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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
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 FIRE’S EX
v. PARTE APPLICATION TO STAY OR
13 VACATE THIS COURT’S “FINAL
RULING ON MOTION FOR
14 TWO ROCK VOLUNTEER FIRE PRELIMINARY INJUNCTION” ISSUED
DEPARTMENT, AUGUST 4, 2021
15
Defendant.
16 Date: June 5, 2022
Time: 10:30 am
17 Dept.: 19
Judge: Hon. Oscar A. Pardo
18
19 AND CONSOLIDATED ACTIONS.
20
21 TO ALL PARTIES AND ATTORNEYS OF RECORD:
22 PLEASE TAKE NOTICE that Defendant TWO ROCK VOLUNTEER FIRE
23 DEPARTMENT, also known as TWO ROCK FIRE DEPARTMENT (“Two Rock Fire”) pursuant
24 to Rules 3.1200-3.1207 of the California Rules of Court, and other applicable law, will appear ex
25 parte on June 5, 2023 at 10:30 a.m. in Department 19 of the Sonoma County Superior Court
26 located at 3055 Cleveland Avenue, Suite 200, Santa Rosa, CA 95403, to request the Court stay or
27 vacate its “Final Ruling on Motion for Preliminary Injunction” issued August 4, 2021.
28 ///
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DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE
“FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021
1 Two Rock Fire is a Volunteer Fire Company organized and operating pursuant California
2 Health and Safety Code section 14825 and serving as the designated public safety agency in
3 Sonoma County unincorporated areas to provide fire and emergency medical services to its
4 immediate community, as well as regional and Statewide mutual aid as needed. Given the
5 imminent public safety threat of peak fire season and operational requirements for Two Rock Fire,
6 this Court should stay or vacate the two-year-old Preliminary Injunction.
7 Plaintiffs have persisted in filing a morass of overlapping and contradictory lawsuits,
8 causes of action, and claims regarding the fire department building project. This Application
9 highlights issues that have rendered the two-year-old Preliminary Injunction stale and largely
10 moot, ahead of the comprehensive joint Case Management Conference the Court has special set
11 for June 6, 2023, for both this consolidated case, as well as the related case of Schmids v.
12 ThompsonGas, LLC, County of Sonoma, Glatfelter Claims, and Two Rock Fire, et al.; Sonoma
13 County Superior Court Case No. SCV-270322.
14 PROCEDURAL CHRONOLOGY
15 This relevant procedural chronology is based entirely on the Court’s own records and files,
16 as well as the electronic docket, in this multi-year-consolidated case. Accordingly, Two Rock Fire
17 requests the Court take judicial notice of its own records and files pursuant to Evidence Code
18 section 452(d), including the documents attached as Exhibits to the accompanying supporting
19 declaration of William L. Adams.
20 In 2015, a Grant Deed was recorded transferring interest in the subject property to a
21 community church and Two Rock Fire, each with an undivided 50% interest.
22 In September 2017, 100% ownership was transferred to Two Rock Fire.
23 Throughout 2017 and 2018, with community input, Two Rock Fire developed conceptual
24 plans for the fire department building project.
25 In March 2018, Two Rock Fire filed its initial building project application with the County
26 of Sonoma (“County”), and, thereafter, consultations and revisions to the building project
27 continued between Two Rock Fire and the County
28 In November 2018, Plaintiffs voluntarily provided a signed written waiver of setback
2
DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE
“FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021
1 letter, which Plaintiffs prepared, reducing to 5 feet the fire department building project setback at
2 their adjoining property line.
3 In March 2019, in reliance in part on Plaintiffs written setback waiver, the County issued
4 its Conditions of Approval to Two Rock Fire for the fire department building project, after which
5 Two Rock Fire submitted a variety of grading, construction and other permits and plans which
6 were approved by the County, and construction of the fire department building project began.
7 In the Spring of 2020, construction was completed and the County approved occupancy
8 and commencement of operations at the fire department building project. Two Rock Fire has
9 continuously provided fire and emergency services from the fire department building project for
10 last three (3) years.
11 In April 15, 2020, Plaintiffs filed a verified Complaint against Two Rock Fire regarding
12 the fire department building project in SCV-266225 (hereinafter the “4/15/20 Two Rock Fire
13 Complaint”).
14 On July 16, 2020, Plaintiffs filed their second Complaint, this time against the County
15 regarding the County’s approval of plans, construction and occupancy of the fire department
16 building project (hereinafter the “7/16/20 County Complaint”), which largely reiterates verbatim
17 the factual background in the 4/15/22 Two Rock Fire Complaint.
18 On October 8, 2020, the Court ordered the 7/16/20 County Complaint consolidated with
19 the 4/15/20 Two Rock Fire Complaint, with both matters to proceed under SCV-266225.
20 On December 17, 2020, at a Case Management Conference, this Court set consolidated
21 case SCV-266225 for trial to commence on November 19, 2021.
