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
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5 Attorneys for Defendant
TWO ROCK VOLUNTEER FIRE DEPARTMENT
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE 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,
12 DEFENDANT TWO ROCK
v. VOLUNTEER FIRE DEPARMENT’S
13 OPPOSITION TO PLAINTIFFS’
PRETRIAL MOTION
14 TWO ROCK VOLUNTEER FIRE
DEPARTMENT,
15 Trial Call: November 4, 2022
Defendant. Time: 8:30 a.m.
16 Department: 19
17 AND CONSOLIDATED ACTIONS.
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19 Defendant TWO ROCK VOLUNTEER FIRE DEPARTMENT, also known as TWO
20 ROCK FIRE DEPARTMENT (“Two Rock Fire”) in this consolidated case, hereby submits its
21 Opposition to Plaintiffs’ Pretrial Motion concerning the jury trial set for November 4, 2022.
22 For multiple and independent reasons, as set forth in detail below, because Plaintiffs’ have
23 belatedly and untimely submitted one combined “Pretrial Motion” that includes requests for leave
24 to amend, bifurcation and motions in limine to strike the Court’s March 2022 order for a jury trial;
25 Two Rock Fire requests the Court deny Plaintiffs’ Pretrial Motion in its entirety.
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DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S
OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION
1 From the Department 19 Trial Orders section D.2 on Scope of Motions in Limine:
2 “Scope: For motions in limine other than those expressly authorized by the
Evidence Code, counsel is directed to Campain v. Safeway Stores, Inc. (1972)
3 29.App.3d 362; Kelly v. New West Fed. Sav. (1996) 49 Cal.App.4th 659; Amtower v.
Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582; and Kinda v. Carpenter (2016)
4 247 Cal.App.4th 1268 with regard to the proper scope of motions in limine. Generally,
motions for judgment on the pleadings, leave to amend, motions for summary
5 adjudication and/or summary judgment, or bifurcation are not in limine motions
and should not be filed as such.”
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7 (Trial Orders of the Court, p. 3 of 8, section D.2, filed and served 4/6/22) (emphasis added)
8 A. The entirety of Plaintiffs’ Pretrial Motion is untimely and should be disregarded
9 The Court’s Trial Orders, filed and served on the parties on April 6, 2022, with the Court’s
10 “Notice of Mandatory Settlement Conference and Trial”, required the parties to file and serve
11 initial pretrial filings and motions “on the sixth court day preceding trial, by 3:30pm 10/26/22”.
12 (Trial Orders of the Court, p. 1 of 8, section A.1) (emphasis in original).) Pursuant to the Court’s
13 Order after Hearing entered October 20, 2022, the revised deadline for the parties to file and serve
14 initial pretrial filings and motions was changed from October 26, 2022, until November 1, 2022;
15 and the revised deadline for reply paper for pretrial motion changed from November 1, 2002, until
16 November 3, 2022. (10/20/22 Order After Hearing, p.5, line 6-8.)
17 As documented in the proof of electronic service of Plaintiffs’ Pretrial Motion, this motion
18 was served at 6:27 p.m. on November 1, 2022, after the close of business for the Court (3:30 pm)
19 and after normal business hours. (See Exhibit 1 to accompanying declaration of William L.
20 Adams (“Adams Decl.”).)
21 Accordingly, the entirety of Plaintiffs’ Pretrial Motion is untimely, should be disregarded,
22 and all relief sought in Plaintiffs’ Pretrial Motion should be denied.
23 B. Plaintiffs’ motion to bifurcate trial is untimely and should be disregarded
24 Pursuant to Code of Civil Procedure section 598, a party’s motion to bifurcate must be
25 filed “not later than 30 days before the trial date”; and any order for bifurcation can only be
26 entered after notice and hearing other parties. (See Walton v. Walton (1995) 31 Cal.App.4th 277,
27 292 (describing section 598 as “the statutory provisions for severance and separate trial”.)
28 Plaintiffs filed their motion to bifurcate on November 1, 2022, three days before trial. Plaintiffs’
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DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S
OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION
1 request to bifurcate trial is untimely, should be disregarded, and all relief sought should be denied.
2 Although Plaintiffs admit in their Pretrial Motion that they became aware of Two Rock
3 Fire’s alleged fraud and inequitable conduct on September 30, 2019, [sic - likely refers to 2022],
4 Plaintiffs delayed more than 30 days to file their motion to bifurcate. Although several ex parte
5 applications have been made by parties (including Plaintiffs) over past several months, Plaintiffs
6 did not seek ex parte relief to accelerate the hearing on their motion to bifurcate.
