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1 William L. Adams SBN 166027
WILLIAM L. ADAMS, PC
2 P.O. BOX 1050
Windsor, CA 95492-1050
3 Telephone: (707) 236-2176
Email: bill@wladamspc.com
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Attorneys for Defendant
5 TWO ROCK VOLUNTEER FIRE DEPARTMENT
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SONOMA
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FREAR STEPHEN SCHMID AND Case No. SCV-266225 and consolidated
10 ASTRID SCHMID, actions SCV-266731 and SCV-270339
11 Plaintiffs, DECLARATION OF WILLIAM L.
ADAMS IN SUPPORT OF DEFENDANT
12 v. TWO ROCK VOLUNTEER FIRE
DEPARTMENT’S EX PARTE
13 APPLICATION TO ADVANCE THE
TWO ROCK VOLUNTEER FIRE HEARING DATE FOR MOTION TO
14 DEPARTMENT, EXCLUDE TESTIMONY OR COMPEL
DEPOSITION OF PLAINTIFF ASTRID
15 Defendant. SCHMID
16 Ex Parte Date: September 26, 2022
Hearing Time: 10:30 a.m.
17 Department: 19
18 AND CONSOLIDATED ACTIONS. Trial Call: November 4, 2022
Time: 8:30 a.m.
19 Department: 19
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22 I, WILLIAM L. ADAMS, declare:
23 1. I am an attorney duly licensed to practice in the Courts in the State of California
24 and attorney of record for Defendant Two Rock Volunteer Fire Department (“Two Rock Fire”)
25 in this consolidated case. I am competent to testify to these matters from my personal
26 knowledge.
27 2. On behalf of Two Rock Fire, I brought a Motion to Exclude the Trial Testimony
28 of Plaintiff Astrid Schmid or to Compel Deposition, based on Plaintiffs refusal to attend her
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT TWO ROCK VOLUNTEER FIRE
DEPARTMENT’S EX PARTE APPLICATION TO ADVANCE THE HEARING DATE FOR MOTION TO EXCLUDE
TESTIMONY OR COMPEL DEPOSITION OF PLAINTIFF ASTRID SCHMID
1 deposition on August 26, 2022 (“Two Rock's Discovery Motion re Testimony of Astrid
2 Schmid”). My office filed and served Two Rock's Discovery Motion re Testimony of Astrid
3 Schmid on Plaintiffs and all parties in this consolidated action on September 2, 2022. A true
4 and correct copy of Two Rock's Discovery Motion re Testimony of Astrid Schmid is attached
5 hereto as Exhibit 1. Prior to filing the Two Rock's Discovery Motion re Testimony of Astrid
6 Schmid, I sought a stipulation from Plaintiff to advance the hearing date to comply with
7 timeline requirements of the Discovery Act. Plaintiffs did not respond.
8 3. After we received the Notice of a hearing date of February 1, 2023 from the
9 Court for Two Rock's Discovery Motion re Testimony of Astrid Schmid, my office immediately
10 provided a conformed copy of this Notice to Plaintiffs.
11 4. On September16, 2022, I advised Plaintiffs of the need to reschedule Two
12 Rock's Discovery Motion re Testimony of Astrid Schmid to be heard prior to the November 4,
13 2022 trial date and requested that Plaintiffs stipulate to a rescheduled hearing date. Also on
14 September 16, 2022, I notified Plaintiffs that, if they did not stipulate to a rescheduled hearing
15 date as required by the timelines in the Discovery Act, Two Rock Fire would present an ex
16 parte application on September 26, 2022 requesting that the Court reschedule the hearing date
17 to 15 days before trial, or on or before October 20, 2022, pursuant to Code of Civil Procedure
18 section 2024.020(a).
19 5. As of the date of submission of this ex parte application to the Court, I have
20 received no response from Plaintiffs to any of my communications concerning the need to
21 advance the hearing date or this ex parte application.
22 6. Attached hereto are true and correct copies of:
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Exhibit 1: Notice of Motion and Motion to Exclude the Trial Testimony of Plaintiff
24 Astrid Schmid or to Compel Deposition.
25 Exhibit 2: Proofs of Service of Motion, unfiled and filed.
26 Exhibit:3: Email of paralegal Jacqueline Schaap with conformed copy of Motion with
February 1, 2023 hearing date.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT TWO ROCK VOLUNTEER FIRE
DEPARTMENT’S EX PARTE APPLICATION TO ADVANCE THE HEARING DATE FOR MOTION TO EXCLUDE
TESTIMONY OR COMPEL DEPOSITION OF PLAINTIFF ASTRID SCHMID
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Exhibit 4: My e-mail of September 16, 2022 to Plaintiffs regarding need to reschedule
2 Motion hearing date to comply with Discovery Act pretrial cutoff; and notice of ex
parte application on September 26, 2022.
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4 I declare under the penalty of perjury under the laws of the State of California that the
5 foregoing is true and correct. Executed in Windsor, California.
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7 Dated: September 23, 2022
William L. Adams
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT TWO ROCK VOLUNTEER FIRE
DEPARTMENT’S EX PARTE APPLICATION TO ADVANCE THE HEARING DATE FOR MOTION TO EXCLUDE
TESTIMONY OR COMPEL DEPOSITION OF PLAINTIFF ASTRID SCHMID
EXHIBIT 1
ELECTRONICALLY FILED
1 William L. Adams SBN 166027 Superior Court of California
JOHNSTON | THOMAS, Attorneys at Law, PC County of Sonoma
2 1400 N. Dutton Ave., Suite 21 9/2/2022 4:46 PM
Santa Rosa, CA 95401 By: Melisa Kennedy, Deputy Clerk
3 Telephone: (707) 545-6542
Facsimile: (707) 545-1522
4 Email: wadams@johnstonthomas.com
5 Attorneys for Defendant
TWO ROCK VOLUNTEER FIRE DEPARTMENT
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SONOMA
10 FREAR STEPHEN SCHMID AND Case No. SCV-266225 and consolidated
ASTRID SCHMID, actions SCV-266731 and SCV-270339
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Plaintiffs, DEFENDANT TWO ROCK VOLUNTEER
12 FIRE DEPARTMENT’S NOTICE OF
v. MOTION AND MOTION TO EXCLUDE
13 THE TRIAL TESTIMONY OF
PLAINTIFF ASTRID SCHMID OR TO
14 TWO ROCK VOLUNTEER FIRE COMPEL DEPOSITION: AND FOR
DEPARTMENT, SANCTIONS
15 [CCP § 2025.450]
Defendant. 02/01/2023
16 Hearing Date:
Hearing Time: 3:00 p.m.
17 Department: 19
18 AND CONSOLIDATED ACTIONS. Trial Call: November 4, 2022
Time: 8:30 a.m.
19 Department: 19
20 NOTICE IS HEREBY GIVEN TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
21 Pursuant to Code of Civil Procedure section 2025.450 1, at 3:00 pm, on02/01/2023 __________ 2022,
22 in Department 19 of the Sonoma County Superior Court, 3055 Cleveland Avenue, Santa Rosa,
23 CA, the Court will hear the motion of Defendant Two Rock Volunteer Fire Department
24 (“TRVFD”) to exclude the trial testimony of Plaintiff ASTRID SCHMID (“Plaintiff”), or to
25 compel her deposition, because of Plaintiff’s refusal to attend her duly noticed deposition on
26 August 26, 2022.
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All statutory references herein are to the Code of Civil Procedure unless otherwise indicated.
1
MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO
COMPEL DEPOSITION; AND FOR SANCTIONS
1 This Motion will be based on this Memorandum of Points and Authorities; the
2 accompanying supporting declaration of TRVFD counsel William L Adams and documentary
3 exhibits attached thereto; on the Court’s own records and files in this consolidated action pursuant
4 to Evidence Code section 452(d); and on such additional argument as may be presented at the
5 hearing on this Motion. Additionally, TRVFD requests an award of $1,575.00 in attorney’s fees
6 and costs as sanctions against Plaintiff, as mandated in section 2025.450(g)(2); as well as
7 potential sum certain sanctions of a further $500.00, as mandated by section 2023.050(a).
