Preview
1 DAVID CHIU, SBN 189542
City Attorney
2 YVONNE R. MERÉ, SBN 173594 ELECTRONICALLY
Chief Deputy City Attorney FILED
3 ELAINE M. O’NEIL, SBN 142234 Superior Court of California,
County of San Francisco
JAIME M. HULING DELAYE, SBN 270784
4 ARI A. BARUTH, SBN 258418 05/20/2022
Deputy City Attorneys Clerk of the Court
BY: RONNIE OTERO
5 1390 Market Street, 6th Floor Deputy Clerk
San Francisco, CA 94102-5408
6 Telephone: (415) 554-3957
Facsimile: (415) 437-4644
7 Email: Jaime.HulingDelaye@sfcityatty.org
8 Attorneys for Defendant
CITY AND COUNTY OF SAN FRANCISCO
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF SAN FRANCISCO
11
UNLIMITED JURISDICTION
12
13 SYNERGY PROJECT MANAGEMENT, INC., Case No. CGC-17-560034
(Consolidated with Case No. CGC-19-576488)
14 Plaintiff,
MEMORANDUM OF POINTS AND
15 v. AUTHORITIES IN SUPPORT OF
DEFENDANT CITY AND COUNTY OF
16 CITY AND COUNTY OF SAN FRANCISCO, SAN FRANCISCO’S EX PARTE
APPLICATION FOR AN ORDER
17 Defendant. CONTINUING THE DEADLINE TO FILE
CERTAIN DISPOSITIVE MOTIONS TO
18 GHILOTTI BROS., INC., a California Corporation, RUN FROM THE NEW FEBRUARY 6,
2023 TRIAL DATE
19 Plaintiff,
Hearing Date: May 23, 2022
20 v. Hearing Judge: Judge Richard B. Ulmer Jr.
Time: 11:00 a.m.
21 SYNERGY PROJECT MANAGEMENT, INC., a Place: 302
California Corporation, and DOES 1-30,
22 Date Action Filed: July 10, 2017
Defendants. Trial Date: February 6, 2023
23
SYNERGY PROJECT MANAGEMENT, a
24 California Corporation, Cross-Complainant,
25 v.
26 GHILOTTI BROS, INC., a California Corporation,
and ROES 1-20,
27
Cross-Defendants.
28
1
MPA ISO Ex Parte Application, Case No. CGC-17-560034 n:\constr\li2022\180435\01602983.docx
1 I. INTRODUCTION
2 Per this Court’s February 3, 2022 Order, the former trial date of September 19, 2022 was set as
3 the “initial trial date from which pre-trial motion dates will flow.” (Declaration of Jaime Huling
4 Delaye (“Huling Delaye Dec.”) ¶ 4, Ex. C.) The City seeks an order continuing the deadlines for
5 dispositive motions under California Code of Civil Procedure sections 437c through 439 (including
6 motions for summary judgment, motions for summary adjudication, and/or motions for judgment on
7 the pleadings) to run from the new trial date of February 6, 2023. Any other result will prejudice the
8 City’s statutory right to bring these motions.
9 On May 17, 2022, Synergy filed and served its most recent version of the complaint, a
10 “Corrected” Fourth Amended Complaint which added (without leave from the Court) individually
11 named defendants. The prior Fourth Amended Complaint was filed and served electronically April
12 20, 2022, making the deadline to respond to it May 24, 2022. On May 20, 2022 Synergy indicated
13 that it may withdraw its “Corrected Fourth Amended Complaint,” but has declined to commit to do so.
14 (Huling Delaye Dec. ¶ 3, Ex. B.) Therefore, the City does not know at present what version of the
15 complaint plaintiff will be proceeding on. Whichever pleading Synergy elects to maintain, the City
16 will demur. The present schedule would require the City to draft and file a motion for summary
17 judgment before it is aware which version of the complaint is operative in this case, and which, if any,
18 causes of action will survive demurrer.
19 The current deadline for the City to file a summary judgment motion is June 3, 2022. Any
20 hearing on the City’s demurrer will not occur until weeks after that date. This forces the City to file a
21 summary judgment motion where it must speculate as to what claims will survive, if any, and well
22 before the City will answer if its demurrer is unsuccessful. If the Court sustains the demurrer but
23 grants Synergy leave to amend, the City will be deprived an opportunity to challenge the amendments.