7 Additionally, given the requirement for Defendants to file any opposition to Plaintiffs’
8 Pretrial Motion not later than 3:30 p.m. on November 3, 2022, Plaintiffs’ delayed filing of their
9 motion to bifurcate in an untimely pretrial motion allows Defendants less than 48 hours to file
10 responsive papers, and less than two working hours for the court and its staff to consider the
11 moving and opposition papers before Trial Call in Department 19 at 8:30 a.m. on November
12 4, 2022. Code of Civil Procedure section 598 requires the Court’s consideration “on motion of a
13 party” be conducted only “after notice and hearing” at least 30 days before trial. (CCP § 598).
14 Pursuant to Code of Civil Procedure section 1005, Plaintiffs’ motion to bifurcate must not only be
15 heard at least 30 days before trial (CCP § 598), but the moving and supporting papers must “be
16 served and filed at least 16 court days before the hearing”. (CCP § 1005(b)).
17 Furthermore, Plaintiffs’ motion to amend should be denied because Plaintiffs’ supporting
18 declaration does not include the information specifically required by California Rule of Court
19 3.1324, regarding “(1) the effect of the amendment; (2) why the amendment is necessary and
20 property; (3) when the facts giving rise to the amended allegation were discovered; and (4) the
21 reasons why the request for amendment was not made earlier.” (CRC 3.1324(b).)
22 Finally, as a practical matter given the sequence of events related to the Two Rock Fire
23 project, because of Defendants’ fundamental reliance on Plaintiff’s written setback waiver granted
24 on November 25, 2018, in the subsequent County’s approvals and Two Rock Fire’s construction,
25 occupancy and operation of their new building project, it is factually and logically impossible to
26 have a first trial that does not include Plaintiffs’ setback waiver. Plaintiffs’ motion for bifurcation
27 and proposed First Amended Complaint would force a trial in a vacuum, then require a subsequent
28 trial to go back in time regarding Plaintiffs’ new allegations that Two Rock Fire never owned the
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DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S
OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION
1 subject property (based on Plaintiffs’ request to retroactively cancel deeds recorded in 2015 and
2 2017), and that Plaintiffs’ November 2018 written setback waiver should be retroactively canceled
3 or invalidated four years after Plaintiffs gave it to Two Rock Fire. The interconnected factual
4 sequences of the Hansen Trust’s bequest and Two Rock Fire’s ownership of the property;
5 Plaintiffs’ written setback waiver, and the reliance thereupon by Defendants County and Two
6 Rock Fire are inextricably related and entangled - and thus cannot and should not be subject to any
7 eve-of-trial bifurcation or Plaintiffs’ new allegations in a last minute amended Complaint.
8 The major objective of bifurcation is to expedite and simplify the presentation of evidence.
9 (See Foreman & Clark Corp. v. Fallon 3 Cal.3d 875.) However, a trial court has no authority to
10 enter multiple final judgments determining multiple issues between the same parties to an action.
11 (Lauderdale v. U & I Equipment Co. (1969) 271 Cal.App.2d 140; see also Cohn v. Bugas (1974)
12 42 Cal.App.3d 381 (the trial court may not, over the objection of a party, order the separate trial of
13 an issue of liability when, because of the nature of the case, it is necessary to prove the plaintiff’s
14 damages in order to establish that liability.)
15 In the alternative, in the event the Court considers allowing Plaintiffs’ amendment of the
16 complaint and/or request for bifurcation, Two Rock Fire requests the trial be continued so that
17 these issues (and the myriad other unresolved issues raised in Two Rock Fire’s trial brief and
18 Motions in Limine – pending appeal, compliance with orders compelling depositions, obtaining
19 official certified deposition transcripts, etc.) can be considered and determined, without any
20 shortening of time, at a duly noticed hearing by a judge assigned for all purposes in Department 19
21 to provide consistent oversight and direction in this case. If the trial is continued because of the
22 Court considers Plaintiffs’ amendment necessary, Code of Civil Procedure section 473(a)(2)
23 provides that the Court may postpone the trial and order payment to Defendants as the adverse
24 party of “costs” as may be just. (CCP § 472(a)(2); see also Williams v. Myer (1907) 150 Cal.714,
25 717-719 (the fact that defendant insisted if the amendment raising a new issue requiring
26 presentation of different evidence was allowed, the defendant would not be able to go on with the
27 trial was sufficient showing to warrant continuing trial and imposing terms.)
