Motion to Continue in SYNERGY PROJECT MANAGEMENT, INC. VS. CITY AND COUNTY OF SAN FRANCISCO| Trellis.Law

On July 10, 2017 a Motion-Secondary was filed involving a dispute between City And County Of San Francisco, City And County Of San Francisco (Consolidated, Ghlotti Bros., Inc., A California Corporation, Synergy Project Management, Inc., and Breed, London, City And County Of San Francisco, Does 1-100, Does 2-100, Et Al., Ghilotti Bros., Inc., Nuru, Mohammed, San Francisco Department Of Public Works, San Francisco Municipal Transportation Agency, San Francisco Public Utilities Commission, for OTHER NON EXEMPT COMPLAINTS (Intentional interference with contractual relations) in the District Court of San Francisco County.

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1 DAVID CHIU, State Bar #189542
City Attorney
2 YVONNE R. MERÉ, SBN 173594 ELECTRONICALLY
Chief Deputy City Attorney F I L E D
3 ELAINE M. O’NEIL, SBN142234 Superior Court of California,
County of San Francisco
JAIME M. HULING DELAYE, SBN 270784
4 ARI A. BARUTH, SBN 258418 04/21/2022
Deputy City Attorneys Clerk of the Court
BY: SANDRA SCHIRO
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,
DECLARATION OF JAIME M. HULING-
15 v. DELAYE IN SUPPORT OF DEFENDANT
CITY AND COUNTY OF SAN
16 CITY AND COUNTY OF SAN FRANCISCO, FRANCISCO’S MOTION TO CONTINUE
TRIAL, OR, IN THE ALTERNATIVE,
17 Defendant. FOR SEPARATE TRIALS

18 GHILOTTI BROS., INC., a California Corporation, Hearing Date: May 17, 2022
Hearing Judge: Hon. Samuel K. Feng
19 Plaintiff, Time: 9:30 a.m.
Place: 206
20 v.
Date Action Filed: July 10, 2017
21 SYNERGY PROJECT MANAGEMENT, INC., a Trial Date: September 19, 2022
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
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1 I, Jaime Huling Delaye, declare as follows:

2 1. I am an attorney admitted to practice law in the State of California and before this

3 Court. I am employed as a Deputy City Attorney with the Office of the City Attorney for the City and

4 County of San Francisco. I am assigned to represent the City and County of San Francisco (“the

5 City”) in the above-captioned litigation, and serve as lead counsel in this case. I have personal

6 knowledge of the facts contained herein, and I could and would testify competently thereto.

7 2. Synergy Project Management, Inc. (“Synergy”) filed the initial complaint in this action

8 against the City Defendants in San Francisco Superior Court on July 10, 2017, but did not serve that

9 complaint. On October 19, 2017, Synergy filed its First Amended Complaint (“FAC”) in this Court,

10 containing causes of action against the City, now-Mayor London Breed, and Mohammed Nuru

11 (collectively, the “City Defendants”). On October 24, 2017, Synergy served the FAC. City

12 Defendants removed the case to federal court on November 24, 2017, before responding to the FAC.

13 The FAC alleged claims for intentional interference with contract, intentional interference with

14 prospective economic advantage, negligent interference with prospective economic advantage, and

15 three federal civil rights causes of action. The district court partially dismissed the FAC, including

16 Synergy’s intentional interference claims against the City.

17 3. Synergy filed a Second Amended Complaint (“SAC”) in the Northern District of

18 California on June 5, 2018, repleading its intentional interference claims against the City as well as

19 other state and federal causes of action against City Defendants. On December 31, 2018, the district

20 court dismissed all of the SAC’s state law causes of action against City Defendants, with prejudice.

21 4. On May 26, 2019, Synergy filed a Third Amended Complaint (“TAC”) in the Northern

22 District of California containing only federal law claims against City Defendants and adding, for the

23 first time, state law claims against a new defendant, Ghilotti Brothers, Inc. (“Ghilotti”). Pursuant to

24 the district court’s June 27, 2018 Scheduling Order, fact discovery between City Defendants and

25 Synergy closed on July 1, 2019. On November 21, 2019, the Northern District of California dismissed

26 with prejudice all remaining causes of action pled against City Defendants, entered judgment in favor

27 of City Defendants, and ordered the remaining state law claims against Ghilotti remanded to San

28
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1 Francisco Superior Court. The remand of Synergy’s claims against Ghilotti was recorded in the

2 Register of Actions for this case on November 25, 2019.

3 5. Initially after the 2019 remand of Synergy’s claims against Ghilotti, the TAC was not

4 on file in the San Francisco Superior Court, as the remanded claims had originally been filed in the

5 district court. Accordingly, on December 27, 2019, the San Francisco Superior Court instructed

6 Synergy to file the TAC in this Court so that the claims against Ghilotti could proceed. Synergy did so

7 on January 31, 2020.