22 In May 2021, Plaintiffs moved for a preliminary injunction, before discovery was
23 concluded ahead of the trial set for November 2021, which was opposed by Two Rock Fire and
24 County.
25
26 ///
27 ///
28 ///
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DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE
“FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021
1 On August 4, 2021, this Court issued its “Final Ruling on Motion for Preliminary
2 Injunction Final Order” (hereinafter “Preliminary Injunction”), addressing and restricting several
3 Two Rock Fire public safety and operational capabilities at the fire department building project. 1
4 On August 18, 2021, Two Rock Fire timely filed Motions for Reconsideration and Stay of
5 the Court’s Preliminary Injunction.
6 On September 9, 2021, Two Rock Fire filed an appeal of the Preliminary Injunction in
7 First District Court of Appeal Case No. A163421.
8 On October 18, 2021, in light of the pending Motions for Reconsideration and Stay, as
9 well as the pending appeal in case number A163421, the Court sua sponte vacated the November
10 19, 2021, trial date, and a further Case Management Conference for trial setting was scheduled for
11 March 24, 2022.
12 On February 14, 2022, Two Rock Fire filed notice with the Trial Court that it was
13 withdrawing its appeal in case number A163421. 2
14 On February 17, 2022, after months of extensive briefings by the parties, based on
15 demonstrated and documented evidence of public safety and operational concerns, the Trial Court
16 revised the Preliminary Injunction and issued its “Ruling on Motion to Stay and Motion for
17 Reconsideration” (hereinafter “Modification Order”). 3
18 On February 22, 2022, Plaintiffs filed an appeal challenging the Modification Order in
19 First District Court of Appeal Case No. A164620. The Modification Order remained subject to
20 appeal until issuance of the Court of Appeal opinion on May 11, 2023.
21 On March 4, 2022, Plaintiffs made new allegations against the propane vendor for the fire
22 department building project, and filed a new Complaint solely against ThompsonGas, LLC, in
23 case number SCV-270322.
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26 1
A true and correct copy of the Preliminary Injunction issued by this Court on August 4, 2021, is provided
as Exhibit 1 to the accompanying supporting declaration of William L. Adams (“Adams Decl.).
27 2
As noted in Exhibit 3 to Adams Decl., notice was filed with the Court of Appeal on April 11, 2022.
3
A true and correct copy of the Modification Order issued by this Court on February 17, 2022, is provided
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as Exhibit 2 to Adams Decl.
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DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE
“FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021
1 On March 7, 2022, Plaintiffs made new allegations of fraud and diminution of value
2 against Two Rock Fire resulting from the fire department building project and filed a new
3 Complaint in case number SCV-270339 (hereinafter the “3/7/22 Two Rock Fire Complaint”),
4 which also largely reiterates verbatim the factual background in the 4/15/22 Two Rock Fire
5 Complaint. The 3/7/22 Two Rock Complaint was not served until mid-June 2022.
6 On March 24, 2022, at the notice Case Management Conference, the Court set
7 consolidated case SCV-266225 for a jury trial to commence on November 4, 2022.
8 On April 11, 2022, Plaintiffs made new allegations against the exhaust venting contractor
9 for the fire department building project and filed a new Complaint against Air Exchange, Inc., and
10 the County in case number SCV-270568. Two Rock Fire was not named in this case.
11 In May 2022, the County of Sonoma and Two Rock Fire requested Plaintiffs stipulate to
12 consolidate the multiple new matters they had filed related to the Two Rock Fire building project.
13 Plaintiffs refused. Thereafter, the County and Two Rock Fire filed a joint Motion to Consolidate.
14 On July 27, 2022, the Court granted in part and denied in part the joint Motion to
15 Consolidate filed by the County and Two Rock Fire. The allegations of fraud and diminution of
16 value in the 3/7/22 Two Rock Fire Complaint in case number SCV-270339 were ordered
17 consolidated into previously consolidated case number SCV-266225, for the jury trial set for
18 November 4, 2022.
19 On August 1, 2022, Plaintiffs filed a third lawsuit against the County, making new
20 allegations and unsuccessfully attempting to obtain a restraining order to prevent the County from
21 conducting any proceedings in its oversight of fire department building project, in case number
22 SCV-271291. Two Rock Fire was not named in this case.
23 On November 4, 2022, because no courtrooms were available, the trial in consolidated case
24 number SCV-266225 was set for a Mandatory Settlement Conference on November 10, 2022.
25 On December 9, 2022, after the Court determined the parties had not reached a settlement,
26 this Court set a Case Management Conference for February 9, 2023.
27 On February 9, 2023, this Court set a new jury trial date in consolidated case number
28 SCV-266225 to begin on July 14, 2023.
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DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE
“FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021
1 On May 1, 2023, Plaintiffs filed a Second Amended Complaint in Schmids v.
2 ThompsonGas, LLC case number SCV-270322, adding as defendants the County, Glatfelter (Two
3 Rock Fire’s insurance claims representatives) and Two Rock Fire in allegations arising from the
4 fire department building project and the serial inter-related litigation filed by Plaintiffs. Seventeen
5 (17) new Causes of Action were alleged against Two Rock Fire, and seven (7) new Causes of
6 Action were alleged against the County – all of which overlap and/or contradict previous
7 allegations made by Plaintiffs in concurrent related lawsuits all set in Department 19 of the
8 Sonoma County Superior Court – including many of the issues and claims set for jury trial to
9 begin 2 ½ months later on July 14, 2023 in consolidated case number SCV-266225.
