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
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 [PROPOSED]
v.
13
ORDER OVERULING PLAINTIFFS’
14 TWO ROCK VOLUNTEER FIRE DEMURRER; DENYING PLAINTIFFS’
DEPARTMENT, MOTION TO STRIKE; AND DENYING
15 PLAINTIFFS’ REQUEST FOR DEFAULT
Defendant. AGAINST DEFENDANT TWO ROCK
16 VOLUNTEER FIRE DEPARTMENT
17
Hearing Date: February 8, 2023
18 Time: 3:00 p.m.
Department: 19
19
Assigned for All Purposes: Hon. Oscar Pardo
20 AND CONSOLIDATED MATTERS
21
22 At its Law and Motion calendar on February 8, 2023, the Court conducted a hearing on
23 the Demurrer, Motion to Strike and Request for Default filed by Plaintiffs FREAR STEPHEN
24 SCHMID and ASTRID SCHMID, concerning the First Amended Answer filed in consolidated
25 case number SCV-270339 on September 6, 2022, by Defendant TWO ROCK VOLUNTEER
26 FIRE DEPARTMENT (“TRVFD”). Plaintiff Frear Stephen Schmid appeared on behalf of
27 Plaintiffs. William L. Adams appeared on behalf of Defendant TRVFD.
28 ///
1
[PROPOSED] ORDER OVERULING PLAINTIFFS’ DEMURRER; DENYING PLAINTIFFS’ MOTION
TO STRIKE; AND DENYING PLAINTIFFS’ REQUEST FOR DEFAULT
1 Having considered the pleadings, the Court’s own files and records, and the argument of
2 counsel, and finding good cause, the Court adopts its tentative ruling as follows:
3 Demurrer is OVERRULED; Motion to Strike is DENIED; and Request for Default is DENIED.
4 Facts and History
5 Plaintiffs complain that they own a 61-acre parcel of real property at 7585 Valley Ford
6 Road and that Defendant Two Rock Volunteer Fire Department (“TRVFD”), owning an adjacent
7 parcel of real property at 7599 Valley Ford Road, has improperly maintained and constructed
8 improvements on its property in violation of applicable zoning and building ordinances and a use
9 permit.
10 This matter has a lengthy procedural history, so the court has only included procedural
11 history as relevant to this motion.
12 On March 7, 2022, Plaintiffs filed a complaint in SCV-270339.
13 On July 27, 2022, the court ordered case number SCV-270339 be consolidated with the
14 previously consolidated case numbers SCV-266225 and SCV-266731, with the lead case number
15 for these consolidated cases being SCV-266225.
16 On August 23, 2022, Defendant TRVFD served a first amended answer (“FAA”) in
17 consolidated case number SCV-270339.
18 On September 6, 2022, Plaintiffs filed this demurrer.
19 On November 4, 2022, consolidated case number SCV-266225 was called for jury trial.
20 The parties subsequently participated in judicial settlement conferences.
21 On January 27, 2023, Defendant TRVFD filed an opposition to the demurrer. On February
22 1, 2023, Plaintiffs filed a reply.
23 Introduction
24 Plaintiffs demur to the FAA of Defendant TRVFD to the complaint in SCV-270339, move
25 to strike the FAA in its entirety, and request an entry of default.
26 ///
27 ///
28 ///
2
[PROPOSED] ORDER OVERULING PLAINTIFFS’ DEMURRER; DENYING PLAINTIFFS’ MOTION
TO STRIKE; AND DENYING PLAINTIFFS’ REQUEST FOR DEFAULT
1 Request for Judicial Notice
2 Defendant TRVFD requests this court take judicial notice of the entirety of the court’s
3 own files and records in the consolidated matter, as well as 5 exhibits. The exhibits consist of
4 specific filings made in the consolidated matter.
5 The court may take judicial notice of official acts and court records of this state. (Evid.
6 Code §§ 452(c); (d).) Accordingly, the above-mentioned documents are judicially noticeable as
7 court records, although the court may not judicially notice the truth of assertions made in them.
