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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 FILED
Three Embarcadero Center, Suite 800 Superior Court of California,
4 San Francisco, CA 94111 County of San Francisco
Telephone: 415.477.5700 02/08/2021
5 Facsimile: 415.477.5710 Clerk of the Court
BY: EDNALEEN ALEGRE
6 Attorneys for Defendant/Plaintiff/Cross-Defendant Deputy Clerk
GHILOTTI BROS., INC.
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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]
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Plaintiff, DEFENDANT/PLAINTIFF/CROSS-
13 DEFENDANT GHILOTTI BROS., INC.’S
vs. EX PARTE APPLICATION FOR ORDER
14 SHORTENING NOTICE RE MOTION TO
CITY AND COUNTY OF SAN COMPEL DEPOSITION OF SYNERGY
15 FRANCISCO, SAN FRANCISCO PROJECT MANAGEMENT, INC.’S
PUBLIC UTILITIES COMMISSION, PERSON MOST QUALIFIED AND
16 SAN FRANCISCO MUNICIPAL PRODUCTION OF DOCUMENTS;
TRANSPORTATION AGENCY, SAN MEMORANDUM OF POINTS AND
17 FRANCISCO DEPARTMENT OF AUTHORITIES
PUBLIC WORKS, LONDON BREED,
18 MOHAMMED NURU, and DOES 1-100, Date: February 8, 2021
Time: 11:00 a.m.
19 Defendants. Dept.: 302
20 Trial Date: March 29, 2021
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GHILOTTI BROS., INC., a California
22 Corporation,
23 Plaintiff,
24 v.
25 SYNERGY PROJECT MANAGEMENT,
INC., a California Corporation, and
26 DOES 1-30,
27 Defendants.
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T RO U TMA N PE PPE R
HA M IL TON S A ND E RS LLP
3 EMBARCADERO CENTER, STE. 800 GHILOTTI BROS., INC.’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION TO
SAN FRANCISCO, CA 94111
COMPEL DEPOSITION OF PLAINTIFF’S PERSON MOST QUALIFIED
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
8
9 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
10 PLEASE TAKE NOTICE THAT on February 8, 2021, at 11:00 a.m. in Department 302
11 of this Court, located at 400 McAllister Street, San Francisco, CA 94102, or at another date and
12 time convenient for the Court, defendant/plaintiff/cross-defendant Ghilotti Bros., Inc., (“GBI”)
13 for good cause will, and hereby does move ex parte pursuant to California Rule of Court 3.1200
14 et seq. for an order shortening notice of hearing on GBI’s Motion to Compel Deposition of
15 plaintiff/defendant/cross-complainant Synergy Project Management, Inc.’s Person Most Qualified
16 and Production of Documents (“Motion”).
17 Pursuant to California Rule of Court 3.1202(a), counsel for the parties is as follows:
18 TROUTMAN PEPPER HAMILTON LAW OFFICE OF JOHNNY D KNADLER
SANDERS LLP Johnny D. Knadler
19 James P. Diwik, Bar No. 164016 1527-E Pershing Drive
james.diwik@troutman.com San Francisco, CA 94129
20 Ryan A. Lewis, Bar No. 307253 Telephone: (310) 564-6695
ryan.lewis@troutman.com
21 Three Embarcadero Center, Suite 800 Counsel for plaintiff/defendant/cross-
San Francisco, CA 94111 complainant Synergy Project Management, Inc.
22 Telephone: 415.477.5700
Facsimile: 415.477.5710
23
Counsel for defendant/plaintiff/cross-defendant
24 Ghilotti Bros., Inc.
25 GBI provided timely notice of this Application to counsel for Synergy Project
26 Management, Inc., and Synergy declined to stipulate to the requested order shortening time.
27 (Declaration of Ryan A. Lewis (“Lewis Dec.”), ¶ 2, Ex. A). Synergy’s counsel stated his
28 intention to appear and to oppose GBI’s Application. (Id., ¶ 3). The parties have brought no
T RO U TMA N PE PPE R
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HA M IL TON S A ND E RS LLP GHILOTTI BROS., INC.’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION TO
3 EMBARCADERO CENTER, STE. 800 COMPEL DEPOSITION OF PLAINTIFF’S PERSON MOST QUALIFIED
SAN FRANCISCO, CA 94111
1 other applications for the same relief sought in this Application. (Id., ¶ 4).