10 On May 11, 2023, the Court of Appeal issued its opinion in case number A164620,
11 reversing this Court’s Modification Order solely on procedural grounds – the substantive bases
12 regarding public safety and operational concerns were not addressed. 1
13 On June 3, 2023, an article appeared in the Press Democrat newspaper regarding the City
14 of Santa Rosa declaring the onset of the 2023 fire season on June 5, 2023, and addressing fire
15 agency concerns about the “anticipation of peak fire season” and “high risk fire areas”. See
16 https://www.pressdemocrat.com/article/news/santa-rosa-fire-officials-to-declare-june-5-start-of-
17 fire-season-heres-wh/
18 On June 6, 2023, the Sonoma County Board of Supervisors will conduct a Wildfire
19 Preparedness workshop “designed to enhance the ability of the County’s to respond to a major
20 wildfire”, in light of “the significant fire potential” arising from fuels/fire danger in the 2023 fire
21 season, including the preparedness of fire protection districts and departments throughout the
22 County, including Two Rock Fire.
23 See https://sonoma-
24 county.legistar.com/LegislationDetail.aspx?ID=6231228&GUID=EEF51D90-4104-415F-A970-
25 20D936E71FD7
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A true and correct copy of the Opinion on Case No. A164620 issued by the First District Court of Appeal
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on May 11, 2023, is provided as Exhibit 3 to Adams Decl.
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DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE
“FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 The same interest of justice rationale and changed circumstances that prompted this Court
3 to issue the Modification Order, continue to apply and vest inherit authority for this Court to stay,
4 vacate or modify its prior orders in the Preliminary Injunction – particularly given the Preliminary
5 Injunction at issue that has grown stale sitting on the shelf for nearly two years.
6 Regarding the inherent authority of this Court to modify its previously issued preliminary
7 injunction, Code of Civil Procedure section 533 provides:
8 “In any action, the court may on notice modify or dissolve an injunction or
temporary restraining order upon a showing that there has been a material change
9 in the facts upon which the injunction or temporary restraining order was granted,
that the law upon which the injunction or temporary restraining order was granted
10 has changed, or that the ends of justice would be served by the modification or
dissolution of the injunction or temporary restraining order.”
11
12 Specifically addressing Code of Civil Procedure section 533, the California Supreme Court
13 held in 2018: “Courts retain power to vacate or modify such [preliminary injunction] orders
14 at any point. (See Sontag Chain Stores Co. v. Superior Court (1941) 18 Cal.2d 92, 94–
15 95 (Sontag Chain Stores) [an injunctive order, “it has uniformly been held, is always subject, upon
16 a proper showing, to modification or dissolution by the court which rendered it”]:see also Union
17 Interchange, Inc. v. Savage (1959) 52 Cal.2d 601, 604 (Union Interchange)([“When the decree is
18 continuing in nature, directed at future events, it must be subject to adaptation as events may
19 shape the need”].)” (In re Butler (2018) 4 Cal. 5th 728, 738.) (emphasis added.)
20 1. This Court found changes in material facts and interests of justice to modify the
21 Preliminary Injunction
22 The Modification Order clearly shows that this Court made its determination based on
23 additional information regarding the negative public safety and operational limitations that became
24 known as the consequences of the Preliminary Injunction – and these determinations constituted
25 changed facts subject to application of the interest of justice test. Between the issuance of the
26 Preliminary Injunction on August 4, 2021, and the issuance of the Modification Order on February
27 17, 2021, Plaintiffs filed four separate sets of pleadings and appeared three times to present oral
28 argument to this Court. In the Modification Order, this Court expressly states, “Upon
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DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE
“FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021
1 consideration by the court of the papers and evidence filed in support and in opposition to the
2 motion, and having heard and considered oral argument of counsel, the court makes the following
3 ruling.” (Exhibit 2, p. 1:20-22.) In the intervening 16 months after this Court’s issuance of the
4 Modification Order in February 2022, Plaintiffs have deliberately continued to complicate their
5 allegations and resolution of this matter by filing a morass of overlapping and contradictory
6 lawsuits, causes of action, and claims regarding the fire department building project.
7 During its consideration and issuance of the revisions to the Preliminary Injunction, this
8 Court made several factual determinations based on new and different evidence the Court had
9 received and considered, together with the pro and con oral arguments presented by the parties.