8 6. The initial trial date for claims between Synergy and Ghilotti was set for March 29,

9 2021. It was continued to August 23, 2021 by order of this Court due to a family health matter of

10 Synergy’s previous counsel.

11 7. While Synergy and Ghilotti were litigating the claims between them in this Court, on

12 December 19, 2019, Synergy appealed the district court’s dismissal of each of its state and federal

13 causes of action against City Defendants to the Ninth Circuit.

14 8. Prior to the issuance of the Ninth Circuit’s mandate on July 28, 2021, and while

15 Synergy’s claims against the City were still on appeal, on July 21, 2021, Synergy and Ghilotti

16 stipulated to a continuance of their trial date in this Court. Attached hereto as Exhibit A is a true

17 and correct copy of the Notice of Joint Ex Parte Application and Joint Ex Parte Application for

18 Stipulated Continuance of Trial Date, which noted, “[a]s a result of the Ninth Circuit’s June 7, 2021

19 memorandum order and July 20, 2021 denial of Synergy’s petition, the Parties anticipate that the

20 District Court in Case No. 4:17-cv-06763-JST will imminently remand Synergy’s intentional

21 interference claim against the City to the instant litigation. The Parties anticipate that the City will

22 consequently be re-added as a defendant to this litigation upon remand of Synergy’s intentional

23 interference claim.” Synergy and Ghilotti further noted that “[s]hould the City be remanded to this

24 case as the Parties reasonably anticipate, it is likely that the City will engage in significant motion

25 practice necessitating a continuance of the current trial date.” The City was not a party to the Joint Ex

26 Parte Application for a Stipulated Trial Continuance, because at that time all causes of action against

27 the City were pending in federal court. The City Attorney’s Office did not appear at the ex parte

28 hearing and was not consulted on potential trial dates.
3
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1

2 9. On July 23, 2021, this Court granted the Joint Ex Parte Application and continued the

3 trial between Ghilotti and Synergy to March 7, 2022. Attached hereto as Exhibit B is a true and

4 correct copy of the July 23, 2021 Order Granting Joint Ex Parte Application for Stipulated Trial

5 Continuance of Trial Date. That Order required that any future trial continuances in this case be

6 sought by noticed motion. It further noted, “[d]iscovery is not re-opened. All discovery, including

7 written discovery and notices of deposition, that was timely served prior to the discovery cut-off based

8 upon the March 29, 2021 trial date in this matter will remain open to allow for completion of that

9 discovery including the motions to compel relating to that discovery.”

10 10. On August 9, 2021, the Northern District of California remanded the intentional

11 interference claims against the City to the San Francisco Superior Court. The intentional interference

12 claims had been pled in the SAC, which was only ever filed in the District Court. The TAC, filed in

13 the district court and lodged in this Court, does not plead any extant causes of action against the City.

14 11. On December 28, 2022, new counsel substituted in for Synergy. (Huling Delaye Dec. ¶

15 11.)

16 12. On February 3, 2022, this Court granted the City’s motion to continue the trial date—

17 then-set for March 7, 2022—to September 19, 2022. Attached hereto as Exhibit C is a true and

18 correct copy of the February 3, 2022 Order Granting Motion for Continuance. .) In total, there

19 have been three trial continuances granted in this case—two prior to the remand of the claims against

20 the City, and one at the City’s request.

21 13. On March 21, 2022, without any operative complaint on file against the City, and

22 before receiving leave to plead any new facts, Synergy filed a motion to reopen discovery. The

23 motion was noticed to be heard on April 20, 2022. On April 19, 2021, Judge Pro Tem Peter

24 Catalanotti sitting in Department 301 issued a tentative decision recusing himself from deciding the

25 motion and continuing the hearing to May 10, 2022. Neither counsel for the City were available to

26 appear on May 10, 2022. Jaime Huling Delaye is scheduled to be in trial in federal court on that date

27 and Ari Baruth is scheduled to be in a mediation on that date. Following the Court’s guidance, all

28
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1 counsel appeared on April 20, 2022 to ask for a new hearing date. The Court could only provide dates

2 after May 10, 2022, and continued the hearing on the motion to reopen discovery to May 27, 2022.

