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

On July 10, 2017 a Complaint,Petition 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 TROUTMAN PEPPER HAMILTON SANDERS LLP
JAMES P. DIWIK (State Bar No. 164016)
2 james.diwik@troutman.com
RYAN A. LEWIS (State Bar No. 307253) ELECTRONICALLY
3 ryan.lewis@troutman.com
Three Embarcadero Center, Suite 800
F I L E D
Superior Court of California,
4 San Francisco, CA 94111 County of San Francisco
Telephone: 415.477.5700 03/15/2021
5 Facsimile: 415.477.5710 Clerk of the Court
BY: YOLANDA TABO-RAMIREZ
Deputy Clerk
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, DEFENDANT/PLAINTIFF/
13 CROSS-DEFENDANT GHILOTTI BROS.,
vs. INC.’S OPPOSITION TO PLAINTIFF
14 SYNERGY PROJECT MANAGEMENT,
CITY AND COUNTY OF SAN INC.’S MOTION FOR LEAVE TO FILE
15 FRANCISCO, SAN FRANCISCO FOURTH AMENDED COMPLAINT AND
PUBLIC UTILITIES COMMISSION, FIRST AMENDED CROSS-COMPLAINT
16 SAN FRANCISCO MUNICIPAL
TRANSPORTATION AGENCY, SAN Date: March 26, 2021
17 FRANCISCO DEPARTMENT OF Time: 9:30 a.m.
PUBLIC WORKS, LONDON BREED, Dept.: 302
18 MOHAMMED NURU, and DOES 1-100,
Trial Date: March 29, 2021
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
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GHILOTTI BROS., INC.’S OPPOSITION TO MOTION FOR LEAVE TO FILE 4TH AMENDED COMPLAINT
3 EMBARCADERO CENTER, STE. 800
SAN FRANCISCO, CA 94111
AND FIRST AMENDED CROSS-COMPLAINT
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

20
21

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27

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HA M IL TON S A ND E RS LLP
3 EMBARCADERO CENTER, STE. 800 AND FIRST AMENDED CROSS-COMPLAINT
SAN FRANCISCO, CA 94111
1 TABLE OF CONTENTS

2 Page
3 I. INTRODUCTION .............................................................................................................. 1
II. BACKGROUND ................................................................................................................ 3
4
A. Synergy Was Removed from the Haight Street Project by the City ....................... 3
5 B. Synergy Initiates This Action Against the City of San Francisco in 2017 ............. 4
6 C. The City Defendants Remove This Action to the District Court ............................ 4
D. The District Court Denies Synergy’s Motion for Leave to File its Proposed
7 Fourth Amended Complaint.................................................................................... 4
8 E. The California Court of Appeal Affirms Synergy’s Removal from the
Haight Street Project Under Public Contracts Code Section 4107 ......................... 5
9 F. GBI Initiates Related Case No. CGC-19-576488 Against Synergy in this
Court........................................................................................................................ 5
10
G. Synergy Files its Cross-Complaint Against GBI in the ’6488 Action .................... 5
11 H. Synergy’s Appeal of the District Court’s Order Dismissing the City
Defendants............................................................................................................... 6
12
I. The ’6488 Action is Consolidated with the Instant Action for Trial in
13 March 2021 ............................................................................................................. 6
J. Synergy’s Aborted First Motion for Leave to File its Proposed FAC .................... 6
14
K. Synergy Seeks Permission to File a Nearly Identical Proposed Fourth
15 Amended Complaint in the District Court .............................................................. 7
L. Synergy’s Motion to Continue the Trial Date ......................................................... 7
16
M. Synergy’s Instant Motion for Leave to File its FAC and FACC ............................ 7
17 III. ARGUMENT ...................................................................................................................... 7
18 A. Legal Standard ........................................................................................................ 7
B. Synergy Fails to Explain its Delay in Raising its Proposed FAC Against
19 GBI .......................................................................................................................... 8
20 C. Synergy’s Proposed FACC is a Procedural Device Used in Bad Faith in an
Attempt to Bolster Synergy’s Litigation Prospects Against the City
21 Defendants............................................................................................................. 11
1. Synergy’s Proposed FACC is Not Asserted in Good Faith ...................... 12
22
2. The New Causes of Action in Synergy’s FACC Are Not
23 “Compulsory” ........................................................................................... 15
D. GBI Will Suffer Prejudice if Synergy is Granted Leave to Amend ...................... 17
24
E. Synergy’s Proposed Causes of Action Against GBI Lack Merit .......................... 18
25 1. Synergy Cannot State a Cause of Action for Unjust Enrichment ............. 18
26 2. Synergy’s Proposed Federal Claims Against GBI Are Facially
Baseless ..................................................................................................... 18
27 IV. CONCLUSION ................................................................................................................. 21
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H AMILTON S ANDERS LLP
GHILOTTI BROS., INC.’S OPPOSITION TO MOTION FOR LEAVE TO FILE 4TH AMENDED COMPLAINT
THR EE EMB AR CADE RO CE NT ER,
S U I T E 800 AND FIRST AMENDED CROSS-COMPLAINT
S A N F R A N C I S C O , C A 94111
1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases

