Preview
1 JOHNNY D. KNADLER (SBN 220942)
LAW OFFICE OF JOHNNY D. KNADLER
2 1527-E Pershing Drive
ELECTRONICALLY
San Francisco, CA 94129
3 Telephone: (310) 564-6695 F I L E D
Facsimile: (888) 323-0611 Superior Court of California,
County of San Francisco
4 Email: jdknadler@gmail.com
03/01/2021
5 Clerk of the Court
BY: EDNALEEN ALEGRE
Deputy Clerk
6
Attorneys for Plaintiff/Defendant/Cross-complainant
7 SYNERGY PROJECT MANAGEMENT, INC.
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF SAN FRANCISCO
11 SYNERGY PROJECT MANAGEMENT, Case No. CGC-17-560034
INC., (Consolidated with Case No. CGC-19-576488)
12
Plaintiff,
13 PLAINTIFF SYNERGY PROJECT
vs. MANAGEMENT, INC.’S OBJECTIONS
14 AND MOTION TO STRIKE UNTIMELY
CITY AND COUNTY OF SAN FRANCISCO, SUPPLEMENTAL DECLARATION OF
15 LONDON BREED, MOHAMMED NURU, RYAN A. LEWIS IN SUPPORT OF
DEFENDANT/PLAINTIFF/
16 Defendants. CROSS-DEFENDANT GHILOTTI BROS.,
______________________________________ INC.’S MOTION TO COMPEL
17 DEPOSITION OF SYNERGY PROJECT
GHILOTTI BROS., INC., a California MANAGEMENT, INC.’S PERSON MOST
18 Corporation, QUALIFIED AND PRODUCTION OF
DOCUMENTS
19 Plaintiff,
20
vs, Date: March 5, 2021
21 Time: 9:30 a.m.
SYNERGY PROJECT MANAGEMENT, Dept: 301
22 INC., a California Corporation, and
DOES 1-30, Complaint filed: July 10, 2017
23 Defendants.
24 ______________________________________
25 SYNERGY PROJECT MANAGEMENT, a
California Corporation,
26
Cross-Complainant,
27
vs.
28
Objection and Motion to Strike Untimely 1 Case No. CGC-17-560034
Supplemental Declaration
GHILOTTI BROS, INC., a California
1 Corporation, and ROES 1-20,
2 Cross-Defendants.
3
4
5
6 Pursuant to California Civil Code Sections 2025.480(a), 2025.480(b), and 2023.010(i) and
7 San Francisco Superior Court Local Rule 12.15(A), Plaintiff/Defendant/Cross-complainant
8 Synergy Project Management, Inc. (“Synergy”) hereby objects to, and moves to strike, Ghilotti
9 Bros., Inc.’s (“GBI”) “Supplemental” Declaration of Ryan A. Lewis in support of
10 Defendant/Plaintiff/Cross-Defendant Ghilotti Bros., Inc.’s Motion to Compel Deposition of
11 Synergy Project Management, Inc.’s Person Most Qualified and Production of Documents, on
12 the grounds that with the declaration, GBI impermissibly seeks to meet its obligation to include
13 in its moving papers a showing of its reasonable efforts to meet and confer to informally resolve
14 the dispute before filing its motion, with a declaration attesting to purported efforts to meet and
15 confer after the motion was brought.
16
17 Dated: March 1, 2021 LAW OFFICE OF JOHNNY D. KNADLER
18
19
20
21 By:
JOHNNY D. KNADLER
22 Attorneys for Plaintiff/Defendant/Cross-
complainant
23 SYNERGY PROJECT MANAGEMENT,
INC.
24
25
26
27
28
Objection and Motion to Strike Untimely 2 Case No. CGC-17-560034
Supplemental Declaration
1 OBJECTIONS AND MOTION TO STRIKE
2 I. Facts
3 On February 8, 2021, this Court heard and denied Defendant/Plaintiff/Cross-Defendant
4 Ghilotti Bros., Inc’s (“GBI”) ex parte motion to compel the deposition of Synergy Project
5 Management, Inc.’s (“Synergy”) person most qualified and for production of documents, and
6 ordered the parties to meet and confer regarding the deposition. The following day, February 9,
7 2021, and without making any effort to meet and confer, GBI filed the instant motion to compel.
