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1 ROBERT H. PITTMAN, State Bar No. 172154
County Counsel
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MICHAEL A. KING, State Bar No. 077014
3 Deputy County Counsel
575 Administration Drive, Room 105A
4 Santa Rosa, California 95403-2815
5 Telephone: (707) 565-2421
Facsimile: (707) 565-2624
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7 Attorneys for Defendant
COUNTY OF SONOMA
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF SONOMA
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FREAR STEPHEN SCHMID AND ASTRID
12 SCHMID, Case No.: SCV-266225 and consolidated
Plaintiffs action SCV-266731
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14 REPLY MEMORANDUM IN
v. SUPPORT OF MOTION TO VACATE
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TRIAL DATE; MOTION TO
16 TWO ROCK VOLUNTEER FIRE CONSOLIDATE ACTIONS
DEPARTMENT a.k.a. TWO ROCK FIRE
17 DEPARTMENT, Date: 7-27-2022
18 Defendant. Time: 3:00 p.m.
Dept: 19
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20 Trial Date: 11/4/2022
AND CONSOLIDATED ACTION
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I. PLAINTIFFS ARE SOLELY RESPONSIBLE FOR THE PROCEDURAL MORASS
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INVOLVING LITIGATION ABOUT THE TWO ROCK BUILDING
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The simple fact not discussed in the Opposition to the present Motions (vacate, consolidate,
26 and set cut-off dates) is that Plaintiffs have created the problem by filing multiple new lawsuits for
27 matters that deal with the same parties, the same building, the same (mostly identical) allegations,
28 and the same types of relief. It seems that if Two Rock Volunteer Fire Dept takes any action
Reply Memo Motion Vacate Trial; Consolidate 1
1 regarding the building, for any kind of permit from the County, it engenders a new lawsuit instead
2 of amending the existing litigation by stipulation or motion. This practice is itself, highly suspect
3 and prejudicial to Defendants, and has created unnecessary extra work for all parties, Plaintiffs
4 included. It also serves to further distress an already stressed system in Sonoma Superior Court.
5 In fact, the County of Sonoma has been advised by Plaintiff Frear Schmid that Plaintiffs
6 continue to file new lawsuits arising from the various issues at the Two Rock Volunteer Fire
7 Department. Sonoma Superior Court Case No. SCV-270771 filed by the Schmids on May 9, 2022
8 remains unanswered since Mr. Schmid advised County Counsel that he would be amending the
9 Complaint and serve the amended pleading.
10 The Opposition does not make any effort to explain the very unusual and chaotic approach
11 to litigating matters involving the same parties and the same building by repetitious new lawsuits
12 instead of pursuing all the issues in a single case.
13 The Opposition also characterizes this original action as one in which no damages are
14 claimed, no evidence will be needed other than the administrative record and suggests that
15 discovery is concluded. County agrees that no damages are claimed against it, but it is not clear if
16 all damage claims are withdrawn against Two Rock VFD.
17 Plaintiffs also fail to mention to the Court that their depositions were properly noticed by
18 Two Rock VFD, and notice was timely served before the November 2021 trial date was vacated
19 sua sponte.
20 II. PROCEDURE FOR CONSOLIDATION FOLLOWED TO THE EXTENT
POSSIBLE AT THE TIME
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Plaintiffs claim that the Motion to Consolidate is procedurally defective due to failure to
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follow California Rule of Court 3.350 which states:
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(a) Requirements of motion
24 (1) A notice of motion to consolidate must:
25 (A) List all named parties in each case, the names of those who have appeared, and
the names of their respective attorneys of record;
26 (B) Contain the captions of all the cases sought to be consolidated, with the lowest
27 numbered case shown first; and
(C) Be filed in each case sought to be consolidated.
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Reply Memo Motion Vacate Trial; Consolidate 2
1 At the same time, Plaintiffs point out in their Opposition that the 3 cases filed this spring
2 “are not at issue (two with demurrers pending later this year and one served, but not yet even
3 responded to.” Plaintiffs do not even mention a 4th case they recently filed against the County of
4 Sonoma, Case No. SCV-270771.
5 In the present Motion, this Court and the exact same Plaintiffs were fully advised of the
6 named parties to each case and the captions since copies of the Complaints were attached to the
7 Declaration of Michael King, as Exhibits 1, 2, and 3. The lowest numbered case was shown first.
8 At the time of filing of this Motion on May 6, 2022, only one party had appeared in any of
9 the cases – William Adams (Two Rock VFD counsel) appeared for Thompson Gas via Demurrer
10 on April 18, 2022 in SCV-2700322. (Exhibit No. 13 attached to Reply Declaration) No party had
11 appeared in SCV-270568, Schmid v. Air Exchange, until the County filed its Demurrer in that case
12 on May 25, 2022. Air Exchange has just submitted its Demurrer for filing on July 18, 2022.