8 With this limitation, the court grants the requests for judicial notice.
9 Meet and Confer Requirement
10 Before filing a demurrer, the demurring party “shall meet and confer in person or by
11 telephone with the party who filed the pleading that is subject to demurrer for the purpose of
12 determining whether an agreement can be reached that would resolve the objections to be raised
13 in the demurrer.” (CCP §430.41(a).) Additionally, the demurring party must file and serve a
14 declaration as to the meet and confer efforts with the demurrer. (CCP §430.41(a)(3).)
15 Here, the Plaintiff Stephen Schmid asserts in his declaration that he called and emailed
16 counsel for Defendant TRVFD prior to filing this demurrer, but received no response until after it
17 was filed. These two efforts occurred on the same date, July 29, 2022. Plaintiffs’ demurrer was
18 not filed until September 6, 2022, more than one month later. The court finds this meet and confer
19 process was insufficient, however, a determination that the meet and confer process was
20 insufficient shall not be grounds to overrule or sustain a demurrer, so the court will continue its
21 analysis of the demurrer. (CCP §430.41(a)(4).)
22 Demurrer
23 Plaintiffs demur to the FAA of Defendant TRVFD to the complaint in case number SCV-
24 270339, which has since been consolidate with case number SCV-266225. The complaint alleges
25 causes of action of fraud and negligent misrepresentation. Plaintiffs demur pursuant to Code of
26 Civil Procedure (“CCP”) §§430.10(e) and (f), specifically to affirmative defenses 2-11.[1] The
27 court notes Plaintiffs’ frequent citations to CCP §430.10 in its demurrer are erroneous, as they are
28
3
[PROPOSED] ORDER OVERULING PLAINTIFFS’ DEMURRER; DENYING PLAINTIFFS’ MOTION
TO STRIKE; AND DENYING PLAINTIFFS’ REQUEST FOR DEFAULT
1 demurring to an answer, not a complaint or cross-complaint, but acknowledges they do cite to
2 CCP §430.20 in the Memorandum of Points and Authorities.
3 The grounds for a demurrer to an answer are set forth in CCP §430.20. CCP §430.20
4 states, in relevant part, “[a] party against whom an answer has been filed may object, by demurrer
5 as provided in Section 430.30, to the answer upon any one or more of the following grounds:
6 (a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain.
7 As used in this subdivision, “uncertain” includes ambiguous and unintelligible.”
8 A demurrer can only challenge a defect appearing on the face of the answer, exhibits
9 thereto, and judicially noticeable matters. (CCP §430.30(a).) In the construction of demurrers,
10 courts read the allegations liberally and in context with a view to substantial justice between the
11 parties. (CCP §452.) Additionally, demurrers for uncertainty are disfavored, and are granted only
12 if the pleading is so incomprehensible that a party cannot reasonably respond. (See Morris v.
13 JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.)
14 Timing of Demurrer
15 As an initial matter, the court notes there are multiple issues with the timing of Plaintiffs
16 demurrer. First, the demurrer was filed outside of timeframe set forth by statute. The statute states
17 a party who has filed a complaint may, within 10 days after service of the answer to the party’s
18 pleading, demur to the answer. (CCP §430.40(b).) Defendant TRVFD served its FAA in
19 consolidated case number SCV-270339 on August 23, 2022. Plaintiffs filed this demurrer on
20 September 6, 2022. Therefore, the demur was not filed within the timeframe set forth in the
21 statue. However, the court have found that CCP §430.40 is not mandatory and that may “enlarge
22 the time for answer or demurrer.” (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253,
23 280; CCP §473(a)(1).)
24 Next, neither party disputes that in a July 29, 2022 order the court found, in relevant part,
25 that “SCV-270339 shall be consolidated with the previously consolidated case numbers SCV-
26 266225 and SCV-266731; with the lead case number for these consolidated cases being SCV-
27 266225. Trial for these consolidated cases number SCV-266225 shall commence on November 4,
28 2022, at 8:30 a.m., Department 19.” Additionally, neither party disputes that the jury trial call for
4
[PROPOSED] ORDER OVERULING PLAINTIFFS’ DEMURRER; DENYING PLAINTIFFS’ MOTION
TO STRIKE; AND DENYING PLAINTIFFS’ REQUEST FOR DEFAULT
1 the consolidated cases, which includes SCV-270339, took place on November 4, 2022, as did
2 subsequent judicial settlement conference. Plaintiffs filed a motion to bifurcate SCV-270339 on
3 November 1, 2022, that motion was opposed, and it is the court’s understanding that a ruling has
4 not been issued. Therefore, as the case currently stands, SCV-270339 is consolidated with SCV-
5 266225 and SCV-266731.