4 California Cas. Gen. Ins. Co. v. Superior Court,
173 Cal. App. 3d 274 (1985) .......................................................................................................8
5
Durell v. Sharp Healthcare,
6
183 Cal. App. 4th 1350 (2010)............................................................................................11, 18
7
Frog Creek Partners, LLC v. Vance Brown, Inc.,
8 206 Cal. App. 4th 515 (2012)....................................................................................................16

9 Gherman v. Colburn,
72 Cal. App. 3d 544 (1977) .................................................................................................12, 17
10
Insurance Co. of N. Am. v. Liberty Mut. Ins.,
11 128 Cal.App.3d 297 (1982) .......................................................................................................17
12
Johnson v. Starbucks Corp.,
13 No. CV 15-2871-GW (JEM), 2015 WL 13764209 (C.D. Cal. Dec. 10, 2015) ........................19

14 Kirtley v. Rainey,
326 F.3d 1088 (9th Cir. 2003)...................................................................................................19
15
Kransco v. Am. Empire Surplus Lines Ins. Co.,
16 23 Cal. 4th 390 (2000) ................................................................................................................8
17 Leader v. Health Industries of America, Inc.,
18 89 Cal.App.4th 603 (2001)................................................................................................8, 9, 10

19 Magpali v. Farmers Grp., Inc.,
48 Cal. App. 4th 471 (1996)..................................................................................................9, 10
20
Marvin v. Marvin,
21 18 Cal. 3d 660 (1976) .....................................................................................................9, 10, 17
22 Estate of Murphy,
23 82 Cal. App. 3d 304 (1978)...................................................................................................8, 17

24 Oswald v. Northrop Aircraft,
62 Cal. App. 2d 824 (1944).........................................................................................................8
25
Rabieh v. Paragon Sys. Inc.,
26 316 F. Supp. 3d 1103 (N.D. Cal. 2018) ..............................................................................19, 20
27 Record v. Reason,
73 Cal. App. 4th 472 (1999)..............................................................................................7, 9, 10
28
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GHILOTTI BROS., INC.’S OPPOSITION TO MOTION FOR LEAVE TO FILE 4TH AMENDED COMPLAINT
3 EMBARCADERO CENTER, STE. 800
SAN FRANCISCO, CA 94111
AND FIRST AMENDED CROSS-COMPLAINT
1 Rendell-Baker v. Kohn,
457 U.S. 830 (1982) ..................................................................................................................20
2
Rose v. Ames,
3
53 Cal. App. 2d 583 (1942) .........................................................................................................8
4
Sidney v. Superior Ct.,
5 198 Cal. App. 3d 710 (1988) .....................................................................................................12

6 Sutton v. Providence St. Joseph Med. Ctr.,
192 F.3d 826 (9th Cir. 1999).....................................................................................................20
7
Synergy Project Mgmt., Inc. v. City & Cty. of San Francisco,
8 33 Cal. App. 5th 21, 37 (2019), reh’g denied (Mar. 29, 2019), review filed
9 (Apr. 23, 2019) ............................................................................................................................5

10 Vogel v. Thrifty Drug Co.,
43 Cal. 2d 184 (1954) .................................................................................................................8
11
White v. Cooper,
12 55 F. Supp. 2d 848 (N.D. Ill. 1999) ..........................................................................................20
13 Statutes
14
42 U.S.C. section 1983............................................................................................................ passim
15
42 U.S.C. section 1981......................................................................................................................4
16
California Public Contract Code Section 4100 et seq. ............................................................ passim
17
Code Civ. Proc. § 428.10(b) ...........................................................................................................17
18
Code of Civil Procedure section 426.50 ................................................................................. passim
19
Other Authorities
20
Rutter Group, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 6-D .....................................................17
21

