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1 ROBERT H. PITTMAN, State Bar No. 172154
County Counsel
2 MICHAEL A. KING, State Bar No. 077014
3 Deputy County Counsel
575 Administration Drive, Room 105A
4 Santa Rosa, California 95403-2815
Telephone: (707) 565-2421
5 Facsimile: (707) 565-2624
6
Attorneys for Defendant
7 COUNTY OF SONOMA
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF SONOMA
10
FREAR STEPHEN SCHMID AND ASTRID
11 SCHMID, Case No.: SCV-266225 and consolidated actions
12 SCV-266731, SCV-270339
Plaintiffs
13 REPLY MEMORANDUM IN SUPPORT
v. OF MOTION ENFORCE JUDICIAL
14 SETTLEMENT
15 TWO ROCK VOLUNTEER FIRE DEPARTMENT Date: 4-5-2023
a.k.a. TWO ROCK FIRE DEPARTMENT,
16 Time: 3:00 p.m.
Defendant. Dept: 19
17
18 Trial Date: 11/4/2022
19 AND CONSOLIDATED ACTION
20
21 I. MOTION TO ENFORCE SHOULD BE GRANTED
22 From the positions of the parties filed in response to this Motion, it appears that there is no
23 opposition to granting the motion in theory. Please see the Plaintiffs first sentence on page 1 of their
24 “Position Re Motion to Enforce Settlement Agreement” filed on or about March 23, 2023; and see
25 Defendant Two Rock Volunteer Fire Dept’s “Joinder to Defendant County of Sonoma’s Motion to
26 Enforce Judicial Settlement” filed on or about February 27, 2023. The issue appears to be the differences
27 of opinion about the form of the settlement, which was exactly what derailed this matter on December 9,
28 2022 at the second settlement conference with the Honorable Barbara Zuniga.
Reply Memo ISO Motion
Enforce Settlement 1
1 II. THE COURT SHOULD ENFORCE SETTLEMENT ON TERMS IT
INTERPRETS ARE JUST AND EQUITABLE
2
There is controversy about what the terms were or their meaning, in spite of the reporter’s
3
transcript being available. It is obvious that Plaintiffs and Two Rock Volunteer Fire Dept (“TRVFD”)
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have different understandings of the terms of settlement, and the County of Sonoma is unable to assist in
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resolving these differences.
6
It is absolutely clear that the representative for the County at both settlement conferences (Brian
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Keefer) was excused by the Court from being present the entire time: on November 10, 2022 because he
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had a mid-afternoon appointment, and on December 9, 2022, because he was convalescing. He even
9
appeared via Zoom on December 9, 2022, to attempt to resolve issues about the plans provided by
10
TRVFD.
11
It is further clear that at lunch time on November 10, 2022, Mr. Keefer made a hurried overlay
12
drawing, without measurements or even the final agreed terms. This “schematic” provided a basis for the
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settlement. This schematic was not an engineered drawing, it was not drawn to any scale, Mr. Keefer did
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not know (at 12:30 -1:00 pm) what features would later be agreed upon, he did not obtain his own
15
measurements, and he did not have time to research codes and/or discuss the issues with the County
16
planners.
17
Again, on December 9 when it appeared Mr. Keefer would not be able help in the dispute over
18
terms of the settlement, he was allowed to leave. At her Honor’s request, he came back via Zoom to
19
answer some questions about the parking lot configuration in the various diagrams which are Motion
20
Exhibits 4 and 5 attached to his Declaration.
21
The County has little control over what plans are submitted to it. It does not submit engineered
22
plans for an applicant. No such representation was made to the Court. The County is clear that Judge
23
Zuniga understood its position, which is why the discussions on the record repeatedly referred to the rough
24
drawing as a “schematic” and the County Planning department would need to be involved in decisions.
25
No measurements or distances were specified. Mr. Keefer had no knowledge when he left, about features
26
like the second bioswale, propane tank location, water tank, portable generator (initially to be located
27
inside), etc.
28
Reply Memo ISO Motion
Enforce Settlement 2
1 As noted in the original motion, a court has jurisdiction "to provide any appropriate equitable
2 remedy” Lofton v. Wells Fargo Home Mortgage (2014) 230 CA4th 1050, 1061-1062. Civil Code §3384,
3 et seq. provide for the equitable remedy of specific performance in various contexts.
4 III. PLAINTIFFS’ INTERPRETATION OF THE RECORD IS FLAWED
5 While these matters may not be of consequence in the long run, Plaintiffs have mis-stated the record
6 on various occasions in their “Position Re Motion to Enforce Settlement Agreement”.
7 1) Page 2: 16-17, mention that Ex 1 was based on plot maps by TRFD’s engineer Erickson is incorrect.
