, executive, 28 and judicial departments), 452(d) (records of any court of this state), and 452(h) (facts and 3 RJN ISO Demurrer to Fourth Amended Complaint, Case No. CGC-17-560034 n:\constr\li2021\180435\01598601.docx 1 propositions that are not reasonably subject to dispute and are capable of immediate and accurate 2 determination by resort to sources of reasonably indisputable accuracy). 3 7. The City’s Notice of Appeal of the Judgments in Favor of Petitioners Synergy and Ghilotti, 4 filed March 17, 2017 with the San Francisco Superior Court in Synergy Project Management, Inc. v. 5 City and County of San Francisco, Case No. CPF-16-514783. A true and correct copy is attached as 6 Exhibit 7. As a public record on file in a judicial action of this state, the City’s Notice of Appeal is 7 subject to permissive judicial notice under Evidence Code sections 452(d) (records of any court of this 8 state) and 452(h) (facts and propositions that are not reasonably subject to dispute and are capable of 9 immediate and accurate determination by resort to sources of reasonably indisputable accuracy). 10 8. The Court of Appeal, First Appellate District, Division One’s decision in the City’s appeal 11 of the judgments in favor of Synergy’s and Ghilotti’s successful writ petitions, filed March 14, 2019 12 in City and County of San Francisco v. Synergy Project Management, Inc., Case No. A151199. A true 13 and correct copy is attached as Exhibit 8. As the decisional law of this state, the Court of Appeal’s 14 decision is subject to mandatory judicial notice under Evidence Code section 451(a). It is also 15 published as Synergy Project Management, Inc. v. City and County of San Francisco (2019) 33 16 Cal.App.5th 21. 17 9. Stipulation for Amended Judgment Denying Petitions for Writ of Mandate and Awarding 18 Costs and Amended Judgment, filed March 27, 2020 by the San Francisco Superior Court in Synergy 19 Project Management, Inc. v. City and County of San Francisco, Case No. CPF-16-514783. A true and 20 correct copy is attached as Exhibit 9. As an official act of a judicial department of this state, the 21 Stipulation for Amended Judgment Denying Petitions for Writ of Mandate and Awarding Costs and 22 Amended Judgment is subject to permissive judicial notice under Evidence Code sections 452(c) 23 (official acts of legislative, executive, and judicial departments), 452(d) (records of any court of this 24 state), and 452(h) (facts and propositions that are not reasonably subject to dispute and are capable of 25 immediate and accurate determination by resort to sources of reasonably indisputable accuracy). 26 10. The Hearing Officer’s Statement of Decision from the Public Contract Code section 4017 27 administrative hearing on Synergy’s substitution from the Van Ness Project (“Statement of Decision”) 28 dated August 10, 2016. A true and correct copy is attached as Exhibit 10. As an administrative 4 RJN ISO Demurrer to Fourth Amended Complaint, Case No. CGC-17-560034 n:\constr\li2021\180435\01598601.docx 1 decision of the City, the Statement of Findings is subject to permissive judicial notice under Evidence 2 Code sections 452(c) (official acts of the executive departments of any state) and 452(h) (facts and 3 propositions that are not reasonably subject to dispute and are capable of immediate and accurate 4 determination by resort to sources of reasonably indisputable accuracy). (See Associated Builders and 5 Contractors, supra, 21 Cal.4th at p. 374 n.4 [taking judicial notice of the transcripts of two public 6 hearings held by a City commission under Evidence Code section 452(c)].) 7 11. Synergy’s Second Amended Complaint, along with accompanying exhibits, filed in the 8 United States District Court for the Northern District of California on June 5, 2018 in Synergy Project 9 Management, Inc. v. City and County of San Francisco, Case No. 3:17-cv-06763-JST. A true and 10 correct copy is attached as Exhibits 11-1, 11-2, and 11-3. As a public record on file in a judicial 11 action in federal court, Synergy’s Second Amended Complaint and accompanying exhibits are subject 12 to permissive judicial notice under Evidence Code sections 452(d) (records of any court of the United 13 States), and 452(h) (facts and propositions that are not reasonably subject to dispute and are capable of 14 immediate and accurate determination by resort to sources of reasonably indisputable accuracy). 