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27

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SAN FRANCISCO, CA 94111
1 Defendant/Plaintiff/Cross-Defendant Ghilotti Bros., Inc. (“GBI”) respectfully submits this

2 Opposition to Plaintiff/Defendant/Cross-Complainant Synergy Project Management, Inc.’s

3 (“Synergy”) Motion for Leave to File Fourth Amended Complaint (“FAC”) and First Amended

4 Cross-Complaint (“FACC”).

5 I. INTRODUCTION
6 This is yet another attempt by Synergy to resuscitate its long-running civil rights litigation

7 against the City and County of San Francisco (the “City”) at significant prejudice to GBI in terms

8 of delay, litigation expense, and continuing disruption to its ongoing business operations. On

9 January 22, 2021, Synergy filed its initial motion for leave to file its proposed FAC.1 This Court

10 issued a tentative ruling denying Synergy’s motion for leave, 2 which Synergy’s counsel orally

11 withdrew at the February 17, 2021 hearing thereon. Synergy once again seeks leave from this Court

12 to file its proposed FAC, which would (1) re-add to this action previously dismissed defendants the

13 City, Mayor London Breed, and former City employee Mohammed Nuru, (2) bring for the first

14 time against private party GBI four federal civil rights causes of action under 42 U.S.C. section

15 1983, including “racketeering” and “conspiracy”; and (3) add new defendant Harlan Kelly, also a

16 former City employee. Without offering any explanation for an 18-month delay from when it

17 unsuccessfully sought leave to assert similar claims in the District Court, Synergy additionally

18 requests leave to file a proposed FACC that would (1) re-add to this action previously dismissed

19 defendants the City and Mr. Nuru; (2) bring claims under Section 1983 for “racketeering” and

20 “conspiracy”; and (3) add new defendant Mr. Kelly. The FACC recasts the “racketeering” and
21 “conspiracy” causes of action asserted in the FAC as “compulsory” cross-claims in a bad faith

22 invocation of Code of Civil Procedure section 426.50 to end-run this Court’s previous tentative

23 ruling and to preserve Synergy’s litigation options against the City and related defendants. GBI,

24 on the other hand, is a mere pawn and apparent nexus in Synergy’s continuing crusade of civil

25 rights redemption against the City and related defendants. Synergy’s gamesmanship and

26
27 1
Synergy’s proposed FAC at issue in this motion is identical to the proposed FAC accompanying
Synergy’s January 22, 201 motion for leave to amend filed with this Court.
28 2
Request for Judicial Notice (“RJN”) Ex. 1.
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GHILOTTI BROS., INC.’S OPPOSITION TO MOTION FOR LEAVE TO FILE 4TH AMENDED COMPLAINT
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SAN FRANCISCO, CA 94111
AND FIRST AMENDED CROSS-COMPLAINT
1 maneuvering should not be rewarded or otherwise condoned by this Court.

2 As a reminder to this Court, GBI was the general contractor on a large-scale San Francisco

3 Department of Public Works renovation project located primarily along on Haight Street (the

4 “Project” or “Haight Street Project”), on which Synergy was GBI’s subcontractor. Synergy

5 commenced this action in July 2017 against the City, and in October 2017 filed its first amended

6 complaint adding London Breed and Mohammed Nuru as defendants, among others (together, the

7 “City Defendants”). GBI was added as a defendant to this action nearly two years later in May

8 2019 via Synergy’s operative Third Amended Complaint (“TAC”). In August 2019, Synergy filed

9 a motion for leave to file a proposed fourth amended complaint in the District Court, which sought

10 to assert civil rights causes of action against GBI under a “state actor” theory. The District Court

11 denied Synergy’s motion for leave. In November 2019, after the City and related defendants

12 successfully moved to dismiss Synergy’s operative TAC, the District Court remanded to this Court

13 Synergy’s causes of action against GBI for (1) breach of the parties’ subcontract on the Project (the

14 “Subcontract”), and (2) violation of Public Contracts Code Section 4107 to this Court. Synergy

15 appealed the dismissal of the City and related defendants to the Ninth Circuit. Synergy’s two

16 contract-based claims against GBI are the only remaining claims in its operative TAC.