2 GBI’s Application is supported by good cause. Trial in this action is set for March 29,
3 2021, and non-expert discovery closes on March 1, 2021. On January 12, 2021, GBI served a
4 notice of oral deposition of the person most qualified for Synergy and included therein a demand
5 for production of documents at deposition to occur on January 26, 2021. On January 22, 2021,
6 Synergy served an objection to the deposition notice indicating therein that the deposition would
7 not go forward on January 26, 2021, and lodging objections to each category of inquiry and each
8 demand for production of documents. On January 27, 2021, and as part of the parties’ meet and
9 confer process, Synergy offered a new deposition date of February 19, 2021, and on January 29,
10 2021, GBI served an updated deposition notice reflecting the February 19, 2021 deposition date.
11 However, to date Synergy has declined to withdraw its objections to the categories of inquiry and
12 document demands within GBI’s deposition notice.
13 The last day to file and serve (by hand) motions to compel non-expert discovery is
14 February 19, 2021. The deposition of Synergy’s person most qualified is set to proceed on that
15 same day—February 19, 2021. However, Synergy’s meritless objections to every document
16 request and category of information set forth in GBI’s deposition notice, and refusal to confirm
17 that it will be producing documents responsive to GBI’s deposition notice or offering a witness
18 competent to testify to the categories of information set forth in GBI’s deposition notice, leaves
19 uncertain whether and to what extent a meaningful deposition will occur on February 19, 2021.
20 Given Synergy’s objections and the impending deadline to file motions to compel non-expert
21 discovery, GBI will be severely prejudiced unless the Court hears and determines GBI’s motion
22 to compel compliance with GBI’s deposition notice well in advance of the February 19, 2021
23 deposition. Unless GBI’s Application is granted, GBI will be unable to compel Synergy’s
24 compliance with the deposition notice prior to trial and will be forced to proceed with the
25 deposition despite Synergy’s baseless objections to GBI’s deposition notice.
26 ///
27 ///
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T RO U TMA N PE PPE R
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HA M IL TON S A ND E RS LLP GHILOTTI BROS., INC.’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION TO
3 EMBARCADERO CENTER, STE. 800 COMPEL DEPOSITION OF PLAINTIFF’S PERSON MOST QUALIFIED
SAN FRANCISCO, CA 94111
1 GBI bases this Application on this Ex Parte Notice of Application and Ex Parte
2 Application, the Memorandum of Points and Authorities, the Declaration of Ryan A. Lewis and
3 all exhibits thereto, the documents and records in the Court’s file, and any oral argument that may
4 be presented at the hearing on this matter.
5 Dated: February 7, 2021 TROUTMAN PEPPER HAMILTON
SANDERS LLP
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By: /s/ Ryan A. Lewis
8 JAMES DIWIK
RYAN A. LEWIS
9 Attorneys for Defendant/Plaintiff/Cross-
Defendant
10 GHILOTTI BROS., INC.
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T RO U TMA N PE PPE R
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HA M IL TON S A ND E RS LLP GHILOTTI BROS., INC.’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION TO
3 EMBARCADERO CENTER, STE. 800 COMPEL DEPOSITION OF PLAINTIFF’S PERSON MOST QUALIFIED
SAN FRANCISCO, CA 94111
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 Trial is set for March 29, 2021, and non-expert discovery closes on March 1, 2021. The
3 last day to file and serve (by hand) motions to compel non-expert discovery is February 19, 2021.
4 On January 12, 2021, GBI served an Amended Notice of Taking Oral Deposition of the Person
5 Most Qualified for Plaintiff/Defendant/Cross-Complainant Synergy (“Notice”). (Declaration of
6 Ryan A. Lewis (“Lewis Dec.”, ¶¶ 5-7, Ex. B). GBI’s Notice set the deposition of Synergy’s
7 PMQ witness for January 26, 2021, and the Notice set forth detailed and particularized categories
8 of information for Synergy’s deposition testimony, as well as narrowly tailored requests for
9 production of documents. (Id., ¶ 8).