10 These factual determinations were articulated in the Modification Order, which recites that Trial
11 Court considered and accepted the testimony from Two Rock Fire Chief Lori Anello regarding
12 potential safety issues arising from the operational consequences of the Preliminary Injunction
13 (id., p. 2:17 through 3:24); specifically the need to modify parking lot restrictions for Two Rock
14 Fire responding to emergency calls (id., p. 3:12-20), and the need to use of the County-approved
15 propane space heater to dry and avoid mold and other damage to firefighting equipment (Id., p.
16 3:22-24). This Court also considered and accepted the testimony of Two Rock Battalion Chief
17 Darrin DeCarli (id., p. 3:25 through 4:8), that the use of the existing propane-fueled industrial
18 heater was necessary “in order to prevent moisture and growth of contaminants on and inside the
19 trucks [and] personal protective equipment” for the Two Rock firefighters. (Id., p. 285:26-27.)
20 Finally, this Court considered and accepted the testimony of Nathan Quarles, Deputy Director of
21 Engineering with the Sonoma County Permit and Resources Department (which oversees Use
22 Permits, building and zoning code enforcement in the unincorporated areas of Sonoma County –
23 including the Two Rock Fire building project) that “the [Use] permit references the installation
24 and inspection of the propane heater” and that the ‘heater was permitted under the building
25 permit’; that it was installed per code and manufacturing instructions; and that the heater does not
26 change the occupancy of the structure.” (Id., p. 4:20-23.) The public safety and operational
27 requirements are all the more urgent as Two Rock Fire and the region enter peak fire season.
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DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE
“FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021
1 Plaintiffs clearly disagree with this Court’s acceptance of this testimony and findings
2 regarding these changes in material facts and the need to modify the preliminary injunction to
3 meet the “ends of justice”, and public safety operational requirements and services provided by
4 Two Rock Fire. However, such disagreement does not equate to this Court acting in an “arbitrary
5 and capricious” manner that is the threshold for any revision or reversal of the Modification Order
6 on the substantive merits. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 712.)
7 As shown in its Opinion in case number A164620 provided at Exhibit 3 to the supporting
8 declaration of William L. Adams, the Court of Appeal recognized the very limited procedural
9 grounds for setting aside this Court’s Modification Order. No substantive determinations were
10 made by the Court of Appeal – rather the opinion includes explicit language concerning solely a
11 procedural instead of substantive basis for reversal: “While the mistake may seem like a
12 technicality, the courts rely on parties to file the correct forms with the correct courts, according to
13 the rules.” (A164620 Opinion, p. 3). The Court of Appeal concluded by stating “The error
14 requires reversal, so we will not consider the Schmids;’ further contentions that the modification
15 order improperly allowed the department to engage in “ ‘criminally proscribed‘ “ conduct and was
16 unjustified by changed circumstances or to serve the ends of justice. (See Code.Civ.Proc., § 533.)”
17 (A164620 Opinion, p. 4).
18 2. This Court has inherent to modify, stay or vacate its Preliminary Injunction
19 This Court has inherent authority to modify, stay or vacate its prior determinations and
20 order set forth in the Preliminary Injunction. “A preliminary injunction is a provisional remedy,
21 and the trial court possesses the inherent power to modify its preliminary injunction which is of a
22 continuing or executory nature.” (Huntington Life Sciences Inc. v. Stop Huntington Animal
23 Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1248 (emphasis in original), citing City of San
24 Marcos v. Coast Waster Management Inc. (1996) 47 Cal.App.4th 320, 328.). Because the
25 Preliminary Injunction was never intended as the final adjudication of the issues between the
26 parties, and two years and two reset trial dates have intervened, there is no limitation on this Court
27 exercising its inherent authority to stay or vacate the stale and moot Preliminary Injunction.
28 ///
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DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE
“FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021
1 NOTICE HAS BEEN PROVIDED TO PLAINTIFFS
2 California Rule of Court 3.1203 requires notice to other parties no later than 10:00 am the
3 court day before the ex parte appearance; and Rule of Court 3.1204 sets forth the requirements of
4 the content of such notice and declaration regarding the notice provided. Two Rock Fire has
5 complied with all provisions of Rules of Court 3.120 et seq. regarding this ex parte application.
6 As documented in the supporting Declaration of William L. Adams 1, at 9:45 a.m. on June
7 2, 2023, paralegal Jacqueline Schaap, on behalf of counsel for Two Rock Fire, timely notified
8 Plaintiffs, and the County of the substance of this ex parte application, the relief sought, and the
9 date, time, location of the hearing.
10 CONCLUSION
11 This Court can and should exercise its inherent authority to stay or vacate the Preliminary
12 Injunction issued August 4, 2021. A proposed Order is provided for the convenience of the Court.
13 Dated: June 5, 2023 WILLIAM L. ADAMS, PC
14
15 By:
William L. Adams, Counsel for Defendant
16 TWO ROCK VOLUNTEER FIRE DEPARTMENT
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A true and correct copy of the ex parte application notification email sent June 2, 2023, from paralegal
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Jacqueline Schaap to Plaintiffs and the County, is provided as Exhibit 4 to Adams Decl.