24 Even if Synergy withdraws its improperly filed “Corrected” Fourth Amended Complaint, the hearing
25 on the City’s demurrer to the Fourth Amended Complaint will occur no earlier than June 22, or three
26 weeks after the deadline to file a summary judgment motion. The City has never had an opportunity to
27 file a motion for summary judgment in this action in any forum, and an order confirming the deadline
28 runs from the new February 6, 2023 trial date is the lone mechanism for avoiding a clear and
2
MPA ISO Ex Parte Application, Case No. CGC-17-560034 n:\constr\li2022\180435\01602983.docx
1 substantial prejudice to the City.
2 II. RELEVANT FACTUAL BACKGROUND
3 On May 17, 2022, the Court, through Department 206, granted the City’s motion to continue
4 the trial, continuing the trial from September 19, 2022 to February 6, 2023 due to undersigned
5 counsel’s pregnancy and anticipated maternity leave. (Huling Delaye Dec. ¶ 5, Ex. D.) During the
6 hearing on that motion counsel for the City asked for the confirmation that the deadlines for summary
7 judgment and other dispositive motions flow from the continued trial date, and Judge Feng responded:
8 “[t]hat’s up to law and motion.” (Huling Delaye Dec. ¶ 5, Ex. D). Judge Feng continued, referencing
9 a hearing scheduled in Department 301 for May 27, 2022 on Synergy’s motion to reopen discovery,
10 stating “[i]f law and motion says that discovery is reopened, you can ask law and motion that the
11 discovery shall include the motions for summary judgment and adjudication of issues.” (Id.). Counsel
12 for the City indicated that the City’s deadline to file a summary judgment motion is five days after the
13 hearing, and Judge Feng indicated the City “can inform the Court in 302 on the 27th what the dilemma
14 that you have is.” (Id.) Finally, Judge Feng confirmed the law and motion department has authority to
15 extend the City’s summary judgment deadline because “all summary judgments and motions for
16 summary adjudication of issues go to 302.” (Id.).
17 The City’s current deadline to file a summary judgment motion is June 3, 2022, a date that is at
18 least three weeks before the earliest date a hearing will occur on the City’s planned demurrer and
19 motion to strike to Synergy’s Fourth Amended Complaint. (Huling Delaye Dec. ¶ 6). Moreover, on
20 May 17, 2022, Synergy filed a “Corrected” Fourth Amended Complaint which, without leave of court,
21 adds multiple individual defendants. (Huling Delaye Dec. ¶ 7). The City’s demurrer to the
22 “Corrected” Fourth Amended Complaint is due several weeks after the deadline to file a summary
23 judgment motion, so regardless of which pleading is operative, the City will have to file a summary
24 judgment motion without knowing the results of its demurrer. (Huling Delaye Dec. ¶ 8.)
25 Synergy has moved to reopen discovery in this case, and that motion is scheduled to be heard
26 before a judge pro tempore in Department 301 on May 27, 2022. (Huling Delaye Dec. ¶ 8.) The City
27 files this motion in Department 302 because it is not clear that a judge pro tempore sitting in
28 Department 301 has the authority to extend dispositive motion deadlines. (Id.) Moreover, continuing
3
MPA ISO Ex Parte Application, Case No. CGC-17-560034 n:\constr\li2022\180435\01602983.docx
1 those deadlines is not part of the relief that was petitioned for in that now fully-briefed motion. (Id.)
2 If Department 301 were to reopen discovery in this case on May 27, 2022, responses to any new
3 discovery served would not be due until after the current summary judgment deadline. (Id.)
4 III. LEGAL ARGUMENT
5 California Code of Civil Procedure sections 437c through 439 provide litigants a right to move
6 for summary judgment, summary adjudication, or for a judgment on the pleadings where it is
7 contended the claims against it lack merit.
8 The City has never had an opportunity to exercise that right to bring such a dispositive motion.
9 While this case was litigated in federal court for some time, it has repeatedly been dismissed for
10 failure to state a claim, and never proceeded past the motion to dismiss stage. Given the deadline for
11 the City to file a summary judgment motion will pass before a hearing on its demurrer, much less
12 before the filing of an answer by the City (if the demurrer is unsuccessful), setting the deadline to file
13 dispositive motions to run from the new trial date of February 6, 2023 is required to avoid the
14 prejudice to the City of stripping it of its statutory right to file a summary judgment motion
15 challenging a settled pleading. Moreover, if the Court grants Synergy leave to amend following the
16 City’s demurrer, the current deadline will deprive the City an opportunity to move for summary
17 judgment to challenge the amendments. Forcing the City into a summary judgment deadline before
18 the pleadings are settled amounts to not only significant prejudice but a waste of judicial resources.