3 14. On January 20, 2022, Synergy filed a motion for leave to file a fourth amended

4 complaint. Attached to a declaration in support of that motion was Synergy’s proposed fourth

5 amended complaint. On March 24, 2022, this Court partially granted Synergy’s motion to file a fourth

6 amended complaint, alleging new facts in support of its intentional interference claims against the

7 City, and consolidating its surviving claims against the City and its claims against Ghilotti into one

8 pleading. Attached hereto as Exhibit D is a true and correct copy of the Court’s March 24, 2022

9 Order Granting in Part Plaintiff’s Motion for Leave to File Fourth Amended Complaint. The

10 day before this filing, on April 20, 2022, Synergy filed its fourth amended complaint. Synergy has

11 provided no explanation for its dilatoriness in filing this combined operative pleading.

12 15. For more than eight months, from the district court’s August 9, 2021 remand of

13 Synergy’s intentional interference claims against the City to this Court, through April 19, 2022, there

14 has not been any operative complaint on file against the City in this Court. Accordingly, the City has

15 not been able to file a responsive pleading, nor have the parties been able to engage in motion practice

16 to address the pleading issue that the Ninth Circuit ordered be addressed in the trial court in the first

17 instance. Furthermore, the City has never had an opportunity—in any forum—to file a motion for

18 judgment on the pleadings or motion for summary judgment.

19 16. Based on the current September 19, 2022 trial date, June 3, 2022 is the last day to file

20 motions for summary judgement. In light of Synergy’s delay in filing an operative complaint against

21 the City, the City’s demurrer will not be heard until at least June 20, 2022.

22 17. Beginning on April 25, 2022, undersigned counsel is scheduled to be in trial in the

23 Northern District of California in a bellwether trial from the federal opioid litigation, In re: National

24 Prescription Opiate Litigation, MDL No. 2804. That trial, against opioid manufacturers, distributors,

25 and Walgreens pharmacy, City and County of San Francisco, et al. v. Purdue Pharma L.P. et al, case

26 No. 3:18-cv-07591-CRB, is scheduled to continue before Judge Breyer for fourteen weeks through

27 July 27, 2022.

28
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1 18. Lead counsel for the City is also due to give birth on July 27, 2022, and will be taking

2 maternity leave through the end of January 2023, taking the customary six-month leave afforded to

3 birthing deputy city attorneys. At the time the City filed its last motion to continue the trial, lead

4 counsel for the City was in the early stages of her pregnancy and had not shared the news of her

5 pregnancy publicly. If the opioid trial does not conclude prior to its scheduled closing date of July 27,

6 2022, undersigned counsel expects that at some point in late June or early July, prior to her due date,

7 she will need to take additional time off from work prior to delivery and bow out of the trial prior to its

8 conclusion.

9 19. Synergy and Ghilotti both have declined to agree to a trial continuance to April 24,

10 2023, including after learning of lead counsel’s pregnancy and planned maternity leave through late

11 January 2023. On a telephonic meet and confer on April 19, 2022, counsel for Ghilotti indicated that

12 its client is agreeable to a trial continuance to December 2022, but not into 2023, and does not agree to

13 separate trials. Synergy has at various times taken opposing positions, telling the City at times that it

14 would be willing to agree to a trial continuance and also that it would oppose any motion for a trial

15 continuance filed by the City. Attached hereto as Exhibit E is a true and correct copy of the

16 Synergy Counsel Ben Rosenfeld’s April 20, 2022 email to me meeting and conferring about a

17 potential trial continuance. This email is Synergy’s most recent communication of its position on a

18 potential trial continuance to the City. Based on Synergy’s most recent communication, its current

19 position is unclear to the City.

20 20. Attached hereto as Exhibit F is a true and correct copy of the district court’s

21 August 4, 2021 Order Remanding case.

22 I declare under penalty of perjury under the laws of the United States that the foregoing is true

23 and correct. Executed this 21st day of April, 2022 at San Francisco, California.