10 On January 22, 2021, Synergy served objections to GBI’s Notice. (Id., ¶ 9, Ex. C). In its
11 meritless and unparticularized objections, (1) Synergy objected to each of GBI’s requests for
12 production and did not agree to produce any responsive documents; and (2) Synergy objected to
13 each of GBI’s categories of information for the deposition, casting into doubt whether Synergy
14 would produce a witness competent to testify to each category. (Id.) Synergy subsequently
15 offered a new PMQ deposition date of February 19, 2021. (Id., ¶ 10). GBI served an updated
16 Notice reflecting the February 19, 2021 deposition date. (Id., Ex. E).
17 Following receipt of Synergy’s objections to GBI’s Notice, GBI continued to meet and
18 confer with Synergy via email regarding its objections, and Synergy continued to refuse to
19 confirm that it would withdraw its objections to GBI’s Notice, produce documents responsive to
20 the requests for production in GBI’s Notice, and/or withdraw its objections to GBI’s categories of
21 information and produce a witness competent to testify to each category. (Id., ¶ 11).
22 In a February 3, 2021 meet and confer conversation, Synergy’s counsel again declined to
23 confirm that Synergy would withdraw its objections to GBI’s Notice, produce all responsive
24 documents requested, and/or withdraw its objections to GBI’s categories of information. (Id.,
25 ¶ 12). The next day, GBI informed Synergy that it intended to move to compel compliance with
26 GBI’s Notice on shortened time. (Id., ¶ 13).
27 Good cause exists for a GBI’s Application, which seeks an order from the Court
28 shortening the standard notice of hearing time period with respect to GBI’s Motion to Compel
T RO U TMA N PE PPE R
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HA M IL TON S A ND E RS LLP GHILOTTI BROS., INC.’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION TO
3 EMBARCADERO CENTER, STE. 800 COMPEL DEPOSITION OF PLAINTIFF’S PERSON MOST QUALIFIED
SAN FRANCISCO, CA 94111
1 Deposition of Plaintiff Synergy Project Management, Inc.’s Person Most Qualified and
2 Production of Documents (the “Motion”). (Id., ¶¶ 5-15). After meeting and conferring with
3 Synergy following receipt of Synergy’s objections to GBI’s deposition notice and declination to
4 appear on January 26, 2021, Synergy offered a new deposition date of February 19, 2021, which
5 is also the last day the parties may move to compel non-expert discovery. Synergy, however, has
6 declined to withdraw its meritless objections to GBI’s deposition notice, including objection-only
7 responses to every request for production in GBI’s deposition notice, as well as its objections to
8 each category of information set forth in GBI’s deposition notice. Given Synergy’s objections
9 and the impending deadline to file motions to compel non-expert discovery, GBI will be severely
10 prejudiced unless the Court hears GBI’s motion to compel compliance with GBI’s deposition
11 notice well in advance of the February 19, 2021 deposition date offered by Synergy. Unless
12 GBI’s Application is granted, GBI is uncertain whether, and to what extent, the noticed
13 deposition as to categories of inquiry and document production will take place—GBI should not
14 be required to proceed under these circumstances and therefore seeks a pre-deposition order from
15 the Court ensuring Synergy’s compliance with the deposition notice in full. (Id., ¶¶ 5-15).
16 GBI’s Application is necessary because the deposition is currently scheduled for February
17 19, 2021, and the last day to serve discovery motions related to non-expert discovery before the
18 trial date is February 19, 2021. Accordingly, absent the Court’s intervention, GBI will be forced
19 to conduct the deposition of Synergy’s PMQ on February 19, 2021 (1) subject to Synergy’s
20 meritless objections and without Synergy’s agreement to produce responsive documents as
21 requested in GBI’s Notice, and (2) without any assurance that Synergy will produce a competent
22 witness capable of testifying to the categories of information set forth in the Notice. Because
23 February 19, 2021 is also the last day to serve and file a motion to compel non-expert discovery,
24 GBI will be unable to compel Synergy’s compliance with the Notice following the deposition.
25 (Id., ¶¶ 14-15). GBI respectfully requests that the Court grant its Application and shorten notice
26 for hearing on GBI’s Motion.
