Preview
1 RANDOLPH E. DAAR (SBN 88195)
BEN ROSENFELD (SBN 203845)
2 ATTORNEYS AT LAW
ELECTRONICALLY
3 3330 Geary Blvd., 3rd Floor East
San Francisco, CA 94118 F I L E D
Superior Court of California,
4 Tel: (415) 986-5591 County of San Francisco
Fax: (415) 421-1331
05/04/2022
5 randolphdaar@yahoo.com Clerk of the Court
ben.rosenfeld@comcast.net BY: ERNALYN BURA
6 Deputy Clerk
7 Attorneys for Plaintiff Synergy Project Management, Inc.
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SUPERIOR COURT FOR THE STATE OF CALIFORNIA
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11 COUNTY OF SAN FRANCISCO
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SYNERGY PROJECT MANAGEMENT, Case Nos. CGC-17-560034
13 INC., Plaintiff, and CGC-19-576488, consolidated
14 v. DECLARATION OF PLAINTIFF’S
15 COUNSEL BEN ROSENFELD ISO
CITY AND COUNTY OF SAN FRANCISCO, PLAINTIFF’S (CORRECTED) LIMITED
16 LONDON BREED, MOHAMMED NURU, OPPOSITION TO CITY DEFENDANTS’
Defendants. MOTION TO CONTINUE TRIAL AGAIN
17 ______________________________________
Date: May 17, 2022
18
GHILOTTI BROS., INC., Plaintiff, Time: 9:30 am.
19 Dept.: 206 (Hon. Samuel K. Feng)
v.
20 Action Filed: July 10, 2017
SYNERGY PROJECT MANAGEMENT, Trial Date: September 19, 2022
21 INC., a California Corporation, DOES 1-30,
Defendants.
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______________________________________
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SYNERGY PROJECT MANAGEMENT,
24 Cross-Complainant,
25 v.
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GHILOTTI BROS, INC., ROES 1-20,
27 Cross-Defendants.
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D ECL . R OSENFELD ISO P LTFF ’ S C ORR . L IMITED O PP . TO C ITY D EFS ’ M O . C ONTINUE T RIAL
No. CGC-17-560034
1 I, Ben Rosenfeld, declare as follows:
2 1. I am over the age of 18. I am an attorney licensed to practice law throughout the State
3 of California and in this Court. I am co-counsel for Plaintiff Synergy Project Management, Inc.
4 with Attorney Randolph E. Daar.
5 2. Mr. Daar and I substituted in as counsel for Synergy on December 28, 2021. We have
6 worked diligently since that time to get up to speed in this case, familiarize ourselves with the
7 detailed facts and complex procedural history of this case, meet and confer with defense counsel
8 about how best to put the case on track for trial, prepare Synergy’s Proposed Fourth Amended
9 Complaint, and its still-pending Motion to Reopen Discovery, and respond to defendants’
10 filings.
11 3. I am informed and believe that the parties have all grappled with, and met and
12 conferred extensively, on how best to unify the pleadings and put this cases on track toward trial
13 given its unusually complex procedural history. The City itself did not move to continue the trial
14 the first time until January 7, 2022, after the parties spent time meeting and conferring regarding
15 the City’s proposed continuance and related issues. I filed Synergy’s motion for leave to amend
16 just two weeks later, on January 20, 2022.
17 4. Thereafter, for the sake of efficiency, Synergy and the City agreed that Synergy
18 would wait to move to reopen discovery after the Court ruled on Synergy’s motion for leave to
19 amend and the parties had met and conferred regarding the scope of further discovery. I am
20 informed and believe that my co-counsel, Mr. Daar, in fact pressed for the parties to meet and
21 confer beginning on March 8, 2022, and brought them together on the phone on March 17, 2022,
22 followed by extensive further discussions over email.
23 5. I am informed and believe that during the parties’ meet and confer phone conference
24 on March 17, 2022, Deputy City Attorney Jaime Huling-Delaye informed my co-counsel,
25 Mr. Daar, that the City needed and intended to request a further trial continuance based on the
26 fact that Ms. Huling-Delaye’s was pregnant and would be taking maternity leave.
27 6. Exhibit 1 hereto is a true and correct excerpt from the City’s 2/10/22 opposition to
28 Synergy’s motion for leave to amend (passage highlighted by me).
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D ECL . R OSENFELD ISO P LTFF ’ S C ORR . L IMITED O PP . TO C ITY D EFS ’ M O . C ONTINUE T RIAL
No. CGC-17-560034
1 7. Exhibit 2 hereto is a true and correct copy of the Court’s 3/24/22 Order granting in
2 part and denying in part Synergy’s motion for leave to amend.
3 8. For the sake of efficiency, I filed Synergy’s pending motion to reopen discovery on
4 March 21, 2022, even though the Court’s final ruling on Synergy’s motion for leave to amend
5 was still pending (and became finalized on March 24, 2022).
6 9. Even though Synergy did not file its Fourth Amended Complaint (4AC) until April
7 20, 2022, the Court’s March 24, 2022 Order made it abundantly clear what Synergy’s 4AC could
8 and would consist of. Synergy attached a proposed Fourth Amended Complaint to its motion for
9 leave to amend. On February 24, 2022, the Court issued the tentative ruling which it later
10 adopted verbatim on March 24, 2022 granting in part and denying in part Synergy’s motion for
11 leave to amend. The evident reason for the delay is that Department 302 Clerk overlooked my
12 email containing a Microsoft Word version of the tentative ruling between when I first emailed it
13 on March 2 and when the Clerk re-requested it (and I re-emailed it) on March 22, 2022.
14 10. Nowhere in their opposition papers to Synergy’s Motion to Reopen Discovery did the
15 City’ clearly inform the Court that the City intended to seek an additional seven month trial
16 continuance, despite the fact that DCA Jaime Huling Delaye began telegraphing this to us in mid
17 March 2022.
18 11. Exhibit 3 hereto is a true and correct copy of Ms. Huling Delaye’s 3/29/22 10:25 AM
19 email, stating that that the City would seek another trial continuance based, in part, “on my
20 upcoming maternity leave.” (passages highlighted by me).