15 12. Notice to State Superior Court of Removal of Action to Federal District Court, filed 16 November 27, 2017 in the San Francisco Superior Court in Synergy Project Management, Inc. v. City 17 and County of San Francisco, Case No. CGC-17-560034. A true and correct copy is attached as 18 Exhibit 12. As a public record on file in a judicial action of this state, the Notice to State Superior 19 Court of Removal of Action to Federal District Court is subject to permissive judicial notice under 20 Evidence Code sections 452(d) (records of any court of this state), and 452(h) (facts and propositions 21 that are not reasonably subject to dispute and are capable of immediate and accurate determination by 22 resort to sources of reasonably indisputable accuracy). 23 13. Order Granting in Part and Denying in Part Motion to Dismiss, filed by the federal district 24 court on May 16, 2018 in Synergy Project Management, Inc. v. City and County of San Francisco, 25 Case No. 3:17-cv-06763-JST. A true and correct copy is attached as Exhibit 13. As the decisional 26 law of the United States, the Order Granting in Part and Denying in Part Motion to Dismiss is subject 27 to mandatory judicial notice under Evidence Code section 451(a). As an official act of a judicial 28 department of the United States, the Order Granting in Part and Denying in Part Motion to Dismiss is 5 RJN ISO Demurrer to Fourth Amended Complaint, Case No. CGC-17-560034 n:\constr\li2021\180435\01598601.docx 1 also subject to permissive judicial notice under Evidence Code sections 452(c) (official acts of 2 legislative, executive, and judicial departments), 452(d) (records of any court of the United States), 3 and 452(h) (facts and propositions that are not reasonably subject to dispute and are capable of 4 immediate and accurate determination by resort to sources of reasonably indisputable accuracy). It is 5 also available as Synergy Project Management, Inc. v. City and County of San Francisco (N.D. Cal. 6 May 16, 2011), Case No. 17-cv-06763-JST, 2018 WL 2234596. 7 14. Order Granting Motion to Dismiss, filed by the federal district court on December 31, 2018 8 in Synergy Project Management, Inc. v. City and County of San Francisco, Case No. 3:17-cv-06763- 9 JST. A true and correct copy is attached as Exhibit 14. As the decisional law of the United States, the 10 Order Granting Motion to Dismiss is subject to mandatory judicial notice under Evidence Code 11 section 451(a). As an official act of a judicial department of the United States, the Order Granting 12 Motion to Dismiss is also subject to permissive judicial notice under Evidence Code sections 452(c) 13 (official acts of legislative, executive, and judicial departments), 452(d) (records of any court of the 14 United States), and 452(h) (facts and propositions that are not reasonably subject to dispute and are 15 capable of immediate and accurate determination by resort to sources of reasonably indisputable 16 accuracy). It is also available as Synergy Project Management, Inc. v. City and County of San 17 Francisco (N.D. Cal. Dec. 31, 2018) Case No. 17-cv-06763-JST, 2018 WL 6840156. 18 15. Order Granting City Defendants’ Motion to Dismiss and Remanding Case, filed by the 19 federal district court on November 21, 2019 in Synergy Project Management, Inc. v. City and County 20 of San Francisco, Case No. 3:17-cv-06763-JST. A true and correct copy is attached as Exhibit 15. 21 As the decisional law of the United States, the Order Granting City Defendants’ Motion to Dismiss 22 and Remanding Case is subject to mandatory judicial notice under Evidence Code section 451(a). As 23 an official act of a judicial department of the United States, the Order Granting City Defendants’ 24 Motion to Dismiss and Remanding Case is also subject to permissive judicial notice under Evidence 25 Code sections 452(c) (official acts of legislative, executive, and judicial departments), 452(d) (records 26 of any court of the United States), and 452(h) (facts and propositions that are not reasonably subject to 27 dispute and are capable of immediate and accurate determination by resort to sources of reasonably 28 indisputable accuracy). 6 RJN ISO Demurrer to Fourth Amended Complaint, Case No. CGC-17-560034 n:\constr\li2021\180435\01598601.docx 1 16. Judgment in a Civil Case, filed by the federal district court on November 21, 2019 in 2 Synergy Project Management, Inc. v. City and County of San Francisco, Case No. 3:17-cv-06763-JST. 3 A true and correct copy is attached as Exhibit 16. As an official act of a judicial department of the 4 United States, the Judgment in a Civil Case is subject to permissive judicial notice under Evidence 5 Code sections 452(c) (official acts of legislative, executive, and judicial departments), 452(d) (records 6 of any court of the United States), and 452(h) (facts and propositions that are not reasonably subject to 7 dispute and are capable of immediate and accurate determination by resort to sources of reasonably 8 indisputable accuracy). 