13 (Exhibit No. 15) Counsel who has just appeared for Air Exchange was advised of this Motion to
14 Vacate Trial and Consolidate, months ago: Todd Murray, 1050 Fulton Avenue, Suite 218,
15 Sacramento CA 95825. 916-488-1795. He tendered the defense of Air Exchange to attorneys for
16 both the County and Two Rock VFD. (Exhibit No. 14)
17 Before Air Exchange submitted its Demurrer this week, all defendants in all the cases were
18 represented by the same counsel who brought these motions: William Adams for Two Rock VFD
19 and Thompson Gas; Michael King for County of Sonoma.
20 In other words, the Court Rule 3.350 requirements were met as of the time of filing of this
21 Motion to Consolidate, and the purpose of the rule to provide notice to all affected parties has
22 been satisfied.
23 III. THIS ACTION IS SET FOR JURY TRIAL IN NOVEMBER IN DEPT. 19
24 Plaintiffs’ assertion that the November 4 trial date is a 2 day court trial, is not correct. The
25 Court’s record reflects that this case is set for a 3–5-day jury trial in Judge Nadler’s Department
26 No. 19, on November 4, 2022. While Plaintiff is correct that 2 new judges were elected, neither
27 has been placed in Dept. 19, and any judge other than Judge Nadler would be subject to a
28 challenge by any party.
Reply Memo Motion Vacate Trial; Consolidate 3
1 IV. PLAINTIFFS CANNOT DENY THAT THE MATTERS IN ALL
THESE ACTIONS INVOLVE THE SAME PARTIES RELATED
2
TO THE SAME BUILDING
3 Plaintiffs cannot reasonably deny that the “cases arise out of the same set of operative facts
4 and contain common issues and further that consolidation of all of the cases will avoid
5 unnecessary duplication of evidence and procedures in all of the actions; avoid the risk of
6 inconsistent adjudications and avoid many of the same witnesses testifying on common issues in
7 all actions as well as promote judicial economy and convenience.” (See Motion Exhibit 4,
8 attached to Declaration of Michael King). That is Plaintiff’s language in their original Motion to
9 Consolidate, not that of Defendants.
10 The attempt to claim that some of the new cases have damage claims against Two Rock’s
11 contractors, so a jury is allowed, ignores the fact that a jury is already provided in this present case
12 due in part to damage claims. The contractors are “new” parties in name only since they are
13 retained by the building owner, Two Rock VFD.
14 V. PLAINTIFFS PRESENTLY HAVE AN ISSUE ON APPEAL IN THE
15 PRESENT CASE
16 Another reason the trial date should be vacated in this case, is Plaintiffs’ appeal of the
17 decision of Judge Nadler to modify the Preliminary Injunction. Notice of Appeal was filed on or
18 about February 22, 2022. To the County’s knowledge, no decision has been reached by the Court
19 of Appeal on an issue which may impact the outcome of the trial of this matter- modification of
20 the injunction. First District Court of Appeal Case No. A164620.
21 VI. ATTEMPTS AT RESOLUTION FIRST
22 Judge Nadler was aware on March 24, 2022 that the parties were contemplating attempts at
23 global resolution of all issues and references mediation in his Minute Order. In fact, the counsel
24 and the parties to all the numerous actions, including Todd Murray for Air Exchange; commenced
25 mediation with the Honorable Scott Snowden (ret.) of JAMS on July 12, 2022. Due to the many
26 moving parts of the various issues in the multiple litigated cases, the cases were not resolved.
27 Discussions with Judge Snowden were not terminated, just continued.
While Plaintiffs are correct that no motion to compel depositions noticed by Two Rock
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VFD has been filed to date, the County understands that is primarily due to attempts to settle and
Reply Memo Motion Vacate Trial; Consolidate 4
1 avoid a discovery battle. As plaintiff points out, none of the other cases are even at issue, but since
2 they involve the same or similar issues (per the pleadings), discovery will be conducted in them.
3 VII. CONCLUSION
4 In the event that Plaintiffs do not want to dismiss the multitude of new cases filed in 2022, the
5 County requests that all the litigation be consolidated, and the present trial date should be vacated,
6 for the Court’s convenience if nothing else. All relevant dates for discovery and motions should be
7 set to correspond to any new trial date for the consolidated actions.