21 12. Exhibit 4 hereto is a true and correct excerpt from the City’s opposition to Synergy’s
22 motion to reopen discovery (passage highlighted by me).
23 13. I swear under penalty of perjury under the laws of the State of California that the
24 foregoing is true and correct, except as to those matters stated on information and belief, and as
25 to those matters, I believe them to be true.
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D ECL . R OSENFELD ISO P LTFF ’ S C ORR . L IMITED O PP . TO C ITY D EFS ’ M O . C ONTINUE T RIAL
No. CGC-17-560034
1 Sworn and subscribed to at San Francisco, California on May 4, 2022.
2 Respectfully Submitted,
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5 Ben Rosenfeld
Attorney for Plaintiff Synergy
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D ECL . R OSENFELD ISO P LTFF ’ S C ORR . L IMITED O PP . TO C ITY D EFS ’ M O . C ONTINUE T RIAL
No. CGC-17-560034
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C ASE No. CGC-17-560034
1 DAVID CHIU, SBN 189542
City Attorney
2 YVONNE R. MERÉ, SBN 173594
Chief Deputy City Attorney
3 ELAINE M. O’NEIL, SBN142234
JAIME M. HULING DELAYE, SBN 270784
4 ARI A. BARUTH, SBN 258418
Deputy City Attorneys
5 1390 Market Street, 6th Floor
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
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COUNTY OF SAN FRANCISCO
11
UNLIMITED JURISDICTION
12
13 SYNERGY PROJECT MANAGEMENT, INC., Case No. CGC-17-560034
(Consolidated with Case No. CGC-19-576488)
14 Plaintiff,
DEFENDANT CITY AND COUNTY OF
15 v. SAN FRANCISCO’S OPPOSITION TO
PLAINTIFF SYNERGY PROJECT
16 CITY AND COUNTY OF SAN FRANCISCO, MANAGEMENT, INC.’S MOTION FOR
LEAVE TO FILE FOURTH AMENDED
17 Defendant. COMPLAINT AND TO SUBSTITUTE
HARLAN KELLY FOR DOE #1
18
GHILOTTI BROS., INC., a California Corporation, Hearing Date: February 25, 2022
19 Hearing Judge: Hon. Richard Ulmer, Jr.
Plaintiff, Time: 9:30 a.m.
20 Place: Dept. 302
v.
21 Date Action Filed: July 10, 2017
SYNERGY PROJECT MANAGEMENT, INC., a Trial Date: September 19, 2022
22 California Corporation, and DOES 1-30,
23 Defendants.
24 SYNERGY PROJECT MANAGEMENT, a
California Corporation, Cross-Complainant,
25
v.
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GHILOTTI BROS, INC., a California Corporation,
27 and ROES 1-20,
28 Cross-Defendants.
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CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx
1 The trial was recently continued to September 19, 2022. It is hard to imagine that within seven
2 months, the parties could resolve the pleadings, conduct discovery on five entirely new causes of
3 action based on new factual premises (especially with a brand-new party added that has not engaged in
4 any discovery), file dispositive motions, and be ready for trial. In addition to causing a trial delay, the
5 proposed amendment would add enormous preparation costs, introducing new witnesses and
6 necessitating new discovery on new topics in a case where massive amounts of discovery have already
7 been produced responsive to previous factual and legal theories.
8 Given that none of the previous legal theories involved Mr. Kelly, AzulWorks, Inc., or any
9 alleged kickback schemes, it is likely that critical evidence has been lost in the past four and a half
10 years. The gravamen of Synergy’s original complaint(s) was that then-Supervisor Breed asked Mr.
11 Nuru to remove Synergy from the Haight Street Project (in violation of the Subletting and
12 Subcontracting Fair Practices Act and federal due process protections), and deny it work on the Van
13 Ness Project, in retaliation for Synergy’s allegedly First Amendment protected petitioning activity of
14 bringing lawsuits against the City prior to 2015. The evidence preservation in this case necessarily
15 focused on the witnesses and allegations identified in the initial complaint, initial disclosures in federal
16 court, and subsequent amendments. Now, Synergy seeks to pivot its focus away from then-Supervisor
17 Breed (and the related witnesses and documents from her former Supervisor’s office) to a new
18 defendant Harlan Kelly, and an entirely new City department, the Public Utilities Commission which
19 has not been the subject of previous allegations or discovery. Given that many of the key events
20 recounted in the proposed fourth amended complaint happened seven years ago in 2015, the City
21 would be prejudiced by the loss of evidence that it has not had any obligation to preserve. Such
22 litigation by surprise should not be allowed.
23 Synergy initiated this litigation in 2017, and has sought relief both in federal and state court. In
24 the wide-ranging dispute over Synergy’s removal from the Haight Street Project, multiple appeals
25 have been taken, with no substantive results for Synergy. Synergy has had plenty of opportunities
26 over four and half years to present its claims in this case. Consistently, over the history of this case,
27 Synergy’s claims against City Defendants have been narrowed; now only intentional interference
28 allegations against the City itself should remain. Allowing Synergy at this late hour to greatly expand
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CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx
1 its claims by substituting in new factual bases for the City’s alleged intentional interference, while also
2 filing five new causes of action against the City and its former employees, would greatly prejudice the
3 City.
4 Synergy has been a dogged litigant, often apparently driven by a vendetta against the City. But
5 its litigation strategy of filing never-ending motions designed to drive up costs and harass must come
6 to an end, so that the actual issues between the parties can be resolved on the merits. (See Green v.
7 Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686, 693-694 [denial based on “legal
8 gamesmanship” and additional discovery].)
9 CONCLUSION
10 The Court should deny Synergy’s belated and repeated motion for leave to amend. It should
11 instead order Synergy to file the Second Amended Complaint previously filed in federal court,
12 containing the claims reinstated by the Ninth Circuit, so that this Court may proceed in adjudicating
13 the sufficiency of that complaint as contemplated by the district court’s order remanding the claims to
14 the Superior Court.