25
JAIME M. HULING DELAYE
26

28
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JHD Dec ISO Limited Opposition to Motion, Case No. CGC-17-560034 n:\constr\li2021\180435\01596416.docx
EXHIBIT A
1 TROUTMAN PEPPER HAMILTON SANDERS LLP
JAMES P. DIWIK (State Bar No. 164016)
2 james.diwik@troutman.com
RYAN A. LEWIS (State Bar No. 307253)
3 ryan.lewis@troutman.com
Three Embarcadero Center, Suite 800
4 San Francisco, CA 94111
Telephone: 415.477.5700
5 Facsimile: 415.477.5710

6 Attorneys for Defendant/Plaintiff/Cross-Defendant
GHILOTTI BROS., INC.
7

8 SUPERIOR COURT OF CALIFORNIA

9 COUNTY OF SAN FRANCISCO

10 CIVIL DIVISION

11 SYNERGY PROJECT MANAGEMENT, Case No. CGC-17-560034 [Consolidated with
INC., Case No. CGC-19-576488]
12
Plaintiff, NOTICE OF JOINT EX PARTE
13 APPLICATION AND JOINT EX PARTE
vs. APPLICATION FOR STIPULATED
14 CONTINUANCE OF TRIAL DATE
CITY AND COUNTY OF SAN
15 FRANCISCO, SAN FRANCISCO Trial Date: August 23, 2021
PUBLIC UTILITIES COMMISSION,
16 SAN FRANCISCO MUNICIPAL
TRANSPORTATION AGENCY, SAN
17 FRANCISCO DEPARTMENT OF
PUBLIC WORKS, LONDON BREED,
18 MOHAMMED NURU, and DOES 1-100,
19 Defendants.
20
GHILOTTI BROS., INC., a California
21 Corporation,
22 Plaintiff,
23 v.
24 SYNERGY PROJECT MANAGEMENT,
INC., a California Corporation, and
25 DOES 1-30,
26 Defendants.
27

28
T RO U TMA N PE PPE R
HA M IL TON S A ND E RS LLP
NOTICE OF JOINT EX PARTE APPLICATION AND JOINT EX PARTE APPLICATION FOR STIPULATED
3 EMBARCADERO CENTER, STE. 800
SAN FRANCISCO, CA 94111 CONTINUANCE OF TRIAL DATE
1
SYNERGY PROJECT MANAGEMENT,
2 INC., a California Corporation,

3 Cross-Complainant,

4 v.

5 GHILOTTI BROS., INC., a California
Corporation, and ROES 1-20,
6
Cross-Defendants.
7

28
T RO U TMA N PE PPE R
HA M IL TON S A ND E RS LLPNOTICE OF JOINT EX PARTE APPLICATION AND JOINT EX PARTE APPLICATION FOR STIPULATED
3 EMBARCADERO CENTER, STE. 800 CONTINUANCE OF TRIAL DATE
SAN FRANCISCO, CA 94111
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2 PLEASE TAKE NOTICE THAT on July 23, 2021, at 11:00 a.m. in Department 206 of

3 this Court, located at 400 McAllister Street, San Francisco, CA 94102, or at another date and time

4 convenient for the Court, all parties to this case, i.e., defendant/plaintiff/cross-defendant Ghilotti

5 Bros., Inc., (“GBI”) and plaintiff/defendant/cross-complainant Synergy Project Management, Inc.

6 (“Synergy”) (together, the “Parties”) for good cause will, and hereby do move pursuant to

7 California Rule of Court 3.1332 and Local Rule 6.0.B for an order continuing the trial date in this

8 action to March 7, 2022, or another date convenient for this Court.

9 Pursuant to California Rule of Court 3.1202(a), counsel for the Parties is as follows:

10 TROUTMAN SANDERS LLP LAW OFFICE OF JOHNNY D KNADLER
James P. Diwik, Bar No. 164016 Johnny D. Knadler
11 james.diwik@troutman.com 1527-E Pershing Drive
Ryan A. Lewis, Bar No. 307253 San Francisco, CA 94129
12 ryan.lewis@troutman.com Telephone: (310) 564-6695
Three Embarcadero Center, Suite 800
13 San Francisco, CA 94111
Telephone: 415.477.5700
14 Facsimile: 415.477.5710
15 Counsel for defendant/plaintiff/cross-defendant Counsel for plaintiff/defendant/cross-
Ghilotti Bros., Inc. complainant Synergy Project Management,
16 Inc.
17
The Parties have stipulated to and have been notified of this application in compliance
18
with California Rule of Court 3.1203(a). Declaration of Ryan A. Lewis (“Lewis Dec.”), ¶ 2.
19
Because the Parties have stipulated to this continuance, no party will appear to oppose this
20
application. Id. There are no other applications for a continuance to disclose under California
21
Rule of Court 3.1202(b). The Court has previously granted one request by Synergy to continue
22
the trial date in this action, and in a related action the Court previously granted the Parties’
23
stipulated request for a trial continuance. Id. ¶ 3.
24
Good cause exists for a continuance of the trial date in this action under California Rule of
25
Court 3.1332 and Local Rule 6.0.B. On June 7, 2021, the United States Court of Appeals for the
26
Ninth Circuit in Case No. 19-17558, captioned Synergy Project Management, Inc. v. City and
27
County of San Francisco, et al, issued a memorandum order remanding an intentional
28
T RO U TMA N PE PPE R
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HA M IL TON S A ND E RS LLP
NOTICE OF JOINT EX PARTE APPLICATION AND JOINT EX PARTE APPLICATION FOR STIPULATED
3 EMBARCADERO CENTER, STE. 800
SAN FRANCISCO, CA 94111 CONTINUANCE OF TRIAL DATE
1 interference claim asserted by Synergy against the City and County of San Francisco (“City”) to