17 Wary of a permanent legal foreclosure of its affirmative claims against the City and related

18 defendants now on appeal before the Ninth Circuit, and having failed numerous times to state viable

19 causes of action against those parties in the District Court, Synergy seeks herein to use the proposed

20 FAC and “compulsory” FACC as vehicles to continue its litigation against the City and related
21 defendants in this Court.3 GBI, a relatively small local general contractor, should not be forced to

22 participate in Synergy’s ongoing civil rights litigation quagmire with the City and related

23 defendants, which would result in inestimable cost to GBI and disruption to its business operations,

24 as well as undue delay in the determination of its contract claims against Synergy currently set for

25 trial on March 29, 2021. Because Synergy offers no reasonable excuse for its delay in asserting its

26
3
27 On February 22, 2021 and in a continuing quest to pursue federal civil rights claims against the
City and related defendants, Synergy filed a motion in the District Court for leave to file a nearly
28 identical proposed fourth amended complaint. (RJN Exs. 13-14).
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SAN FRANCISCO, CA 94111 AND FIRST AMENDED CROSS-COMPLAINT
1 “new” federal claims against GBI until the eve of trial and because GBI will be severely prejudiced

2 if required to be a litigant in Synergy’s continuing campaign to pursue baseless claims against the

3 City and related defendants, Synergy’s motion for leave is properly denied. Furthermore,

4 Synergy’s last-ditch resort in requesting leave to file the FACC should be seen for what it is—a

5 tactical ploy employed to achieve Synergy’s ultimate objective to continue its battle with the City

6 and related defendants (and not GBI). GBI respectfully requests that the Court deny the instant

7 motion and allow this matter to proceed to trial without further amendment and delay.

8 II. BACKGROUND
9 A. Synergy Was Removed from the Haight Street Project by the City
10 On April 17, 2015, GBI and Synergy entered into the Subcontract for work on the Haight

11 Street Project. (RJN Ex. 2, TAC ¶ 26). Under the Subcontract, Synergy was to perform certain

12 construction work on the Project. (TAC ¶¶ 25-26). Synergy could be removed from the Project

13 pursuant to the provisions of California Public Contract Code Section 4100 et seq. (TAC ¶ 27).

14 During the course of its work on the Haight Street Project, Synergy damaged five PG&E

15 gas lines, drawing significant public attention and criticism from residents. (TAC ¶¶ 40, 42). On

16 or about October 7, 2015, the City suspended work on the Haight Street Project. On October 8,

17 2015, the City directed GBI to remove Synergy from the Project, citing as authority California

18 Public Contract Code Sections 4100, et seq. On October 14, 2015, the City informed Synergy that

19 it had instructed GBI to remove Synergy and to substitute in a replacement contractor. (TAC ¶¶ 45-

20 46, 49).
21 On December 9, 2015, Synergy and the City participated in an administrative substitution

22 hearing before a City-appointed hearing officer. (TAC ¶¶ 56-57). GBI opposed the City’s efforts

23 to remove Synergy from the Haight Street Project. (TAC ¶ 58). On January 8, 2016, the hearing

24 officer issued a determination finding that the City established sufficient grounds and legal basis to

25 remove Synergy from the Project under Section 4107(a)(7). (TAC ¶ 59). Synergy was removed

26 from the Haight Street Project as of January 8, 2016. (TAC ¶ 60).
27 Following the hearing officer’s determination, Synergy and GBI brought a petition for writ

28
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SAN FRANCISCO, CA 94111 AND FIRST AMENDED CROSS-COMPLAINT
1 of mandate in this Court seeking to overturn the hearing officer’s January 8, 2016 determination.4

2 On November 10, 2016, this Court granted GBI and Synergy’s writ and ordered the hearing

3 officer’s determination vacated. (TAC ¶¶ 63-64). Thereafter, the City filed an appeal of this

4 Court’s order granting the writ and vacating the hearing officer’s January 8, 2016 determination.

5 B. Synergy Initiates This Action Against the City of San Francisco in 2017
6 Synergy filed the instant action in this Court on July 10, 2017 against the City. On October

7 19, 2017, Synergy filed its first amended complaint in this action adding the San Francisco Public

8 Utilities Commission, San Francisco Municipal Transportation Agency, San Francisco Department

9 of Public Works, London Breed, and Mr. Nuru as defendants (the “City Defendants”). In its first

10 amended complaint, Synergy alleged six causes of action against the City Defendants, including

11 violations of 42 U.S.C. sections 1983 and 1981. GBI was not named as a defendant in Synergy’s

12 first amended complaint. (RJN Ex. 3).