6 As the case remains consolidated the court fails to understand why no efforts were made
7 by Plaintiffs to advance the hearing on the demurrer prior to the jury trial call. The court further
8 fails to understand, as a practical matter, Plaintiffs intended this demurrer to move forward after
9 judicial settlement conferences in the matter had begun – or how Plaintiffs could have
10 meaningfully participated in four days of judicial settlement conferences without having first
11 resolved the issues alleged in this demurrer.
12 Based on the foregoing, the court OVERRULES Plaintiffs’ demur and need not address
13 the alleged deficiencies in the substance of the FAA.
14 Motion to Strike
15 Plaintiffs move to strike the FAA in its entirety pursuant to CCP §436. Plaintiffs assert the
16 FAA “does not conform to the rules of court as it is filed by non-party to this case SCV-270339
17 by a law firm that does not represent the defendant as named in this case SCV-270339.” (P
18 MP&A, 6:2-4.) Additionally, Plaintiffs allege the attorney who filed the FAA was filed by a law
19 firm who “has never represented” TRFD in case number SCV-270339. (P MP&A, 6:18-20.)
20 A motion to strike may attack any “irrelevant, false, or improper matter” in any pleading,
21 or be made to strike a pleading that is “not drawn or filed in conformity with the laws of this
22 state.” (CCP §436.) The defect must appear on the face of the challenged pleading or in matters
23 judicially noticeable. (CCP §437.) The policy is to construe pleadings liberally “with a view to
24 substantial justice between the parties.” (CCP §452.)
25 It is clear to the court that the parties have been using both TRFD and TRVFD
26 interchangeably to refer to the defendant to this complaint. Additionally, it is clear to the court
27 that William L. Adams is the attorney for the defendant to this complaint. Both points are not only
28 stated in Defendant TRVFD’s opposition, but again illustrated by Plaintiffs’ own filings in this
5
[PROPOSED] ORDER OVERULING PLAINTIFFS’ DEMURRER; DENYING PLAINTIFFS’ MOTION
TO STRIKE; AND DENYING PLAINTIFFS’ REQUEST FOR DEFAULT
1 matter, where Plaintiffs use TRFD and TRVFD interchangeably. For example, on March 7, 2022,
2 Plaintiffs filed their complaint in SCV-270339. The complaint names “Two Rock Fire
3 Department” as the defendant. On July 14, 2022, Plaintiffs filed a Case Management Statement
4 (“CMS”) in SCV-270339, however they named “Two Rock Volunteer Fire Department” as the
5 defendant and served the William L. Adams as “Attorney for the Two Rock Volunteer Fire
6 Department.” This is just one of multiple examples of Plaintiffs referring to Defendant as “Two
7 Rock Volunteer Fire Department” throughout this dispute.
8 Regarding Plaintiffs’ assertion that the FAA was filed by an attorney who did not
9 represent the defendant named in the compliant, on September 9, 2022, the FAA at issue in this
10 demurrer was filed by attorney William L. Adams (SBN 166027) of the law firm Johnson
11 Thomas, Attorneys at Law, P.C. on behalf of “Two Rock Volunteer Fire Department.” On
12 September 13, 2022, after the FAA was filed, William L. Adams (SBN 166027) filed a
13 Substitution of Attorney informing the court and the parties he was now working at William
14 Adams, PC.
15 Based on the above, as well as the fact that the dispute between the parties has been in
16 court for multiple years during which time the Plaintiffs have been using both TRFD and TRVFD
17 to refer to defendant, the court finds Plaintiffs argument disingenuous and without merit.