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T RO U TMA N PE PPE R
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HA M IL TON S A ND E RS LLP GHILOTTI BROS., INC.’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION TO
3 EMBARCADERO CENTER, STE. 800 COMPEL DEPOSITION OF PLAINTIFF’S PERSON MOST QUALIFIED
SAN FRANCISCO, CA 94111
1 Dated: February 7, 2021 TROUTMAN PEPPER HAMILTON
SANDERS LLP
2
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By: /s/ Ryan A. Lewis
4 JAMES DIWIK
RYAN A. LEWIS
5 Attorneys for Defendant/Plaintiff/Cross-
Defendant
6 GHILOTTI BROS., INC.
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T RO U TMA N PE PPE R
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HA M IL TON S A ND E RS LLP GHILOTTI BROS., INC.’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION TO
3 EMBARCADERO CENTER, STE. 800 COMPEL DEPOSITION OF PLAINTIFF’S PERSON MOST QUALIFIED
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 February 8, 2021 I served the following document(s) described as:
5 DEFENDANT/CROSS-DEFENDANT GHILOTTI BROS., INC.’S EX PARTE
APPLICATION FOR ORDER SHORTENING NOTICE RE MOTION TO COMPEL
6 DEPOSITION OF SYNERGY PROJECT MANAGEMENT, INC.’S PERSON MOST
QUALIFIED AND PRODUCTION OF DOCUMENTS; MEMORANDUM OF POINTS
7 AND AUTHORITIES
8 On the parties or attorneys for parties in this action who are identified below, using the following
means of service:
9
BY OVERNIGHT DELIVERY: By placing a true copy(ies) thereof enclosed in a sealed
10 envelope(s) or package(s) as designated by Federal Express, addressed as above, and
depositing said envelope(s) or package(s), with delivery fees provided for, in a box
11 regularly maintained by Federal Express at Three Embarcadero Center, Suite 800, San
Francisco, California 94111.
12
13 BY ELECTRONIC MAIL (CRC 2.251): Based on a court order or an agreement of the
parties to accept service by e-mail or electronic transmission, I caused the document(s) to
14 be sent to the person(s) at the e-mail addresses, as last given or submitted on any
15 document which he or she has filed in the case.
16 Johnny D. Knadler, Esq.
LAW OFFICES OF JOHNNY D. KNADLER
17 1527 E Pershing Drive
San Francisco, CA 94129
18 Telephone: (310) 564-6695
Facsimile: (888) 323-0611
19 Email: jdknadler@gmail.com
jdknadler@yahoo.com
20
21 I declare under penalty of perjury under the laws of the State of California that the above
22 is true and correct. Executed on February 8, 2021, at San Francisco, CA.
23
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25 Tracey Cantu
26
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113261407v1
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PROOF OF SERVICE
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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 FILED Three Embarcadero Center, Suite 800 Superior Court of California, 4 San Francisco, CA 94111 County of San Francisco Telephone: 415.477.5700 02/08/2021 5 Facsimile: 415.477.5710 Clerk of the Court BY: EDNALEEN ALEGRE 6 Attorneys for Defendant/Plaintiff/Cross-Defendant Deputy Clerk 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/CROSS- 13 DEFENDANT GHILOTTI BROS., INC.’S vs. EX PARTE APPLICATION FOR ORDER 14 SHORTENING NOTICE RE MOTION TO CITY AND COUNTY OF SAN COMPEL DEPOSITION OF SYNERGY 15 FRANCISCO, SAN FRANCISCO PROJECT MANAGEMENT, INC.’S PUBLIC UTILITIES COMMISSION, PERSON MOST QUALIFIED AND 16 SAN FRANCISCO MUNICIPAL PRODUCTION OF DOCUMENTS; TRANSPORTATION AGENCY, SAN MEMORANDUM OF POINTS AND 17 FRANCISCO DEPARTMENT OF AUTHORITIES PUBLIC WORKS, LONDON BREED, 18 MOHAMMED NURU, and DOES 1-100, Date: February 8, 2021 Time: 11:00 a.m. 19 Defendants. Dept.: 302 20 Trial Date: March 29, 2021 21 GHILOTTI BROS., INC., a California 22 Corporation, 23 Plaintiff, 24 v. 25 SYNERGY PROJECT MANAGEMENT, INC., a California Corporation, and 26 DOES 1-30, 27 Defendants. 28 T RO U TMA N PE PPE R HA M IL TON S A ND E RS LLP 3 EMBARCADERO CENTER, STE. 800 GHILOTTI BROS., INC.’