9 17. Synergy’s Notice of Appeal, filed in the federal district court on December 19, 2019 in 10 Synergy Project Management, Inc. v. City and County of San Francisco, Case No. 3:17-cv-06763-JST. 11 A true and correct copy is attached as Exhibit 17. As a public record on file in a judicial action in a 12 federal court, Synergy’s Notice of Appeal is subject to permissive judicial notice under Evidence Code 13 sections 452(d) (records of any court of the United States) and 452(h) (facts and propositions that are 14 not reasonably subject to dispute and are capable of immediate and accurate determination by resort to 15 sources of reasonably indisputable accuracy). 16 18. Synergy’s Claim Against the City, submitted on October 23, 2020. A true and correct copy 17 is attached as Exhibit 18. As a claim filed with the City, Synergy’s Claim Against the City is subject 18 to permissive judicial notice under Evidence Code sections 452(c) (official acts of legislative, 19 executive, and judicial departments) and 452(h) (facts and propositions that are not reasonably subject 20 to dispute and are capable of immediate and accurate determination by resort to sources of reasonably 21 indisputable accuracy). (See Franchise Tax Bd. LLC Tax Refund Cases (2018) 25 Cal.App.5th 369, 22 379 n.4 [taking judicial notice of claims filed with a public entity and citing Associated Builders and 23 Contractors, supra., 21 Cal.4th at p. 374 n.4 (taking judicial notice of local government records)].) 24 19. The City’s Notice of Action Upon Synergy’s Claim, dated November 30, 2020. A true and 25 correct copy is attached as Exhibit 19. As an official act of the City, the City’s Notice of Action Upon 26 Synergy’s Claim is subject to permissive judicial notice under Evidence Code sections 452(c) (official 27 acts of legislative, executive, and judicial departments) and 452(h) (facts and propositions that are not 28 reasonably subject to dispute and are capable of immediate and accurate determination by resort to 7 RJN ISO Demurrer to Fourth Amended Complaint, Case No. CGC-17-560034 n:\constr\li2021\180435\01598601.docx 1 sources of reasonably indisputable accuracy). (See Franchise Tax Bd. LLC Tax Refund Cases, supra, 2 25 Cal.App.5th at p. 379 n.4 [taking judicial notice of claims filed with a public entity and citing 3 Associated Builders and Contractors, supra, 21 Cal.4th at p. 374 n.4 (taking judicial notice of local 4 government records)].) 5 20. Synergy’s Amended Claim Against the City, submitted on February 8, 2021. A true and 6 correct copy is attached as Exhibit 20. As a claim filed with the City, Synergy’s Amended Claim 7 Against the City is subject to permissive judicial notice under Evidence Code sections 452(c) (official 8 acts of legislative, executive, and judicial departments) and 452(h) (facts and propositions that are not 9 reasonably subject to dispute and are capable of immediate and accurate determination by resort to 10 sources of reasonably indisputable accuracy). (See Franchise Tax Bd. LLC Tax Refund Cases, supra, 11 25 Cal.App.5th at p. 379 n.4 [taking judicial notice of claims filed with a public entity and citing 12 Associated Builders and Contractors, supra, 21 Cal.4th at p. 374 n.4 (taking judicial notice of local 13 government records)].) 14 21. The United States Court of Appeals for the Ninth Circuit’s decision in Case No. 19-17558, 15 filed June 7, 2021 by the Ninth Circuit Court of Appeals in Synergy Project Management, Inc. v. City 16 and County of San Francisco, Case No. 19-17558. A true and correct copy is attached as Exhibit 21. 17 As the decisional law of the United States, the decision is subject to mandatory judicial notice under 18 Evidence Code section 451(a). It is also published as Synergy Project Management, Inc. v. City and 19 County of San Francisco (2021) 859 Fed.Appx. 99. 