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16 Dated: February 10, 2022
17 DAVID CHIU
City Attorney
18 YVONNE R. MERÉ
Chief Deputy City Attorney
19 ELAINE M. O’NEIL
JAIME M. HULING DELAYE
20
ARI A. BARUTH
21 Deputy City Attorneys
22 By: /S/ JAIME M. HULING DELAYE
JAIME M. HULING DELAYE
23
Attorneys for Defendant
24 CITY AND COUNTY OF SAN FRANCISCO
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CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx
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9 EXHIBIT 2
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C ASE No. CGC-17-560034
FILED
San Francisco County Superior Court
MAR2 4 ZOZZ
""c~,:L~~R1'.__ eputyClerk
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
SYNERGY PROJECT MANAGEMENT, Case Nos. CGC-17-560034
INC., Plaintiff, and CGC-19-576488, consolidated.
V. [P~ORDER GRANTING IN
PART PLAINTIFF'S MOTION FOR
CITY AND COUNTY OF SAN FRANCISCO, LEA VE TO FILE FOURTH AMENDED
LONDON BREED, MOHAMMED NURU, COMPLAINT
Defendants.
GHILOTTI BROS., INC., Plaintiff,
v.
SYNERGY PROJECT MANAGEMENT,
INC., a California Corporation, DOES 1-30,
Defendants.
SYNERGY PROJECT MANAGEMENT,
Cross-Complainant,
v.
GHILOTTI BROS, INC., ROES 1-20,
Cross-Defendants.
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CASENo. CGC-17-560034
Plaintiffs renewed motion to file a comprehensive Fourth Amended Complaint is
granted in part. Plaintiff clearly needs to file one operative pleading against the City and Ghilotti
Brothers, Inc.
The court concludes that the decision of Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9
Cal.5th 1130 and the Ninth Circuit's reliance on that case in determining plaintiffs viable claims
against the City (opinion issued on June 7, 2021) are new law, facts, and circumstances that
warrant renewal of the motion to amend. Plaintiff has leave to amend to plead independently
wrongful conduct (e.g. kickback scheme) to support the intentional interference with contract
and intentional interference with prospective advantage claims.
The court denies the remainder of the proposed amendments. Plaintiffs request to name
Kelly and Nuru as defendants and add causes of action for conspiracy to interfere with
prospective economic advantage, fraudulent concealment, unjust enrichment, and racketeering
under 18 U.S.C. § 1962 are untimely and allowing the amendments at this point would be
prejudicial. Adding these new claims and parties will undoubtedly lead to another trial
continuance and increased litigation costs. "The law is well settled that a long deferred
presentation of the proposed amendment without a showing of excuse for the delay is itself a
significant factor to uphold the trial court's denial of the amendment ... The law is also clear that
even if a good amendment is proposed in proper form, unwarranted delay in presenting it may-
of itself-be a valid reason for denial." (Leader v. Health Industries of America., Inc. (2001) 89
Cal.App.4th 603, 613.) "Where inexcusable delay and probable prejudice to the opposing party
is indicated, the trial court's exercise of discretion in denying a proposed amendment should not
be disturbed." (Estate of Murphy v. Gulf Insurance Co. (1978) 82 Cal.App.3d 304, 311.)
The record belies counsel Rosenfeld's claim that the December 17, 2021, announcement
that Nuru would plead guilty revealed conduct showing that Nuru and Kelly engaged in
corruption. (Rosenfeld Deel., par. 23.) Plaintiffs moving papers seeking amendment filed on
March 5, 2021 clearly referenced the alleged Kelly/Nuru scheme. (Plaintiffs P&A, 3:13-4:4.)
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CASENo. CGC-17-560034
The court reads department 206's February 3, 2022, order to require a formal motion to
reopen discovery and department 206 did not rule that the discovery cut-off runs from the current
trial date of September 19, 2022.
IT IS SO ORDERED .
Date
.~ f21
,- /
l2--r
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CASENo. CGC-17-560034
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C ASE No. CGC-17-560034
Re: Synergy v. City and County of San Francisco
to spin our wheels trying to locate people whose
contact info the City knows (info we would be
able to get in discovery anyway).
Please let us know right away if you can agree to these
terms, upon which, yes, we are agreed to a further trial
continuance, and will re-notice our pending motion to
reopen for no sooner than April 20 (we have to look at our
own schedules) to open up needed room to continue our
discussions around the terms of a discovery stipulation.
(Thereafter, if the Court in fact grants the requested trial
continuance, we would either alert the Court to our modified
discovery request or withdraw our motion, depending on
whether we reached partial or full stipulation.)
Best, Ben
On 3/29/22 10:25 AM, Huling Delaye, Jaime (CAT) wrote:
The City will file (what it hopes will be a joint,
unopposed) mo-on for a trial con-nuance on Monday
April 4, 2022 if Synergy will confirm by noon today that
it will re-no-ce its mo-on to reopen discovery for an
April 20, 2022 hearing or later and assuming that we
have in place by Monday, April 4, 2022 at least a par-al
s-pula-on regarding re-opening discovery (to support a
statutory basis for the con-nuance).
As previously discussed, we would an-cipate that the
requested con-nuance be 9 months, in order to allow
the pleadings to be seFled, discovery to be conducted,
mo-ons for summary judgment to be filed, and to
accommodate my maternity leave. If GBI wants to go to
trial sooner, the City would not oppose separate trials.
Please confirm by noon today that Synergy agrees to re-
no-ce its mo-on to reopen discovery by at least one
week.