28 ///
4
DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S
OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION
1 C. Plaintiffs request to strike the court’s March 24, 2022, Minute Order setting this
2 consolidated case for a jury trial should be denied
3 Without any opposition from Plaintiffs, at the Case Management Conference attended by
4 counsel for all parties on March 24, 2022, Judge Nadler set then-consolidated cases SCV–266225
5 and SCV-266273 for a jury trial to commence on November 4, 2022. (See Exhibit 2 to Adams
6 Decl.) Two Rock Fire deposited jury fees on August 8, 2022.
7 The Court’s consideration and determination to set these consolidated matters for a jury
8 trial on March 24, 2022, was made more than a year and a half after Plaintiff Frear Stephen
9 Schmid’s purported “election of remedies” dated July 27, 2020. However, no election of remedies
10 was filed by Plaintiff Astrid Schmid and Plaintiffs have never amended their verified Complaint in
11 case number SCV-266225 to remove the tort causes of action for nuisance or trespass, and the
12 accompanying prayer for general and special monetary damages.
13 Based on this Court’s own records and files, Judge Nadler was aware of and considered the
14 status of the parties’ claims and pleadings when the Court ordered this consolidated matter for a
15 jury trial more than 10 months ago. Plaintiffs have simply waited too long to challenge this Order.
16 CONCLUSION
17 The reasons set forth above, the Court is respectfully requested to disregard and deny in its
18 entirety Plaintiffs’ Pretrial Motion. In the alternative, rather than rushing the consideration of
19 Plaintiffs’ motion for bifurcation and leave to file a First Amended Complaint, Two Rock Fire
20 requests the trial be continued so that all these and the many other unresolved issues in this
21 consolidated case can be considered and determined by a judge assigned for all purposes in
22 Department 19 after January 1, 2023.
23
24 Dated: November 3, 2022 WILLIAM L. ADAMS, PC
25
26 By:
William L. Adams, Counsel for Defendant
27 TWO ROCK VOLUNTEER FIRE DEPARTMENT
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DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S
OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION
1 SUPPORTING DECLARATION OF WILLIAM L. ADAMS
2 I, WILLIAM L. ADAMS, declare:
3 1. I am an attorney duly licensed to practice before all Courts in the State of
4 California. I am the attorney of record for Defendant Two Rock Volunteer Fire Department,
5 also known as Two Rock Fire Department (“Two Rock Fire”), in this consolidated case.
6 2. I make this Declaration in support of the Two Rock Fire’s accompanying
7 Opposition to Plaintiffs’ Pretrial Motion. I have personal knowledge of the facts set forth in the
8 Opposition herein and if called upon to testify thereto in a court of law, I could and would do so
9 competently. Pursuant to Evidence Code section 452(d), I respectfully request the Court take
10 judicial notice of the entirety of its own files and records in this consolidated matter, as well as
11 the following documents attached as Exhibits to this declaration
12 3. Attached hereto are the following Exhibits:
13 Exhibit 1 – Proof of service email of Plaintiffs’ Pretrial Motion at 6:27 p.m. on
November 1, 2022.
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Exhibit 2 – Minute Order from March 24, 2022, Case Management Conference.
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16 I declare under the penalty of perjury under the laws of the State of California that the
17 foregoing is true and correct. Executed in Windsor, California.
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19 Dated: November 3, 2022
William L. Adams
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DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S
OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION
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24 EXHIBIT 1
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DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S
OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION
From: Frear Stephen Schmid
To: William Adams; michael.king@sonoma-county.org; Jacqueline Schaap
Subject: Fwd: pre-trial morions
Date: Tuesday, November 1, 2022 6:27:10 PM
Attachments: pre trial motions pos433.pdf
pre trial motions432.pdf
Please see attached served on you hereby
Tristan Schmid for
Frear Stephen Schmid and Astrid Schmid
7585 Valley Ford Road
Petaluma, CA 94952
Tel: 415-788-5957
e-mail: frearschmid@aol.com
++++++++++++++++++++
This e-mail and any attachments thereto is intended only for use by the addressee(s)
named herein and may contain legally privileged and/or confidential information. If
you are not the intended recipient of this e-mail, you are hereby notified that any
dissemination, distribution or copying of this e-mail, and any attachments thereto, is
strictly prohibited. If you receive this e-mail in error please notify us immediately either
by return e-mail or by telephone at 415-788-5957 and permanently delete the original,
any copy of any e-mail, and any printout thereof.