8 PROCEDURAL CHRONOLOGY
9 The relevant chronology of Plaintiff’s refusal to attend her deposition is documented in
10 the certified court reporter Statement of Nonappearance attached as Exhibit 1 to the supporting
11 declaration of William L Adams (hereinafter “Adams Decl.”)
12 After this Court issued its Order after Hearing on July 29, 2022, consolidating these
13 actions, TRVFD issued a deposition notice with production of documents pursuant to section
14 2025.210 to Plaintiff on August 4, 2022, setting Plaintiff’s deposition for 9:00 am on August 26,
15 2022. (See Exhibits A and B to Statement of Nonappearance.)
16 On the evening of Friday, August 19, 2022, Plaintiff served via email invalid objections
17 to the deposition notice (still using the former case number that was consolidated three weeks
18 before), ignoring the Court’s consolidation of Plaintiff’s cases against TRVFD and arguing that
19 TRVFD was not a party and William L. Adams was not attorney of record for a party. (See
20 Exhibit C to Statement of Nonappearance). On Monday, August 22, 2022, TRVFD counsel
21 reviewed Plaintiff’s invalid objections and responded to Plaintiff, informing Plaintiff that the
22 objections were invalid, and that the deposition would proceed as noticed on August 26, 2022,
23 and further informing Plaintiff that this Motion would be brought if Plaintiff continued to refuse
24 to appear without substantial justification. (See Exhibit D to Statement of Nonappearance.)
25 On Wednesday, August 24, 2022, at the deposition of TRVFD Treasurer Paul Martin,
26 Plaintiff again informed TRVFD counsel that he was not going to attend her duly noticed
27 deposition, and TRVFD counsel informed Plaintiff the deposition would go on the record as
28 noticed at 9:00 am on August 26, 2022, to document her deliberate refusal to appear.
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MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO
COMPEL DEPOSITION; AND FOR SANCTIONS
1 On August 26, 2022, at approximately 8:45 am, TRVFD counsel received a call from
2 Deputy County Counsel Michael King, who represents Defendant County of Sonoma in this
3 consolidated action, who informed me that he would not attend unless Plaintiff appeared and
4 authorized me to state on the record that stipulated to proceeding with the deposition as noticed
5 in order to document Plaintiff’s refusal to appear.
6 On August 26, 2022, at approximately 1:05 pm, after there was no appearance or further
7 communication from Plaintiff and none of the documents called in the deposition notice pursuant
8 to section 2025.210 were produced, TRVFD counsel went on the record to document Plaintiff’s
9 nonappearance, as set forth in the transcript and supporting documents provided in Exhibit 1 to
10 Adams Decl.
11 Unfortunately, this is not the first occasion that Plaintiff has refused to attend her
12 deposition. On October 8, 2021, Plaintiff’s deposition with production of documents on October
13 18, 2021, was duly noticed and the deposition personally served at Plaintiff’s residence at 7585
14 Valley Ford Road in Petaluma, CA . Nevertheless, Plaintiff propounded invalid objection falsely
15 stating that he had not been served and refused to attend or produce documents requested Because
16 the Trial Court thereafter sua sponte vacated the trial set for November 19, 2021, no motion to
17 compel Plaintiff’s deposition under section 2025.450 was brought. However, the Court is
18 respectfully requested to consider Plaintiff’s documented pattern of refusing to comply with valid
19 discovery and refusing to provide her testimony on the eve of trial, in making its determinations
20 concerning this Motion. The October 8, 2021, deposition notice to Plaintiff and proof of service
21 are attached as Exhibit 2 to Adams Decl.
22 LEGAL ARGUMENT
23 Plaintiff’s objections arguing that TRVFD lacks standing to issue a deposition notice with
24 production of documents are clearly specious and invalid. Where invalid objections are
25 propounded, a deponent is subject to the sanction regime set forth in section 2025.450. (See
26 2025.450(a); see also Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702 (“The
27 question before us is not whether the trial should have imposed a lesser sanction; rather, the
28 question is whether the trial court abused its discretion by imposing the sanction it chose.”
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MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO
COMPEL DEPOSITION; AND FOR SANCTIONS
1 (quoting Liberty Mutual Fire Ins. Co v. LcL Administrators, Inc. (2008) 163 Cal.App.,4th 1093,
2 1105).)
3 Plaintiff’s pattern and demonstrated practice of willful discovery violations is particularly
4 egregious since Plaintiff is represented and advised by her husband, co-Plaintiff Frear Stephen
5 Schmid, a licensed California attorney with 42 years of experience. “[W]here a violation is
6 willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would
7 not produce compliance with the discovery rules, the trial court is justified in imposing the
8 ultimate sanction.” (Creed -21, supra, 18 Cal.App.5th at 702 (quoting Doppes v. Bentley Motors,
9 Inc. (2009) 174 Cal.App.4th 967, 992).)
10 Because Plaintiff has repeatedly refused to participate in discovery to provide her
11 testimony as required by the Discovery Act, rather than the “ultimate” terminating sanction,
12 TRVFD requests this Court impose an evidentiary sanction precluding Plaintiff from testifying
13 at the trial.
14 In the alternative, TRVFD requests an order compelling and expediting Plaintiffs
15 deposition testimony, subject to the full range sanctions to terminating sanction and findings of
16 indirect contempt, if and when Plaintiff fails to comply. (See Creed -21, supra, 18 Cal.App. 5th
17 at fn. 11 (“disobedience of a court order outside of the presence of the judge . . . is categorized as
18 indirect contempt.” (citing Kohler v. Superior Court (2010) 181 Cal.App.4th 1153, 1159).)
19 REQUEST FOR ATTORNEY’S FEES
20 Section 2025.450(g)(2) provides for mandatory monetary sanctions against Plaintiff,
21 unless the Court finds that Plaintiff’s pattern of refusing to appear at his deposition has some
22 “substantial justification or that other circumstances make the imposition of the sanction unjust.”
23 There is no substantial justification or other circumstances to excuse the mandatory imposition
24 of sanction against Plaintiff in this situation.
25 Monetary sanctions are also available and appropriate for Plaintiff’s discovery misuse
26 under section 2023.010(d) for failing to submit to an authorized method of discovery in an effort
27 to avoid her deposition before trial. TRVFD requests the Court order Plaintiff to pay TRVFD
28 $1,575.00 for the attorney’s fees and costs, including court reporter charges for an expedited
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MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO
COMPEL DEPOSITION; AND FOR SANCTIONS
1 Statement of Nonappearance, incurred for Plaintiff’s deposition, as follows: $1,125.00 for five
2 hours of attorney time at $225.00 per hour, to prepare the deposition notices, communicate with
3 Plaintiff, convene the deposition to obtain the Statement of Nonappearance; prepare, reply and
4 appear at the hearing concerning this Motion; and $450.00 for the Court Reporter invoice.
5 Additionally, section 2023.050 mandates a further $250.00 sum certain sanction, where,
6 as here, Plaintiff failed to produce documents identified in her deposition notice pursuant to
7 section 2025.210, (see section 2023.050(a)(1), as well as a further $250.00 sum certain sanction
8 if Plaintiff fails to produce the documents requested pursuant to section 2025.210 within seven
9 days before the Court hears this Motion under section 2025.450 (see section 2023.050(a)(2).)
10 CONCLUSION
11 Without any substantial justification and based on specious invalid objections, Plaintiff
12 deliberately refused to attend her duly noticed deposition and failed to produce documents called
13 for in her deposition notice. Because this is a recurring example of discovery abuse by Plaintiff in
14 this case, TRVFD requests the Court issue an Order precluding Plaintiff from testifying at the trial
15 set to begin on November 4, 2022.