8 Ten days later, on February 19, 2021, GBI filed the Supplemental Declaration of Ryan A. Lewis
9 (“Lewis Supp. Decl.”). The supplemental declaration purported to relate GBI’s efforts to meet
10 and confer “consistent with this Court’s direction” days after moving to compel and to attach
11 copy is of emails reflecting these communications. (Lewis Supp. Decl., ¶2.)
12 II. Legal Authority for Objections and Motion to Strike
13 California Code of Civil Procedure sections 2025.480(a) and (b) require, inter alia, that
14 any party moving to compel meet and confer in an effort to informally resolve the dispute prior
15 to filing the motion. Cal. Code. Civ. Proc. §§ 2025.480(a)(b). Code of Civil Procedure section
16 2025.480(b) provides, in pertinent part, that:
17
This motion shall be made no later than 60 days after the completion of the record
18 of the deposition, and shall be accompanied by a meet and confer declaration
under Section 2016.040 .
19
Code Civ. Proc. § 2025.480(b) (emphasis added). Section 2016.040, in turn, provides that:
20 A meet and confer declaration in support of a motion shall state facts showing a
reasonable and good faith attempt at an informal resolution of each issue
21 presented by the motion.
22 Code Civ. Proc.§ Section 2016.040 (emphasis added).
23 These requirements are mandatory. See Guerrero v. Hestrin, (2020) 56 Cal. App. 5th
24 172, 189) (“[t]he word ‘shall,’ when used in a statute, is ordinarily construed as mandatory”); See
25 also Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1408–1410 (Section 2025.480(b)’s
26 requirements are mandatory); Unzipped Apparel, LLC v. Bader, (2007) 156 Cal. App. 4th 123,
27 136 (same) (citing Sexton).
28
Objection and Motion to Strike Untimely 3 Case No. CGC-17-560034
Supplemental Declaration
1 Local Rule 12.15(A) likewise imposes a duty to meet and confer prior to filing a motion
2 to compel. Rule 12.15(A) states “[a];l attorneys must meet and confer prior to filing any noticed
3 motion. All motions must be supported by a declaration by counsel for the moving party
4 concerning efforts to meet and confer. Civ. Local. R. 12.15(A).
5 Failure to provide a declaration compliant with section 2025.480(b) is fatal to a motion to
6 compel brought pursuant to section 2025.480(a). See Sexton, 58 Cal.4th at 1410) (court has no
7 authority to rule on motions to compel that did not comply with the statute other than to deny
8 them); See also Judge's Checklist:, Cal. Judges Benchbook Civ. Proc. Discovery § 15.51 (“In
9 connection with a motion to compel under CCP § 2025.480(a), the judge should also determine .
10 .. [t] hat the moving party has submitted [a] declaration stating facts showing that the parties
11 have met and conferred and attempted to resolve the issues informally”.
12 The Civil Code also specifies what a reasonable effort to meet and confer must minimally
13 comprise. At a minimum, each party must “confer in person, by telephone, or by letter with an
14 opposing party or attorney,” and make a “reasonable and good faith” attempt to resolve
15 informally any dispute concerning discovery; failure by any party to do so is a misuse of the
16 discovery process. CCP § 2023.010(i). Some effort is required in all cases: there is no exception
17 based on speculation that prospects for informal resolution may be dire. Townsend v. Superior
18 Court, 61 Cal. App. 4th 1431, 1438 (1998). ). “The Discovery Act makes no exception based
19 upon one's speculation that the prospect of informal resolution may be bleak”).
20 Finally, even where the obligation to meet and confer is not mandated by statute, a
21 party’s refusal to obey a court order to meet and confer is an abuse of discovery and
22 sanctionable. Ellis v. Toshiba Am. Info. Sys., Inc., (2013) 218 Cal. App. 4th 853, 880, as
23 modified (Aug. 14, 2013), as modified on denial of reh'g (Sept. 10, 2013).