19 Similarly, denying the City the ability to file a motion for summary judgment would waste the Court’s
20 resources by potentially requiring trial of claims that could have been resolved on the papers.
21 The City seeks ex parte relief because of the urgency and time pressure involved. This issue
22 should not be coupled with Synergy’s motion to reopen discovery, scheduled for May 27, for the
23 following reasons. First, the prejudice to the City of not being able to file a summary judgment
24 motion against a settled pleading does not depend on whether Synergy prevails on its motion to reopen
25 discovery. The outcome of that motion does not change that the City, as deadlines currently sit, would
26 need to file a summary judgment motion without knowing what causes of action remain. Second,
27 there is no guarantee the hearing will go forward on May 27. The hearing was originally scheduled for
28 April 20, and continued sua sponte by the Court. If the hearing is continued again, that could put the
4
MPA ISO Ex Parte Application, Case No. CGC-17-560034 n:\constr\li2022\180435\01602983.docx
1 hearing date after the City’s summary judgment deadline. Third, it is unclear to the City whether a
2 judge pro tempore hearing discovery matters has the authority to grant the relief sought by this
3 application, especially given that it was not sought in the motion as noticed by Synergy. Fourth, if
4 Synergy’s motion to reopen discovery is successful, the City’s deadline to move for summary
5 judgment would be approximately two months before the end of discovery on newly-added factual
6 allegations that have never been subject to discovery before. This cannot be the result and the Court
7 should grant the City’s Application.
8 IV. CONCLUSION
9 For the foregoing reasons, the City respectfully requests that the Court issue an order that the
10 deadline to file dispositive motions will run from the new trial date of February 6, 2023.
11
12 Dated: May 20, 2022
13 DAVID CHIU
City Attorney
14 YVONNE R. MERÉ
Chief Deputy City Attorney
15 ELAINE M. O’NEIL
JAIME M. HULING DELAYE
16
ARI A. BARUTH
17 Deputy City Attorneys
18 By: /S/ JAIME M. HULING DELAYE
JAIME M. HULING DELAYE
19
Attorneys for Defendants
20 CITY AND COUNTY OF SAN FRANCISCO
21
22
23
24
25
26
27
28
5
MPA ISO Ex Parte Application, Case No. CGC-17-560034 n:\constr\li2022\180435\01602983.docx
Preview
1 DAVID CHIU, SBN 189542 City Attorney 2 YVONNE R. MERÉ, SBN 173594 ELECTRONICALLY Chief Deputy City Attorney FILED 3 ELAINE M. O’NEIL, SBN 142234 Superior Court of California, County of San Francisco JAIME M. HULING DELAYE, SBN 270784 4 ARI A. BARUTH, SBN 258418 05/20/2022 Deputy City Attorneys Clerk of the Court BY: RONNIE OTERO 5 1390 Market Street, 6th Floor Deputy Clerk San Francisco, CA 94102-5408 6 Telephone: (415) 554-3957 Facsimile: (415) 437-4644 7 Email: Jaime.HulingDelaye@sfcityatty.org 8 Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 UNLIMITED JURISDICTION 12 13 SYNERGY PROJECT MANAGEMENT, INC., Case No. CGC-17-560034 (Consolidated with Case No. CGC-19-576488) 14 Plaintiff, MEMORANDUM OF POINTS AND 15 v. AUTHORITIES IN SUPPORT OF DEFENDANT CITY AND COUNTY OF 16 CITY AND COUNTY OF SAN FRANCISCO, SAN FRANCISCO’S EX PARTE APPLICATION FOR AN ORDER 17 Defendant. CONTINUING THE DEADLINE TO FILE CERTAIN DISPOSITIVE MOTIONS TO 18 GHILOTTI BROS., INC., a California Corporation, RUN FROM THE NEW FEBRUARY 6, 2023 TRIAL DATE 19 Plaintiff, Hearing Date: May 23, 2022 20 v. Hearing Judge: Judge Richard B. Ulmer Jr. Time: 11:00 a.m. 21 SYNERGY PROJECT MANAGEMENT, INC., a Place: 302 California Corporation, and DOES 1-30, 22 Date Action Filed: July 10, 2017 Defendants. Trial Date: February 6, 2023 23 SYNERGY PROJECT MANAGEMENT, a 24 California Corporation, Cross-Complainant, 25 v. 26 GHILOTTI BROS, INC., a California Corporation, and ROES 1-20, 27 Cross-Defendants. 28 1 MPA ISO Ex Parte Application, Case No. CGC-17-560034 n:\constr\li2022\180435\01602983.docx 1 I. INTRODUCTION 2 Per this Court’s February 3, 2022 Order, the former trial date of September 19, 2022 was set as 3 the “initial trial date from which pre-trial motion dates will flow.” (Declaration of Jaime Huling 4 Delaye (“Huling Delaye Dec.”) ¶ 4, Ex. C.) The City seeks an order continuing the deadlines for 5 dispositive motions under California Code of Civil Procedure sections 437c through 439 (including 6 motions for summary judgment, motions for summary adjudication, and/or motions for judgment on 7 the pleadings) to run from the new trial date of February 6, 2023. Any other result will prejudice the 8 City’s statutory right to bring these motions. 