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17 DATED: September 2, 2022 JOHNSTON | THOMAS, Attorneys at Law, PC
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By:
19 William L. Adams, Counsel for Defendant
TWO ROCK VOLUNTEER FIRE DEPARTMENT
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MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO
COMPEL DEPOSITION; AND FOR SANCTIONS
ELECTRONICALLY FILED
1 William L. Adams SBN 166027 Superior Court of California
JOHNSTON | THOMAS, Attorneys at Law, PC County of Sonoma
2 1400 N. Dutton Ave., Suite 21 9/2/2022 4:46 PM
Santa Rosa, CA 95401 By: Melisa Kennedy, Deputy Clerk
3 Telephone: (707) 545-6542
Facsimile: (707) 545-1522
4 Email: wadams@johnstonthomas.com
5 Attorneys for Defendant
TWO ROCK VOLUNTEER FIRE DEPARTMENT
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SONOMA
10 FREAR STEPHEN SCHMID AND Case No. SCV-266225 and consolidated
ASTRID SCHMID, actions SCV-266731 and SCV-270339
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Plaintiffs, DECLARATION OF WILLIAM L.
12 ADAMS IN SUPPORT OF DEFENDANT
v. TWO ROCK VOLUNTEER FIRE
13 DEPARTMENT’S NOTICE OF MOTION
AND MOTION TO EXCLUDE THE
14 TWO ROCK VOLUNTEER FIRE TRIAL TESTIMONY OF PLAINTIFF
DEPARTMENT, ASTRID SCHMID OR TO COMPEL
15 DEPOSITION: AND FOR SANCTIONS
Defendant. [CCP § 2025.450]
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Hearing Date: 02/01/2023
17 Hearing Time: 3:00 p.m.
Department: 19
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Trial Call: November 4, 2022
19 AND CONSOLIDATED ACTIONS. Time: 8:30 a.m.
Department: 19
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21 I, WILLIAM L. ADAMS, declare:
22 1. I am an attorney duly licensed to practice before all Courts in the State of
23 California. I am Of Counsel in the law firm of JOHNSTON | THOMAS, Attorneys at Law, PC,
24 attorneys of record for Defendant Two Rock Volunteer Fire Department (“TRVFD”) in this
25 consolidated case.
26 2. I make this Declaration in support of the motion of TRVFD to exclude the trial
27 testimony of Plaintiff ASTRID SCHMID (“Plaintiff”), or to compel her deposition, because of
28 Plaintiff’s refusal to attend her duly noticed deposition on August 26, 2022. I have personal
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MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO
COMPEL DEPOSITION; AND FOR SANCTIONS
1 knowledge of the facts set forth herein and if called upon to testify thereto in a court of law, I
2 could and would do so competently. Pursuant to Evidence Code section 452(d), I respectfully
3 request the Court take judicial notice of the entirety of its own files and records in this
4 consolidated matter.
5 3. The relevant chronology of Plaintiff’s refusal to attend her deposition is
6 documented in the certified Court Reported Statement of Nonappearance attached as Exhibit 1
7 to this declaration.
8 4. After this Court issued its Order after Hearing on July 29, 2022, consolidating
9 these actions (Exhibit A to Exhibit 1 hereto), I personally prepared a TRVFD deposition notice
10 with production of documents pursuant to section 2025.210 served on Plaintiff on August 4,
11 2022, setting Plaintiff’s deposition for 1:00 pm on August 26, 2022. (Exhibit B to Exhibit 1
12 hereto.)
13 5. On the evening of Friday, August 19, 2022, Plaintiff served via email objections
14 to the deposition notice (still using the former case number that was consolidated three weeks
15 before), ignoring the Court’s consolidation of Plaintiff’s cases against TRVFD and arguing that
16 TRVFD was not a party and William L. Adams was not attorney of record for a party. (See
17 Exhibit C to Exhibit 1 hereto.)
18 6. On Monday, August 22, 2022, I reviewed Plaintiff’s invalid objections and
19 responded to Plaintiff, informing Plaintiff that the objections were invalid, and that the deposition
20 would proceed as noticed on August 26, 2022. I further informed Plaintiff that this Motion would
21 be brought if Plaintiff continued to refuse to appear without substantial justification. (See Exhibit
22 D to Exhibit 1 hereto.)
23 7. On Wednesday, August 24, 2022, at the deposition of TRVFD Treasurer Paul
24 Martin, Plaintiff again informed me that Plaintiff was not going to attend her duly noticed
25 deposition; and I informed Plaintiff that her deposition would go on the record as noticed at 1:00
26 pm on August 26, 2022, to document his deliberate refusal to appear.
27 8. On August 26, 2022, at approximately 8:45 am, I received a call from Deputy
28 County Counsel Michael King, who represents Defendant County of Sonoma in this consolidated
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MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO
COMPEL DEPOSITION; AND FOR SANCTIONS
1 action, who informed me that he would not attend unless Plaintiff appeared and authorized me to
2 state on the record that stipulated to proceeding with the deposition as noticed in order to
3 document Plaintiff’s refusal to appear.
4 9. On August 26, 2022, at approximately 1:05 pm, after there was no appearance or
5 further communication from Plaintiff and none of the documents called in the deposition notice
6 pursuant to section 2025.210 were produced, I went on the record to document Plaintiff’s
7 nonappearance, as set forth in the transcript and supporting documents provided in text of the
8 Statement of Nonappearance attached as Exhibit 1 hereto.
9 10. This is not the first occasion that Plaintiff has refused to attend her deposition. On
10 October 8, 2021, TRVFD predecessor counsel noticed Plaintiff’s deposition with production of
11 documents on October 19, 2021, and the deposition notice was personally served at Plaintiff’s
12 residence at 7585 Valley Ford Road in Petaluma, CA . Nevertheless, Plaintiff propounded invalid
13 objection falsely stating that she had not been served and refused to attend her deposition or
14 produce documents requested. Because the Trial Court thereafter sua sponte vacated the trial set
15 for November 19, 2021, no motion to compel Plaintiff’s deposition under section 2025.450 was
16 brought. The October 8, 2021, deposition notice to Plaintiff and proof of service are attached as
17 Exhibit 2 hereto.
18 11. TRVFD requests an award of $1,575.00 in attorney’s fees and costs as sanctions
19 against Plaintiff, as mandated in section 2025.450(g)(2); as well as potential sum certain
20 sanctions of a further $500.00, as mandated by section 2023.050(a). I am personally aware of
21 the work performed in support of TRVFD’s request that the Court order Plaintiff to pay TRVFD
22 $1,575.00 for the attorney’s fees and costs, including court reporter charges for an expedited
23 Statement of Nonappearance, incurred for Plaintiff’s deposition, as follows: $1,125.00 for five
24 hours of attorney time at $225.00 per hour, to prepare the deposition notices, communicate with
25 Plaintiff, convene the deposition to obtain the Statement of Nonappearance; prepare, reply and
26 appear at the hearing concerning this Motion; and $450.00 for the Court Reporter invoice.
27 12. Additionally, section 2023.050 mandates a further $250.00 sum certain sanction,
28 where, as here, Plaintiff failed to produce documents identified in her deposition notice pursuant
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MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO
COMPEL DEPOSITION; AND FOR SANCTIONS
1 to section 2025.210, (see section 2023.050(a)(1), as well as a further $250.00 sum certain
2 sanction if Plaintiff fails to produce the documents requested pursuant to section 2025.210 within
3 seven days before the Court hears this Motion under section 2025.450 (see section
4 2023.050(a)(2).)
5 I declare under the penalty of perjury under the laws of the State of California that the
6 foregoing is true and correct. Executed in Santa Rosa, California.