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9 Dated: July 20, 2021 ROBERT H. PITTMAN, Sonoma County Counsel
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11 By: __Michael A. King________________
12 Michael A. King
Attorneys for Defendant
13 COUNTY OF SONOMA
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Reply Memo Motion Vacate Trial; Consolidate 5
Preview
1 ROBERT H. PITTMAN, State Bar No. 172154 County Counsel 2 MICHAEL A. KING, State Bar No. 077014 3 Deputy County Counsel 575 Administration Drive, Room 105A 4 Santa Rosa, California 95403-2815 5 Telephone: (707) 565-2421 Facsimile: (707) 565-2624 6 7 Attorneys for Defendant COUNTY OF SONOMA 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SONOMA 11 FREAR STEPHEN SCHMID AND ASTRID 12 SCHMID, Case No.: SCV-266225 and consolidated Plaintiffs action SCV-266731 13 14 REPLY MEMORANDUM IN v. SUPPORT OF MOTION TO VACATE 15 TRIAL DATE; MOTION TO 16 TWO ROCK VOLUNTEER FIRE CONSOLIDATE ACTIONS DEPARTMENT a.k.a. TWO ROCK FIRE 17 DEPARTMENT, Date: 7-27-2022 18 Defendant. Time: 3:00 p.m. Dept: 19 19 20 Trial Date: 11/4/2022 AND CONSOLIDATED ACTION 21 22 23 I. PLAINTIFFS ARE SOLELY RESPONSIBLE FOR THE PROCEDURAL MORASS 24 INVOLVING LITIGATION ABOUT THE TWO ROCK BUILDING 25 The simple fact not discussed in the Opposition to the present Motions (vacate, consolidate, 26 and set cut-off dates) is that Plaintiffs have created the problem by filing multiple new lawsuits for 27 matters that deal with the same parties, the same building, the same (mostly identical) allegations, 28 and the same types of relief. It seems that if Two Rock Volunteer Fire Dept takes any action Reply Memo Motion Vacate Trial; Consolidate 1 1 regarding the building, for any kind of permit from the County, it engenders a new lawsuit instead 2 of amending the existing litigation by stipulation or motion. This practice is itself, highly suspect 3 and prejudicial to Defendants, and has created unnecessary extra work for all parties, Plaintiffs 4 included. It also serves to further distress an already stressed system in Sonoma Superior Court. 5 In fact, the County of Sonoma has been advised by Plaintiff Frear Schmid that Plaintiffs 6 continue to file new lawsuits arising from the various issues at the Two Rock Volunteer Fire 7 Department. Sonoma Superior Court Case No. SCV-270771 filed by the Schmids on May 9, 2022 8 remains unanswered since Mr. Schmid advised County Counsel that he would be amending the 9 Complaint and serve the amended pleading. 10 The Opposition does not make any effort to explain the very unusual and chaotic approach 11 to litigating matters involving the same parties and the same building by repetitious new lawsuits 12 instead of pursuing all the issues in a single case. 13 The Opposition also characterizes this original action as one in which no damages are 14 claimed, no evidence will be needed other than the administrative record and suggests that 15 discovery is concluded. County agrees that no damages are claimed against it, but it is not clear if 16 all damage claims are withdrawn against Two Rock VFD. 17 Plaintiffs also fail to mention to the Court that their depositions were properly noticed by 18 Two Rock VFD, and notice was timely served before the November 2021 trial date was vacated 19 sua sponte. 20 II. PROCEDURE FOR CONSOLIDATION FOLLOWED TO THE EXTENT POSSIBLE AT THE TIME 21 Plaintiffs claim that the Motion to Consolidate is procedurally defective due to failure to 22 follow California Rule of Court 3.350 which states: 23 (a) Requirements of motion 24 (1) A notice of motion to consolidate must: 25 (A) List all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record; 26 (B) Contain the captions of all the cases sought to be consolidated, with the lowest 27 numbered case shown first; and (C) Be filed in each case sought to be consolidated. 28 Reply Memo Motion Vacate Trial; Consolidate 2 1 At the same time, Plaintiffs point out in their Opposition that the 3 cases filed this spring 2 “are not at issue (two with demurrers pending later this year and one served, but not yet even 3 responded to.” Plaintiffs do not even mention a 4th case they recently filed against the County of 4 Sonoma, Case No. SCV-270771. 5 In the present Motion, this Court and the exact same Plaintiffs were fully advised of the 6 named parties to each case and the captions since copies of the Complaints were attached to the 7 Declaration of Michael King, as Exhibits 1, 2, and 3. The lowest numbered case was shown first. 8 At the time of filing of this Motion on May 6, 2022, only one party had appeared in any of 9 the cases – William Adams (Two Rock VFD counsel) appeared for Thompson Gas via Demurrer 10 on April 18, 2022 in SCV-2700322. (Exhibit No. 13 attached to Reply Declaration) No party had 11 appeared in SCV-270568, Schmid v. Air Exchange, until the County filed its Demurrer in that case 12 on May 25, 2022. Air Exchange has just submitted its Demurrer for filing on July 18, 2022. 