Best,
Jaime
Jaime Huling Delaye
Deputy City AForney
Complex and Affirma-ve Li-ga-on Team
San Francisco City AForney's Office
1390 Market Street, 7th Floor
San Francisco, CA 94102
Direct: 415-554-3957/Cell: 415-671-9841
8 of 10 5/2/22, 8:10 PM
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C ASE No. CGC-17-560034
1 DAVID CHIU, State Bar #189542
City Attorney
2 YVONNE R. MERÉ, SBN 173594
Chief Deputy City Attorney
3 ELAINE M. O’NEIL, SBN142234
JAIME M. HULING DELAYE, SBN 270784
4 ARI A. BARUTH, SBN 258418
Deputy City Attorneys
5 1390 Market Street, 6th Floor
San Francisco, CA 94102-5408
6 Telephone: (415) 554-3957
Facsimile: (415) 437-4644
7 Email: Jaime.HulingDelaye@sfcityatty.org
8 Attorneys for Defendant
CITY AND COUNTY OF SAN FRANCISCO
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF SAN FRANCISCO
11
UNLIMITED JURISDICTION
12
13 SYNERGY PROJECT MANAGEMENT, INC., Case No. CGC-17-560034
(Consolidated with Case No. CGC-19-576488)
14 Plaintiff,
DEFENDANT CITY AND COUNTY OF
15 v. SAN FRANCISCO’S OPPOSITION TO
PLAINTIFF SYNERGY PROJECT
16 CITY AND COUNTY OF SAN FRANCISCO, MANAGEMENT, INC.’S MOTION TO
REOPEN DISCOVERY
17 Defendant.
Hearing Date: April 20, 2022
18 GHILOTTI BROS., INC., a California Corporation, Hearing Judge: Hon. Richard B. Ulmer Jr.
Time: 9:30 a.m.
19 Plaintiff, Place: 302
20 v. Date Action Filed: July 10, 2017
Trial Date: September 19, 2022
21 SYNERGY PROJECT MANAGEMENT, INC., a
California Corporation, and DOES 1-30,
22
Defendants.
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
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Opposition to Motion to Reopen Discovery, Case No. CGC-17-560034 n:\constr\li2021\180435\01593792.docx
1 passed on July 8, 2019.
2 Synergy could have noticed more than two depositions in federal court, but it did not. Nor did
3 it move to compel the two depositions—of Mayor Breed and Mohammed Nuru—that it sought after
4 the City objected to those notices as deficient. 5 If Synergy thought the City’s document production
5 was deficient, it could have brought a motion to compel. Reopening discovery will reward Synergy’s
6 lack of diligence and once again subject the City to broad, unfocused, harassing discovery.
7 III. Synergy Does Not Properly Account for the Prejudice to the City of Reopening Discovery
8 Code of Civil Procedure 2024.050(b)(3) requires the court to “take into consideration . . . (3)
9 any likelihood that permitting the discovery . . . will prevent the case from going to trial on the date
10 set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.” Synergy’s
11 motion ignores these mandatory factors. Any reopening of discovery would necessarily require a
12 significant trial and dispositive motion continuance in order to avoid prejudice to the City. Synergy
13 has taken the position that it will oppose any trial continuance sought by the City, further
14 compounding the prejudice of reopening discovery to the City. (Huling Delaye Dec. ¶34.)
15 If this Court reopens discovery and Synergy serves discovery on the day of the hearing, the
16 City’s responses would not be due until May 20, 2022. Based on the current trial date of September
17 19, 2022, motions for summary judgment are presently due on June 2, 2022. There is simply not
18 enough time to conduct the vast discovery Synergy desires before the summary judgment deadline.
19 Moreover, lead counsel for the City, who has litigated this case for over four years and is intimately
20 familiar with it, has repeatedly informed Synergy’s counsel that she will be in trial in federal district
21 court in San Francisco’s bellwether opioid trial beginning April 25, 2022. (Huling Delaye Dec. ¶ 24.)
22 That trial is presently scheduled to continue through July 27, 2022. (Ibid.) The City will be
23 prejudiced by being deprived it of its lead counsel during critical discovery for no reason other than
24 Synergy’s lack of diligence. Even if another deputy were to join this case, given the voluminous and
25 complicated record, that lawyer would require time to familiarize herself with it to meaningfully
26 participate in discovery.
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There unequivocally was no agreement that Synergy could take depositions after the close of
28 fact discovery in federal court. (Huling Delaye Dec. ¶ 15.)
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Opposition to Motion to Reopen Discovery, Case No. CGC-17-560034 n:\constr\li2021\180435\01593792.docx
1 Synergy’s suggestion that it would be prejudiced by the City demurring to the anticipated
2 fourth amended complaint without being allowed to conduct additional discovery ignores that of
3 course, such a demurrer must be decided on the face of the complaint and documents incorporated by
4 reference into it, not by additional discovered facts.
5 IV. If the Court Is Inclined to Reopen Discovery, It Should Set Strict Discovery Limitations
6 The City does not object to the completion of discovery between Ghilotti and Synergy that was
7 timely served before the discovery cutoff based on the prior March 29, 2021 trial date. To the extent
8 previously-noticed depositions are allowed to go forward between those parties (such as the PMK
9 deposition of Ghilotti), the City asks that it be given leave to cross-notice those depositions and be
10 present at them. The City has never had an opportunity to conduct party discovery on Ghilotti.
11 To the extent Synergy is allowed to conduct further discovery against the City, the City should
12 be permitted to conduct discovery to the same extent against Synergy. The City suggests that any
13 mutual reopening of discovery be limited to noticing three fact depositions (inclusive of PMK
14 depositions to last no longer than seven hours each), ten RFAs, ten RFPs, ten special interrogatories,
15 and one set of form interrogatories, and that all such discovery must be limited to factual allegations of
16 the anticipated fourth amended complaint that were not previously pled in the FAC, SAC, or TAC, as
17 well as any answer that may be filed by the City.
18 ///
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Opposition to Motion to Reopen Discovery, Case No. CGC-17-560034 n:\constr\li2021\180435\01593792.docx
CONCLUSION
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For the above reasons, Synergy’s motion for leave to reopen discovery should be denied
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without prejudice to refiling if its anticipated fourth amended complaint survives demurrer. In the
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alternative, if the Court reopens discovery, it should do so within narrow numerical and subject-matter
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parameters.