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Dated: September 2, 2022
8 William L. Adams
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MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO
COMPEL DEPOSITION; AND FOR SANCTIONS
EXHIBIT 1
1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 COUNTY OF SONOMA
3 ---o0o---
4
5 FREAR STEPHEN SCHMID AND )
ASTRID SCHMID, )
6 )
Plaintiffs, )
7 )
vs. ) No. SCV-266225 and
8 ) consolidated action
TWO ROCK VOLUNTEER FIRE ) SCV-266731
9 DEPARTMENT, A California )
Nonprofit Public Benefit )
10 Corporation, )
)
11 Defendants. )
___________________________)
12 AND CONSOLIDATED ACTION. )
___________________________)
13
14 ---
15 SCHEDULED DEPOSITION OF ASTRID SCHMID
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17 August 26, 2022
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21 Reported by: Kelly K. Lopez, CSR #7785
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23 NORTH BAY STENOGRAPHERS
3554 Round Barn Boulevard, Suite 303
24 Santa Rosa, CA 95403
depos.nbs@gmail.com
25 (707) 583-7676
file:///Y/...tive/TRVFD%20-%20Schmid%20v.%20TRVFD/Pleadings/Mtn%20to%20Preclude%20Testimony/08-26-22%20A%20schmid.TXT[9/2/2022 4:13:15 PM]
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NORTH BAY STENOGRAPHERS * depos.nbs@gmail.com
1 APPEARANCES:
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FOR THE PLAINTIFFS:
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No Appearance
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FOR THE DEFENDANTS:
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Johnston Thomas
6 1400 N. Dutton Avenue, Suite 21
Santa Rosa, CA 95401
7 By: William L. Adams, Esq.
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NORTH BAY STENOGRAPHERS * depos.nbs@gmail.com
1 I-N-D-E-X
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STATEMENT BY: PAGE:
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Mr. Adams 4
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6 EXHIBITS PAGE:
7 Exhibit A - Order After Hearing on Defendants'
Motion to Vacate Trial Date; to
8 Establish Cut-Off Dates for
Discovery and Motions Based on
9 New Trial Date; Motion to Consolidate
Actions 4
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Exhibit B - Notice of Deposition of Plaintiff
11 Astrid Schmid and Request for
Production of Documents 4
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Exhibit C - Plaintiffs' Objections to Depositions
13 and Requests for Production of
Documents Thereat 4
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Exhibit D - Email string dated August 22, 2022,
15 Subject: Deposition Notices to
Plaintiffs - Schmid vs. Two Rock
16 Volunteer Fire Dept; Consolidated
Case No. SCV-266255 4
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NORTH BAY STENOGRAPHERS * depos.nbs@gmail.com
1 At the offices of Johnston Thomas, Attorneys at
2 Law, 1400 N. Dutton Avenue, Suite 21, Santa Rosa,
3 California, on Friday, the 26th day of August, 2022,
4 commencing at the hour of 1:03 p.m., thereof, before
5 Kelly K. Lopez, CSR, State of California, the following
6 proceedings were held:
7 ---
8 (Deposition Exhibits A through D marked
9 for identification.)
10 MR. ADAMS: Let's go on the record in the
11 matter of Schmid v. Two Rock Volunteer Fire Department.
12 My name is Bill Adams. I'm an attorney of record for
13 Defendant Two Rock Volunteer Fire Department.
14 We're here today for the duly noticed
15 deposition of Plaintiff Astrid, spelled A-s-t-r-i-d,
16 Schmid, S-c-h-m-i-d, who has advised that she is
17 refusing to attend this deposition. We'll put some
18 matters on the record to document that for the purpose
19 of the defendant and perhaps defendants, including the
file:///Y/...tive/TRVFD%20-%20Schmid%20v.%20TRVFD/Pleadings/Mtn%20to%20Preclude%20Testimony/08-26-22%20A%20schmid.TXT[9/2/2022 4:13:15 PM]
20 County of Sonoma, bringing a motion to compel the
21 appearance of the deponent under CCP Section 2025.450.
22 I will note that earlier today I had a phone
23 call with attorney Mike King, Deputy County Counsel for
24 the County of Sonoma, which is also a defendant in this
25 consolidated action. Mr. King advised me that he was
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NORTH BAY STENOGRAPHERS * depos.nbs@gmail.com
1 not going to attend and would not attend the deposition
2 today unless deponent Astrid Schmid appears.
3 It is now approximately 1:05 in the afternoon.
4 Ms. Schmid has not appeared. And I will talk through
5 some correspondence, which we are going to attach as
6 exhibits, in which Ms. Schmid has confirmed that she was
7 not going to appear today.
8 Madam Court Reporter, we've marked as
9 exhibits, and I'm going to go through briefly, the
10 following four documents.
11 Exhibit A is an Order After Hearing on
12 Defendants' -- which is S apostrophe, plural -- Motion
13 to Vacate Trial Date; to Establish Cut-Off Dates for
14 Discovery and Motions Based on New Trial Date; Motion to
15 Consolidate Actions.
16 This order after hearing was signed by the
17 Honorable Judge Gary Nadler of Department 19 of the
file:///Y/...tive/TRVFD%20-%20Schmid%20v.%20TRVFD/Pleadings/Mtn%20to%20Preclude%20Testimony/08-26-22%20A%20schmid.TXT[9/2/2022 4:13:15 PM]
18 Sonoma County Superior Court and entered on July 29th,
19 2022. Relevant, in part, for this matter is that the
20 consolidated former Case Number SCV-270339 is now in the
21 consolidated case with the senior case number of
22 SCV-266225.
23 The order after hearing does allow that for
24 the purpose of discovery, the initial trial date of
25 November 4, 2022, shall be applied to the new issues,
5
NORTH BAY STENOGRAPHERS * depos.nbs@gmail.com
1 claims, and defenses in former Case Number SCV-270339.
2 I note that in the proof of service for
3 Exhibit A, the Sonoma County Superior Court served me at
4 this office, the Johnston Thomas, attorneys at law, law
5 firm on behalf of a caption that reads Two Rock
6 Volunteer Fire Department, a California Nonprofit Public
7 Benefit Corporation.
8 We've marked as Exhibit B the Notice of
9 Deposition of Plaintiff Astrid Schmid and Request for
10 Production of Documents. It was signed by me on
11 August 5th and served by my paralegal, Jacqueline
12 Schaap, S-c-h-a-a-p, also on October 5th, electronically
13 and at the address of record of deponent Astrid Schmid
14 at 7585 Valley Ford Road, Petaluma, California 94952.
15 There have been no claims by deponent Astrid Schmid that
file:///Y/...tive/TRVFD%20-%20Schmid%20v.%20TRVFD/Pleadings/Mtn%20to%20Preclude%20Testimony/08-26-22%20A%20schmid.TXT[9/2/2022 4:13:15 PM]
16 she did not receive service of this deposition notice.
17 Marked as Exhibit C is a document entitled
18 Plaintiffs' -- that's A apostrophe, collectively the two
19 plaintiffs -- Objections to Depositions and Requests for
20 Production of Documents Thereat. It is dated August
21 19th, 2022, with a proof of service signed by Tristan,
22 T-r-i-s-t-a-n, Schmid, also dated August 19th, 2022.
23 I note that Mr. Tristan Schmid, in the proof
24 of service, lists his home address at 7585 Valley Ford
25 Road in Petaluma, California. I further note, on the
6
NORTH BAY STENOGRAPHERS * depos.nbs@gmail.com
1 face of Exhibit 3, both plaintiffs, Frear Stephen Schmid
2 and Astrid Schmid, list one email address, which is
3 Frear Schmid, frearschmid@aol.com. This is the only
4 email address that we've used to communicate with both
5 plaintiffs over the past several years of this
6 litigation.