-----Original Message-----
From: Frear Stephen Schmid
To: bill@wladamspc.com ; jacqueline@wladamspc.com
; michael.king@sonoma-county.org
Sent: Tue, Nov 1, 2022 5:03 pm
Subject: pre-trial morions
Very truly yours,
Frear Stephen Schmid
7585 Valley Ford Road
Petaluma, CA 94952
Tel: 415-788-5957
e-mail: frearschmid@aol.com
++++++++++++++++++++
This e-mail and any attachments thereto is intended only for use by the addressee(s)
named herein and may contain legally privileged and/or confidential information. If
you are not the intended recipient of this e-mail, you are hereby notified that any
dissemination, distribution or copying of this e-mail, and any attachments thereto, is
strictly prohibited. If you receive this e-mail in error please notify us immediately either
by return e-mail or by telephone at 415-788-5957 and permanently delete the original,
any copy of any e-mail, and any printout thereof.
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26 EXHIBIT 2
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DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S
OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION
Superior Court of California, County of Sonoma
MINUTE ORDERS
SCV-266225 - SCHMID VS TWO ROCK FIRE DEPT
Date of Hearing: March 24, 2022 Case Management Conference
Time: 3:00 PM Courtroom 19
Judicial Officer: Gary Nadler Courtroom Clerk: Chris Reynoso
Court Reporter: None
Parties Present: remotelv Via zoom
Plaintiff, Frear S. Schmid ispresent on behalf of himself and on behalf of plaintiff, Astrid
Schmid.
Counsel, William L. Adams if present 0n behalf of defendant, Two Rock Volunteer Fire
Department.
Counsel, Michael A. King, is present 0n behalf of defendant, County 0f Sonoma
Hearing:
The Court finds notice to appear has been issued; tentative ruling: appearance required.
Case is called by the Court; appearances are stated on the record.
The Court has discussion with counsel re: possibility of settlement/participating in mediation
and setting trial date.
Jury requested by defendant; jury fees are not posted; time estimate: 3-5 days.
The COURT ORDERS:
Ifjury requested, jury fees shall be posted prior t0 trial date.
Parties shall meet and confer to make a good faith effort to attempt t0 reach an agreement
re: participating in mediation/selection of mediator and scheduling 0f mediation session.
Case shall be set for jury trial 0n Friday, 11/04/22 at 8:30 a.m., in Department 19.
Notice of trial date shall be mailed.
-End of Minute Order-
For moreinformation please contact the Clerk ’s Oflice at (707) 521-6500 during official business hours.
www.sonama‘ courts.ca. gov
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PROOF OF SERVICE
1 Schmid v. Two Rock Volunteer Fire Department.
Sonoma County Superior Court Case NO. SCV-266225 and consolidated
2 actions SCV-266731 and SCV-270339
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I, the undersigned, declare:
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I am over the age of 18 and not a party to this action. I am employed in the county where
5 the mailing occurred and my business address is: William L. Adams PC, P.O. Box 1050, Windsor,
CA 95492-1050
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On November 3, 2022, I served the parties indicated below the foregoing documents(s)
7 described as:
8 DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S OPPOSITION
TO PLAINTIFFS’ PRETRIAL MOTION
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On the parties involved addressed as follows:
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Frear Stephen Schmid Plaintiff in Pro Per
11 7585 Valley Ford Road
Petaluma, CA 94952
12 frearschmid@aol.com
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Astrid Schmid Plaintiff in Pro Per
14 7585 Valley Ford Road
Petaluma, CA 94952
15 frearschmid@aol.com
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Michael A. King Counsel for Defendant County of Sonoma
17 Deputy County Counsel
County of Sonoma
18 575 Administration Drive, Room 105-A
Santa Rosa, CA 95403
19 Michael.King@sonoma-county.org
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[X] BY ELECTRONIC SERVICE – Pursuant to Code of Civil Procedure section 1010.6 and
21 California Rules of Court section 2.251, I affected electronic service of the documents
indicated above to the email address(es) listed above by submitting an electronic PDF
22 version of the document(s) to Microsoft Outlook, through the user interface at
wladamspc.com. My eService address is: jacqueline@wladamspc.com.
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I declare under penalty of perjury under the laws of the State of California that the above
24 is true and correct. Executed on November 3, 2022, at Windsor, California.