2 the United States District Court for the Northern District of California, Case No. 4:17-cv-06763-

3 JST, captioned Synergy Project Management, Inc. v. City and County of San Francisco, et al. On

4 July 20, 2021, the Ninth Circuit denied Synergy’s petition for panel rehearing and rehearing en

5 banc. As a result of the Ninth Circuit’s June 7, 2021 memorandum order and July 20, 2021

6 denial of Synergy’s petition, the Parties anticipate that the District Court in Case No. 4:17-cv-

7 06763-JST will imminently remand Synergy’s intentional interference claim against the City to

8 the instant litigation. The Parties anticipate that the City will consequently be re-added as a

9 defendant to this litigation upon remand of Synergy’s intentional interference claim. Should the

10 City be remanded to this case as the Parties reasonably anticipate, it is likely that the City will

11 engage in significant motion practice necessitating a continuance of the current trial date. To

12 conserve judicial resources, and in anticipation of (1) Synergy’s intentional interference claim

13 being remanded to this action, and (2) the City being re-added as a defendant to this action, the

14 Parties stipulate that the trial in this action be continued to March 7, 2022 in Department 206, or

15 to a date and time convenient for the Court.

16 Further, a continuance is appropriate because (1) of the proximity of the current August

17 23, 2021 trial date; (2) the Court has previously granted only one request by Synergy to continue

18 the trial date in this action, and in a related action the Court has previously granted a stipulated

19 request for a trial continuance; (3) the length of the requested continuance is appropriate for

20 determination of the City’s remanded status in this action; (4) a continuance is the most

21 appropriate means to address the City’s remanded status; (5) no party or witness will suffer

22 prejudice as a result of a continuance; and (6) the Parties agree that a continuance is necessary.

23 The Parties base this application on this Ex Parte Notice of Application and Ex Parte

24 Application, the attached Memorandum of Points and Authorities, the Declaration of Ryan A.

25 Lewis, the filed stipulation to continue trial by the Parties, the documents and records in the

26 Court’s file, and any oral argument that may be presented at the hearing on this matter. (Lewis

27 Dec., ¶¶ 4-7).

28
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T RO U TMA N P E PPER
NOTICE OF JOINT EX PARTE APPLICATION AND JOINT EX PARTE APPLICATION FOR STIPULATED
H A M ILT ON S A ND E RS LLP
3 EMBARCADERO CENTER, STE. 800 CONTINUANCE OF TRIAL DATE
SAN FRANCISCO, CA 94111
1 Dated: July 22,2021 TROUTMAN PEPPER HAMILTON SANDERS LLP

3 By:
JAMES P. DIWIK
4 RYAN A. LEWIS
Attorneys for Defendant/Plaintiff/Cross-Defendant
5 GHILOTTI BROS., INC.
6

7 Dated: July 21, 2021 LAW OFFICES OF JOHNNY D. KNADLER
8

9 By: /s/
Johnny D. Knadler
10 Attorneys for Plaintiff/Defendant/Cross-
Complainant
11 SYNERGY PROJECT MANAGEMENT,
INC.
12