7 Exhibit C objections have a case number of
8 SCV-270339, despite the fact that they were prepared and
9 served 21 days after the Superior Court's order after
10 he
Preview
1 William L. Adams SBN 166027 WILLIAM L. ADAMS, PC 2 P.O. BOX 1050 Windsor, CA 95492-1050 3 Telephone: (707) 236-2176 Email: bill@wladamspc.com 4 Attorneys for Defendant 5 TWO ROCK VOLUNTEER FIRE DEPARTMENT 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SONOMA 9 FREAR STEPHEN SCHMID AND Case No. SCV-266225 and consolidated 10 ASTRID SCHMID, actions SCV-266731 and SCV-270339 11 Plaintiffs, DECLARATION OF WILLIAM L. ADAMS IN SUPPORT OF DEFENDANT 12 v. TWO ROCK VOLUNTEER FIRE DEPARTMENT’S EX PARTE 13 APPLICATION TO ADVANCE THE TWO ROCK VOLUNTEER FIRE HEARING DATE FOR MOTION TO 14 DEPARTMENT, EXCLUDE TESTIMONY OR COMPEL DEPOSITION OF PLAINTIFF ASTRID 15 Defendant. SCHMID 16 Ex Parte Date: September 26, 2022 Hearing Time: 10:30 a.m. 17 Department: 19 18 AND CONSOLIDATED ACTIONS. Trial Call: November 4, 2022 Time: 8:30 a.m. 19 Department: 19 20 21 22 I, WILLIAM L. ADAMS, declare: 23 1. I am an attorney duly licensed to practice in the Courts in the State of California 24 and attorney of record for Defendant Two Rock Volunteer Fire Department (“Two Rock Fire”) 25 in this consolidated case. I am competent to testify to these matters from my personal 26 knowledge. 27 2. On behalf of Two Rock Fire, I brought a Motion to Exclude the Trial Testimony 28 of Plaintiff Astrid Schmid or to Compel Deposition, based on Plaintiffs refusal to attend her 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S EX PARTE APPLICATION TO ADVANCE THE HEARING DATE FOR MOTION TO EXCLUDE TESTIMONY OR COMPEL DEPOSITION OF PLAINTIFF ASTRID SCHMID 1 deposition on August 26, 2022 (“Two Rock's Discovery Motion re Testimony of Astrid 2 Schmid”). My office filed and served Two Rock's Discovery Motion re Testimony of Astrid 3 Schmid on Plaintiffs and all parties in this consolidated action on September 2, 2022. A true 4 and correct copy of Two Rock's Discovery Motion re Testimony of Astrid Schmid is attached 5 hereto as Exhibit 1. Prior to filing the Two Rock's Discovery Motion re Testimony of Astrid 6 Schmid, I sought a stipulation from Plaintiff to advance the hearing date to comply with 7 timeline requirements of the Discovery Act. Plaintiffs did not respond. 8 3. After we received the Notice of a hearing date of February 1, 2023 from the 9 Court for Two Rock's Discovery Motion re Testimony of Astrid Schmid, my office immediately 10 provided a conformed copy of this Notice to Plaintiffs. 11 4. On September16, 2022, I advised Plaintiffs of the need to reschedule Two 12 Rock's Discovery Motion re Testimony of Astrid Schmid to be heard prior to the November 4, 13 2022 trial date and requested that Plaintiffs stipulate to a rescheduled hearing date. Also on 14 September 16, 2022, I notified Plaintiffs that, if they did not stipulate to a rescheduled hearing 15 date as required by the timelines in the Discovery Act, Two Rock Fire would present an ex 16 parte application on September 26, 2022 requesting that the Court reschedule the hearing date 17 to 15 days before trial, or on or before October 20, 2022, pursuant to Code of Civil Procedure 18 section 2024.020(a). 19 5. As of the date of submission of this ex parte application to the Court, I have 20 received no response from Plaintiffs to any of my communications concerning the need to 21 advance the hearing date or this ex parte application. 22 6. Attached hereto are true and correct copies of: 23 Exhibit 1: Notice of Motion and Motion to Exclude the Trial Testimony of Plaintiff 24 Astrid Schmid or to Compel Deposition. 25 Exhibit 2: Proofs of Service of Motion, unfiled and filed. 26 Exhibit:3: Email of paralegal Jacqueline Schaap with conformed copy of Motion with February 1, 2023 hearing date. 27 28 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S EX PARTE APPLICATION TO ADVANCE THE HEARING DATE FOR MOTION TO EXCLUDE TESTIMONY OR COMPEL DEPOSITION OF PLAINTIFF ASTRID SCHMID 1 Exhibit 4: My e-mail of September 16, 2022 to Plaintiffs regarding need to reschedule 2 Motion hearing date to comply with Discovery Act pretrial cutoff; and notice of ex parte application on September 26, 2022. 3 4 I declare under the penalty of perjury under the laws of the State of California that the 5 foregoing is true and correct. Executed in Windsor, California. 6 7 Dated: September 23, 2022 William L. Adams 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S EX PARTE APPLICATION TO ADVANCE THE HEARING DATE FOR MOTION TO EXCLUDE TESTIMONY OR COMPEL DEPOSITION OF PLAINTIFF ASTRID SCHMID EXHIBIT 1 ELECTRONICALLY FILED 1 William L. Adams SBN 166027 Superior Court of California JOHNSTON | THOMAS, Attorneys at Law, PC County of Sonoma 2 1400 N. Dutton Ave., Suite 21 9/2/2022 4:46 PM Santa Rosa, CA 95401 By: Melisa Kennedy, Deputy Clerk 3 Telephone: (707) 545-6542 Facsimile: (707) 545-1522 4 Email: wadams@johnstonthomas.com 5 Attorneys for Defendant TWO ROCK VOLUNTEER FIRE DEPARTMENT 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SONOMA 10 FREAR STEPHEN SCHMID AND Case No. SCV-266225 and consolidated ASTRID SCHMID, actions SCV-266731 and SCV-270339 11 Plaintiffs, DEFENDANT TWO ROCK VOLUNTEER 12 FIRE DEPARTMENT’S NOTICE OF v. MOTION AND MOTION TO EXCLUDE 13 THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO 14 TWO ROCK VOLUNTEER FIRE COMPEL DEPOSITION: AND FOR DEPARTMENT, SANCTIONS 15 [CCP § 2025.450] Defendant. 02/01/2023 16 Hearing Date: Hearing Time: 3:00 p.m. 17 Department: 19 18 AND CONSOLIDATED ACTIONS. Trial Call: November 4, 2022 Time: 8:30 a.m. 19 Department: 19 20 NOTICE IS HEREBY GIVEN TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 21 Pursuant to Code of Civil Procedure section 2025.450 1, at 3:00 pm, on02/01/2023 __________ 2022, 22 in Department 19 of the Sonoma County Superior Court, 3055 Cleveland Avenue, Santa Rosa, 23 CA, the Court will hear the motion of Defendant Two Rock Volunteer Fire Department 24 (“TRVFD”) to exclude the trial testimony of Plaintiff ASTRID SCHMID (“Plaintiff”), or to 25 compel her deposition, because of Plaintiff’s refusal to attend her duly noticed deposition on 26 August 26, 2022. 27 28 1 All statutory references herein are to the Code of Civil Procedure unless otherwise indicated. 1 MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO COMPEL DEPOSITION; AND FOR SANCTIONS 1 This Motion will be based on this Memorandum of Points and Authorities; the 2 accompanying supporting declaration of TRVFD counsel William L Adams and documentary 3 exhibits attached thereto; on the Court’s own records and files in this consolidated action pursuant 4 to Evidence Code section 452(d); and on such additional argument as may be presented at the 5 hearing on this Motion. Additionally, TRVFD requests an award of $1,575.00 in attorney’s fees 6 and costs as sanctions against Plaintiff, as mandated in section 2025.450(g)(2); as well as 7 potential sum certain sanctions of a further $500.00, as mandated by section 2023.050(a). 8 PROCEDURAL CHRONOLOGY 9 The relevant chronology of Plaintiff’s refusal to attend her deposition is documented in 10 the certified court reporter Statement of Nonappearance attached as Exhibit 1 to the supporting 11 declaration of William L Adams (hereinafter “Adams Decl.”) 12 After this Court issued its Order after Hearing on July 29, 2022, consolidating these 13 actions, TRVFD issued a deposition notice with production of documents pursuant to section 14 2025.210 to Plaintiff on August 4, 2022, setting Plaintiff’s deposition for 9:00 am on August 26, 15 2022. (See Exhibits A and B to Statement of Nonappearance.) 