20 22. Order Remanding Case, filed by the federal district court on August 4, 2021 in Synergy 21 Project Management, Inc. v. City and County of San Francisco, Case No. 3:17-cv-06763-JST. A true 22 and correct copy is attached as Exhibit 22. As an official act of a judicial department of the United 23 States, the Order Remanding Case is subject to permissive judicial notice under Evidence Code 24 sections 452(c) (official acts of legislative, executive, and judicial departments), 452(d) (records of 25 any court of the United States), and 452(h) (facts and propositions that are not reasonably subject to 26 dispute and are capable of immediate and accurate determination by resort to sources of reasonably 27 indisputable accuracy). 28 23. Order Granting in Part Plaintiff’s Motion for Leave to File Fourth Amended Complaint, 8 RJN ISO Demurrer to Fourth Amended Complaint, Case No. CGC-17-560034 n:\constr\li2021\180435\01598601.docx 1 filed on March 24, 2022 in the San Francisco Superior Court in this action. A true and correct copy is 2 attached as Exhibit 23. As an official act of a judicial department of this state, the Order Granting in 3 Part Plaintiff’s Motion for Leave to File Fourth Amended Complaint is subject to permissive judicial 4 notice under Evidence Code sections 452(c) (official acts of legislative, executive, and judicial 5 departments), 452(d) (records of any court of this state), and 452(h) (facts and propositions that are not 6 reasonably subject to dispute and are capable of immediate and accurate determination by resort to 7 sources of reasonably indisputable accuracy). 8 24. Synergy’s Claim Against the City, submitted on January 5, 2017. A true and correct copy 9 is attached as Exhibit 24. As a claim filed with the City, Synergy’s Claim Against the City is subject 10 to permissive judicial notice under Evidence Code sections 452(c) (official acts of legislative, 11 executive, and judicial departments) and 452(h) (facts and propositions that are not reasonably subject 12 to dispute and are capable of immediate and accurate determination by resort to sources of reasonably 13 indisputable accuracy). (See Franchise Tax Bd. LLC Tax Refund Cases, supra, 25 Cal.App.5th at p. 14 379 n.4 [taking judicial notice of claims filed with a public entity and citing Associated Builders and 15 Contractors, supra, 21 Cal.4th at p. 374 n.4 (taking judicial notice of local government records)].) 16 The relevance of each document discussed above is set forth in the Memorandum of Points and 17 Authorities in Support of the City’s Demurrer to Synergy’s Fourth Amended Complaint. Based on the 18 foregoing, Defendant respectfully requests that this Court take judicial notice of the above documents. 19 Dated: May 27, 2022 20 DAVID CHIU City Attorney 21 YVONNE R. MERÉ Chief Deputy City Attorney 22 ELAINE M. O’NEIL JAIME M. HULING DELAYE 23 KRISTINE A. POPLAWSKI ARI A. BARUTH 24 Deputy City Attorneys 25 By: /S/ JAIME M. HULING DELAYE JAIME M. HULING DELAYE 26 Attorneys for Defendants 27 CITY AND COUNTY OF SAN FRANCISCO 28 9 RJN ISO Demurrer to Fourth Amended Complaint, Case No. CGC-17-560034 n:\constr\li2021\180435\01598601.docx EXHIBIT 1 No. A151199 IN THE COURT OF APPEAL FOR THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DIVISION ONE CITY AND COUNTY OF SAN FRANCISCO, Appellant, v. SYNERGY PROJECT MANAGEMENT, INC.; GHILOTTI BROS., INC., Respondents. On Appeal from the Superior Court for the County of San Francisco Honorable Harold E. Kahn Case No. CPF-16-514783 ADMINISTRATIVE RECORD (TABS 125 TO 126) OF RESPONDENT SYNERGY PROJECT MANAGEMENT, INC. Received Matthew K. Yan (SBN 257918) Kris A. Cox (SBN 136504) Erin H. Reding (SBN 252691) MOSCONE EMBLIDGE & OTIS LLP by 220 Montgomery Street, Suite 2100 San Francisco, California 94104 First Telephone: (415) 362-3599 Facsimile: (415) 362-7332 District Attorneys for Respondent SYNERGY PROJECT MANAGEMENT, INC. Court of Appeal 1 HEARING OFFICER ADMINISTRATIVE HEARING 2 CITY AND COUNTY OF SAN FRANCISCO 3 4 IN THE MATTER OF ) ) 5 SYNERGY PROJECT MANAGEMENT, INC.’S ) OBJECTIONS TO NOTICE OF SUBSTITUTION ) 6 FOR SAN FRANCISCO DEPARTMENT OF PUBLIC ) STATEMENT OF HEARING WORKS PROJECT NO. PCE15018/2264J(R), ) OFFICER FINDINGS 7 PAVEMENT RENOVATION, SEWER ) REPLACEMENT AND WATER MAIN ) HEARING: Dec. 9, 2015 8 INSTALLATION – HAIGHT AND HAYES STREETS ) RECORD CLOSED: Dec. 16, 2015 9 _____________________________________________________ INTRODUCTION 10 11 This case involves San Francisco Department of Public Works Project No. 12 PCE15018/2264J(R), the pavement renovation, sewer replacement, and water main installation of 13 Haight and Hayes Streets in San Francisco (“the Project”). The prime contractor on the Project is 14 Ghilotti Brothers, Inc. (“GBI”). GBI’s primary subcontractor on the Project is Synergy Project 15 Management, Inc. (“Synergy”). Work on the Project began on April 27, 2015. 