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6 Dated: April 7, 2022
DAVID CHIU
7 City Attorney
YVONNE R. MERÉ
8 Chief Deputy City Attorney
ELAINE M. O’NEIL
9 JAIME M. HULING DELAYE
ARI A. BARUTH
10 Deputy City Attorneys
11 By: /S/ JAIME M. HULING DELAYE
JAIME M. HULING DELAYE
12
Attorneys for Defendants
13 CITY AND COUNTY OF SAN FRANCISCO
14 OF SAN FRANCISCO
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Opposition to Motion to Reopen Discovery, Case No. CGC-17-560034 n:\constr\li2021\180435\01593792.docx
Preview
1 RANDOLPH E. DAAR (SBN 88195) BEN ROSENFELD (SBN 203845) 2 ATTORNEYS AT LAW ELECTRONICALLY 3 3330 Geary Blvd., 3rd Floor East San Francisco, CA 94118 F I L E D Superior Court of California, 4 Tel: (415) 986-5591 County of San Francisco Fax: (415) 421-1331 05/04/2022 5 randolphdaar@yahoo.com Clerk of the Court ben.rosenfeld@comcast.net BY: ERNALYN BURA 6 Deputy Clerk 7 Attorneys for Plaintiff Synergy Project Management, Inc. 8 9 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 10 11 COUNTY OF SAN FRANCISCO 12 SYNERGY PROJECT MANAGEMENT, Case Nos. CGC-17-560034 13 INC., Plaintiff, and CGC-19-576488, consolidated 14 v. DECLARATION OF PLAINTIFF’S 15 COUNSEL BEN ROSENFELD ISO CITY AND COUNTY OF SAN FRANCISCO, PLAINTIFF’S (CORRECTED) LIMITED 16 LONDON BREED, MOHAMMED NURU, OPPOSITION TO CITY DEFENDANTS’ Defendants. MOTION TO CONTINUE TRIAL AGAIN 17 ______________________________________ Date: May 17, 2022 18 GHILOTTI BROS., INC., Plaintiff, Time: 9:30 am. 19 Dept.: 206 (Hon. Samuel K. Feng) v. 20 Action Filed: July 10, 2017 SYNERGY PROJECT MANAGEMENT, Trial Date: September 19, 2022 21 INC., a California Corporation, DOES 1-30, Defendants. 22 ______________________________________ 23 SYNERGY PROJECT MANAGEMENT, 24 Cross-Complainant, 25 v. 26 GHILOTTI BROS, INC., ROES 1-20, 27 Cross-Defendants. 28 1 D ECL . R OSENFELD ISO P LTFF ’ S C ORR . L IMITED O PP . TO C ITY D EFS ’ M O . C ONTINUE T RIAL No. CGC-17-560034 1 I, Ben Rosenfeld, declare as follows: 2 1. I am over the age of 18. I am an attorney licensed to practice law throughout the State 3 of California and in this Court. I am co-counsel for Plaintiff Synergy Project Management, Inc. 4 with Attorney Randolph E. Daar. 5 2. Mr. Daar and I substituted in as counsel for Synergy on December 28, 2021. We have 6 worked diligently since that time to get up to speed in this case, familiarize ourselves with the 7 detailed facts and complex procedural history of this case, meet and confer with defense counsel 8 about how best to put the case on track for trial, prepare Synergy’s Proposed Fourth Amended 9 Complaint, and its still-pending Motion to Reopen Discovery, and respond to defendants’ 10 filings. 11 3. I am informed and believe that the parties have all grappled with, and met and 12 conferred extensively, on how best to unify the pleadings and put this cases on track toward trial 13 given its unusually complex procedural history. The City itself did not move to continue the trial 14 the first time until January 7, 2022, after the parties spent time meeting and conferring regarding 15 the City’s proposed continuance and related issues. I filed Synergy’s motion for leave to amend 16 just two weeks later, on January 20, 2022. 17 4. Thereafter, for the sake of efficiency, Synergy and the City agreed that Synergy 18 would wait to move to reopen discovery after the Court ruled on Synergy’s motion for leave to 19 amend and the parties had met and conferred regarding the scope of further discovery. I am 20 informed and believe that my co-counsel, Mr. Daar, in fact pressed for the parties to meet and 21 confer beginning on March 8, 2022, and brought them together on the phone on March 17, 2022, 22 followed by extensive further discussions over email. 23 5. I am informed and believe that during the parties’ meet and confer phone conference 24 on March 17, 2022, Deputy City Attorney Jaime Huling-Delaye informed my co-counsel, 25 Mr. Daar, that the City needed and intended to request a further trial continuance based on the 26 fact that Ms. Huling-Delaye’s was pregnant and would be taking maternity leave. 27 6. Exhibit 1 hereto is a true and correct excerpt from the City’s 2/10/22 opposition to 28 Synergy’s motion for leave to amend (passage highlighted by me). 2 D ECL . R OSENFELD ISO P LTFF ’ S C ORR . L IMITED O PP . TO C ITY D EFS ’ M O . C ONTINUE T RIAL No. CGC-17-560034 1 7. Exhibit 2 hereto is a true and correct copy of the Court’s 3/24/22 Order granting in 2 part and denying in part Synergy’s motion for leave to amend. 3 8. For the sake of efficiency, I filed Synergy’s pending motion to reopen discovery on 4 March 21, 2022, even though the Court’s final ruling on Synergy’s motion for leave to amend 5 was still pending (and became finalized on March 24, 2022). 6 9. Even though Synergy did not file its Fourth Amended Complaint (4AC) until April 7 20, 2022, the Court’s March 24, 2022 Order made it abundantly clear what Synergy’s 4AC could 8 and would consist of. Synergy attached a proposed Fourth Amended Complaint to its motion for 9 leave to amend. On February 24, 2022, the Court issued the tentative ruling which it later 10 adopted verbatim on March 24, 2022 granting in part and denying in part Synergy’s motion for 11 leave to amend. The evident reason for the delay is that Department 302 Clerk overlooked my 12 email containing a Microsoft Word version of the tentative ruling between when I first emailed it 13 on March 2 and when the Clerk re-requested it (and I re-emailed it) on March 22, 2022. 14 10. Nowhere in their opposition papers to Synergy’s Motion to Reopen Discovery did the 15 City’ clearly inform the Court that the City intended to seek an additional seven month trial 16 continuance, despite the fact that DCA Jaime Huling Delaye began telegraphing this to us in mid 17 March 2022. 18 11. Exhibit 3 hereto is a true and correct copy of Ms. Huling Delaye’s 3/29/22 10:25 AM 19 email, stating that that the City would seek another trial continuance based, in part, “on my 20 upcoming maternity leave.” (passages highlighted by me). 