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION TO SAN FRANCISCO, CA 94111 COMPEL DEPOSITION OF PLAINTIFF’S PERSON MOST QUALIFIED 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 8 9 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 10 PLEASE TAKE NOTICE THAT on February 8, 2021, at 11:00 a.m. in Department 302 11 of this Court, located at 400 McAllister Street, San Francisco, CA 94102, or at another date and 12 time convenient for the Court, defendant/plaintiff/cross-defendant Ghilotti Bros., Inc., (“GBI”) 13 for good cause will, and hereby does move ex parte pursuant to California Rule of Court 3.1200 14 et seq. for an order shortening notice of hearing on GBI’s Motion to Compel Deposition of 15 plaintiff/defendant/cross-complainant Synergy Project Management, Inc.’s Person Most Qualified 16 and Production of Documents (“Motion”). 17 Pursuant to California Rule of Court 3.1202(a), counsel for the parties is as follows: 18 TROUTMAN PEPPER HAMILTON LAW OFFICE OF JOHNNY D KNADLER SANDERS LLP Johnny D. Knadler 19 James P. Diwik, Bar No. 164016 1527-E Pershing Drive james.diwik@troutman.com San Francisco, CA 94129 20 Ryan A. Lewis, Bar No. 307253 Telephone: (310) 564-6695 ryan.lewis@troutman.com 21 Three Embarcadero Center, Suite 800 Counsel for plaintiff/defendant/cross- San Francisco, CA 94111 complainant Synergy Project Management, Inc. 22 Telephone: 415.477.5700 Facsimile: 415.477.5710 23 Counsel for defendant/plaintiff/cross-defendant 24 Ghilotti Bros., Inc. 25 GBI provided timely notice of this Application to counsel for Synergy Project 26 Management, Inc., and Synergy declined to stipulate to the requested order shortening time. 27 (Declaration of Ryan A. Lewis (“Lewis Dec.”), ¶ 2, Ex. A). Synergy’s counsel stated his 28 intention to appear and to oppose GBI’s Application. (Id., ¶ 3). The parties have brought no T RO U TMA N PE PPE R -2- HA M IL TON S A ND E RS LLP GHILOTTI BROS., INC.’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION TO 3 EMBARCADERO CENTER, STE. 800 COMPEL DEPOSITION OF PLAINTIFF’S PERSON MOST QUALIFIED SAN FRANCISCO, CA 94111 1 other applications for the same relief sought in this Application. (Id., ¶ 4). 2 GBI’s Application is supported by good cause. Trial in this action is set for March 29, 3 2021, and non-expert discovery closes on March 1, 2021. On January 12, 2021, GBI served a 4 notice of oral deposition of the person most qualified for Synergy and included therein a demand 5 for production of documents at deposition to occur on January 26, 2021. On January 22, 2021, 6 Synergy served an objection to the deposition notice indicating therein that the deposition would 7 not go forward on January 26, 2021, and lodging objections to each category of inquiry and each 8 demand for production of documents. On January 27, 2021, and as part of the parties’ meet and 9 confer process, Synergy offered a new deposition date of February 19, 2021, and on January 29, 10 2021, GBI served an updated deposition notice reflecting the February 19, 2021 deposition date. 11 However, to date Synergy has declined to withdraw its objections to the categories of inquiry and 12 document demands within GBI’s deposition notice. 13 The last day to file and serve (by hand) motions to compel non-expert discovery is 14 February 19, 2021. The deposition of Synergy’s person most qualified is set to proceed on that 15 same day—February 19, 2021. However, Synergy’s meritless objections to every document 16 request and category of information set forth in GBI’s deposition notice, and refusal to confirm 17 that it will be producing documents responsive to GBI’s deposition notice or offering a witness 18 competent to testify to the categories of information set forth in GBI’s deposition notice, leaves 19 uncertain whether and to what extent a meaningful deposition will occur on February 19, 2021. 20 Given Synergy’s objections and the impending deadline to file motions to compel non-expert 21 discovery, GBI will be severely prejudiced unless the Court hears and determines GBI’s motion 22 to compel compliance with GBI’s deposition notice well in advance of the February 19, 2021 23 deposition. Unless GBI’s Application is granted, GBI will be unable to compel Synergy’s 24 compliance with the deposition notice prior to trial and will be forced to proceed with the 25 deposition despite Synergy’s baseless objections to GBI’s deposition notice. 26 /// 27 /// 28 /// T RO U TMA N PE PPE R -3- HA M IL TON S A ND E RS LLP GHILOTTI BROS., INC.’