13 C. The City Defendants Remove This Action to the District Court
14 On November 27, 2017, the City Defendants removed this action to the Northern District.

15 (RJN Ex. 4, Dkt. 2). Defendants San Francisco Public Utilities Commission, San Francisco

16 Municipal Transportation Agency, and San Francisco Department of Public Works were terminated

17 from the action in May 2019. (RJN Ex. 4, p. 2). On May 26, 2019, Synergy filed its operative

18 TAC in the Northern District, naming GBI for the first time as a defendant. (RJN Ex. 2). Synergy’s

19 TAC alleges two causes of action against GBI for (1) breach of the parties’ Subcontract related to

20 the Project, and (2) alleged violations of Section 4107 of the Public Contracts Code relating to
21 Synergy’s removal from the Project. (Id. at 24:15-26:1).

22 D. The District Court Denies Synergy’s Motion for Leave to File its Proposed Fourth
Amended Complaint
23

24 GBI and the remaining City Defendants, Mr. Nuru, Mayor Breed, and the City, filed

25 motions to dismiss Synergy’s TAC in the District Court. (RJN Ex. 4, Dkts. 82, 93). On August

26 14, 2019, while the motions to dismiss the TAC were pending, Synergy filed a motion for leave to
27
4
The action was styled Synergy Project Management, Inc. v. City and County of San Francisco,
28 et al., Case No. CPF-16-514783.
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SAN FRANCISCO, CA 94111 AND FIRST AMENDED CROSS-COMPLAINT
1 file a proposed fourth amended complaint in the District Court. (RJN Ex. 4, Dkts. 113-114; RJN

2 Ex. 5). The proposed complaint asserted four causes of action under Section 1983, including

3 allegations against GBI under a “state actor” theory. (RJN Ex. 5, ¶¶ 108, 120, 131, 138).

4 The District Court denied Synergy’s motion for leave to file the proposed fourth amended

5 complaint on August 14, 2019. (RJN Ex. 4, Dkt. 116). On November 21, 2019, the District Court

6 granted the City Defendants’ motion to dismiss all of Synergy’s claims against former defendants

7 City and County of San Francisco, Mr. Nuru, and Mayor Breed without leave to amend. (RJN

8 Ex. 6, 15:26-16:4). Synergy’s remaining state law causes of action against GBI were remanded to

9 this Court. (Id.) Accordingly, the only remaining defendant to Synergy’s operative TAC is GBI.

10 E. The California Court of Appeal Affirms Synergy’s Removal from the Haight Street
Project Under Public Contracts Code Section 4107
11

12 On March 14, 2019, the Court of Appeal reversed this Court’s order granting Synergy’s

13 writ and vacating the hearing officer’s determination, stating that “Synergy does not explain how

14 the fact that the City instead of Ghilotti was the party to initiate substitution otherwise impinged on

15 Synergy’s rights,” that “the hearing officer had jurisdiction to issue a decision under section

16 4107(a)” and that the “hearing officer’s decision will stand.”5 On June 26, 2019, the California

17 Supreme Court denied Synergy’s petition for review of the Court of Appeal’s decision.

18 F. GBI Initiates Related Case No. CGC-19-576488 Against Synergy in this Court
19 On June 5, 2019, GBI filed related case number CGC-19-576488 (the “’6488 Action”)

20 against Synergy in this Court. GBI’s Complaint against Synergy asserts (1) breach of the parties’
21 Subcontract related to the Haight Street Project, (2) breach of the covenant of good faith and fair

22 dealing, and (3) contractual indemnity under the Subcontract. (RJN Ex. 7).

23 G. Synergy Files its Cross-Complaint Against GBI in the ’6488 Action
24 On October 18, 2019, Synergy filed its Cross-Complaint against GBI in the ‘6488 Action.