21 12. Exhibit 4 hereto is a true and correct excerpt from the City’s opposition to Synergy’s 22 motion to reopen discovery (passage highlighted by me). 23 13. I swear under penalty of perjury under the laws of the State of California that the 24 foregoing is true and correct, except as to those matters stated on information and belief, and as 25 to those matters, I believe them to be true. 26 27 28 3 D ECL . R OSENFELD ISO P LTFF ’ S C ORR . L IMITED O PP . TO C ITY D EFS ’ M O . C ONTINUE T RIAL No. CGC-17-560034 1 Sworn and subscribed to at San Francisco, California on May 4, 2022. 2 Respectfully Submitted, 3 4 5 Ben Rosenfeld Attorney for Plaintiff Synergy 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 D ECL . R OSENFELD ISO P LTFF ’ S C ORR . L IMITED O PP . TO C ITY D EFS ’ M O . C ONTINUE T RIAL No. CGC-17-560034 1 2 3 4 5 6 7 8 9 EXHIBIT 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C ASE No. CGC-17-560034 1 DAVID CHIU, SBN 189542 City Attorney 2 YVONNE R. MERÉ, SBN 173594 Chief Deputy City Attorney 3 ELAINE M. O’NEIL, SBN142234 JAIME M. HULING DELAYE, SBN 270784 4 ARI A. BARUTH, SBN 258418 Deputy City Attorneys 5 1390 Market Street, 6th Floor San Francisco, CA 94102-5408 6 Telephone: (415) 554-3957 Facsimile: (415) 437-4644 7 Email: Jaime.HulingDelaye@sfcityatty.org 8 Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 UNLIMITED JURISDICTION 12 13 SYNERGY PROJECT MANAGEMENT, INC., Case No. CGC-17-560034 (Consolidated with Case No. CGC-19-576488) 14 Plaintiff, DEFENDANT CITY AND COUNTY OF 15 v. SAN FRANCISCO’S OPPOSITION TO PLAINTIFF SYNERGY PROJECT 16 CITY AND COUNTY OF SAN FRANCISCO, MANAGEMENT, INC.’S MOTION FOR LEAVE TO FILE FOURTH AMENDED 17 Defendant. COMPLAINT AND TO SUBSTITUTE HARLAN KELLY FOR DOE #1 18 GHILOTTI BROS., INC., a California Corporation, Hearing Date: February 25, 2022 19 Hearing Judge: Hon. Richard Ulmer, Jr. Plaintiff, Time: 9:30 a.m. 20 Place: Dept. 302 v. 21 Date Action Filed: July 10, 2017 SYNERGY PROJECT MANAGEMENT, INC., a Trial Date: September 19, 2022 22 California Corporation, and DOES 1-30, 23 Defendants. 24 SYNERGY PROJECT MANAGEMENT, a California Corporation, Cross-Complainant, 25 v. 26 GHILOTTI BROS, INC., a California Corporation, 27 and ROES 1-20, 28 Cross-Defendants. 1 CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx 1 The trial was recently continued to September 19, 2022. It is hard to imagine that within seven 2 months, the parties could resolve the pleadings, conduct discovery on five entirely new causes of 3 action based on new factual premises (especially with a brand-new party added that has not engaged in 4 any discovery), file dispositive motions, and be ready for trial. In addition to causing a trial delay, the 5 proposed amendment would add enormous preparation costs, introducing new witnesses and 6 necessitating new discovery on new topics in a case where massive amounts of discovery have already 7 been produced responsive to previous factual and legal theories. 8 Given that none of the previous legal theories involved Mr. Kelly, AzulWorks, Inc., or any 9 alleged kickback schemes, it is likely that critical evidence has been lost in the past four and a half 10 years. The gravamen of Synergy’s original complaint(s) was that then-Supervisor Breed asked Mr. 11 Nuru to remove Synergy from the Haight Street Project (in violation of the Subletting and 12 Subcontracting Fair Practices Act and federal due process protections), and deny it work on the Van 13 Ness Project, in retaliation for Synergy’s allegedly First Amendment protected petitioning activity of 14 bringing lawsuits against the City prior to 2015. The evidence preservation in this case necessarily 15 focused on the witnesses and allegations identified in the initial complaint, initial disclosures in federal 16 court, and subsequent amendments. Now, Synergy seeks to pivot its focus away from then-Supervisor 17 Breed (and the related witnesses and documents from her former Supervisor’s office) to a new 18 defendant Harlan Kelly, and an entirely new City department, the Public Utilities Commission which 19 has not been the subject of previous allegations or discovery. Given that many of the key events 20 recounted in the proposed fourth amended complaint happened seven years ago in 2015, the City 21 would be prejudiced by the loss of evidence that it has not had any obligation to preserve. Such 22 litigation by surprise should not be allowed. 23 Synergy initiated this litigation in 2017, and has sought relief both in federal and state court. In 24 the wide-ranging dispute over Synergy’s removal from the Haight Street Project, multiple appeals 25 have been taken, with no substantive results for Synergy. Synergy has had plenty of opportunities 26 over four and half years to present its claims in this case. Consistently, over the history of this case, 27 Synergy’s claims against City Defendants have been narrowed; now only intentional interference 28 allegations against the City itself should remain. Allowing Synergy at this late hour to greatly expand 17 CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx 1 its claims by substituting in new factual bases for the City’s alleged intentional interference, while also 2 filing five new causes of action against the City and its former employees, would greatly prejudice the 3 City. 4 Synergy has been a dogged litigant, often apparently driven by a vendetta against the City. But 5 its litigation strategy of filing never-ending motions designed to drive up costs and harass must come 6 to an end, so that the actual issues between the parties can be resolved on the merits. (See Green v. 7 Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686, 693-694 [denial based on “legal 8 gamesmanship” and additional discovery].) 9 CONCLUSION 10 The Court should deny Synergy’s belated and repeated motion for leave to amend. It should 11 instead order Synergy to file the Second Amended Complaint previously filed in federal court, 12 containing the claims reinstated by the Ninth Circuit, so that this Court may proceed in adjudicating 13 the sufficiency of that complaint as contemplated by the district court’s order remanding the claims to 14 the Superior Court. 