16 Based on a variety of safety issues and other problems, on October 9, 2015, the San Francisco 17 Department of Public Works (“Public Works”) invoked Article 4, Section 4.04 of the contract with 18 GBI to demand that GBI substitute another subcontractor for Synergy pursuant to Section 4107(a)(7) 19 of the Public Contract Code. (Exh. 70.) Public Works informed Synergy of its demand to GBI by 20 letter dated October 14, 2015, stating that for “multiple safety violations” the City determined “the 21 work performed by Synergy is substantially unsatisfactory and not in substantial accordance with the 22 plans and specifications . . . .” (Exh. 71.) Public Works provided Synergy the opportunity to submit 23 objections to the substitution demand and request a hearing on the objections. Synergy submitted 24 objections. The undersigned agreed to serve as hearing officer and held a public hearing on December 25 9, 2015, in Room 263 at San Francisco City Hall, 1 Dr. Carlton B. Goodlett Place, San Francisco, 26 California. Public Works and the undersigned apprised GBI of the proceeding. Public Works and 27 28 In the Matter of Synergy Project Management Inc.’s Objections to DPW Notice of Page 1 of 23 Substitution – Hearing Officer’s Findings 2472 1 Synergy appeared and were represented by counsel. The parties presented witnesses and evidence 2 regarding Public Works’ substitution demand. 3 Synergy and GBI object to this proceeding, contending that it is unlawful under Section 4107 4 of the Public Contract Code, because only a prime contractor may invoke Section 4107 to request 5 substitution of a subcontractor, and GBI has not sought to substitute Synergy. 1 Synergy and GBI 6 contend that Public Works improperly commenced this proceeding, and the undersigned lacks 7 jurisdiction to proceed and issue a decision. The undersigned disagrees. Section 4107(a)(7) 8 anticipates that a public entity may initiate a proceeding based on its determination that a 9 subcontractor’s work was substantially unsatisfactory. Interpreting Section 4107(a)(7) in the manner 10 proposed by Synergy and GBI leads to an absurd result: a public entity having no control over the 11 subcontractors working on its project. This interpretation does not comport with the language or intent 12 of the statute. Moreover, the contract between GBI and Public Works incorporates the Section 4107 13 procedure, which separately provides a basis for this proceeding. And finally, even if Section 4107 is 14 not directly applicable and is not applied by virtue of the contract, Section 4107 does not prohibit an 15 administrative proceeding offered for a subcontractor to object to a public entity’s removal 16 determination. 17 As explained herein, the undersigned finds that Public Works established by a preponderance 18 of the evidence2 that Synergy’s work on the project was “substantially unsatisfactory and not in 19 substantial accordance with the plans and specifications.” Public Works established, among other 20 things, that Synergy caused five gas line breaks, at least four of which resulted from Synergy’s unsafe 21 practices. Public Works also established that Synergy improperly shored trenches on multiple 22 occasions, which could have led to street collapse, trench collapse, and the injury or death of workers 23 or members of the public. Indeed, shoring problems caused one of the gas line breaks. Synergy’s 24 1 25 GBI submitted an objection dated December 2, 2015. On December 16, 2015, the parties and GBI submitted further briefing on this issue at the request of the hearing officer, which the 26 undersigned considered. 2 27 See Evid. Code § 115 (“Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence.) The undersigned has located no law requiring a higher 28 standard of proof for this proceeding. In the Matter of Synergy Project Management Inc.’s Objections to DPW Notice of Page 2 of 23 Substitution – Hearing Officer’s Findings 2473 1 failure to properly store equipment led to a pedestrian trip and fall. Its workers also engaged in highly 2 dangerous conduct when they dangled the Synergy foreman by his ankles into an open manhole with 3 no safety equipment or traffic control. And there were many other safety problems, as discussed fully 4 below. All of this occurred within little more than five months. 5 The undersigned is persuaded that Public Works’ substitution determination is supported by 6 sufficient evidence. 