9 On May 17, 2022, Synergy filed and served its most recent version of the complaint, a 10 “Corrected” Fourth Amended Complaint which added (without leave from the Court) individually 11 named defendants. The prior Fourth Amended Complaint was filed and served electronically April 12 20, 2022, making the deadline to respond to it May 24, 2022. On May 20, 2022 Synergy indicated 13 that it may withdraw its “Corrected Fourth Amended Complaint,” but has declined to commit to do so. 14 (Huling Delaye Dec. ¶ 3, Ex. B.) Therefore, the City does not know at present what version of the 15 complaint plaintiff will be proceeding on. Whichever pleading Synergy elects to maintain, the City 16 will demur. The present schedule would require the City to draft and file a motion for summary 17 judgment before it is aware which version of the complaint is operative in this case, and which, if any, 18 causes of action will survive demurrer. 19 The current deadline for the City to file a summary judgment motion is June 3, 2022. Any 20 hearing on the City’s demurrer will not occur until weeks after that date. This forces the City to file a 21 summary judgment motion where it must speculate as to what claims will survive, if any, and well 22 before the City will answer if its demurrer is unsuccessful. If the Court sustains the demurrer but 23 grants Synergy leave to amend, the City will be deprived an opportunity to challenge the amendments. 24 Even if Synergy withdraws its improperly filed “Corrected” Fourth Amended Complaint, the hearing 25 on the City’s demurrer to the Fourth Amended Complaint will occur no earlier than June 22, or three 26 weeks after the deadline to file a summary judgment motion. The City has never had an opportunity to 27 file a motion for summary judgment in this action in any forum, and an order confirming the deadline 28 runs from the new February 6, 2023 trial date is the lone mechanism for avoiding a clear and 2 MPA ISO Ex Parte Application, Case No. CGC-17-560034 n:\constr\li2022\180435\01602983.docx 1 substantial prejudice to the City. 2 II. RELEVANT FACTUAL BACKGROUND 3 On May 17, 2022, the Court, through Department 206, granted the City’s motion to continue 4 the trial, continuing the trial from September 19, 2022 to February 6, 2023 due to undersigned 5 counsel’s pregnancy and anticipated maternity leave. (Huling Delaye Dec. ¶ 5, Ex. D.) During the 6 hearing on that motion counsel for the City asked for the confirmation that the deadlines for summary 7 judgment and other dispositive motions flow from the continued trial date, and Judge Feng responded: 8 “[t]hat’s up to law and motion.” (Huling Delaye Dec. ¶ 5, Ex. D). Judge Feng continued, referencing 9 a hearing scheduled in Department 301 for May 27, 2022 on Synergy’s motion to reopen discovery, 10 stating “[i]f law and motion says that discovery is reopened, you can ask law and motion that the 11 discovery shall include the motions for summary judgment and adjudication of issues.” (Id.). Counsel 12 for the City indicated that the City’s deadline to file a summary judgment motion is five days after the 13 hearing, and Judge Feng indicated the City “can inform the Court in 302 on the 27th what the dilemma 14 that you have is.” (Id.) Finally, Judge Feng confirmed the law and motion department has authority to 15 extend the City’s summary judgment deadline because “all summary judgments and motions for 16 summary adjudication of issues go to 302.” (Id.). 17 The City’s current deadline to file a summary judgment motion is June 3, 2022, a date that is at 18 least three weeks before the earliest date a hearing will occur on the City’s planned demurrer and 19 motion to strike to Synergy’s Fourth Amended Complaint. (Huling Delaye Dec. ¶ 6). Moreover, on 20 May 17, 2022, Synergy filed a “Corrected” Fourth Amended Complaint which, without leave of court, 21 adds multiple individual defendants. (Huling Delaye Dec. ¶ 7). The City’s demurrer to the 22 “Corrected” Fourth Amended Complaint is due several weeks after the deadline to file a summary 23 judgment motion, so regardless of which pleading is operative, the City will have to file a summary 24 judgment motion without knowing the results of its demurrer. (Huling Delaye Dec. ¶ 8.) 