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION TO 3 EMBARCADERO CENTER, STE. 800 COMPEL DEPOSITION OF PLAINTIFF’S PERSON MOST QUALIFIED SAN FRANCISCO, CA 94111 1 GBI bases this Application on this Ex Parte Notice of Application and Ex Parte 2 Application, the Memorandum of Points and Authorities, the Declaration of Ryan A. Lewis and 3 all exhibits thereto, the documents and records in the Court’s file, and any oral argument that may 4 be presented at the hearing on this matter. 5 Dated: February 7, 2021 TROUTMAN PEPPER HAMILTON SANDERS LLP 6 7 By: /s/ Ryan A. Lewis 8 JAMES DIWIK RYAN A. LEWIS 9 Attorneys for Defendant/Plaintiff/Cross- Defendant 10 GHILOTTI BROS., INC. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 T RO U TMA N PE PPE R -4- HA M IL TON S A ND E RS LLP GHILOTTI BROS., INC.’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION TO 3 EMBARCADERO CENTER, STE. 800 COMPEL DEPOSITION OF PLAINTIFF’S PERSON MOST QUALIFIED SAN FRANCISCO, CA 94111 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 Trial is set for March 29, 2021, and non-expert discovery closes on March 1, 2021. The 3 last day to file and serve (by hand) motions to compel non-expert discovery is February 19, 2021. 4 On January 12, 2021, GBI served an Amended Notice of Taking Oral Deposition of the Person 5 Most Qualified for Plaintiff/Defendant/Cross-Complainant Synergy (“Notice”). (Declaration of 6 Ryan A. Lewis (“Lewis Dec.”, ¶¶ 5-7, Ex. B). GBI’s Notice set the deposition of Synergy’s 7 PMQ witness for January 26, 2021, and the Notice set forth detailed and particularized categories 8 of information for Synergy’s deposition testimony, as well as narrowly tailored requests for 9 production of documents. (Id., ¶ 8). 10 On January 22, 2021, Synergy served objections to GBI’s Notice. (Id., ¶ 9, Ex. C). In its 11 meritless and unparticularized objections, (1) Synergy objected to each of GBI’s requests for 12 production and did not agree to produce any responsive documents; and (2) Synergy objected to 13 each of GBI’s categories of information for the deposition, casting into doubt whether Synergy 14 would produce a witness competent to testify to each category. (Id.) Synergy subsequently 15 offered a new PMQ deposition date of February 19, 2021. (Id., ¶ 10). GBI served an updated 16 Notice reflecting the February 19, 2021 deposition date. (Id., Ex. E). 17 Following receipt of Synergy’s objections to GBI’s Notice, GBI continued to meet and 18 confer with Synergy via email regarding its objections, and Synergy continued to refuse to 19 confirm that it would withdraw its objections to GBI’s Notice, produce documents responsive to 20 the requests for production in GBI’s Notice, and/or withdraw its objections to GBI’s categories of 21 information and produce a witness competent to testify to each category. (Id., ¶ 11). 22 In a February 3, 2021 meet and confer conversation, Synergy’s counsel again declined to 23 confirm that Synergy would withdraw its objections to GBI’s Notice, produce all responsive 24 documents requested, and/or withdraw its objections to GBI’s categories of information. (Id., 25 ¶ 12). The next day, GBI informed Synergy that it intended to move to compel compliance with 26 GBI’s Notice on shortened time. (Id., ¶ 13). 27 Good cause exists for a GBI’s Application, which seeks an order from the Court 28 shortening the standard notice of hearing time period with respect to GBI’s Motion to Compel T RO U TMA N PE PPE R -5- HA M IL TON S A ND E RS LLP GHILOTTI BROS., INC.’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION TO 3 EMBARCADERO CENTER, STE. 800 COMPEL DEPOSITION OF PLAINTIFF’S PERSON MOST QUALIFIED SAN FRANCISCO, CA 94111 1 Deposition of Plaintiff Synergy Project Management, Inc.’s Person Most Qualified and 2 Production of Documents (the “Motion”). (Id., ¶¶ 5-15). After meeting and conferring with 3 Synergy following receipt of Synergy’s objections to GBI’s deposition notice and declination to 4 appear on January 26, 2021, Synergy offered a new deposition date of February 19, 2021, which 5 is also the last day the parties may move to compel non-expert discovery. Synergy, however, has 6 declined to withdraw