25 (RJN Ex. 8). Like Synergy’s operative TAC in this case, Synergy’s cross-complaint alleges (1)

26 breach of the parties’ Subcontract related to the Haight Street Project and (2) alleged violations of
27
5
Synergy Project Mgmt., Inc. v. City & Cty. of San Francisco, 33 Cal. App. 5th 21, 37 (2019),
28 reh'g denied (Mar. 29, 2019), review filed (Apr. 23, 2019).
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SAN FRANCISCO, CA 94111 AND FIRST AMENDED CROSS-COMPLAINT
1 Section 4107 relating to Synergy’s removal from the Haight Street Project. (Id. at ¶¶ 39-43, 50-

2 54). Synergy’s cross-complaint brings a third and related cause of action for breach of the covenant

3 of good faith and fair dealing also arising out of the parties’ Subcontract. (Id. at ¶¶ 44-49).

4 H. Synergy’s Appeal of the District Court’s Order Dismissing the City Defendants
5 On December 19, 2019, Synergy filed a notice of appeal with the District Court. (RJN Ex.

6 4, Dkt. 132). Synergy’s appeal is currently pending before the Ninth Circuit. (RJN Ex. 9). In its

7 appeal, Synergy seeks a determination of, among other things, whether dismissal of its federal

8 claims against the City, Mr. Nuru, and Mayor Breed was proper, and whether the District Court

9 erred in declining to consider Synergy’s motion for leave to file its proposed fourth amended

10 complaint. (RJN Ex. 10 at pp. 31-35).

11 I. The ’6488 Action is Consolidated with the Instant Action for Trial in March 2021
12 On August 12, 2020 the Court consolidated the ’6488 Action with the instant action for all

13 purposes and set trial in this consolidated action for March 29, 2021. (RJN Ex. 12).

14 J. Synergy’s Aborted First Motion for Leave to File its Proposed FAC
15 On January 22, 2021, Synergy filed a motion for leave to file its proposed FAC, which GBI

16 opposed. Synergy’s proposed FAC was identical to the proposed FAC at issue in Synergy’s instant

17 motion. (RJN Ex. 12). On February 16, 2021, the day before the hearing on Synergy’s motion,

18 Department 302 issued a tentative ruling denying Synergy’s motion for leave to file its proposed

19 FAC. The tentative noted in pertinent part that:

20 “Synergy now seeks to add a Doe defendant, to add numerous new
factual allegations, and to add five new causes of action against
21 Defendant Ghilotti Bros., Inc., including claims for racketeering
and federal civil rights violations, as well as a claim for treble
22 damages. In August 2019, while the case was pending in federal
court, Synergy unsuccessfully sought leave to file similar claims
23 against the City and County of San Francisco and other City
defendants based on substantially the same set of facts and
24 allegations; its appeal from that order is currently pending before
the U.S. Court of Appeals for the Ninth Circuit. Should it prevail
25 on appeal, it may pursue its claims against the City defendants in
federal court.” [] “Synergy offers no justification for its lengthy
26 delay in seeking leave to amend. Further, allowing it to amend at
this late date would prejudice Ghilotti by requiring it to reopen
27 discovery, imposing additional burden and expense, and delaying
the trial.”
28
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HA M IL TON S A ND E RS LLP
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SAN FRANCISCO, CA 94111 AND FIRST AMENDED CROSS-COMPLAINT
1 (RJN Ex. 1). At the February 17, 2021 hearing Synergy orally withdrew its motion. (Lewis Dec.

2 ¶ 2).

3 K. Synergy Seeks Permission to File a Nearly Identical Proposed Fourth Amended
Complaint in the District Court
4

5 On February 22, 2021, Synergy filed a Motion for Relief from Judgment in the District

6 Court. (RJN Exs. 13-14). Synergy’s motion asks that the District Court “issue an indicative ruling”

7 under Federal Rule of Civil Procedure 60 permitting Synergy to file a proposed revised fourth

8 amended complaint alleging the same causes of action that Synergy seeks to bring in its proposed

9 FAC in this action. (RJN. Ex. 13, 2:12-13, 9:16-25; Ex. 14).

10 L. Synergy’s Motion to Continue the Trial Date
11 On February 24, 2021, Synergy filed a motion to continue the March 29, 2021 trial date in

12 this action. GBI offered Synergy a conditional 60-day trial continuance based on personal issues

13 raised by Synergy’s counsel, but Synergy declined. GBI conditionally opposes Synergy’s motion

14 by agreeing to a 60-day trialcontinuance, no resetting of the current discovery deadlines based

15 upon a March 29, 2021 trial date, and allowing timely noticed discovery to be completed prior to

16 the new trial date. The motion to continue is set for hearing on March 18, 2021.