18 Accordingly, construing the pleadings liberally with a view to substantial justice between the
19 parties, the court DENIES Plaintiffs motion to strike. (See CCP §452.)
20 Request for Default
21 Plaintiffs assert that because TRFD has not appeared in the time allowed by law a default
22 should be issued pursuant to CCP §§585 and 586.
23 Regarding the name of the party used in the FAA, the FAA states “Defendant Two Rock
24 Volunteer Fire Department (erroneously sued as Two Rock Fire Department) (hereinafter
25 “Defendant”), by and through its attorneys, hereby files this First Amended Answer to the
26 Complaint filed by Plaintiffs….” (FFA, 1:23-25.)
27 Based on the foregoing, the court finds defendant has appeared, and the request for default
28 is DENIED.
6
[PROPOSED] ORDER OVERULING PLAINTIFFS’ DEMURRER; DENYING PLAINTIFFS’ MOTION
TO STRIKE; AND DENYING PLAINTIFFS’ REQUEST FOR DEFAULT
1 Conclusion
2 Accordingly, Plaintiffs' DemmTer is OVERRULED; Plaintiffs' Motion to Strike is
3 DENIED; and Plaintiffs' Request for Default is DENIED.
4
5 DATED:
JUDGE OF THE SUPERIOR COURT
6
7
8 APPROVED AS TO FORM:
9
10
Frear Stephen Schmid,
11 Plaintiff in Pro Per
12
13
Astrid Schmid,
14 Plaintiff in Pro Per
15
16
1 ael King, Counsel for Defendant
17 unty of Sonoma
18
19
William L. Adams, Counsel for Defendant
20 Two Rock Fire
21
22
23
24
25
26
27
28
7
[PROPOSED] ORDER OVERULING PLAINTIFFS' DEMURRER; DENYING PLAINTIFFS' MOTION
TO ~'T'l>TUJi', A l\ln nli'l\lVTJ\11.'. DJ A Tl\l'T'Tli'li'~• Dli'OTTli'~'T' li'OD nli'li'ATTT 'T'
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 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 [PROPOSED] v. 13 ORDER OVERULING PLAINTIFFS’ 14 TWO ROCK VOLUNTEER FIRE DEMURRER; DENYING PLAINTIFFS’ DEPARTMENT, MOTION TO STRIKE; AND DENYING 15 PLAINTIFFS’ REQUEST FOR DEFAULT Defendant. AGAINST DEFENDANT TWO ROCK 16 VOLUNTEER FIRE DEPARTMENT 17 Hearing Date: February 8, 2023 18 Time: 3:00 p.m. Department: 19 19 Assigned for All Purposes: Hon. Oscar Pardo 20 AND CONSOLIDATED MATTERS 21 22 At its Law and Motion calendar on February 8, 2023, the Court conducted a hearing on 23 the Demurrer, Motion to Strike and Request for Default filed by Plaintiffs FREAR STEPHEN 24 SCHMID and ASTRID SCHMID, concerning the First Amended Answer filed in consolidated 25 case number SCV-270339 on September 6, 2022, by Defendant TWO ROCK VOLUNTEER 26 FIRE DEPARTMENT (“TRVFD”). Plaintiff Frear Stephen Schmid appeared on behalf of 27 Plaintiffs. William L. Adams appeared on behalf of Defendant TRVFD. 28 /// 1 [PROPOSED] ORDER OVERULING PLAINTIFFS’ DEMURRER; DENYING PLAINTIFFS’ MOTION TO STRIKE; AND DENYING PLAINTIFFS’ REQUEST FOR DEFAULT 1 Having considered the pleadings, the Court’s own files and records, and the argument of 2 counsel, and finding good cause, the Court adopts its tentative ruling as follows: 3 Demurrer is OVERRULED; Motion to Strike is DENIED; and Request for Default is DENIED. 4 Facts and History 5 Plaintiffs complain that they own a 61-acre parcel of real property at 7585 Valley Ford 6 Road and that Defendant Two Rock Volunteer Fire Department (“TRVFD”), owning an adjacent 7 parcel of real property at 7599 Valley Ford Road, has improperly maintained and constructed 8 improvements on its property in violation of applicable zoning and building ordinances and a use 9 permit. 10 This matter has a lengthy procedural history, so the court has only included procedural 11 history as relevant to this motion. 12 On March 7, 2022, Plaintiffs filed a complaint in SCV-270339. 13 On July 27, 2022, the court ordered case number SCV-270339 be consolidated with the 14 previously consolidated case numbers SCV-266225 and SCV-266731, with the lead case number 15 for these consolidated cases being SCV-266225. 