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DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE
“FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021
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 FIRE’S EX v. PARTE APPLICATION TO STAY OR 13 VACATE THIS COURT’S “FINAL RULING ON MOTION FOR 14 TWO ROCK VOLUNTEER FIRE PRELIMINARY INJUNCTION” ISSUED DEPARTMENT, AUGUST 4, 2021 15 Defendant. 16 Date: June 5, 2022 Time: 10:30 am 17 Dept.: 19 Judge: Hon. Oscar A. Pardo 18 19 AND CONSOLIDATED ACTIONS. 20 21 TO ALL PARTIES AND ATTORNEYS OF RECORD: 22 PLEASE TAKE NOTICE that Defendant TWO ROCK VOLUNTEER FIRE 23 DEPARTMENT, also known as TWO ROCK FIRE DEPARTMENT (“Two Rock Fire”) pursuant 24 to Rules 3.1200-3.1207 of the California Rules of Court, and other applicable law, will appear ex 25 parte on June 5, 2023 at 10:30 a.m. in Department 19 of the Sonoma County Superior Court 26 located at 3055 Cleveland Avenue, Suite 200, Santa Rosa, CA 95403, to request the Court stay or 27 vacate its “Final Ruling on Motion for Preliminary Injunction” issued August 4, 2021. 28 /// 1 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE “FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021 1 Two Rock Fire is a Volunteer Fire Company organized and operating pursuant California 2 Health and Safety Code section 14825 and serving as the designated public safety agency in 3 Sonoma County unincorporated areas to provide fire and emergency medical services to its 4 immediate community, as well as regional and Statewide mutual aid as needed. Given the 5 imminent public safety threat of peak fire season and operational requirements for Two Rock Fire, 6 this Court should stay or vacate the two-year-old Preliminary Injunction. 7 Plaintiffs have persisted in filing a morass of overlapping and contradictory lawsuits, 8 causes of action, and claims regarding the fire department building project. This Application 9 highlights issues that have rendered the two-year-old Preliminary Injunction stale and largely 10 moot, ahead of the comprehensive joint Case Management Conference the Court has special set 11 for June 6, 2023, for both this consolidated case, as well as the related case of Schmids v. 12 ThompsonGas, LLC, County of Sonoma, Glatfelter Claims, and Two Rock Fire, et al.; Sonoma 13 County Superior Court Case No. SCV-270322. 14 PROCEDURAL CHRONOLOGY 15 This relevant procedural chronology is based entirely on the Court’s own records and files, 16 as well as the electronic docket, in this multi-year-consolidated case. Accordingly, Two Rock Fire 17 requests the Court take judicial notice of its own records and files pursuant to Evidence Code 18 section 452(d), including the documents attached as Exhibits to the accompanying supporting 19 declaration of William L. Adams. 20 In 2015, a Grant Deed was recorded transferring interest in the subject property to a 21 community church and Two Rock Fire, each with an undivided 50% interest. 22 In September 2017, 100% ownership was transferred to Two Rock Fire. 23 Throughout 2017 and 2018, with community input, Two Rock Fire developed conceptual 24 plans for the fire department building project. 25 In March 2018, Two Rock Fire filed its initial building project application with the County 26 of Sonoma (“County”), and, thereafter, consultations and revisions to the building project 27 continued between Two Rock Fire and the County 28 In November 2018, Plaintiffs voluntarily provided a signed written waiver of setback 2 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE “FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021 1 letter, which Plaintiffs prepared, reducing to 5 feet the fire department building project setback at 2 their adjoining property line. 3 In March 2019, in reliance in part on Plaintiffs written setback waiver, the County issued 4 its Conditions of Approval to Two Rock Fire for the fire department building project, after which 5 Two Rock Fire submitted a variety of grading, construction and other permits and plans which 6 were approved by the County, and construction of the fire department building project began. 7 In the Spring of 2020, construction was completed and the County approved occupancy 8 and commencement of operations at the fire department building project. Two Rock Fire has 9 continuously provided fire and emergency services from the fire department building project for 10 last three (3) years. 11 In April 15, 2020, Plaintiffs filed a verified Complaint against Two Rock Fire regarding 12 the fire department building project in SCV-266225 (hereinafter the “4/15/20 Two Rock Fire 13 Complaint”). 14 On July 16, 2020, Plaintiffs filed their second Complaint, this time against the County 15 regarding the County’s approval of plans, construction and occupancy of the fire department 16 building project (hereinafter the “7/16/20 County Complaint”), which largely reiterates verbatim 17 the factual background in the 4/15/22 Two Rock Fire Complaint. 18 On October 8, 2020, the Court ordered the 7/16/20 County Complaint consolidated with 19 the 4/15/20 Two Rock Fire Complaint, with both matters to proceed under SCV-266225. 20 On December 17, 2020, at a Case Management Conference, this Court set consolidated 21 case SCV-266225 for trial to commence on November 19, 2021. 22 In May 2021, Plaintiffs moved for a preliminary injunction, before discovery was 23 concluded ahead of the trial set for November 2021, which was opposed by Two Rock Fire and 24 County. 