16 On the evening of Friday, August 19, 2022, Plaintiff served via email invalid objections 17 to the deposition notice (still using the former case number that was consolidated three weeks 18 before), ignoring the Court’s consolidation of Plaintiff’s cases against TRVFD and arguing that 19 TRVFD was not a party and William L. Adams was not attorney of record for a party. (See 20 Exhibit C to Statement of Nonappearance). On Monday, August 22, 2022, TRVFD counsel 21 reviewed Plaintiff’s invalid objections and responded to Plaintiff, informing Plaintiff that the 22 objections were invalid, and that the deposition would proceed as noticed on August 26, 2022, 23 and further informing Plaintiff that this Motion would be brought if Plaintiff continued to refuse 24 to appear without substantial justification. (See Exhibit D to Statement of Nonappearance.) 25 On Wednesday, August 24, 2022, at the deposition of TRVFD Treasurer Paul Martin, 26 Plaintiff again informed TRVFD counsel that he was not going to attend her duly noticed 27 deposition, and TRVFD counsel informed Plaintiff the deposition would go on the record as 28 noticed at 9:00 am on August 26, 2022, to document her deliberate refusal to appear. 2 MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO COMPEL DEPOSITION; AND FOR SANCTIONS 1 On August 26, 2022, at approximately 8:45 am, TRVFD counsel received a call from 2 Deputy County Counsel Michael King, who represents Defendant County of Sonoma in this 3 consolidated action, who informed me that he would not attend unless Plaintiff appeared and 4 authorized me to state on the record that stipulated to proceeding with the deposition as noticed 5 in order to document Plaintiff’s refusal to appear. 6 On August 26, 2022, at approximately 1:05 pm, after there was no appearance or further 7 communication from Plaintiff and none of the documents called in the deposition notice pursuant 8 to section 2025.210 were produced, TRVFD counsel went on the record to document Plaintiff’s 9 nonappearance, as set forth in the transcript and supporting documents provided in Exhibit 1 to 10 Adams Decl. 11 Unfortunately, this is not the first occasion that Plaintiff has refused to attend her 12 deposition. On October 8, 2021, Plaintiff’s deposition with production of documents on October 13 18, 2021, was duly noticed and the deposition personally served at Plaintiff’s residence at 7585 14 Valley Ford Road in Petaluma, CA . Nevertheless, Plaintiff propounded invalid objection falsely 15 stating that he had not been served and refused to attend or produce documents requested Because 16 the Trial Court thereafter sua sponte vacated the trial set for November 19, 2021, no motion to 17 compel Plaintiff’s deposition under section 2025.450 was brought. However, the Court is 18 respectfully requested to consider Plaintiff’s documented pattern of refusing to comply with valid 19 discovery and refusing to provide her testimony on the eve of trial, in making its determinations 20 concerning this Motion. The October 8, 2021, deposition notice to Plaintiff and proof of service 21 are attached as Exhibit 2 to Adams Decl. 22 LEGAL ARGUMENT 23 Plaintiff’s objections arguing that TRVFD lacks standing to issue a deposition notice with 24 production of documents are clearly specious and invalid. Where invalid objections are 25 propounded, a deponent is subject to the sanction regime set forth in section 2025.450. (See 26 2025.450(a); see also Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702 (“The 27 question before us is not whether the trial should have imposed a lesser sanction; rather, the 28 question is whether the trial court abused its discretion by imposing the sanction it chose.” 3 MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO COMPEL DEPOSITION; AND FOR SANCTIONS 1 (quoting Liberty Mutual Fire Ins. Co v. LcL Administrators, Inc. (2008) 163 Cal.App.,4th 1093, 2 1105).) 3 Plaintiff’s pattern and demonstrated practice of willful discovery violations is particularly 4 egregious since Plaintiff is represented and advised by her husband, co-Plaintiff Frear Stephen 5 Schmid, a licensed California attorney with 42 years of experience. “[W]here a violation is 6 willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would 7 not produce compliance with the discovery rules, the trial court is justified in imposing the 8 ultimate sanction.” (Creed -21, supra, 18 Cal.App.5th at 702 (quoting Doppes v. Bentley Motors, 9 Inc. (2009) 174 Cal.App.4th 967, 992).) 10 Because Plaintiff has repeatedly refused to participate in discovery to provide her 11 testimony as required by the Discovery Act, rather than the “ultimate” terminating sanction, 12 TRVFD requests this Court impose an evidentiary sanction precluding Plaintiff from testifying 13 at the trial. 14 In the alternative, TRVFD requests an order compelling and expediting Plaintiffs 15 deposition testimony, subject to the full range sanctions to terminating sanction and findings of 16 indirect contempt, if and when Plaintiff fails to comply. (See Creed -21, supra, 18 Cal.App. 5th 17 at fn. 11 (“disobedience of a court order outside of the presence of the judge . . . is categorized as 18 indirect contempt.” (citing Kohler v. Superior Court (2010) 181 Cal.App.4th 1153, 1159).) 19 REQUEST FOR ATTORNEY’S FEES 20 Section 2025.450(g)(2) provides for mandatory monetary sanctions against Plaintiff, 21 unless the Court finds that Plaintiff’s pattern of refusing to appear at his deposition has some 22 “substantial justification or that other circumstances make the imposition of the sanction unjust.” 23 There is no substantial justification or other circumstances to excuse the mandatory imposition 24 of sanction against Plaintiff in this situation. 25 Monetary sanctions are also available and appropriate for Plaintiff’s discovery misuse 26 under section 2023.010(d) for failing to submit to an authorized method of discovery in an effort 27 to avoid her deposition before trial. TRVFD requests the Court order Plaintiff to pay TRVFD 28 $1,575.00 for the attorney’s fees and costs, including court reporter charges for an expedited 4 MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO COMPEL DEPOSITION; AND FOR SANCTIONS 1 Statement of Nonappearance, incurred for Plaintiff’s deposition, as follows: $1,125.00 for five 2 hours of attorney time at $225.00 per hour, to prepare the deposition notices, communicate with 3 Plaintiff, convene the deposition to obtain the Statement of Nonappearance; prepare, reply and 4 appear at the hearing concerning this Motion; and $450.00 for the Court Reporter invoice. 5 Additionally, section 2023.050 mandates a further $250.00 sum certain sanction, where, 6 as here, Plaintiff failed to produce documents identified in her deposition notice pursuant to 7 section 2025.210, (see section 2023.050(a)(1), as well as a further $250.00 sum certain sanction 8 if Plaintiff fails to produce the documents requested pursuant to section 2025.210 within seven 9 days before the Court hears this Motion under section 2025.450 (see section 2023.050(a)(2).) 