8 As stated in Plaintiffs’ “Position” p. 2: 25 to p. 3: 1, the schematic was based on “the Hartley map”.
9 Mr. Hartley was Plaintiff’s engineer.
10 2) Page 3: 10-12, includes mention of the overlay drawing but adds features that were not part of any
11 agreement to produce another version of the drawing he did in one-half hour at lunch. There was
12 never any agreement that Mr. Keefer would add the features. In fact, the County understood that the
13 Court wanted to mark as Exhibit 1, the drawing that Mr. Keefer did on the day of the November 10;
14 for this exact reason – in case there were disagreements about what the parties knew on November 10.
15 3) Pages 3-4, (and Declaration pp. 12-15) “it was discussed and agreed” numerous terms that did not
16 include the County and for the most part features that do not appear on the original overlay drawing,
17 Exhibit 1.
18 4) Pages 3: 27-28; 13: 13-15. The exhaust ventilator was going to be in the “vicinity of” the northeast
19 corner of the building which does not say whether it is on the north side or east side of the building.
20 5) Page 5: 15-16 even a superficial review of the [schematic] engineered drawing shows it did not
21 comply with the settlement and the agreed to Ex 1. (It is highly unlikely that any engineered drawing
22 adding the agreed features would comply with the original rough drawing by Mr. Keefer that did not
23 include the later agreed specific features).
24 6) Pages 6-7, the discussions about the Plaintiffs dis-satisfaction over the engineered drawings of Lee
25 Erickson, again make the assumption that the original overlay drawing (Exhibit 1) had some
26 measurements, scale, and features that it did not have.
27 7) Plaintiffs’ assumptions, guesswork and argument about what the County was required to do is their
28 position, which is in fact that – assumptions, guesswork, and argument. They are not the applicants
who must submit plans for approval.
Reply Memo ISO Motion
Enforce Settlement 3
1
2 In reality, the County did submit to the Court to attach as Exhibit 1, the drawing done by Mr. Keefer.
3 It provided copies to all parties well in advance of the December 9, 2022, conference. Resolution of this
4 matter at both the conferences, as has been the case always, is in the hands of the neighbors involved in the
5 dispute.
6
7 Dated: March 29, 2023 ROBERT H. PITTMAN, Sonoma County Counsel
8
9 By: __Michael A. King________________
Michael A. King
10 Attorneys for Defendant
11 COUNTY OF SONOMA
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Reply Memo ISO Motion
Enforce Settlement 4
1 PROOF OF SERVICE
2 I am and was at the time of service of the herein named documents, employed in the County of
3 Sonoma, California, over the age of 18 years and not a party to the within action. My business address is
575 Administration Dr., Rm. 105A, Santa Rosa, California 95403.
4
On March 29, 2023, I served the following documents:
5
6 REPLY MEMORANDUM IN SUPPORT OF MOTION ENFORCE JUDICIAL SETTLEMENT
7 on the parties in this action by placing true copies thereof enclosed in envelopes (if applicable), at Santa
Rosa, addressed as follows:
8
9 Frear Stephen Schmid William L. Adams, Esq.
Astrid Schmid P.O. Box 1050
10 7585 Valley Ford Road Windsor, California 95492
Petaluma, CA 94952 Bill@WLAdamsPC.com
11
frearschmid@aol.com Jacqueline@WLAdamsPC.com
12
Plaintiffs, Pro Se Attorneys for Defendant
13 Two Rock Volunteer Fire Department
J. Curtis Edmondson
14
Edmondson IP Law Todd Murray
15 15490 NW Oak Hills Drive Law Office of Todd A. Murray
Beaverton, OR 97006 1050 Fulton Ave., Suite 218
16 jcedmondson@edmolaw.com Sacramento, CA 95825
17 Courtesy Copy tmurray@tamurraylaw.com
Courtesy Copy
18 Attorneys for Plaintiffs
USDC Case No. 3: 21-cv-01920 Attorneys for Air Exchange
19
Sonoma County Superior Court
20 Case No. SCV-270568
21 [X] BY EMAIL SERVICE. I caused such document(s) to be emailed or electronically transmitted
22 between the parties and/or as a courtesy, I sent the document(s) to the person(s) at the email
address(es) listed above. I did not receive, within a reasonable time after the transmission, any
23 electronic message or other indication that the transmission was unsuccessful
24 I declare under penalty of perjury under the laws of the State of California that the foregoing is
25
true and correct.
26
Executed on March 29, 2023, at Santa Rosa, California.