7 ISSUES BEFORE THE HEARING OFFICER 8 1. Does the hearing officer have jurisdiction to determine whether Public Works has 9 presented sufficient evidence to support its substitution demand? 10 2. Did Public Works prove that Synergy’s work on the Haight and Hayes Street Project 11 was “substantially unsatisfactory and not in substantial accordance with the plans and specifications”? 12 JURISDICTION FOR THIS PROCEEDING 13 Synergy and GBI contend that the undersigned lacks jurisdiction to proceed, because Public 14 Works improperly invoked Section 4107 of the Public Contract Code to initiate this proceeding. They 15 assert that the only entity permitted to request a substitution of Synergy under Section 4107 is GBI, the 16 prime contractor. Synergy and GBI also argue that Section 4.04 of the contract between the City and 17 GBI, which states the City may demand substitution of a subcontractor, is unlawful. Consequently, 18 Synergy and GBI assert that the undersigned did not have jurisdiction to hold a hearing and that the 19 only proper decision is to dismiss this case. Indeed, on December 21, 2015, after participating in the 20 hearing, Synergy belatedly filed a motion to dismiss. 21 The undersigned finds that jurisdiction exists for this proceeding and rejects the position taken 22 by Synergy and GBI for three reasons. 23 First, the interpretation of Section 4107 of the Public Contract Code proposed by Synergy and 24 GBI does not comport with the language of subsection (a)(7), and it would lead to the absurd result 25 that the awarding authority lacks control over the subcontractors working on its project, irrespective of 26 their performance. The language of the statute and the intent of the statutory scheme do not support 27 this result. Section 4107 of the Public Contract Code provides: 28 A prime contractor whose bid is accepted may not: In the Matter of Synergy Project Management Inc.’s Objections to DPW Notice of Page 3 of 23 Substitution – Hearing Officer’s Findings 2474 (a) Substitute a person as subcontractor in place of the subcontractor listed 1 in the original bid, except that the awarding authority, or its duly authorized officer, may, except as otherwise provided in Section 4107.5, 2 consent to the substitution of another person as a subcontractor in any of the following situations 3 * * * * 4 (7) When the awarding authority, or its duly authorized officer, determines that the work performed by the listed subcontractor is substantially unsatisfactory 5 and not in substantial accordance with the plans and specifications, or that the subcontractor is substantially delaying or disrupting the progress of the work. 6 * * * * 7 Prior to approval of the prime contractor’s request for the substitution, the 8 awarding authority, or its duly authorized officer, shall give notice in writing to the listed subcontractor of the prime contractor’s request to substitute and of the 9 reasons for the request. The notice shall be served by certified or registered mail to the last known address of the subcontractor. The listed subcontractor who has 10 been so notified has five working days within which to submit written objections to the substitution to the awarding authority. Failure to file these 11 written objections constitutes the listed subcontractor’s consent to the substitution. 12 If written objections are filed, the awarding authority shall give notice in writing 13 of at least five working days to the listed subcontractor of a hearing by the awarding authority on the prime contractor’s request for substitution. 14 Synergy and GBI interpret the provision “[p]rior to approval of the prime contractor’s request . . .” as 15 jurisdictional in nature. According to Synergy and GBI, absent a prime contractor’s request for 16 substitution, there can be no proceeding under Section 4107, and that any such proceeding would be 17 unlawful. They contend that Public Works cannot invoke Section 4107 to provide a subcontractor a 18 procedure to object to Public Works’ determination under subsection (a)(7) that a subcontractor’s 19 work on a project is “substantially unsatisfactory and not in substantial accordance with the plans and 20 specifications . . . .” 21 The undersigned rejects this interpretation of the statute. Under Section 4107, a contractor 22 may not substitute a subcontractor absent the approval of the awarding authority. While it is clear that 23 this approval is ordinarily preceded by a request from the prime contractor, subsection (a)(7) 24 anticipates a substitution dependent on the awardi