10 CONCLUSION 11 Without any substantial justification and based on specious invalid objections, Plaintiff 12 deliberately refused to attend her duly noticed deposition and failed to produce documents called 13 for in her deposition notice. Because this is a recurring example of discovery abuse by Plaintiff in 14 this case, TRVFD requests the Court issue an Order precluding Plaintiff from testifying at the trial 15 set to begin on November 4, 2022. 16 17 DATED: September 2, 2022 JOHNSTON | THOMAS, Attorneys at Law, PC 18 By: 19 William L. Adams, Counsel for Defendant TWO ROCK VOLUNTEER FIRE DEPARTMENT 20 21 22 23 24 25 26 27 28 5 MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO COMPEL DEPOSITION; AND FOR SANCTIONS ELECTRONICALLY FILED 1 William L. Adams SBN 166027 Superior Court of California JOHNSTON | THOMAS, Attorneys at Law, PC County of Sonoma 2 1400 N. Dutton Ave., Suite 21 9/2/2022 4:46 PM Santa Rosa, CA 95401 By: Melisa Kennedy, Deputy Clerk 3 Telephone: (707) 545-6542 Facsimile: (707) 545-1522 4 Email: wadams@johnstonthomas.com 5 Attorneys for Defendant TWO ROCK VOLUNTEER FIRE DEPARTMENT 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SONOMA 10 FREAR STEPHEN SCHMID AND Case No. SCV-266225 and consolidated ASTRID SCHMID, actions SCV-266731 and SCV-270339 11 Plaintiffs, DECLARATION OF WILLIAM L. 12 ADAMS IN SUPPORT OF DEFENDANT v. TWO ROCK VOLUNTEER FIRE 13 DEPARTMENT’S NOTICE OF MOTION AND MOTION TO EXCLUDE THE 14 TWO ROCK VOLUNTEER FIRE TRIAL TESTIMONY OF PLAINTIFF DEPARTMENT, ASTRID SCHMID OR TO COMPEL 15 DEPOSITION: AND FOR SANCTIONS Defendant. [CCP § 2025.450] 16 Hearing Date: 02/01/2023 17 Hearing Time: 3:00 p.m. Department: 19 18 Trial Call: November 4, 2022 19 AND CONSOLIDATED ACTIONS. Time: 8:30 a.m. Department: 19 20 21 I, WILLIAM L. ADAMS, declare: 22 1. I am an attorney duly licensed to practice before all Courts in the State of 23 California. I am Of Counsel in the law firm of JOHNSTON | THOMAS, Attorneys at Law, PC, 24 attorneys of record for Defendant Two Rock Volunteer Fire Department (“TRVFD”) in this 25 consolidated case. 26 2. I make this Declaration in support of the motion of TRVFD to exclude the trial 27 testimony of Plaintiff ASTRID SCHMID (“Plaintiff”), or to compel her deposition, because of 28 Plaintiff’s refusal to attend her duly noticed deposition on August 26, 2022. I have personal 1 MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO COMPEL DEPOSITION; AND FOR SANCTIONS 1 knowledge of the facts set forth herein and if called upon to testify thereto in a court of law, I 2 could and would do so competently. Pursuant to Evidence Code section 452(d), I respectfully 3 request the Court take judicial notice of the entirety of its own files and records in this 4 consolidated matter. 5 3. The relevant chronology of Plaintiff’s refusal to attend her deposition is 6 documented in the certified Court Reported Statement of Nonappearance attached as Exhibit 1 7 to this declaration. 8 4. After this Court issued its Order after Hearing on July 29, 2022, consolidating 9 these actions (Exhibit A to Exhibit 1 hereto), I personally prepared a TRVFD deposition notice 10 with production of documents pursuant to section 2025.210 served on Plaintiff on August 4, 11 2022, setting Plaintiff’s deposition for 1:00 pm on August 26, 2022. (Exhibit B to Exhibit 1 12 hereto.) 13 5. On the evening of Friday, August 19, 2022, Plaintiff served via email objections 14 to the deposition notice (still using the former case number that was consolidated three weeks 15 before), ignoring the Court’s consolidation of Plaintiff’s cases against TRVFD and arguing that 16 TRVFD was not a party and William L. Adams was not attorney of record for a party. (See 17 Exhibit C to Exhibit 1 hereto.) 18 6. On Monday, August 22, 2022, I reviewed Plaintiff’s invalid objections and 19 responded to Plaintiff, informing Plaintiff that the objections were invalid, and that the deposition 20 would proceed as noticed on August 26, 2022. I further informed Plaintiff that this Motion would 21 be brought if Plaintiff continued to refuse to appear without substantial justification. (See Exhibit 22 D to Exhibit 1 hereto.) 23 7. On Wednesday, August 24, 2022, at the deposition of TRVFD Treasurer Paul 24 Martin, Plaintiff again informed me that Plaintiff was not going to attend her duly noticed 25 deposition; and I informed Plaintiff that her deposition would go on the record as noticed at 1:00 26 pm on August 26, 2022, to document his deliberate refusal to appear. 27 8. On August 26, 2022, at approximately 8:45 am, I received a call from Deputy 28 County Counsel Michael King, who represents Defendant County of Sonoma in this consolidated 2 MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO COMPEL DEPOSITION; AND FOR SANCTIONS 1 action, who informed me that he would not attend unless Plaintiff appeared and authorized me to 2 state on the record that stipulated to proceeding with the deposition as noticed in order to 3 document Plaintiff’s refusal to appear. 4 9. On August 26, 2022, at approximately 1:05 pm, after there was no appearance or 5 further communication from Plaintiff and none of the documents called in the deposition notice 6 pursuant to section 2025.210 were produced, I went on the record to document Plaintiff’s 7 nonappearance, as set forth in the transcript and supporting documents provided in text of the 8 Statement of Nonappearance attached as Exhibit 1 hereto. 9 10. This is not the first occasion that Plaintiff has refused to attend her deposition. On 10 October 8, 2021, TRVFD predecessor counsel noticed Plaintiff’s deposition with production of 11 documents on October 19, 2021, and the deposition notice was personally served at Plaintiff’s 12 residence at 7585 Valley Ford Road in Petaluma, CA . Nevertheless, Plaintiff propounded invalid 13 objection falsely stating that she had not been served and refused to attend her deposition or 14 produce documents requested. Because the Trial Court thereafter sua sponte vacated the trial set 15 for November 19, 2021, no motion to compel Plaintiff’s deposition under section 2025.450 was 16 brought. The October 8, 2021, deposition notice to Plaintiff and proof of service are attached as 17 Exhibit 2 hereto. 18 11. TRVFD requests an award of $1,575.00 in attorney’s fees and costs as sanctions 19 against Plaintiff, as mandated in section 2025.450(g)(2); as well as potential sum certain 20 sanctions of a further $500.00, as mandated by section 2023.050(a). I am personally aware of 21 the work performed in support of TRVFD’s request that the Court order Plaintiff to pay TRVFD 22 $1,575.00 for the attorney’s fees and costs, including court reporter charges for an expedited 23 Statement of Nonappearance, incurred for Plaintiff’s deposition, as follows: $1,125.00 for five 24 hours of attorney time at $225.00 per hour, to prepare the deposition notices, communicate with 25 Plaintiff, convene the deposition to obtain the Statement of Nonappearance; prepare, reply and 26 appear at the hearing concerning this Motion; and $450.00 for the Court Reporter invoice. 27 12. Additionally, section 2023.050 mandates a further $250.00 sum certain sanction, 28 where, as here, Plaintiff failed to produce documents identified in her deposition notice pursuant 3 MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO COMPEL DEPOSITION; AND FOR SANCTIONS 1 to section 2025.210, (see section 2023.050(a)(1), as well as a further $250.00 sum certain 2 sanction if Plaintiff fails to produce the documents requested pursuant to section 2025.210 within 3 seven days before the Court hears this Motion under section 2025.450 (see section 4 2023.050(a)(2).) 