24
25 III. OBJECTIONS AND MOTION TO STRIKE
26 Here, GBI has submitted the “supplemental” declaration of its counsel, ten days after its
27 motion to compel was filed, and one court day before opposition to its motion to compel was
28 due, in an effort to meet its obligation to show a reasonable effort to meet and confer before
Objection and Motion to Strike Untimely 4 Case No. CGC-17-560034
Supplemental Declaration
1 bringing its motion to compel after the fact. See Lewis Supp. Decl., ¶2. The declaration, which
2 attests to purported meet and confer efforts occurring days after the instant motion was filed,
3 confirms GBI’s failure to comply with its obligations under Code of Civil Procedure sections
4 2023.010(i), Section 2016.040 and 2025.480(b). Id. The declaration is not admissible to cure
5 GBI’s failure to fulfill its obligation to meet and confer prior to moving to compel, a defect that
6 is fatal to the motion. See Weinstein, supra, 25 Cal. App. 5th at 319–321, and Sexton, 58 Cal.4th
7 at 1410.
8 Moreover, GBI’s supplemental declaration confirms that in filing its motion without
9 meeting and conferring, GBI deliberately disregarded this Court’s instruction the previous day.
10 See Lewis Supp. Decl., ¶2.
11 GBI’s failure to comply with Code of Civil Procedure sections, Pursuant to Code of Civil
12 Procedure sections Section 2016.040 and 2025.480(b),and disregard of the Court’s order to meet
13 and confer constitute sanctionable misuse of the discovery process under subdivisions (i) and (g),
14 respectively, of Code of Civil Procedure section 2023.010.
15 The Court should sustain Synergy’s objection to GBI’s supplemental declaration, and
16 strike the declaration in its entirety.
17 .
18 CONCLUSION
19 Based on the foregoing, Synergy’s objections should be sustained, and the motion to
20 strike granted.
21 Dated: March 1, 2021 LAW OFFICE OF JOHNNY D. KNADLER
22
23
24
25 By:
JOHNNY D. KNADLER
26 Attorneys for Plaintiff/Defendant/Cross-
complainant
27 SYNERGY PROJECT MANAGEMENT,
INC.
28
Objection and Motion to Strike Untimely 5 Case No. CGC-17-560034
Supplemental Declaration
Preview
1 JOHNNY D. KNADLER (SBN 220942) LAW OFFICE OF JOHNNY D. KNADLER 2 1527-E Pershing Drive ELECTRONICALLY San Francisco, CA 94129 3 Telephone: (310) 564-6695 F I L E D Facsimile: (888) 323-0611 Superior Court of California, County of San Francisco 4 Email: jdknadler@gmail.com 03/01/2021 5 Clerk of the Court BY: EDNALEEN ALEGRE Deputy Clerk 6 Attorneys for Plaintiff/Defendant/Cross-complainant 7 SYNERGY PROJECT MANAGEMENT, INC. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF SAN FRANCISCO 11 SYNERGY PROJECT MANAGEMENT, Case No. CGC-17-560034 INC., (Consolidated with Case No. CGC-19-576488) 12 Plaintiff, 13 PLAINTIFF SYNERGY PROJECT vs. MANAGEMENT, INC.’S OBJECTIONS 14 AND MOTION TO STRIKE UNTIMELY CITY AND COUNTY OF SAN FRANCISCO, SUPPLEMENTAL DECLARATION OF 15 LONDON BREED, MOHAMMED NURU, RYAN A. LEWIS IN SUPPORT OF DEFENDANT/PLAINTIFF/ 16 Defendants. CROSS-DEFENDANT GHILOTTI BROS., ______________________________________ INC.’S MOTION TO COMPEL 17 DEPOSITION OF SYNERGY PROJECT GHILOTTI BROS., INC., a California MANAGEMENT, INC.’S PERSON MOST 18 Corporation, QUALIFIED AND PRODUCTION OF DOCUMENTS 19 Plaintiff, 20 vs, Date: March 5, 2021 21 Time: 9:30 a.m. SYNERGY PROJECT MANAGEMENT, Dept: 301 22 INC., a California Corporation, and DOES 1-30, Complaint filed: July 10, 2017 23 Defendants. 24 ______________________________________ 25 SYNERGY PROJECT MANAGEMENT, a California Corporation, 26 Cross-Complainant, 27 vs. 28 Objection and Motion to Strike Untimely 1 Case No. CGC-17-560034 Supplemental Declaration GHILOTTI BROS, INC., a California 1 Corporation, and ROES 1-20, 2 Cross-Defendants. 