25 26 /// 27 /// 28 /// 3 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE “FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021 1 On August 4, 2021, this Court issued its “Final Ruling on Motion for Preliminary 2 Injunction Final Order” (hereinafter “Preliminary Injunction”), addressing and restricting several 3 Two Rock Fire public safety and operational capabilities at the fire department building project. 1 4 On August 18, 2021, Two Rock Fire timely filed Motions for Reconsideration and Stay of 5 the Court’s Preliminary Injunction. 6 On September 9, 2021, Two Rock Fire filed an appeal of the Preliminary Injunction in 7 First District Court of Appeal Case No. A163421. 8 On October 18, 2021, in light of the pending Motions for Reconsideration and Stay, as 9 well as the pending appeal in case number A163421, the Court sua sponte vacated the November 10 19, 2021, trial date, and a further Case Management Conference for trial setting was scheduled for 11 March 24, 2022. 12 On February 14, 2022, Two Rock Fire filed notice with the Trial Court that it was 13 withdrawing its appeal in case number A163421. 2 14 On February 17, 2022, after months of extensive briefings by the parties, based on 15 demonstrated and documented evidence of public safety and operational concerns, the Trial Court 16 revised the Preliminary Injunction and issued its “Ruling on Motion to Stay and Motion for 17 Reconsideration” (hereinafter “Modification Order”). 3 18 On February 22, 2022, Plaintiffs filed an appeal challenging the Modification Order in 19 First District Court of Appeal Case No. A164620. The Modification Order remained subject to 20 appeal until issuance of the Court of Appeal opinion on May 11, 2023. 21 On March 4, 2022, Plaintiffs made new allegations against the propane vendor for the fire 22 department building project, and filed a new Complaint solely against ThompsonGas, LLC, in 23 case number SCV-270322. 24 25 26 1 A true and correct copy of the Preliminary Injunction issued by this Court on August 4, 2021, is provided as Exhibit 1 to the accompanying supporting declaration of William L. Adams (“Adams Decl.). 27 2 As noted in Exhibit 3 to Adams Decl., notice was filed with the Court of Appeal on April 11, 2022. 3 A true and correct copy of the Modification Order issued by this Court on February 17, 2022, is provided 28 as Exhibit 2 to Adams Decl. 4 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE “FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021 1 On March 7, 2022, Plaintiffs made new allegations of fraud and diminution of value 2 against Two Rock Fire resulting from the fire department building project and filed a new 3 Complaint in case number SCV-270339 (hereinafter the “3/7/22 Two Rock Fire Complaint”), 4 which also largely reiterates verbatim the factual background in the 4/15/22 Two Rock Fire 5 Complaint. The 3/7/22 Two Rock Complaint was not served until mid-June 2022. 6 On March 24, 2022, at the notice Case Management Conference, the Court set 7 consolidated case SCV-266225 for a jury trial to commence on November 4, 2022. 8 On April 11, 2022, Plaintiffs made new allegations against the exhaust venting contractor 9 for the fire department building project and filed a new Complaint against Air Exchange, Inc., and 10 the County in case number SCV-270568. Two Rock Fire was not named in this case. 11 In May 2022, the County of Sonoma and Two Rock Fire requested Plaintiffs stipulate to 12 consolidate the multiple new matters they had filed related to the Two Rock Fire building project. 13 Plaintiffs refused. Thereafter, the County and Two Rock Fire filed a joint Motion to Consolidate. 14 On July 27, 2022, the Court granted in part and denied in part the joint Motion to 15 Consolidate filed by the County and Two Rock Fire. The allegations of fraud and diminution of 16 value in the 3/7/22 Two Rock Fire Complaint in case number SCV-270339 were ordered 17 consolidated into previously consolidated case number SCV-266225, for the jury trial set for 18 November 4, 2022. 19 On August 1, 2022, Plaintiffs filed a third lawsuit against the County, making new 20 allegations and unsuccessfully attempting to obtain a restraining order to prevent the County from 21 conducting any proceedings in its oversight of fire department building project, in case number 22 SCV-271291. Two Rock Fire was not named in this case. 23 On November 4, 2022, because no courtrooms were available, the trial in consolidated case 24 number SCV-266225 was set for a Mandatory Settlement Conference on November 10, 2022. 25 On December 9, 2022, after the Court determined the parties had not reached a settlement, 26 this Court set a Case Management Conference for February 9, 2023. 27 On February 9, 2023, this Court set a new jury trial date in consolidated case number 28 SCV-266225 to begin on July 14, 2023. 5 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE “FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021 1 On May 1, 2023, Plaintiffs filed a Second Amended Complaint in Schmids v. 2 ThompsonGas, LLC case number SCV-270322, adding as defendants the County, Glatfelter (Two 3 Rock Fire’s insurance claims representatives) and Two Rock Fire in allegations arising from the 4 fire department building project and the serial inter-related litigation filed by Plaintiffs. Seventeen 5 (17) new Causes of Action were alleged against Two Rock Fire, and seven (7) new Causes of 6 Action were alleged against the County – all of which overlap and/or contradict previous 7 allegations made by Plaintiffs in concurrent related lawsuits all set in Department 19 of the 8 Sonoma County Superior Court – including many of the issues and claims set for jury trial to 9 begin 2 ½ months later on July 14, 2023 in consolidated case number SCV-266225. 