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26 Jacqueline Schaap, Paralegal
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DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S
OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION
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 5 Attorneys for Defendant TWO ROCK VOLUNTEER FIRE DEPARTMENT 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SONOMA 10 FREAR STEPHEN SCHMID AND Case No. SCV-266225 and consolidated ASTRID SCHMID, actions SCV-266731 and SCV-270339 11 Plaintiffs, 12 DEFENDANT TWO ROCK v. VOLUNTEER FIRE DEPARMENT’S 13 OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION 14 TWO ROCK VOLUNTEER FIRE DEPARTMENT, 15 Trial Call: November 4, 2022 Defendant. Time: 8:30 a.m. 16 Department: 19 17 AND CONSOLIDATED ACTIONS. 18 19 Defendant TWO ROCK VOLUNTEER FIRE DEPARTMENT, also known as TWO 20 ROCK FIRE DEPARTMENT (“Two Rock Fire”) in this consolidated case, hereby submits its 21 Opposition to Plaintiffs’ Pretrial Motion concerning the jury trial set for November 4, 2022. 22 For multiple and independent reasons, as set forth in detail below, because Plaintiffs’ have 23 belatedly and untimely submitted one combined “Pretrial Motion” that includes requests for leave 24 to amend, bifurcation and motions in limine to strike the Court’s March 2022 order for a jury trial; 25 Two Rock Fire requests the Court deny Plaintiffs’ Pretrial Motion in its entirety. 26 /// 27 /// 28 /// 1 DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION 1 From the Department 19 Trial Orders section D.2 on Scope of Motions in Limine: 2 “Scope: For motions in limine other than those expressly authorized by the Evidence Code, counsel is directed to Campain v. Safeway Stores, Inc. (1972) 3 29.App.3d 362; Kelly v. New West Fed. Sav. (1996) 49 Cal.App.4th 659; Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582; and Kinda v. Carpenter (2016) 4 247 Cal.App.4th 1268 with regard to the proper scope of motions in limine. Generally, motions for judgment on the pleadings, leave to amend, motions for summary 5 adjudication and/or summary judgment, or bifurcation are not in limine motions and should not be filed as such.” 6 7 (Trial Orders of the Court, p. 3 of 8, section D.2, filed and served 4/6/22) (emphasis added) 8 A. The entirety of Plaintiffs’ Pretrial Motion is untimely and should be disregarded 9 The Court’s Trial Orders, filed and served on the parties on April 6, 2022, with the Court’s 10 “Notice of Mandatory Settlement Conference and Trial”, required the parties to file and serve 11 initial pretrial filings and motions “on the sixth court day preceding trial, by 3:30pm 10/26/22”. 12 (Trial Orders of the Court, p. 1 of 8, section A.1) (emphasis in original).) Pursuant to the Court’s 13 Order after Hearing entered October 20, 2022, the revised deadline for the parties to file and serve 14 initial pretrial filings and motions was changed from October 26, 2022, until November 1, 2022; 15 and the revised deadline for reply paper for pretrial motion changed from November 1, 2002, until 16 November 3, 2022. (10/20/22 Order After Hearing, p.5, line 6-8.) 17 As documented in the proof of electronic service of Plaintiffs’ Pretrial Motion, this motion 18 was served at 6:27 p.m. on November 1, 2022, after the close of business for the Court (3:30 pm) 19 and after normal business hours. (See Exhibit 1 to accompanying declaration of William L. 20 Adams (“Adams Decl.”).) 21 Accordingly, the entirety of Plaintiffs’ Pretrial Motion is untimely, should be disregarded, 22 and all relief sought in Plaintiffs’ Pretrial Motion should be denied. 23 B. Plaintiffs’ motion to bifurcate trial is untimely and should be disregarded 24 Pursuant to Code of Civil Procedure section 598, a party’s motion to bifurcate must be 25 filed “not later than 30 days before the trial date”; and any order for bifurcation can only be 26 entered after notice and hearing other parties. (See Walton v. Walton (1995) 31 Cal.App.4th 277, 27 292 (describing section 598 as “the statutory provisions for severance and separate trial”.) 28 Plaintiffs filed their motion to bifurcate on November 1, 2022, three days before trial. Plaintiffs’ 2 DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION 1 request to bifurcate trial is untimely, should be disregarded, and all relief sought should be denied. 