16 On August 23, 2022, Defendant TRVFD served a first amended answer (“FAA”) in 17 consolidated case number SCV-270339. 18 On September 6, 2022, Plaintiffs filed this demurrer. 19 On November 4, 2022, consolidated case number SCV-266225 was called for jury trial. 20 The parties subsequently participated in judicial settlement conferences. 21 On January 27, 2023, Defendant TRVFD filed an opposition to the demurrer. On February 22 1, 2023, Plaintiffs filed a reply. 23 Introduction 24 Plaintiffs demur to the FAA of Defendant TRVFD to the complaint in SCV-270339, move 25 to strike the FAA in its entirety, and request an entry of default. 26 /// 27 /// 28 /// 2 [PROPOSED] ORDER OVERULING PLAINTIFFS’ DEMURRER; DENYING PLAINTIFFS’ MOTION TO STRIKE; AND DENYING PLAINTIFFS’ REQUEST FOR DEFAULT 1 Request for Judicial Notice 2 Defendant TRVFD requests this court take judicial notice of the entirety of the court’s 3 own files and records in the consolidated matter, as well as 5 exhibits. The exhibits consist of 4 specific filings made in the consolidated matter. 5 The court may take judicial notice of official acts and court records of this state. (Evid. 6 Code §§ 452(c); (d).) Accordingly, the above-mentioned documents are judicially noticeable as 7 court records, although the court may not judicially notice the truth of assertions made in them. 8 With this limitation, the court grants the requests for judicial notice. 9 Meet and Confer Requirement 10 Before filing a demurrer, the demurring party “shall meet and confer in person or by 11 telephone with the party who filed the pleading that is subject to demurrer for the purpose of 12 determining whether an agreement can be reached that would resolve the objections to be raised 13 in the demurrer.” (CCP §430.41(a).) Additionally, the demurring party must file and serve a 14 declaration as to the meet and confer efforts with the demurrer. (CCP §430.41(a)(3).) 15 Here, the Plaintiff Stephen Schmid asserts in his declaration that he called and emailed 16 counsel for Defendant TRVFD prior to filing this demurrer, but received no response until after it 17 was filed. These two efforts occurred on the same date, July 29, 2022. Plaintiffs’ demurrer was 18 not filed until September 6, 2022, more than one month later. The court finds this meet and confer 19 process was insufficient, however, a determination that the meet and confer process was 20 insufficient shall not be grounds to overrule or sustain a demurrer, so the court will continue its 21 analysis of the demurrer. (CCP §430.41(a)(4).) 22 Demurrer 23 Plaintiffs demur to the FAA of Defendant TRVFD to the complaint in case number SCV- 24 270339, which has since been consolidate with case number SCV-266225. The complaint alleges 25 causes of action of fraud and negligent misrepresentation. Plaintiffs demur pursuant to Code of 26 Civil Procedure (“CCP”) §§430.10(e) and (f), specifically to affirmative defenses 2-11.[1] The 27 court notes Plaintiffs’ frequent citations to CCP §430.10 in its demurrer are erroneous, as they are 28 3 [PROPOSED] ORDER OVERULING PLAINTIFFS’ DEMURRER; DENYING PLAINTIFFS’ MOTION TO STRIKE; AND DENYING PLAINTIFFS’ REQUEST FOR DEFAULT 1 demurring to an answer, not a complaint or cross-complaint, but acknowledges they do cite to 2 CCP §430.20 in the Memorandum of Points and Authorities. 3 The grounds for a demurrer to an answer are set forth in CCP §430.20. CCP §430.20 4 states, in relevant part, “[a] party against whom an answer has been filed may object, by demurrer 5 as provided in Section 430.30, to the answer upon any one or more of the following grounds: 6 (a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain. 7 As used in this subdivision, “uncertain” includes ambiguous and unintelligible.” 