10 On May 11, 2023, the Court of Appeal issued its opinion in case number A164620, 11 reversing this Court’s Modification Order solely on procedural grounds – the substantive bases 12 regarding public safety and operational concerns were not addressed. 1 13 On June 3, 2023, an article appeared in the Press Democrat newspaper regarding the City 14 of Santa Rosa declaring the onset of the 2023 fire season on June 5, 2023, and addressing fire 15 agency concerns about the “anticipation of peak fire season” and “high risk fire areas”. See 16 https://www.pressdemocrat.com/article/news/santa-rosa-fire-officials-to-declare-june-5-start-of- 17 fire-season-heres-wh/ 18 On June 6, 2023, the Sonoma County Board of Supervisors will conduct a Wildfire 19 Preparedness workshop “designed to enhance the ability of the County’s to respond to a major 20 wildfire”, in light of “the significant fire potential” arising from fuels/fire danger in the 2023 fire 21 season, including the preparedness of fire protection districts and departments throughout the 22 County, including Two Rock Fire. 23 See https://sonoma- 24 county.legistar.com/LegislationDetail.aspx?ID=6231228&GUID=EEF51D90-4104-415F-A970- 25 20D936E71FD7 26 27 1 A true and correct copy of the Opinion on Case No. A164620 issued by the First District Court of Appeal 28 on May 11, 2023, is provided as Exhibit 3 to Adams Decl. 6 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE “FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 The same interest of justice rationale and changed circumstances that prompted this Court 3 to issue the Modification Order, continue to apply and vest inherit authority for this Court to stay, 4 vacate or modify its prior orders in the Preliminary Injunction – particularly given the Preliminary 5 Injunction at issue that has grown stale sitting on the shelf for nearly two years. 6 Regarding the inherent authority of this Court to modify its previously issued preliminary 7 injunction, Code of Civil Procedure section 533 provides: 8 “In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change 9 in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted 10 has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.” 11 12 Specifically addressing Code of Civil Procedure section 533, the California Supreme Court 13 held in 2018: “Courts retain power to vacate or modify such [preliminary injunction] orders 14 at any point. (See Sontag Chain Stores Co. v. Superior Court (1941) 18 Cal.2d 92, 94– 15 95 (Sontag Chain Stores) [an injunctive order, “it has uniformly been held, is always subject, upon 16 a proper showing, to modification or dissolution by the court which rendered it”]:see also Union 17 Interchange, Inc. v. Savage (1959) 52 Cal.2d 601, 604 (Union Interchange)([“When the decree is 18 continuing in nature, directed at future events, it must be subject to adaptation as events may 19 shape the need”].)” (In re Butler (2018) 4 Cal. 5th 728, 738.) (emphasis added.) 20 1. This Court found changes in material facts and interests of justice to modify the 21 Preliminary Injunction 22 The Modification Order clearly shows that this Court made its determination based on 23 additional information regarding the negative public safety and operational limitations that became 24 known as the consequences of the Preliminary Injunction – and these determinations constituted 25 changed facts subject to application of the interest of justice test. Between the issuance of the 26 Preliminary Injunction on August 4, 2021, and the issuance of the Modification Order on February 27 17, 2021, Plaintiffs filed four separate sets of pleadings and appeared three times to present oral 28 argument to this Court. In the Modification Order, this Court expressly states, “Upon 7 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE “FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021 1 consideration by the court of the papers and evidence filed in support and in opposition to the 2 motion, and having heard and considered oral argument of counsel, the court makes the following 3 ruling.” (Exhibit 2, p. 1:20-22.) In the intervening 16 months after this Court’s issuance of the 4 Modification Order in February 2022, Plaintiffs have deliberately continued to complicate their 5 allegations and resolution of this matter by filing a morass of overlapping and contradictory 6 lawsuits, causes of action, and claims regarding the fire department building project. 7 During its consideration and issuance of the revisions to the Preliminary Injunction, this 8 Court made several factual determinations based on new and different evidence the Court had 9 received and considered, together with the pro and con oral arguments presented by the parties. 