2 Although Plaintiffs admit in their Pretrial Motion that they became aware of Two Rock 3 Fire’s alleged fraud and inequitable conduct on September 30, 2019, [sic - likely refers to 2022], 4 Plaintiffs delayed more than 30 days to file their motion to bifurcate. Although several ex parte 5 applications have been made by parties (including Plaintiffs) over past several months, Plaintiffs 6 did not seek ex parte relief to accelerate the hearing on their motion to bifurcate. 7 Additionally, given the requirement for Defendants to file any opposition to Plaintiffs’ 8 Pretrial Motion not later than 3:30 p.m. on November 3, 2022, Plaintiffs’ delayed filing of their 9 motion to bifurcate in an untimely pretrial motion allows Defendants less than 48 hours to file 10 responsive papers, and less than two working hours for the court and its staff to consider the 11 moving and opposition papers before Trial Call in Department 19 at 8:30 a.m. on November 12 4, 2022. Code of Civil Procedure section 598 requires the Court’s consideration “on motion of a 13 party” be conducted only “after notice and hearing” at least 30 days before trial. (CCP § 598). 14 Pursuant to Code of Civil Procedure section 1005, Plaintiffs’ motion to bifurcate must not only be 15 heard at least 30 days before trial (CCP § 598), but the moving and supporting papers must “be 16 served and filed at least 16 court days before the hearing”. (CCP § 1005(b)). 17 Furthermore, Plaintiffs’ motion to amend should be denied because Plaintiffs’ supporting 18 declaration does not include the information specifically required by California Rule of Court 19 3.1324, regarding “(1) the effect of the amendment; (2) why the amendment is necessary and 20 property; (3) when the facts giving rise to the amended allegation were discovered; and (4) the 21 reasons why the request for amendment was not made earlier.” (CRC 3.1324(b).) 22 Finally, as a practical matter given the sequence of events related to the Two Rock Fire 23 project, because of Defendants’ fundamental reliance on Plaintiff’s written setback waiver granted 24 on November 25, 2018, in the subsequent County’s approvals and Two Rock Fire’s construction, 25 occupancy and operation of their new building project, it is factually and logically impossible to 26 have a first trial that does not include Plaintiffs’ setback waiver. Plaintiffs’ motion for bifurcation 27 and proposed First Amended Complaint would force a trial in a vacuum, then require a subsequent 28 trial to go back in time regarding Plaintiffs’ new allegations that Two Rock Fire never owned the 3 DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION 1 subject property (based on Plaintiffs’ request to retroactively cancel deeds recorded in 2015 and 2 2017), and that Plaintiffs’ November 2018 written setback waiver should be retroactively canceled 3 or invalidated four years after Plaintiffs gave it to Two Rock Fire. The interconnected factual 4 sequences of the Hansen Trust’s bequest and Two Rock Fire’s ownership of the property; 5 Plaintiffs’ written setback waiver, and the reliance thereupon by Defendants County and Two 6 Rock Fire are inextricably related and entangled - and thus cannot and should not be subject to any 7 eve-of-trial bifurcation or Plaintiffs’ new allegations in a last minute amended Complaint. 8 The major objective of bifurcation is to expedite and simplify the presentation of evidence. 9 (See Foreman & Clark Corp. v. Fallon 3 Cal.3d 875.) However, a trial court has no authority to 10 enter multiple final judgments determining multiple issues between the same parties to an action. 11 (Lauderdale v. U & I Equipment Co. (1969) 271 Cal.App.2d 140; see also Cohn v. Bugas (1974) 12 42 Cal.App.3d 381 (the trial court may not, over the objection of a party, order the separate trial of 13 an issue of liability when, because of the nature of the case, it is necessary to prove the plaintiff’s 14 damages in order to establish that liability.) 15 In the alternative, in the event the Court considers allowing Plaintiffs’ amendment of the 16 complaint and/or request for bifurcation, Two Rock Fire requests the trial be continued so that 17 these issues (and the myriad other unresolved issues raised in Two Rock Fire’s trial brief and 18 Motions in Limine – pending appeal, compliance with orders compelling depositions, obtaining 19 official certified deposition transcripts, etc.) can be considered and determined, without any 20 shortening of time, at a duly noticed hearing by a judge assigned for all purposes in Department 19 21 to provide consistent oversight and direction in this case. If the trial is continued because of the 22 Court considers Plaintiffs’ amendment necessary, Code of Civil Procedure section 473(a)(2) 23 provides that the Court may postpone the trial and order payment to Defendants as the adverse 24 party of “costs” as may be just. (CCP § 472(a)(2); see also Williams v. Myer (1907) 150 Cal.714, 25 717-719 (the fact that defendant insisted if the amendment raising a new issue requiring 26 presentation of different evidence was allowed, the defendant would not be able to go on with the 27 trial was sufficient showing to warrant continuing trial and imposing terms.) 