3 4 5 6 Pursuant to California Civil Code Sections 2025.480(a), 2025.480(b), and 2023.010(i) and 7 San Francisco Superior Court Local Rule 12.15(A), Plaintiff/Defendant/Cross-complainant 8 Synergy Project Management, Inc. (“Synergy”) hereby objects to, and moves to strike, Ghilotti 9 Bros., Inc.’s (“GBI”) “Supplemental” Declaration of Ryan A. Lewis in support of 10 Defendant/Plaintiff/Cross-Defendant Ghilotti Bros., Inc.’s Motion to Compel Deposition of 11 Synergy Project Management, Inc.’s Person Most Qualified and Production of Documents, on 12 the grounds that with the declaration, GBI impermissibly seeks to meet its obligation to include 13 in its moving papers a showing of its reasonable efforts to meet and confer to informally resolve 14 the dispute before filing its motion, with a declaration attesting to purported efforts to meet and 15 confer after the motion was brought. 16 17 Dated: March 1, 2021 LAW OFFICE OF JOHNNY D. KNADLER 18 19 20 21 By: JOHNNY D. KNADLER 22 Attorneys for Plaintiff/Defendant/Cross- complainant 23 SYNERGY PROJECT MANAGEMENT, INC. 24 25 26 27 28 Objection and Motion to Strike Untimely 2 Case No. CGC-17-560034 Supplemental Declaration 1 OBJECTIONS AND MOTION TO STRIKE 2 I. Facts 3 On February 8, 2021, this Court heard and denied Defendant/Plaintiff/Cross-Defendant 4 Ghilotti Bros., Inc’s (“GBI”) ex parte motion to compel the deposition of Synergy Project 5 Management, Inc.’s (“Synergy”) person most qualified and for production of documents, and 6 ordered the parties to meet and confer regarding the deposition. The following day, February 9, 7 2021, and without making any effort to meet and confer, GBI filed the instant motion to compel. 8 Ten days later, on February 19, 2021, GBI filed the Supplemental Declaration of Ryan A. Lewis 9 (“Lewis Supp. Decl.”). The supplemental declaration purported to relate GBI’s efforts to meet 10 and confer “consistent with this Court’s direction” days after moving to compel and to attach 11 copy is of emails reflecting these communications. (Lewis Supp. Decl., ¶2.) 12 II. Legal Authority for Objections and Motion to Strike 13 California Code of Civil Procedure sections 2025.480(a) and (b) require, inter alia, that 14 any party moving to compel meet and confer in an effort to informally resolve the dispute prior 15 to filing the motion. Cal. Code. Civ. Proc. §§ 2025.480(a)(b). Code of Civil Procedure section 16 2025.480(b) provides, in pertinent part, that: 17 This motion shall be made no later than 60 days after the completion of the record 18 of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040 . 19 Code Civ. Proc. § 2025.480(b) (emphasis added). Section 2016.040, in turn, provides that: 20 A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue 21 presented by the motion. 22 Code Civ. Proc.§ Section 2016.040 (emphasis added). 23 These requirements are mandatory. See Guerrero v. Hestrin, (2020) 56 Cal. App. 5th 24 172, 189) (“[t]he word ‘shall,’ when used in a statute, is ordinarily construed as mandatory”); See 25 also Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1408–1410 (Section 2025.480(b)’s 26 requirements are mandatory); Unzipped Apparel, LLC v. Bader, (2007) 156 Cal. App. 4th 123, 27 136 (same) (citing Sexton). 28 Objection and Motion to Strike Untimely 3 Case No. CGC-17-560034 Supplemental Declaration 1 Local Rule 12.15(A) likewise imposes a duty to meet and confer prior to filing a motion 2 to compel. Rule 12.15(A) states “[a];l attorneys must meet and confer prior to filing any noticed 3 motion. All motions must be supported by a declaration by counsel for the moving party 4 concerning efforts to meet and confer. Civ. Local. R. 12.15(A). 