15 16 Dated: February 10, 2022 17 DAVID CHIU City Attorney 18 YVONNE R. MERÉ Chief Deputy City Attorney 19 ELAINE M. O’NEIL JAIME M. HULING DELAYE 20 ARI A. BARUTH 21 Deputy City Attorneys 22 By: /S/ JAIME M. HULING DELAYE JAIME M. HULING DELAYE 23 Attorneys for Defendant 24 CITY AND COUNTY OF SAN FRANCISCO 25 26 27 28 18 CCSF Opposition to Motion, Case No. CGC-17-56003 n:\constr\li2021\180435\01582264.docx 1 2 3 4 5 6 7 8 9 EXHIBIT 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C ASE No. CGC-17-560034 FILED San Francisco County Superior Court MAR2 4 ZOZZ ""c~,:L~~R1'.__ eputyClerk SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO SYNERGY PROJECT MANAGEMENT, Case Nos. CGC-17-560034 INC., Plaintiff, and CGC-19-576488, consolidated. V. [P~ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR CITY AND COUNTY OF SAN FRANCISCO, LEA VE TO FILE FOURTH AMENDED LONDON BREED, MOHAMMED NURU, COMPLAINT Defendants. GHILOTTI BROS., INC., Plaintiff, v. SYNERGY PROJECT MANAGEMENT, INC., a California Corporation, DOES 1-30, Defendants. SYNERGY PROJECT MANAGEMENT, Cross-Complainant, v. GHILOTTI BROS, INC., ROES 1-20, Cross-Defendants. 1 CASENo. CGC-17-560034 Plaintiffs renewed motion to file a comprehensive Fourth Amended Complaint is granted in part. Plaintiff clearly needs to file one operative pleading against the City and Ghilotti Brothers, Inc. The court concludes that the decision of Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130 and the Ninth Circuit's reliance on that case in determining plaintiffs viable claims against the City (opinion issued on June 7, 2021) are new law, facts, and circumstances that warrant renewal of the motion to amend. Plaintiff has leave to amend to plead independently wrongful conduct (e.g. kickback scheme) to support the intentional interference with contract and intentional interference with prospective advantage claims. The court denies the remainder of the proposed amendments. Plaintiffs request to name Kelly and Nuru as defendants and add causes of action for conspiracy to interfere with prospective economic advantage, fraudulent concealment, unjust enrichment, and racketeering under 18 U.S.C. § 1962 are untimely and allowing the amendments at this point would be prejudicial. Adding these new claims and parties will undoubtedly lead to another trial continuance and increased litigation costs. "The law is well settled that a long deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court's denial of the amendment ... The law is also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may- of itself-be a valid reason for denial." (Leader v. Health Industries of America., Inc. (2001) 89 Cal.App.4th 603, 613.) "Where inexcusable delay and probable prejudice to the opposing party is indicated, the trial court's exercise of discretion in denying a proposed amendment should not be disturbed." (Estate of Murphy v. Gulf Insurance Co. (1978) 82 Cal.App.3d 304, 311.) The record belies counsel Rosenfeld's claim that the December 17, 2021, announcement that Nuru would plead guilty revealed conduct showing that Nuru and Kelly engaged in corruption. (Rosenfeld Deel., par. 23.) Plaintiffs moving papers seeking amendment filed on March 5, 2021 clearly referenced the alleged Kelly/Nuru scheme. (Plaintiffs P&A, 3:13-4:4.) 2 CASENo. CGC-17-560034 The court reads department 206's February 3, 2022, order to require a formal motion to reopen discovery and department 206 did not rule that the discovery cut-off runs from the current trial date of September 19, 2022. IT IS SO ORDERED . Date .~ f21 ,- / l2--r 3 CASENo. CGC-17-560034 1 2 3 4 5 6 7 8 9 EXHIBIT 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C ASE No. CGC-17-560034 Re: Synergy v. City and County of San Francisco to spin our wheels trying to locate people whose contact info the City knows (info we would be able to get in discovery anyway). Please let us know right away if you can agree to these terms, upon which, yes, we are agreed to a further trial continuance, and will re-notice our pending motion to reopen for no sooner than April 20 (we have to look at our own schedules) to open up needed room to continue our discussions around the terms of a discovery stipulation. (Thereafter, if the Court in fact grants the requested trial continuance, we would either alert the Court to our modified discovery request or withdraw our motion, depending on whether we reached partial or full stipulation.) Best, Ben On 3/29/22 10:25 AM, Huling Delaye, Jaime (CAT) wrote: The City will file (what it hopes will be a joint, unopposed) mo-on for a trial con-nuance on Monday April 4, 2022 if Synergy will confirm by noon today that it will re-no-ce its mo-on to reopen discovery for an April 20, 2022 hearing or later and assuming that we have in place by Monday, April 4, 2022 at least a par-al s-pula-on regarding re-opening discovery (to support a statutory basis for the con-nuance). As previously discussed, we would an-cipate that the requested con-nuance be 9 months, in order to allow the pleadings to be seFled, discovery to be conducted, mo-ons for summary judgment to be filed, and to accommodate my maternity leave. If GBI wants to go to trial sooner, the City would not oppose separate trials. Please confirm by noon today that Synergy agrees to re- no-ce its mo-on to reopen discovery by at least one week. Best, Jaime Jaime Huling Delaye Deputy City AForney Complex and Affirma-ve Li-ga-on Team San Francisco City AForney's Office 1390 Market Street, 7th Floor San Francisco, CA 94102 Direct: 415-554-3957/Cell: 415-671-9841 8 of 10 5/2/22, 8:10 PM 1 2 3 4 5 6 7 8 9 EXHIBIT 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C ASE No. CGC-17-560034 1 DAVID CHIU, State Bar #189542 City Attorney 2 YVONNE R. MERÉ, SBN 173594 Chief Deputy City Attorney 3 ELAINE M. O’NEIL, SBN142234 JAIME M. HULING DELAYE, SBN 270784 4 ARI A. BARUTH, SBN 258418 Deputy City Attorneys 5 1390 Market Street, 6th Floor San Francisco, CA 94102-5408 6 Telephone: (415) 554-3957 Facsimile: (415) 437-4644 7 Email: Jaime.HulingDelaye@sfcityatty.org 8 Attorneys for Defendant CITY AND COUNTY OF SAN FRANCISCO 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 UNLIMITED JURISDICTION 12 13 SYNERGY PROJECT MANAGEMENT, INC., Case No. CGC-17-560034 (Consolidated with Case No. CGC-19-576488) 14 Plaintiff, DEFENDANT CITY AND COUNTY OF 15 v. SAN FRANCISCO’S OPPOSITION TO PLAINTIFF SYNERGY PROJECT 16 CITY AND COUNTY OF SAN FRANCISCO, MANAGEMENT, INC.’S MOTION TO REOPEN DISCOVERY 17 Defendant. Hearing Date: April 20, 2022 18 GHILOTTI BROS., INC., a California Corporation, Hearing Judge: Hon. Richard B. Ulmer Jr. Time: 9:30 a.m. 19 Plaintiff, Place: 302 20 v. Date Action Filed: July 10, 2017 Trial Date: September 19, 2022 21 SYNERGY PROJECT MANAGEMENT, INC., a California Corporation, and DOES 1-30, 22 Defendants. 