27
28 Megan Sweeley__________________
Megan Sweeley
Reply Memo ISO Motion
Enforce Settlement 5
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1 ROBERT H. PITTMAN, State Bar No. 172154 County Counsel 2 MICHAEL A. KING, State Bar No. 077014 3 Deputy County Counsel 575 Administration Drive, Room 105A 4 Santa Rosa, California 95403-2815 Telephone: (707) 565-2421 5 Facsimile: (707) 565-2624 6 Attorneys for Defendant 7 COUNTY OF SONOMA 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SONOMA 10 FREAR STEPHEN SCHMID AND ASTRID 11 SCHMID, Case No.: SCV-266225 and consolidated actions 12 SCV-266731, SCV-270339 Plaintiffs 13 REPLY MEMORANDUM IN SUPPORT v. OF MOTION ENFORCE JUDICIAL 14 SETTLEMENT 15 TWO ROCK VOLUNTEER FIRE DEPARTMENT Date: 4-5-2023 a.k.a. TWO ROCK FIRE DEPARTMENT, 16 Time: 3:00 p.m. Defendant. Dept: 19 17 18 Trial Date: 11/4/2022 19 AND CONSOLIDATED ACTION 20 21 I. MOTION TO ENFORCE SHOULD BE GRANTED 22 From the positions of the parties filed in response to this Motion, it appears that there is no 23 opposition to granting the motion in theory. Please see the Plaintiffs first sentence on page 1 of their 24 “Position Re Motion to Enforce Settlement Agreement” filed on or about March 23, 2023; and see 25 Defendant Two Rock Volunteer Fire Dept’s “Joinder to Defendant County of Sonoma’s Motion to 26 Enforce Judicial Settlement” filed on or about February 27, 2023. The issue appears to be the differences 27 of opinion about the form of the settlement, which was exactly what derailed this matter on December 9, 28 2022 at the second settlement conference with the Honorable Barbara Zuniga. Reply Memo ISO Motion Enforce Settlement 1 1 II. THE COURT SHOULD ENFORCE SETTLEMENT ON TERMS IT INTERPRETS ARE JUST AND EQUITABLE 2 There is controversy about what the terms were or their meaning, in spite of the reporter’s 3 transcript being available. It is obvious that Plaintiffs and Two Rock Volunteer Fire Dept (“TRVFD”) 4 have different understandings of the terms of settlement, and the County of Sonoma is unable to assist in 5 resolving these differences. 6 It is absolutely clear that the representative for the County at both settlement conferences (Brian 7 Keefer) was excused by the Court from being present the entire time: on November 10, 2022 because he 8 had a mid-afternoon appointment, and on December 9, 2022, because he was convalescing. He even 9 appeared via Zoom on December 9, 2022, to attempt to resolve issues about the plans provided by 10 TRVFD. 11 It is further clear that at lunch time on November 10, 2022, Mr. Keefer made a hurried overlay 12 drawing, without measurements or even the final agreed terms. This “schematic” provided a basis for the 13 settlement. This schematic was not an engineered drawing, it was not drawn to any scale, Mr. Keefer did 14 not know (at 12:30 -1:00 pm) what features would later be agreed upon, he did not obtain his own 15 measurements, and he did not have time to research codes and/or discuss the issues with the County 16 planners. 17 Again, on December 9 when it appeared Mr. Keefer would not be able help in the dispute over 18 terms of the settlement, he was allowed to leave. At her Honor’s request, he came back via Zoom to 19 answer some questions about the parking lot configuration in the various diagrams which are Motion 20 Exhibits 4 and 5 attached to his Declaration. 21 The County has little control over what plans are submitted to it. It does not submit engineered 22 plans for an applicant. No such representation was made to the Court. The County is clear that Judge 23 Zuniga understood its position, which is why the discussions on the record repeatedly referred to the rough 24 drawing as a “schematic” and the County Planning department would need to be involved in decisions. 25 No measurements or distances were specified. Mr. Keefer had no knowledge when he left, about features 26 like the second bioswale, propane tank location, water tank, portable generator (initially to be located 27 inside), etc. 28 Reply Memo ISO Motion Enforce Settlement 2 1 As noted in the original motion, a court has jurisdiction "to provide any appropriate equitable 2 remedy” Lofton v. Wells Fargo Home Mortgage (2014) 230 CA4th 1050, 1061-1062. Civil Code §3384, 3 et seq. provide for the equitable remedy of specific performance in various contexts. 4 III. PLAINTIFFS’ INTERPRETATION OF THE RECORD IS FLAWED 5 While these matters may not be of consequence in the long run, Plaintiffs have mis-stated the record 6 on various occasions in their “Position Re Motion to Enforce Settlement Agreement”. 