28
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T RO U TMA N P E PPE R
NOTICE OF JOINT EX PARTE APPLICATION AND JOINT EX PARTE APPLICATION FOR STIPULATED
H A M ILT ON S A ND E RS LLP
3 EMBARCADERO CENTER, STE. 800 CONTINUANCE OF TRIAL DATE
SAN FRANCISCO, CA 94111
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiff and cross-defendant Ghilotti Bros., Inc. (“GBI”) and defendant and cross-
4 complainant Synergy Project Management, Inc. (“Synergy”) (together, “the Parties”) jointly seek
5 to continue trial in this action from August 23, 2021 to March 7, 2022 pursuant to the Parties’
6 filed stipulation. Good cause exists for a continuance of the trial date in light of the likely and
7 impending remand of the City and County of San Francisco (“City”) as a defendant to this action.
8 Should the City be remanded to this case as the Parties anticipate, it is likely that the City will
9 engage in significant motion practice necessitating a continuance of the current trial date.
10 II. FACTS RELEVANT TO THE PARTIES’ APPLICATION
11 Synergy filed the instant action in this Court on July 10, 2017 against the City. On
12 October 19, 2017, Synergy filed its first amended complaint in this action adding the San
13 Francisco Public Utilities Commission, San Francisco Municipal Transportation Agency, San
14 Francisco Department of Public Works, London Breed, and Mohammed Nuru as defendants (the
15 “City Defendants”). On November 27, 2017, the City Defendants removed this action to the
16 Northern District. Defendants San Francisco Public Utilities Commission, San Francisco
17 Municipal Transportation Agency, and San Francisco Department of Public Works were
18 terminated from the action in May 2019. On May 26, 2019, Synergy filed its operative TAC in
19 the Northern District, naming GBI for the first time as a defendant.
20 On November 21, 2019, the District Court granted the City Defendants’ motion to dismiss
21 all of Synergy’s claims against former defendants the City, Mohammed Nuru, and Mayor Breed.
22 Synergy’s remaining state law causes of action against GBI were remanded to this Court.
23 Accordingly, the only remaining defendant to Synergy’s operative TAC is GBI.
24 On June 5, 2019, GBI filed related case number CGC-19-576488 (the “’6488 Action”)
25 against Synergy in this Court. On October 18, 2019, Synergy filed its Cross-Complaint against
26 GBI in the ‘6488 Action.
27 On December 19, 2019, Synergy filed a notice of appeal with the District Court. In its
28
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T RO U TMA N P E PPER
NOTICE OF JOINT EX PARTE APPLICATION AND JOINT EX PARTE APPLICATION FOR STIPULATED
H A M ILT ON S A ND E RS LLP
3 EMBARCADERO CENTER, STE. 800 CONTINUANCE OF TRIAL DATE
SAN FRANCISCO, CA 94111
1 appeal to the Ninth Circuit, Synergy seeks a determination of, among other things, whether

2 dismissal of its federal claims against the City, Mr. Nuru, and Mayor Breed was proper, and

3 whether the District Court erred in declining to consider Synergy’s motion for leave to file a

4 proposed fourth amended complaint in the District Court.

5 On June 19, 2020, Synergy and GBI moved ex parte to continue the trial date in the ’6488

6 Action from June 22, 2020 to February 1, 2021. On June 22, 2020, the Court granted the Parties’

7 ex parte application and continued trial in the related ’6488 Action to February 1, 2021.

8 On August 12, 2020 the Court consolidated the ’6488 Action with the instant action for all

9 purposes and set trial in this consolidated action for March 29, 2021. On February 24, 2021,

10 Synergy filed a motion to continue the March 29, 2021 trial date in this action. Synergy’s motion

11 was granted in part and denied in part. Specifically, the Court continued the trial date in this

12 action to August 23, 2021, but ruled that discovery was to remain closed with the exception of

13 discovery served prior to the cutoff date based on the March 29, 2021 trial date. (Lewis Dec., Ex.

14 B). The Parties have filed a stipulation agreeing to continue trial of this action to March 7, 2022.

15 (Id., Ex. A).

16 III. GOOD CAUSE EXISTS TO CONTINUE THE TRIAL DATE

17 California Rule of Court 3.1332 provides that the court may grant a trial continuance on

18 an affirmative showing of good cause. Each request for a continuance must be considered on its

19 own merits, and the court must consider all facts and circumstances that are relevant to the

20 determination. Id. In granting a continuance, the court may consider facts including: (1) the

21 proximity of the trial date; (2) whether there was any previous continuance, extension of time, or

22 delay of trial due to any party; (3) the length of the continuance requested; (4) the availability

23 of alternative means to address the problem that gave rise to the motion or application for a

24 continuance; (5) the prejudice that parties or witnesses will suffer as a result of the continuance;

25 (6) if the case is entitled to a preferential trial setting, the reasons for that status and whether the

26 need for a continuance outweighs the need to avoid delay; (7) the court's calendar and the impact