25 Synergy has moved to reopen discovery in this case, and that motion is scheduled to be heard 26 before a judge pro tempore in Department 301 on May 27, 2022. (Huling Delaye Dec. ¶ 8.) The City 27 files this motion in Department 302 because it is not clear that a judge pro tempore sitting in 28 Department 301 has the authority to extend dispositive motion deadlines. (Id.) Moreover, continuing 3 MPA ISO Ex Parte Application, Case No. CGC-17-560034 n:\constr\li2022\180435\01602983.docx 1 those deadlines is not part of the relief that was petitioned for in that now fully-briefed motion. (Id.) 2 If Department 301 were to reopen discovery in this case on May 27, 2022, responses to any new 3 discovery served would not be due until after the current summary judgment deadline. (Id.) 4 III. LEGAL ARGUMENT 5 California Code of Civil Procedure sections 437c through 439 provide litigants a right to move 6 for summary judgment, summary adjudication, or for a judgment on the pleadings where it is 7 contended the claims against it lack merit. 8 The City has never had an opportunity to exercise that right to bring such a dispositive motion. 9 While this case was litigated in federal court for some time, it has repeatedly been dismissed for 10 failure to state a claim, and never proceeded past the motion to dismiss stage. Given the deadline for 11 the City to file a summary judgment motion will pass before a hearing on its demurrer, much less 12 before the filing of an answer by the City (if the demurrer is unsuccessful), setting the deadline to file 13 dispositive motions to run from the new trial date of February 6, 2023 is required to avoid the 14 prejudice to the City of stripping it of its statutory right to file a summary judgment motion 15 challenging a settled pleading. Moreover, if the Court grants Synergy leave to amend following the 16 City’s demurrer, the current deadline will deprive the City an opportunity to move for summary 17 judgment to challenge the amendments. Forcing the City into a summary judgment deadline before 18 the pleadings are settled amounts to not only significant prejudice but a waste of judicial resources. 19 Similarly, denying the City the ability to file a motion for summary judgment would waste the Court’s 20 resources by potentially requiring trial of claims that could have been resolved on the papers. 21 The City seeks ex parte relief because of the urgency and time pressure involved. This issue 22 should not be coupled with Synergy’s motion to reopen discovery, scheduled for May 27, for the 23 following reasons. First, the prejudice to the City of not being able to file a summary judgment 24 motion against a settled pleading does not depend on whether Synergy prevails on its motion to reopen 25 discovery. The outcome of that motion does not change that the City, as deadlines currently sit, would 26 need to file a summary judgment motion without knowing what causes of action remain. Second, 27 there is no guarantee the hearing will go forward on May 27. The hearing was originally scheduled for 28 April 20, and continued sua sponte by the Court. If the hearing is continued again, that could put the 4 MPA ISO Ex Parte Application, Case No. CGC-17-560034 n:\constr\li2022\180435\01602983.docx 1 hearing date after the City’s summary judgment deadline. Third, it is unclear to the City whether a 2 judge pro tempore hearing discovery matters has the authority to grant the relief sought by this 3 application, especially given that it was not sought in the motion as noticed by Synergy. Fourth, if 4 Synergy’s motion to reopen discovery is successful, the City’s deadline to move for summary 5 judgment would be approximately two months before the end of discovery on newly-added factual 6 allegations that have never been subject to discovery before. This cannot be the result and the Court 7 should grant the City’s Application. 8 IV. CONCLUSION 9 For the foregoing reasons, the City respectfully requests that the Court issue an order that the 10 deadline to file dispositive motions will run from the new trial date of February 6, 2023. 11 12 Dated: May 20, 2022 13 DAVID CHIU City Attorney 14 YVONNE R. MERÉ Chief Deputy City Attorney 15 ELAINE M. O’NEIL JAIME M. HULING DELAYE 16 ARI A. BARUTH 17 Deputy City Attorneys 18 By: /S/ JAIME M. HULING DELAYE JAIME M. HULING DELAYE 19 Attorneys for Defendants 20 CITY AND COUNTY OF SAN FRANCISCO 21 22 23 24 25 26 27 28 5 MPA ISO Ex Parte Application, Case No. CGC-17-560034 n:\constr\li2022\180435\01602983.docx