28 /// 4 DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION 1 C. Plaintiffs request to strike the court’s March 24, 2022, Minute Order setting this 2 consolidated case for a jury trial should be denied 3 Without any opposition from Plaintiffs, at the Case Management Conference attended by 4 counsel for all parties on March 24, 2022, Judge Nadler set then-consolidated cases SCV–266225 5 and SCV-266273 for a jury trial to commence on November 4, 2022. (See Exhibit 2 to Adams 6 Decl.) Two Rock Fire deposited jury fees on August 8, 2022. 7 The Court’s consideration and determination to set these consolidated matters for a jury 8 trial on March 24, 2022, was made more than a year and a half after Plaintiff Frear Stephen 9 Schmid’s purported “election of remedies” dated July 27, 2020. However, no election of remedies 10 was filed by Plaintiff Astrid Schmid and Plaintiffs have never amended their verified Complaint in 11 case number SCV-266225 to remove the tort causes of action for nuisance or trespass, and the 12 accompanying prayer for general and special monetary damages. 13 Based on this Court’s own records and files, Judge Nadler was aware of and considered the 14 status of the parties’ claims and pleadings when the Court ordered this consolidated matter for a 15 jury trial more than 10 months ago. Plaintiffs have simply waited too long to challenge this Order. 16 CONCLUSION 17 The reasons set forth above, the Court is respectfully requested to disregard and deny in its 18 entirety Plaintiffs’ Pretrial Motion. In the alternative, rather than rushing the consideration of 19 Plaintiffs’ motion for bifurcation and leave to file a First Amended Complaint, Two Rock Fire 20 requests the trial be continued so that all these and the many other unresolved issues in this 21 consolidated case can be considered and determined by a judge assigned for all purposes in 22 Department 19 after January 1, 2023. 23 24 Dated: November 3, 2022 WILLIAM L. ADAMS, PC 25 26 By: William L. Adams, Counsel for Defendant 27 TWO ROCK VOLUNTEER FIRE DEPARTMENT 28 5 DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION 1 SUPPORTING DECLARATION OF WILLIAM L. ADAMS 2 I, WILLIAM L. ADAMS, declare: 3 1. I am an attorney duly licensed to practice before all Courts in the State of 4 California. I am the attorney of record for Defendant Two Rock Volunteer Fire Department, 5 also known as Two Rock Fire Department (“Two Rock Fire”), in this consolidated case. 6 2. I make this Declaration in support of the Two Rock Fire’s accompanying 7 Opposition to Plaintiffs’ Pretrial Motion. I have personal knowledge of the facts set forth in the 8 Opposition herein and if called upon to testify thereto in a court of law, I could and would do so 9 competently. Pursuant to Evidence Code section 452(d), I respectfully request the Court take 10 judicial notice of the entirety of its own files and records in this consolidated matter, as well as 11 the following documents attached as Exhibits to this declaration 12 3. Attached hereto are the following Exhibits: 13 Exhibit 1 – Proof of service email of Plaintiffs’ Pretrial Motion at 6:27 p.m. on November 1, 2022. 14 Exhibit 2 – Minute Order from March 24, 2022, Case Management Conference. 15 16 I declare under the penalty of perjury under the laws of the State of California that the 17 foregoing is true and correct. Executed in Windsor, California. 