7 1) Page 2: 16-17, mention that Ex 1 was based on plot maps by TRFD’s engineer Erickson is incorrect. 8 As stated in Plaintiffs’ “Position” p. 2: 25 to p. 3: 1, the schematic was based on “the Hartley map”. 9 Mr. Hartley was Plaintiff’s engineer. 10 2) Page 3: 10-12, includes mention of the overlay drawing but adds features that were not part of any 11 agreement to produce another version of the drawing he did in one-half hour at lunch. There was 12 never any agreement that Mr. Keefer would add the features. In fact, the County understood that the 13 Court wanted to mark as Exhibit 1, the drawing that Mr. Keefer did on the day of the November 10; 14 for this exact reason – in case there were disagreements about what the parties knew on November 10. 15 3) Pages 3-4, (and Declaration pp. 12-15) “it was discussed and agreed” numerous terms that did not 16 include the County and for the most part features that do not appear on the original overlay drawing, 17 Exhibit 1. 18 4) Pages 3: 27-28; 13: 13-15. The exhaust ventilator was going to be in the “vicinity of” the northeast 19 corner of the building which does not say whether it is on the north side or east side of the building. 20 5) Page 5: 15-16 even a superficial review of the [schematic] engineered drawing shows it did not 21 comply with the settlement and the agreed to Ex 1. (It is highly unlikely that any engineered drawing 22 adding the agreed features would comply with the original rough drawing by Mr. Keefer that did not 23 include the later agreed specific features). 24 6) Pages 6-7, the discussions about the Plaintiffs dis-satisfaction over the engineered drawings of Lee 25 Erickson, again make the assumption that the original overlay drawing (Exhibit 1) had some 26 measurements, scale, and features that it did not have. 27 7) Plaintiffs’ assumptions, guesswork and argument about what the County was required to do is their 28 position, which is in fact that – assumptions, guesswork, and argument. They are not the applicants who must submit plans for approval. Reply Memo ISO Motion Enforce Settlement 3 1 2 In reality, the County did submit to the Court to attach as Exhibit 1, the drawing done by Mr. Keefer. 3 It provided copies to all parties well in advance of the December 9, 2022, conference. Resolution of this 4 matter at both the conferences, as has been the case always, is in the hands of the neighbors involved in the 5 dispute. 6 7 Dated: March 29, 2023 ROBERT H. PITTMAN, Sonoma County Counsel 8 9 By: __Michael A. King________________ Michael A. King 10 Attorneys for Defendant 11 COUNTY OF SONOMA 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply Memo ISO Motion Enforce Settlement 4 1 PROOF OF SERVICE 2 I am and was at the time of service of the herein named documents, employed in the County of 3 Sonoma, California, over the age of 18 years and not a party to the within action. My business address is 575 Administration Dr., Rm. 105A, Santa Rosa, California 95403. 4 On March 29, 2023, I served the following documents: 5 6 REPLY MEMORANDUM IN SUPPORT OF MOTION ENFORCE JUDICIAL SETTLEMENT 7 on the parties in this action by placing true copies thereof enclosed in envelopes (if applicable), at Santa Rosa, addressed as follows: 8 9 Frear Stephen Schmid William L. Adams, Esq. Astrid Schmid P.O. Box 1050 10 7585 Valley Ford Road Windsor, California 95492 Petaluma, CA 94952 Bill@WLAdamsPC.com 11 frearschmid@aol.com Jacqueline@WLAdamsPC.com 12 Plaintiffs, Pro Se Attorneys for Defendant 13 Two Rock Volunteer Fire Department J. Curtis Edmondson 14 Edmondson IP Law Todd Murray 15 15490 NW Oak Hills Drive Law Office of Todd A. Murray Beaverton, OR 97006 1050 Fulton Ave., Suite 218 16 jcedmondson@edmolaw.com Sacramento, CA 95825 17 Courtesy Copy tmurray@tamurraylaw.com Courtesy Copy 18 Attorneys for Plaintiffs USDC Case No. 3: 21-cv-01920 Attorneys for Air Exchange 19 Sonoma County Superior Court 20 Case No. SCV-270568 21 [X] BY EMAIL SERVICE. I caused such document(s) to be emailed or electronically transmitted 22 between the parties and/or as a courtesy, I sent the document(s) to the person(s) at the email address(es) listed above. I did not receive, within a reasonable time after the transmission, any 23 electronic message or other indication that the transmission was unsuccessful 24 I declare under penalty of perjury under the laws of the State of California that the foregoing is 25 true and correct. 26 Executed on March 29, 2023, at Santa Rosa, California. 27 28 Megan Sweeley__________________ Megan Sweeley Reply Memo ISO Motion Enforce Settlement 5