27 of granting a continuance on other pending trials; (8) whether trial counsel is engaged in another

28 trial; (9) whether all parties have stipulated to a continuance; (10) whether the interests of
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T RO U TMA N P E PPER
NOTICE OF JOINT EX PARTE APPLICATION AND JOINT EX PARTE APPLICATION FOR STIPULATED
H A M ILT ON S A ND E RS LLP
3 EMBARCADERO CENTER, STE. 800 CONTINUANCE OF TRIAL DATE
SAN FRANCISCO, CA 94111
1 justice are best served by a continuance, by the trial of the matter, or by imposing conditions on

2 the continuance; and (11) any other fact or circumstance relevant to the fair determination of the

3 motion or application. Id. Local Rule 6.0.B similarly requires a showing of good cause for a

4 continuance.

5 The Parties respectfully request that the Court grant their joint application for a

6 continuance of the trial date because good cause exists under California Rule of Court 3.1332 and

7 Local Rule 6.0.B. On June 7, 2021, the United States Court of Appeals for the Ninth Circuit in

8 Case No. 19-17558, captioned Synergy Project Management, Inc. v. City and County of San

9 Francisco, et al, issued a memorandum order remanding Synergy’s intentional interference claim

10 asserted against the City to the United States District Court for the Northern District of California,

11 Case No. 4:17-cv-06763-JST, captioned Synergy Project Management, Inc. v. City and County of

12 San Francisco, et al. On July 20, 2021, the Ninth Circuit denied Synergy’s petition for panel

13 rehearing and rehearing en banc. As a result of the Ninth Circuit’s June 7, 2021 memorandum

14 order and July 20, 2021 denial of Synergy’s petition, the Parties anticipate that the District Court

15 in Case No. 4:17-cv-06763-JST will remand Synergy’s intentional interference claim against the

16 City to the instant litigation. The Parties anticipate that the City will consequently be re-added as

17 a defendant to this litigation upon remand of Synergy’s intentional interference claim. Should the

18 City be remanded to this case as the Parties anticipate, it is likely that the City will engage in

19 significant motion practice necessitating a continuance of the current trial date. To conserve

20 judicial resources, and in anticipation of (1) Synergy’s intentional interference claim being

21 remanded to this action, and (2) the City being re-added as a defendant to this action, the Parties

22 stipulate that the trial in this action be continued to March 7, 2022 in Department 206, or to a date

23 and time convenient for the Court. (Lewis Dec., ¶ 5).

24 Further, a continuance is appropriate because (1) of the proximity of the current August

25 23, 2021 trial date and related deadlines; (2) the Court has previously granted only one request by

26 Synergy to continue the trial date in this action, and in a related action the Court has previously

27 granted a stipulated request for a trial continuance; (3) the length of the requested continuance is

28 appropriate for determination of the City’s remanded status in this action; (4) a continuance is the
-6-
T RO U TMA N P E PPER
NOTICE OF JOINT EX PARTE APPLICATION AND JOINT EX PARTE APPLICATION FOR STIPULATED
H A M ILT ON S A ND E RS LLP
3 EMBARCADERO CENTER, STE. 800 CONTINUANCE OF TRIAL DATE
SAN FRANCISCO, CA 94111
1 most appropriate means to address the City’s remanded status; (5) no party or witness will suffer

2 prejudice as a result of a continuance; and (6) the Parties agree that a continuance is necessary.

3 For all these reasons, the Parties respectfully request that the Court grant their joint ex parte

4 application for a trial continuance. (Lewis Dec., ¶ 6).

5 IV. CONCLUSION

6 For good cause shown, the Parties request that the Court grant their ex parte application to

7 continue the trial date in this action until March 7, 2022, or at a date otherwise convenient for the

8 Court.

10
Dated: July 22,2021 TROUTMAN PEPPER HAMILTON SANDERS LLP
11

12
By:
13 JAMES P. DIWIK
RYAN A. LEWIS
14 Attorneys for Defendant/Plaintiff/Cross-Defendant
GHILOTTI BROS., INC.
15

16
Dated: July 21, 202 1 LAW OFFICES OF JOHNNY D. KNADLER
17

18
By:
19 Johnny D. Knadler
Attorneys for Plaintiff/Defendant/Cross-
20 Complainant
SYNERGY PROJECT MANAGEMENT,
21 INC.
22