its meritless objections to GBI’s deposition notice, including objection-only 7 responses to every request for production in GBI’s deposition notice, as well as its objections to 8 each category of information set forth in GBI’s deposition notice. Given Synergy’s objections 9 and the impending deadline to file motions to compel non-expert discovery, GBI will be severely 10 prejudiced unless the Court hears GBI’s motion to compel compliance with GBI’s deposition 11 notice well in advance of the February 19, 2021 deposition date offered by Synergy. Unless 12 GBI’s Application is granted, GBI is uncertain whether, and to what extent, the noticed 13 deposition as to categories of inquiry and document production will take place—GBI should not 14 be required to proceed under these circumstances and therefore seeks a pre-deposition order from 15 the Court ensuring Synergy’s compliance with the deposition notice in full. (Id., ¶¶ 5-15). 16 GBI’s Application is necessary because the deposition is currently scheduled for February 17 19, 2021, and the last day to serve discovery motions related to non-expert discovery before the 18 trial date is February 19, 2021. Accordingly, absent the Court’s intervention, GBI will be forced 19 to conduct the deposition of Synergy’s PMQ on February 19, 2021 (1) subject to Synergy’s 20 meritless objections and without Synergy’s agreement to produce responsive documents as 21 requested in GBI’s Notice, and (2) without any assurance that Synergy will produce a competent 22 witness capable of testifying to the categories of information set forth in the Notice. Because 23 February 19, 2021 is also the last day to serve and file a motion to compel non-expert discovery, 24 GBI will be unable to compel Synergy’s compliance with the Notice following the deposition. 25 (Id., ¶¶ 14-15). GBI respectfully requests that the Court grant its Application and shorten notice 26 for hearing on GBI’s Motion. 27 28 T RO U TMA N PE PPE R -6- HA M IL TON S A ND E RS LLP GHILOTTI BROS., INC.’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION TO 3 EMBARCADERO CENTER, STE. 800 COMPEL DEPOSITION OF PLAINTIFF’S PERSON MOST QUALIFIED SAN FRANCISCO, CA 94111 1 Dated: February 7, 2021 TROUTMAN PEPPER HAMILTON SANDERS LLP 2 3 By: /s/ Ryan A. Lewis 4 JAMES DIWIK RYAN A. LEWIS 5 Attorneys for Defendant/Plaintiff/Cross- Defendant 6 GHILOTTI BROS., INC. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 T RO U TMA N PE PPE R -7- HA M IL TON S A ND E RS LLP GHILOTTI BROS., INC.’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME RE MOTION TO 3 EMBARCADERO CENTER, STE. 800 COMPEL DEPOSITION OF PLAINTIFF’S PERSON MOST QUALIFIED 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 February 8, 2021 I served the following document(s) described as: 5 DEFENDANT/CROSS-DEFENDANT GHILOTTI BROS., INC.’S EX PARTE APPLICATION FOR ORDER SHORTENING NOTICE RE MOTION TO COMPEL 6 DEPOSITION OF SYNERGY PROJECT MANAGEMENT, INC.’S PERSON MOST QUALIFIED AND PRODUCTION OF DOCUMENTS; MEMORANDUM OF POINTS 7 AND AUTHORITIES 8 On the parties or attorneys for parties in this action who are identified below, using the following means of service: 9 BY OVERNIGHT DELIVERY: By placing a true copy(ies) thereof enclosed in a sealed 10 envelope(s) or package(s) as designated by Federal Express, addressed as above, and depositing said envelope(s) or package(s), with delivery fees provided for, in a box 11 regularly maintained by Federal Express at Three Embarcadero Center, Suite 800, San Francisco, California 94111. 12 13 BY ELECTRONIC MAIL (CRC 2.251): Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the document(s) to 14 be sent to the person(s) at the e-mail addresses, as last given or submitted on any 15 document which he or she has filed in the case. 16 Johnny D. Knadler, Esq. LAW OFFICES OF JOHNNY D. KNADLER 17 1527 E Pershing Drive San Francisco, CA 94129 18 Telephone: (310) 564-6695 Facsimile: (888) 323-0611 19 Email: jdknadler@gmail.com jdknadler@yahoo.com 20 21 I declare under penalty of perjury under the laws of the State of California that the above 22 is true and correct. Executed on February 8, 2021, at San Francisco, CA. 23 24 25 Tracey Cantu 26 27 113261407v1 28 1 PROOF OF SERVICE