18 19 Dated: November 3, 2022 William L. Adams 20 21 22 23 24 25 26 27 28 6 DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 EXHIBIT 1 25 26 27 28 7 DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION From: Frear Stephen Schmid To: William Adams; michael.king@sonoma-county.org; Jacqueline Schaap Subject: Fwd: pre-trial morions Date: Tuesday, November 1, 2022 6:27:10 PM Attachments: pre trial motions pos433.pdf pre trial motions432.pdf Please see attached served on you hereby Tristan Schmid for Frear Stephen Schmid and Astrid Schmid 7585 Valley Ford Road Petaluma, CA 94952 Tel: 415-788-5957 e-mail: frearschmid@aol.com ++++++++++++++++++++ This e-mail and any attachments thereto is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, and any attachments thereto, is strictly prohibited. If you receive this e-mail in error please notify us immediately either by return e-mail or by telephone at 415-788-5957 and permanently delete the original, any copy of any e-mail, and any printout thereof. -----Original Message----- From: Frear Stephen Schmid To: bill@wladamspc.com ; jacqueline@wladamspc.com ; michael.king@sonoma-county.org Sent: Tue, Nov 1, 2022 5:03 pm Subject: pre-trial morions Very truly yours, Frear Stephen Schmid 7585 Valley Ford Road Petaluma, CA 94952 Tel: 415-788-5957 e-mail: frearschmid@aol.com ++++++++++++++++++++ This e-mail and any attachments thereto is intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e-mail, you are hereby notified that any dissemination, distribution or copying of this e-mail, and any attachments thereto, is strictly prohibited. If you receive this e-mail in error please notify us immediately either by return e-mail or by telephone at 415-788-5957 and permanently delete the original, any copy of any e-mail, and any printout thereof. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 EXHIBIT 2 27 28 8 DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION Superior Court of California, County of Sonoma MINUTE ORDERS SCV-266225 - SCHMID VS TWO ROCK FIRE DEPT Date of Hearing: March 24, 2022 Case Management Conference Time: 3:00 PM Courtroom 19 Judicial Officer: Gary Nadler Courtroom Clerk: Chris Reynoso Court Reporter: None Parties Present: remotelv Via zoom Plaintiff, Frear S. Schmid ispresent on behalf of himself and on behalf of plaintiff, Astrid Schmid. Counsel, William L. Adams if present 0n behalf of defendant, Two Rock Volunteer Fire Department. Counsel, Michael A. King, is present 0n behalf of defendant, County 0f Sonoma Hearing: The Court finds notice to appear has been issued; tentative ruling: appearance required. Case is called by the Court; appearances are stated on the record. The Court has discussion with counsel re: possibility of settlement/participating in mediation and setting trial date. Jury requested by defendant; jury fees are not posted; time estimate: 3-5 days. The COURT ORDERS: Ifjury requested, jury fees shall be posted prior t0 trial date. Parties shall meet and confer to make a good faith effort to attempt t0 reach an agreement re: participating in mediation/selection of mediator and scheduling 0f mediation session. Case shall be set for jury trial 0n Friday, 11/04/22 at 8:30 a.m., in Department 19. Notice of trial date shall be mailed. -End of Minute Order- For moreinformation please contact the Clerk ’s Oflice at (707) 521-6500 during official business hours. www.sonama‘ courts.ca. gov PM Generated: 4/1/2022 4:41:42 1 | P a g e PM Generated: 4/1/2022 4:41:42 2 | P a g e PROOF OF SERVICE 1 Schmid v. Two Rock Volunteer Fire Department. Sonoma County Superior Court Case NO. SCV-266225 and consolidated 2 actions SCV-266731 and SCV-270339 3 I, the undersigned, declare: 4 I am over the age of 18 and not a party to this action. I am employed in the county where 5 the mailing occurred and my business address is: William L. Adams PC, P.O. Box 1050, Windsor, CA 95492-1050 6 On November 3, 2022, I served the parties indicated below the foregoing documents(s) 7 described as: 8 DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION 9 On the parties involved addressed as follows: 10 Frear Stephen Schmid Plaintiff in Pro Per 11 7585 Valley Ford Road Petaluma, CA 94952 12 frearschmid@aol.com 13 Astrid Schmid Plaintiff in Pro Per 14 7585 Valley Ford Road Petaluma, CA 94952 15 frearschmid@aol.com 16 Michael A. King Counsel for Defendant County of Sonoma 17 Deputy County Counsel County of Sonoma 18 575 Administration Drive, Room 105-A Santa Rosa, CA 95403 19 Michael.King@sonoma-county.org 20 [X] BY ELECTRONIC SERVICE – Pursuant to Code of Civil Procedure section 1010.6 and 21 California Rules of Court section 2.251, I affected electronic service of the documents indicated above to the email address(es) listed above by submitting an electronic PDF 22 version of the document(s) to Microsoft Outlook, through the user interface at wladamspc.com. My eService address is: jacqueline@wladamspc.com. 23 I declare under penalty of perjury under the laws of the State of California that the above 24 is true and correct. Executed on November 3, 2022, at Windsor, California. 25 26 Jacqueline Schaap, Paralegal 27 28 9 DEFENDANT TWO ROCK VOLUNTEER FIRE DEPARTMENT’S OPPOSITION TO PLAINTIFFS’ PRETRIAL MOTION