28
-7-
T RO U TMA N P E PPER
NOTICE OF JOINT EX PARTE APPLICATION AND JOINT EX PARTE APPLICATION FOR STIPULATED
H A M ILT ON S A ND E RS LLP
3 EMBARCADERO CENTER, STE. 800 CONTINUANCE OF TRIAL DATE
SAN FRANCISCO, CA 94111
1 PROOF OF SERVICE
2 I am employed in the City and County of San Francisco, State of CA. I am over the age
of 18 and not a party to the within action; my business address is Three Embarcadero Center,
3 Suite 800, San Francisco, California 94111.
4 On July 22, 2021 I served the following document(s) described as:

5 NOTICE OF JOINT EX PARTE APPLICATION AND JOINT
EX PARTE APPLICATION FOR STIPULATED
6 CONTINUANCE OF TRIAL DATE
7 DECLARATION OF RYAN A. LEWIS IN SUPPORT OF
JOINT EX PARTE APPLICATION FOR STIPULATED
8 CONTINUANCE OF TRIAL DATE

Case Info

Judge

Samuel K. Feng Track Judge’s New Case

Case No.

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Document Filed Date

April 21, 2022

Case Filing Date

July 10, 2017

County

Parties

BARUTH, ARI Attorneys for Defendants
BARUTH, ARI Attorney for the Defendant
BREED, LONDON Defendant
CITY AND COUNTY OF SAN FRANCISCO Claimant
CITY AND COUNTY OF SAN FRANCISCO Defendant
CITY AND COUNTY OF SAN FRANCISCO (CONSOLIDATED Claimant
DAAR, RANDOLPH ELLIOTT Attorneys for Plaintiffs
DAAR, RANDOLPH ELLIOTT Attorney for the Plaintiff
DELAYE, JAIME HULING Attorneys for Defendants
DELAYE, JAIME HULING Attorney for the Defendant
DIWIK, JAMES P Attorneys for Defendants
DIWIK, JAMES P Attorney for the Defendant
DIWIK, JAMES P Attorney for the Plaintiff
DOES 1-100 Defendant
DOES 1 TO 30 Defendant (consolidated Case)
DOES 2-100, ET AL. Defendant
FLYNN, RONALD Attorney
FLYNN, RONALD Attorney for the Defendant
GHILOTTI BROS., INC. Defendant
GHLOTTI BROS., INC., A CALIFORNIA CORPORATION Cross Defendant
GHLOTTI BROS., INC., A CALIFORNIA CORPORATION Plaintiff
GHLOTTI BROS., INC., A CALIFORNIA CORPORATION Plaintiff (consolidated Case)
KNADLER, JOHNNY D. Attorneys for Plaintiffs
KNADLER, JOHNNY D. Attorney for the Plaintiff
LEIGH, GILBERT WHITNEY Attorney
LEIGH, GILBERT WHITNEY Attorney for the Plaintiff
LEW, DEBRA DEE Attorney
LEW, DEBRA DEE Attorney for the Defendant
NURU, MOHAMMED Defendant
POPLAWSKI, KRISTINE Attorney
POPLAWSKI, KRISTINE Attorney for the Defendant
ROES 1 TO 20 (CONSOLIDATED ACTION CGC-19-576488) Cross Defendant
ROSENFELD, BEN Attorneys for Plaintiffs
ROSENFELD, BEN Attorney for the Plaintiff
SAN FRANCISCO DEPARTMENT OF PUBLIC WORKS Defendant
SAN FRANCISCO MUNICIPAL TRANSPORTATION AGENCY Defendant
SAN FRANCISCO PUBLIC UTILITIES COMMISSION Defendant
SYNERGY PROJECT MANAGEMENT, INC. Cross Defendant
SYNERGY PROJECT MANAGEMENT, INC. Plaintiff
SYNERGY PROJECT MANAGEMENT, INC., A CALIFORNIA Defendant (consolidated Case)
YAN, MATTHEW Attorneys for Plaintiffs
YAN, MATTHEW Attorney for the Plaintiff
David Chiu Attorneys for Defendants
Yvonne Mere Attorneys for Defendants
Ryan Lewis Attorneys for Defendants
Dennis Herrera Attorneys for Defendants
Kris Cox Attorney
Erin Reding Attorneys for Plaintiffs
Sally Johnson Attorneys for Defendants
Cara Ching-Senaha Attorneys for Plaintiffs
Roy Lewis Attorneys for Defendants
Benedict Rosenfeld Attorney
Kevin Holl Attorney

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Motion-Secondary: SYNERGY PROJECT MANAGEMENT, INC. VS. CITY AND COUNTY OF SAN FRANCISCO

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