10 These factual determinations were articulated in the Modification Order, which recites that Trial 11 Court considered and accepted the testimony from Two Rock Fire Chief Lori Anello regarding 12 potential safety issues arising from the operational consequences of the Preliminary Injunction 13 (id., p. 2:17 through 3:24); specifically the need to modify parking lot restrictions for Two Rock 14 Fire responding to emergency calls (id., p. 3:12-20), and the need to use of the County-approved 15 propane space heater to dry and avoid mold and other damage to firefighting equipment (Id., p. 16 3:22-24). This Court also considered and accepted the testimony of Two Rock Battalion Chief 17 Darrin DeCarli (id., p. 3:25 through 4:8), that the use of the existing propane-fueled industrial 18 heater was necessary “in order to prevent moisture and growth of contaminants on and inside the 19 trucks [and] personal protective equipment” for the Two Rock firefighters. (Id., p. 285:26-27.) 20 Finally, this Court considered and accepted the testimony of Nathan Quarles, Deputy Director of 21 Engineering with the Sonoma County Permit and Resources Department (which oversees Use 22 Permits, building and zoning code enforcement in the unincorporated areas of Sonoma County – 23 including the Two Rock Fire building project) that “the [Use] permit references the installation 24 and inspection of the propane heater” and that the ‘heater was permitted under the building 25 permit’; that it was installed per code and manufacturing instructions; and that the heater does not 26 change the occupancy of the structure.” (Id., p. 4:20-23.) The public safety and operational 27 requirements are all the more urgent as Two Rock Fire and the region enter peak fire season. 28 8 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE “FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021 1 Plaintiffs clearly disagree with this Court’s acceptance of this testimony and findings 2 regarding these changes in material facts and the need to modify the preliminary injunction to 3 meet the “ends of justice”, and public safety operational requirements and services provided by 4 Two Rock Fire. However, such disagreement does not equate to this Court acting in an “arbitrary 5 and capricious” manner that is the threshold for any revision or reversal of the Modification Order 6 on the substantive merits. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 712.) 7 As shown in its Opinion in case number A164620 provided at Exhibit 3 to the supporting 8 declaration of William L. Adams, the Court of Appeal recognized the very limited procedural 9 grounds for setting aside this Court’s Modification Order. No substantive determinations were 10 made by the Court of Appeal – rather the opinion includes explicit language concerning solely a 11 procedural instead of substantive basis for reversal: “While the mistake may seem like a 12 technicality, the courts rely on parties to file the correct forms with the correct courts, according to 13 the rules.” (A164620 Opinion, p. 3). The Court of Appeal concluded by stating “The error 14 requires reversal, so we will not consider the Schmids;’ further contentions that the modification 15 order improperly allowed the department to engage in “ ‘criminally proscribed‘ “ conduct and was 16 unjustified by changed circumstances or to serve the ends of justice. (See Code.Civ.Proc., § 533.)” 17 (A164620 Opinion, p. 4). 18 2. This Court has inherent to modify, stay or vacate its Preliminary Injunction 19 This Court has inherent authority to modify, stay or vacate its prior determinations and 20 order set forth in the Preliminary Injunction. “A preliminary injunction is a provisional remedy, 21 and the trial court possesses the inherent power to modify its preliminary injunction which is of a 22 continuing or executory nature.” (Huntington Life Sciences Inc. v. Stop Huntington Animal 23 Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1248 (emphasis in original), citing City of San 24 Marcos v. Coast Waster Management Inc. (1996) 47 Cal.App.4th 320, 328.). Because the 25 Preliminary Injunction was never intended as the final adjudication of the issues between the 26 parties, and two years and two reset trial dates have intervened, there is no limitation on this Court 27 exercising its inherent authority to stay or vacate the stale and moot Preliminary Injunction. 28 /// 9 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE “FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021 1 NOTICE HAS BEEN PROVIDED TO PLAINTIFFS 2 California Rule of Court 3.1203 requires notice to other parties no later than 10:00 am the 3 court day before the ex parte appearance; and Rule of Court 3.1204 sets forth the requirements of 4 the content of such notice and declaration regarding the notice provided. Two Rock Fire has 5 complied with all provisions of Rules of Court 3.120 et seq. regarding this ex parte application. 6 As documented in the supporting Declaration of William L. Adams 1, at 9:45 a.m. on June 7 2, 2023, paralegal Jacqueline Schaap, on behalf of counsel for Two Rock Fire, timely notified 8 Plaintiffs, and the County of the substance of this ex parte application, the relief sought, and the 9 date, time, location of the hearing. 10 CONCLUSION 11 This Court can and should exercise its inherent authority to stay or vacate the Preliminary 12 Injunction issued August 4, 2021. A proposed Order is provided for the convenience of the Court. 13 Dated: June 5, 2023 WILLIAM L. ADAMS, PC 14 15 By: William L. Adams, Counsel for Defendant 16 TWO ROCK VOLUNTEER FIRE DEPARTMENT 17 18 19 20 21 22 23 24 25 26 27 1 A true and correct copy of the ex parte application notification email sent June 2, 2023, from paralegal 28 Jacqueline Schaap to Plaintiffs and the County, is provided as Exhibit 4 to Adams Decl. 10 DEFENDANT TWO ROCK FIRE’S EX PARTE APPLICATION TO STAY OR VACATE “FINAL RULING ON MOTION FOR PRELIMINARY INJUNCTION” ISSUED AUGUST 4, 2021