8 A demurrer can only challenge a defect appearing on the face of the answer, exhibits 9 thereto, and judicially noticeable matters. (CCP §430.30(a).) In the construction of demurrers, 10 courts read the allegations liberally and in context with a view to substantial justice between the 11 parties. (CCP §452.) Additionally, demurrers for uncertainty are disfavored, and are granted only 12 if the pleading is so incomprehensible that a party cannot reasonably respond. (See Morris v. 13 JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.) 14 Timing of Demurrer 15 As an initial matter, the court notes there are multiple issues with the timing of Plaintiffs 16 demurrer. First, the demurrer was filed outside of timeframe set forth by statute. The statute states 17 a party who has filed a complaint may, within 10 days after service of the answer to the party’s 18 pleading, demur to the answer. (CCP §430.40(b).) Defendant TRVFD served its FAA in 19 consolidated case number SCV-270339 on August 23, 2022. Plaintiffs filed this demurrer on 20 September 6, 2022. Therefore, the demur was not filed within the timeframe set forth in the 21 statue. However, the court have found that CCP §430.40 is not mandatory and that may “enlarge 22 the time for answer or demurrer.” (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 23 280; CCP §473(a)(1).) 24 Next, neither party disputes that in a July 29, 2022 order the court found, in relevant part, 25 that “SCV-270339 shall be consolidated with the previously consolidated case numbers SCV- 26 266225 and SCV-266731; with the lead case number for these consolidated cases being SCV- 27 266225. Trial for these consolidated cases number SCV-266225 shall commence on November 4, 28 2022, at 8:30 a.m., Department 19.” Additionally, neither party disputes that the jury trial call for 4 [PROPOSED] ORDER OVERULING PLAINTIFFS’ DEMURRER; DENYING PLAINTIFFS’ MOTION TO STRIKE; AND DENYING PLAINTIFFS’ REQUEST FOR DEFAULT 1 the consolidated cases, which includes SCV-270339, took place on November 4, 2022, as did 2 subsequent judicial settlement conference. Plaintiffs filed a motion to bifurcate SCV-270339 on 3 November 1, 2022, that motion was opposed, and it is the court’s understanding that a ruling has 4 not been issued. Therefore, as the case currently stands, SCV-270339 is consolidated with SCV- 5 266225 and SCV-266731. 6 As the case remains consolidated the court fails to understand why no efforts were made 7 by Plaintiffs to advance the hearing on the demurrer prior to the jury trial call. The court further 8 fails to understand, as a practical matter, Plaintiffs intended this demurrer to move forward after 9 judicial settlement conferences in the matter had begun – or how Plaintiffs could have 10 meaningfully participated in four days of judicial settlement conferences without having first 11 resolved the issues alleged in this demurrer. 12 Based on the foregoing, the court OVERRULES Plaintiffs’ demur and need not address 13 the alleged deficiencies in the substance of the FAA. 14 Motion to Strike 15 Plaintiffs move to strike the FAA in its entirety pursuant to CCP §436. Plaintiffs assert the 16 FAA “does not conform to the rules of court as it is filed by non-party to this case SCV-270339 17 by a law firm that does not represent the defendant as named in this case SCV-270339.” (P 18 MP&A, 6:2-4.) Additionally, Plaintiffs allege the attorney who filed the FAA was filed by a law 19 firm who “has never represented” TRFD in case number SCV-270339. (P MP&A, 6:18-20.) 