5 I declare under the penalty of perjury under the laws of the State of California that the 6 foregoing is true and correct. Executed in Santa Rosa, California. 7 Dated: September 2, 2022 8 William L. Adams 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 MOTION TO EXCLUDE THE TRIAL TESTIMONY OF PLAINTIFF ASTRID SCHMID OR TO COMPEL DEPOSITION; AND FOR SANCTIONS EXHIBIT 1 1 SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 COUNTY OF SONOMA 3 ---o0o--- 4 5 FREAR STEPHEN SCHMID AND ) ASTRID SCHMID, ) 6 ) Plaintiffs, ) 7 ) vs. ) No. SCV-266225 and 8 ) consolidated action TWO ROCK VOLUNTEER FIRE ) SCV-266731 9 DEPARTMENT, A California ) Nonprofit Public Benefit ) 10 Corporation, ) ) 11 Defendants. ) ___________________________) 12 AND CONSOLIDATED ACTION. ) ___________________________) 13 14 --- 15 SCHEDULED DEPOSITION OF ASTRID SCHMID 16 17 August 26, 2022 18 19 20 21 Reported by: Kelly K. Lopez, CSR #7785 22 23 NORTH BAY STENOGRAPHERS 3554 Round Barn Boulevard, Suite 303 24 Santa Rosa, CA 95403 depos.nbs@gmail.com 25 (707) 583-7676 file:///Y/...tive/TRVFD%20-%20Schmid%20v.%20TRVFD/Pleadings/Mtn%20to%20Preclude%20Testimony/08-26-22%20A%20schmid.TXT[9/2/2022 4:13:15 PM] 1 NORTH BAY STENOGRAPHERS * depos.nbs@gmail.com 1 APPEARANCES: 2 FOR THE PLAINTIFFS: 3 No Appearance 4 FOR THE DEFENDANTS: 5 Johnston Thomas 6 1400 N. Dutton Avenue, Suite 21 Santa Rosa, CA 95401 7 By: William L. Adams, Esq. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 file:///Y/...tive/TRVFD%20-%20Schmid%20v.%20TRVFD/Pleadings/Mtn%20to%20Preclude%20Testimony/08-26-22%20A%20schmid.TXT[9/2/2022 4:13:15 PM] 24 25 2 NORTH BAY STENOGRAPHERS * depos.nbs@gmail.com 1 I-N-D-E-X 2 STATEMENT BY: PAGE: 3 Mr. Adams 4 4 5 6 EXHIBITS PAGE: 7 Exhibit A - Order After Hearing on Defendants' Motion to Vacate Trial Date; to 8 Establish Cut-Off Dates for Discovery and Motions Based on 9 New Trial Date; Motion to Consolidate Actions 4 10 Exhibit B - Notice of Deposition of Plaintiff 11 Astrid Schmid and Request for Production of Documents 4 12 Exhibit C - Plaintiffs' Objections to Depositions 13 and Requests for Production of Documents Thereat 4 14 Exhibit D - Email string dated August 22, 2022, 15 Subject: Deposition Notices to Plaintiffs - Schmid vs. Two Rock 16 Volunteer Fire Dept; Consolidated Case No. SCV-266255 4 17 18 19 20 21 file:///Y/...tive/TRVFD%20-%20Schmid%20v.%20TRVFD/Pleadings/Mtn%20to%20Preclude%20Testimony/08-26-22%20A%20schmid.TXT[9/2/2022 4:13:15 PM] 22 23 24 25 3 NORTH BAY STENOGRAPHERS * depos.nbs@gmail.com 1 At the offices of Johnston Thomas, Attorneys at 2 Law, 1400 N. Dutton Avenue, Suite 21, Santa Rosa, 3 California, on Friday, the 26th day of August, 2022, 4 commencing at the hour of 1:03 p.m., thereof, before 5 Kelly K. Lopez, CSR, State of California, the following 6 proceedings were held: 7 --- 8 (Deposition Exhibits A through D marked 9 for identification.) 10 MR. ADAMS: Let's go on the record in the 11 matter of Schmid v. Two Rock Volunteer Fire Department. 12 My name is Bill Adams. I'm an attorney of record for 13 Defendant Two Rock Volunteer Fire Department. 14 We're here today for the duly noticed 15 deposition of Plaintiff Astrid, spelled A-s-t-r-i-d, 16 Schmid, S-c-h-m-i-d, who has advised that she is 17 refusing to attend this deposition. We'll put some 18 matters on the record to document that for the purpose 19 of the defendant and perhaps defendants, including the file:///Y/...tive/TRVFD%20-%20Schmid%20v.%20TRVFD/Pleadings/Mtn%20to%20Preclude%20Testimony/08-26-22%20A%20schmid.TXT[9/2/2022 4:13:15 PM] 20 County of Sonoma, bringing a motion to compel the 21 appearance of the deponent under CCP Section 2025.450. 22 I will note that earlier today I had a phone 23 call with attorney Mike King, Deputy County Counsel for 24 the County of Sonoma, which is also a defendant in this 25 consolidated action. Mr. King advised me that he was 4 NORTH BAY STENOGRAPHERS * depos.nbs@gmail.com 1 not going to attend and would not attend the deposition 2 today unless deponent Astrid Schmid appears. 3 It is now approximately 1:05 in the afternoon. 4 Ms. Schmid has not appeared. And I will talk through 5 some correspondence, which we are going to attach as 6 exhibits, in which Ms. Schmid has confirmed that she was 7 not going to appear today. 8 Madam Court Reporter, we've marked as 9 exhibits, and I'm going to go through briefly, the 10 following four documents. 11 Exhibit A is an Order After Hearing on 12 Defendants' -- which is S apostrophe, plural -- Motion 13 to Vacate Trial Date; to Establish Cut-Off Dates for 14 Discovery and Motions Based on New Trial Date; Motion to 15 Consolidate Actions. 16 This order after hearing was signed by the 17 Honorable Judge Gary Nadler of Department 19 of the file:///Y/...tive/TRVFD%20-%20Schmid%20v.%20TRVFD/Pleadings/Mtn%20to%20Preclude%20Testimony/08-26-22%20A%20schmid.TXT[9/2/2022 4:13:15 PM] 18 Sonoma County Superior Court and entered on July 29th, 19 2022. Relevant, in part, for this matter is that the 20 consolidated former Case Number SCV-270339 is now in the 21 consolidated case with the senior case number of 22 SCV-266225. 23 The order after hearing does allow that for 24 the purpose of discovery, the initial trial date of 25 November 4, 2022, shall be applied to the new issues, 5 NORTH BAY STENOGRAPHERS * depos.nbs@gmail.com 1 claims, and defenses in former Case Number SCV-270339. 2 I note that in the proof of service for 3 Exhibit A, the Sonoma County Superior Court served me at 4 this office, the Johnston Thomas, attorneys at law, law 5 firm on behalf of a caption that reads Two Rock 6 Volunteer Fire Department, a California Nonprofit Public 7 Benefit Corporation. 8 We've marked as Exhibit B the Notice of 9 Deposition of Plaintiff Astrid Schmid and Request for 10 Production of Documents. It was signed by me on 11 August 5th and served by my paralegal, Jacqueline 12 Schaap, S-c-h-a-a-p, also on October 5th, electronically 13 and at the address of record of deponent Astrid Schmid 14 at 7585 Valley Ford Road, Petaluma, California 94952. 15 There have been no claims by deponent Astrid Schmid that file:///Y/...tive/TRVFD%20-%20Schmid%20v.%20TRVFD/Pleadings/Mtn%20to%20Preclude%20Testimony/08-26-22%20A%20schmid.TXT[9/2/2022 4:13:15 PM] 16 she did not receive service of this deposition notice. 17 Marked as Exhibit C is a document entitled 18 Plaintiffs' -- that's A apostrophe, collectively the two 19 plaintiffs -- Objections to Depositions and Requests for 20 Production of Documents Thereat. It is dated August 21 19th, 2022, with a proof of service signed by Tristan, 22 T-r-i-s-t-a-n, Schmid, also dated August 19th, 2022. 23 I note that Mr. Tristan Schmid, in the proof 24 of service, lists his home address at 7585 Valley Ford 25 Road in Petaluma, California. I further note, on the 6 NORTH BAY STENOGRAPHERS * depos.nbs@gmail.com 1 face of Exhibit 3, both plaintiffs, Frear Stephen Schmid 2 and Astrid Schmid, list one email address, which is 3 Frear Schmid, frearschmid@aol.com. This is the only 4 email address that we've used to communicate with both 5 plaintiffs over the past several years of this 6 litigation. 7 Exhibit C objections have a case number of 8 SCV-270339, despite the fact that they were prepared and 9 served 21 days after the Superior Court's order after 10 he