13 (Exhibit No. 15) Counsel who has just appeared for Air Exchange was advised of this Motion to 14 Vacate Trial and Consolidate, months ago: Todd Murray, 1050 Fulton Avenue, Suite 218, 15 Sacramento CA 95825. 916-488-1795. He tendered the defense of Air Exchange to attorneys for 16 both the County and Two Rock VFD. (Exhibit No. 14) 17 Before Air Exchange submitted its Demurrer this week, all defendants in all the cases were 18 represented by the same counsel who brought these motions: William Adams for Two Rock VFD 19 and Thompson Gas; Michael King for County of Sonoma. 20 In other words, the Court Rule 3.350 requirements were met as of the time of filing of this 21 Motion to Consolidate, and the purpose of the rule to provide notice to all affected parties has 22 been satisfied. 23 III. THIS ACTION IS SET FOR JURY TRIAL IN NOVEMBER IN DEPT. 19 24 Plaintiffs’ assertion that the November 4 trial date is a 2 day court trial, is not correct. The 25 Court’s record reflects that this case is set for a 3–5-day jury trial in Judge Nadler’s Department 26 No. 19, on November 4, 2022. While Plaintiff is correct that 2 new judges were elected, neither 27 has been placed in Dept. 19, and any judge other than Judge Nadler would be subject to a 28 challenge by any party. Reply Memo Motion Vacate Trial; Consolidate 3 1 IV. PLAINTIFFS CANNOT DENY THAT THE MATTERS IN ALL THESE ACTIONS INVOLVE THE SAME PARTIES RELATED 2 TO THE SAME BUILDING 3 Plaintiffs cannot reasonably deny that the “cases arise out of the same set of operative facts 4 and contain common issues and further that consolidation of all of the cases will avoid 5 unnecessary duplication of evidence and procedures in all of the actions; avoid the risk of 6 inconsistent adjudications and avoid many of the same witnesses testifying on common issues in 7 all actions as well as promote judicial economy and convenience.” (See Motion Exhibit 4, 8 attached to Declaration of Michael King). That is Plaintiff’s language in their original Motion to 9 Consolidate, not that of Defendants. 10 The attempt to claim that some of the new cases have damage claims against Two Rock’s 11 contractors, so a jury is allowed, ignores the fact that a jury is already provided in this present case 12 due in part to damage claims. The contractors are “new” parties in name only since they are 13 retained by the building owner, Two Rock VFD. 14 V. PLAINTIFFS PRESENTLY HAVE AN ISSUE ON APPEAL IN THE 15 PRESENT CASE 16 Another reason the trial date should be vacated in this case, is Plaintiffs’ appeal of the 17 decision of Judge Nadler to modify the Preliminary Injunction. Notice of Appeal was filed on or 18 about February 22, 2022. To the County’s knowledge, no decision has been reached by the Court 19 of Appeal on an issue which may impact the outcome of the trial of this matter- modification of 20 the injunction. First District Court of Appeal Case No. A164620. 21 VI. ATTEMPTS AT RESOLUTION FIRST 22 Judge Nadler was aware on March 24, 2022 that the parties were contemplating attempts at 23 global resolution of all issues and references mediation in his Minute Order. In fact, the counsel 24 and the parties to all the numerous actions, including Todd Murray for Air Exchange; commenced 25 mediation with the Honorable Scott Snowden (ret.) of JAMS on July 12, 2022. Due to the many 26 moving parts of the various issues in the multiple litigated cases, the cases were not resolved. 27 Discussions with Judge Snowden were not terminated, just continued. While Plaintiffs are correct that no motion to compel depositions noticed by Two Rock 28 VFD has been filed to date, the County understands that is primarily due to attempts to settle and Reply Memo Motion Vacate Trial; Consolidate 4 1 avoid a discovery battle. As plaintiff points out, none of the other cases are even at issue, but since 2 they involve the same or similar issues (per the pleadings), discovery will be conducted in them. 3 VII. CONCLUSION 4 In the event that Plaintiffs do not want to dismiss the multitude of new cases filed in 2022, the 5 County requests that all the litigation be consolidated, and the present trial date should be vacated, 6 for the Court’s convenience if nothing else. All relevant dates for discovery and motions should be 7 set to correspond to any new trial date for the consolidated actions. 8 9 Dated: July 20, 2021 ROBERT H. PITTMAN, Sonoma County Counsel 10 11 By: __Michael A. King________________ 12 Michael A. King Attorneys for Defendant 13 COUNTY OF SONOMA 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply Memo Motion Vacate Trial; Consolidate 5