20 A motion to strike may attack any “irrelevant, false, or improper matter” in any pleading, 21 or be made to strike a pleading that is “not drawn or filed in conformity with the laws of this 22 state.” (CCP §436.) The defect must appear on the face of the challenged pleading or in matters 23 judicially noticeable. (CCP §437.) The policy is to construe pleadings liberally “with a view to 24 substantial justice between the parties.” (CCP §452.) 25 It is clear to the court that the parties have been using both TRFD and TRVFD 26 interchangeably to refer to the defendant to this complaint. Additionally, it is clear to the court 27 that William L. Adams is the attorney for the defendant to this complaint. Both points are not only 28 stated in Defendant TRVFD’s opposition, but again illustrated by Plaintiffs’ own filings in this 5 [PROPOSED] ORDER OVERULING PLAINTIFFS’ DEMURRER; DENYING PLAINTIFFS’ MOTION TO STRIKE; AND DENYING PLAINTIFFS’ REQUEST FOR DEFAULT 1 matter, where Plaintiffs use TRFD and TRVFD interchangeably. For example, on March 7, 2022, 2 Plaintiffs filed their complaint in SCV-270339. The complaint names “Two Rock Fire 3 Department” as the defendant. On July 14, 2022, Plaintiffs filed a Case Management Statement 4 (“CMS”) in SCV-270339, however they named “Two Rock Volunteer Fire Department” as the 5 defendant and served the William L. Adams as “Attorney for the Two Rock Volunteer Fire 6 Department.” This is just one of multiple examples of Plaintiffs referring to Defendant as “Two 7 Rock Volunteer Fire Department” throughout this dispute. 8 Regarding Plaintiffs’ assertion that the FAA was filed by an attorney who did not 9 represent the defendant named in the compliant, on September 9, 2022, the FAA at issue in this 10 demurrer was filed by attorney William L. Adams (SBN 166027) of the law firm Johnson 11 Thomas, Attorneys at Law, P.C. on behalf of “Two Rock Volunteer Fire Department.” On 12 September 13, 2022, after the FAA was filed, William L. Adams (SBN 166027) filed a 13 Substitution of Attorney informing the court and the parties he was now working at William 14 Adams, PC. 15 Based on the above, as well as the fact that the dispute between the parties has been in 16 court for multiple years during which time the Plaintiffs have been using both TRFD and TRVFD 17 to refer to defendant, the court finds Plaintiffs argument disingenuous and without merit. 18 Accordingly, construing the pleadings liberally with a view to substantial justice between the 19 parties, the court DENIES Plaintiffs motion to strike. (See CCP §452.) 20 Request for Default 21 Plaintiffs assert that because TRFD has not appeared in the time allowed by law a default 22 should be issued pursuant to CCP §§585 and 586. 23 Regarding the name of the party used in the FAA, the FAA states “Defendant Two Rock 24 Volunteer Fire Department (erroneously sued as Two Rock Fire Department) (hereinafter 25 “Defendant”), by and through its attorneys, hereby files this First Amended Answer to the 26 Complaint filed by Plaintiffs….” (FFA, 1:23-25.) 27 Based on the foregoing, the court finds defendant has appeared, and the request for default 28 is DENIED. 6 [PROPOSED] ORDER OVERULING PLAINTIFFS’ DEMURRER; DENYING PLAINTIFFS’ MOTION TO STRIKE; AND DENYING PLAINTIFFS’ REQUEST FOR DEFAULT 1 Conclusion 2 Accordingly, Plaintiffs' DemmTer is OVERRULED; Plaintiffs' Motion to Strike is 3 DENIED; and Plaintiffs' Request for Default is DENIED. 4 5 DATED: JUDGE OF THE SUPERIOR COURT 6 7 8 APPROVED AS TO FORM: 9 10 Frear Stephen Schmid, 11 Plaintiff in Pro Per 12 13 Astrid Schmid, 14 Plaintiff in Pro Per 15 16 1 ael King, Counsel for Defendant 17 unty of Sonoma 18 19 William L. Adams, Counsel for Defendant 20 Two Rock Fire 21 22 23 24 25 26 27 28 7 [PROPOSED] ORDER OVERULING PLAINTIFFS' DEMURRER; DENYING PLAINTIFFS' MOTION TO ~'T'l>TUJi', A l\ln nli'l\lVTJ\11.'. DJ A Tl\l'T'Tli'li'~• Dli'OTTli'~'T' li'OD nli'li'ATTT 'T'