17 M. Synergy’s Instant Motion for Leave to File its FAC and FACC
18 On March 4, 2021, and just over two weeks following the hearing on Synergy’s first motion

19 for leave to amend, Synergy hand-served GBI with the instant motion for leave to file its proposed

20 FAC and FACC. Synergy noticed the hearing on its motion for March 26, 2021—three days before
21 the parties’ current trial date. Again, Synergy’s proposed FAC is identical to the proposed FAC

22 that was the subject of Synergy’s February 17, 2021 motion before this Court.

23 III. ARGUMENT
24 A. Legal Standard
25 “The trial court has wide discretion in allowing the amendment of any pleading, and as a

26 matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross
27 abuse of discretion is shown.” Record v. Reason, 73 Cal. App. 4th 472, 486 (1999) (citing Bedolla

28 v. Logan & Frazer, 52 Cal.App.3d 118, 135 (1975)). The appropriate exercise of that discretion
-7-
T ROU TMA N PE PPE R
GHILOTTI BROS., INC.’S OPPOSITION TO MOTION FOR LEAVE TO FILE 4TH AMENDED COMPLAINT
HA M IL TON S A ND E RS LLP
3 EMBARCADERO CENTER, STE. 800
SAN FRANCISCO, CA 94111 AND FIRST AMENDED CROSS-COMPLAINT
1 requires the trial court to consider a number of factors, including the conduct of the moving party

2 and the belated presentation of the amendment.” Leader v. Health Industries of America, Inc., 89

3 Cal.App.4th 603, 613 (2001) (citing Bedolla, 52 Cal.App.3d at 135). “The law is well settled that

4 a long-deferred presentation of the proposed amendment without a showing of excuse for the delay

5 is itself a significant factor to uphold the trial court’s denial of the amendment.” Id. at 612. “The

6 law is also clear that even if a good amendment is proposed in proper form, unwarranted delay in

7 presenting it may—of itself—be a valid reason for denial.” Id. (citing Roemer v. Retail Credit Co.,

8 44 Cal.App.3d 926, 939-940 (1975)). “Where inexcusable delay and probable prejudice to the

9 opposing party is indicated, the trial court’s exercise of discretion in denying a proposed

10 amendment should not be disturbed.” Estate of Murphy, 82 Cal. App. 3d 304, 311 (1978).

11 The Court has discretion to deny leave to amend where a proposed amendment fails to state

12 a valid cause of action. Vogel v. Thrifty Drug Co., 43 Cal. 2d 184, 189 (1954); California Cas.

13 Gen. Ins. Co. v. Superior Court, 173 Cal. App. 3d 274, 280 (1985), disapproved of on other grounds

14 in Kransco v. Am. Empire Surplus Lines Ins. Co., 23 Cal. 4th 390, 404 (2000); Rose v. Ames, 53

15 Cal. App. 2d 583, 589 (1942); Oswald v. Northrop Aircraft, 62 Cal. App. 2d 824, 828 (1944). The

16 “question whether the filing of an amended pleading should be allowed at the time of trial is

17 ordinarily committed to the sound discretion of the trial court.” Vogel, 43 Cal. 2d at 188.

18 In this matter, Synergy’s objective and motive in seeking leave to file a FAC and FACC is

19 clear: to maintain as many litigation fronts as possible against the City—in this action, in Synergy’s

20 pending appeal before the Ninth Circuit, and in the District Court—in the futile hope that elongating
21 litigation will prove fruitful. This Court should properly decline to permit GBI and Synergy’s

22 contract dispute to be swept up in Synergy’s continuing crusade against the City by denying the

23 instant motion for leave to file a FAC and FACC.

24 B. Synergy Fails to Explain its Delay in Raising

Case Info

Judge

Samuel K. Feng Track Judge’s New Case

Case No.

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Document Filed Date

March 15, 2021

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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Complaint,Petition: SYNERGY PROJECT MANAGEMENT, INC. VS. CITY AND COUNTY OF SAN FRANCISCO

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