5 Failure to provide a declaration compliant with section 2025.480(b) is fatal to a motion to 6 compel brought pursuant to section 2025.480(a). See Sexton, 58 Cal.4th at 1410) (court has no 7 authority to rule on motions to compel that did not comply with the statute other than to deny 8 them); See also Judge's Checklist:, Cal. Judges Benchbook Civ. Proc. Discovery § 15.51 (“In 9 connection with a motion to compel under CCP § 2025.480(a), the judge should also determine . 10 .. [t] hat the moving party has submitted [a] declaration stating facts showing that the parties 11 have met and conferred and attempted to resolve the issues informally”. 12 The Civil Code also specifies what a reasonable effort to meet and confer must minimally 13 comprise. At a minimum, each party must “confer in person, by telephone, or by letter with an 14 opposing party or attorney,” and make a “reasonable and good faith” attempt to resolve 15 informally any dispute concerning discovery; failure by any party to do so is a misuse of the 16 discovery process. CCP § 2023.010(i). Some effort is required in all cases: there is no exception 17 based on speculation that prospects for informal resolution may be dire. Townsend v. Superior 18 Court, 61 Cal. App. 4th 1431, 1438 (1998). ). “The Discovery Act makes no exception based 19 upon one's speculation that the prospect of informal resolution may be bleak”). 20 Finally, even where the obligation to meet and confer is not mandated by statute, a 21 party’s refusal to obey a court order to meet and confer is an abuse of discovery and 22 sanctionable. Ellis v. Toshiba Am. Info. Sys., Inc., (2013) 218 Cal. App. 4th 853, 880, as 23 modified (Aug. 14, 2013), as modified on denial of reh'g (Sept. 10, 2013). 24 25 III. OBJECTIONS AND MOTION TO STRIKE 26 Here, GBI has submitted the “supplemental” declaration of its counsel, ten days after its 27 motion to compel was filed, and one court day before opposition to its motion to compel was 28 due, in an effort to meet its obligation to show a reasonable effort to meet and confer before Objection and Motion to Strike Untimely 4 Case No. CGC-17-560034 Supplemental Declaration 1 bringing its motion to compel after the fact. See Lewis Supp. Decl., ¶2. The declaration, which 2 attests to purported meet and confer efforts occurring days after the instant motion was filed, 3 confirms GBI’s failure to comply with its obligations under Code of Civil Procedure sections 4 2023.010(i), Section 2016.040 and 2025.480(b). Id. The declaration is not admissible to cure 5 GBI’s failure to fulfill its obligation to meet and confer prior to moving to compel, a defect that 6 is fatal to the motion. See Weinstein, supra, 25 Cal. App. 5th at 319–321, and Sexton, 58 Cal.4th 7 at 1410. 8 Moreover, GBI’s supplemental declaration confirms that in filing its motion without 9 meeting and conferring, GBI deliberately disregarded this Court’s instruction the previous day. 10 See Lewis Supp. Decl., ¶2. 11 GBI’s failure to comply with Code of Civil Procedure sections, Pursuant to Code of Civil 12 Procedure sections Section 2016.040 and 2025.480(b),and disregard of the Court’s order to meet 13 and confer constitute sanctionable misuse of the discovery process under subdivisions (i) and (g), 14 respectively, of Code of Civil Procedure section 2023.010. 15 The Court should sustain Synergy’s objection to GBI’s supplemental declaration, and 16 strike the declaration in its entirety. 17 . 18 CONCLUSION 19 Based on the foregoing, Synergy’s objections should be sustained, and the motion to 20 strike granted. 21 Dated: March 1, 2021 LAW OFFICE OF JOHNNY D. KNADLER 22 23 24 25 By: JOHNNY D. KNADLER 26 Attorneys for Plaintiff/Defendant/Cross- complainant 27 SYNERGY PROJECT MANAGEMENT, INC. 28 Objection and Motion to Strike Untimely 5 Case No. CGC-17-560034 Supplemental Declaration