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 Opposition to Motion to Reopen Discovery, Case No. CGC-17-560034 n:\constr\li2021\180435\01593792.docx 1 passed on July 8, 2019. 2 Synergy could have noticed more than two depositions in federal court, but it did not. Nor did 3 it move to compel the two depositions—of Mayor Breed and Mohammed Nuru—that it sought after 4 the City objected to those notices as deficient. 5 If Synergy thought the City’s document production 5 was deficient, it could have brought a motion to compel. Reopening discovery will reward Synergy’s 6 lack of diligence and once again subject the City to broad, unfocused, harassing discovery. 7 III. Synergy Does Not Properly Account for the Prejudice to the City of Reopening Discovery 8 Code of Civil Procedure 2024.050(b)(3) requires the court to “take into consideration . . . (3) 9 any likelihood that permitting the discovery . . . will prevent the case from going to trial on the date 10 set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.” Synergy’s 11 motion ignores these mandatory factors. Any reopening of discovery would necessarily require a 12 significant trial and dispositive motion continuance in order to avoid prejudice to the City. Synergy 13 has taken the position that it will oppose any trial continuance sought by the City, further 14 compounding the prejudice of reopening discovery to the City. (Huling Delaye Dec. ¶34.) 15 If this Court reopens discovery and Synergy serves discovery on the day of the hearing, the 16 City’s responses would not be due until May 20, 2022. Based on the current trial date of September 17 19, 2022, motions for summary judgment are presently due on June 2, 2022. There is simply not 18 enough time to conduct the vast discovery Synergy desires before the summary judgment deadline. 19 Moreover, lead counsel for the City, who has litigated this case for over four years and is intimately 20 familiar with it, has repeatedly informed Synergy’s counsel that she will be in trial in federal district 21 court in San Francisco’s bellwether opioid trial beginning April 25, 2022. (Huling Delaye Dec. ¶ 24.) 22 That trial is presently scheduled to continue through July 27, 2022. (Ibid.) The City will be 23 prejudiced by being deprived it of its lead counsel during critical discovery for no reason other than 24 Synergy’s lack of diligence. Even if another deputy were to join this case, given the voluminous and 25 complicated record, that lawyer would require time to familiarize herself with it to meaningfully 26 participate in discovery. 27 5 There unequivocally was no agreement that Synergy could take depositions after the close of 28 fact discovery in federal court. (Huling Delaye Dec. ¶ 15.) 16 Opposition to Motion to Reopen Discovery, Case No. CGC-17-560034 n:\constr\li2021\180435\01593792.docx 1 Synergy’s suggestion that it would be prejudiced by the City demurring to the anticipated 2 fourth amended complaint without being allowed to conduct additional discovery ignores that of 3 course, such a demurrer must be decided on the face of the complaint and documents incorporated by 4 reference into it, not by additional discovered facts. 5 IV. If the Court Is Inclined to Reopen Discovery, It Should Set Strict Discovery Limitations 6 The City does not object to the completion of discovery between Ghilotti and Synergy that was 7 timely served before the discovery cutoff based on the prior March 29, 2021 trial date. To the extent 8 previously-noticed depositions are allowed to go forward between those parties (such as the PMK 9 deposition of Ghilotti), the City asks that it be given leave to cross-notice those depositions and be 10 present at them. The City has never had an opportunity to conduct party discovery on Ghilotti. 11 To the extent Synergy is allowed to conduct further discovery against the City, the City should 12 be permitted to conduct discovery to the same extent against Synergy. The City suggests that any 13 mutual reopening of discovery be limited to noticing three fact depositions (inclusive of PMK 14 depositions to last no longer than seven hours each), ten RFAs, ten RFPs, ten special interrogatories, 15 and one set of form interrogatories, and that all such discovery must be limited to factual allegations of 16 the anticipated fourth amended complaint that were not previously pled in the FAC, SAC, or TAC, as 17 well as any answer that may be filed by the City. 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 17 Opposition to Motion to Reopen Discovery, Case No. CGC-17-560034 n:\constr\li2021\180435\01593792.docx CONCLUSION 1 For the above reasons, Synergy’s motion for leave to reopen discovery should be denied 2 without prejudice to refiling if its anticipated fourth amended complaint survives demurrer. In the 3 alternative, if the Court reopens discovery, it should do so within narrow numerical and subject-matter 4 parameters. 5 6 Dated: April 7, 2022 DAVID CHIU 7 City Attorney YVONNE R. MERÉ 8 Chief Deputy City Attorney ELAINE M. O’NEIL 9 JAIME M. HULING DELAYE ARI A. BARUTH 10 Deputy City Attorneys 11 By: /S/ JAIME M. HULING DELAYE JAIME M. HULING DELAYE 12 Attorneys for Defendants 13 CITY AND COUNTY OF SAN FRANCISCO 14 OF SAN FRANCISCO 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 Opposition to Motion to Reopen Discovery, Case No. CGC-17-560034 n:\constr\li2021\180435\01593792.docx