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1 FREAR STEPHEN SCHMID CSB # 96089
7585 VALLEY FORD ROAD,
2
PETALUMA, CA 94952
3
TELEPHONE: (415) 788-5957
EMAIL: frearschmid@aol.com
4
5 Attorney for Plaintiffs
6
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SONOMA
9
10
FREAR STEPHEN SCHMID AND ASTRID Case No. SCV-266225 and consolidated
11 SCHMID actions SCV-266731 and SCV-270339
12 Plaintiffs, Assigned to Judge Pardo for all purposes
13 v. PLAINTIFFS’ EX PARTE APPLICATION
FOR OSC RE CONTEMPT AND
14 TWO ROCK FIRE DEPARTMENT DECLARATION OF FREAR STEPHEN
SCHMID IN SUPPORT THEREOF
15 Defendant
Ex Parte Date: August 7, 2022
16
Time: 10:30 a.m.
17
Department: 19
Trial Date: January14, 2024
18
19
20 EX PARTE APPLICATION
21 To defendant Two Rock Fire Department, aka Two Rock Volunteer Fire Department and its
22 attorney:
Pursuant to California Rule of Court 3.1200 et seq., plaintiffs Frear Stephen Schmid and
23
Astrid Schmid (“plaintiffs”) hereby apply ex parte for an order directed to defendant Two Rock
24
Fire Department, aka Two Rock Volunteer Fire Department (hereinafter TRFD) to show cause
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re contempt of court for its violation the preliminary injunction (hereinafter Preliminary
26
Injunction) issued August 4, 2021 enjoining several aspects of TRFD’s violations of the use
27
permit pertaining to the use of the property commonly known as 7599 Valley Ford Road,
28 Petaluma, CA. Plaintiffs seek an OSC hearing date of August 30, 2023 or soon thereafter as the
PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT
1
matter may be heard, with TRFD’s opposition due 9 court days before the hearing and
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plaintiffs’ reply due 5 court days prior to the hearing. Plaintiffs seek said scheduling due to the
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urgency of having TRFD comply with the Preliminary Injunction, its use permit, and the
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County zoning code because the ongoing violations thereof are having a daily interference with
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plaintiffs’ use and enjoyment of their property. This application is made on the grounds that
5 TRFD has willfully failed to comply with the Preliminary Injunction as follows:
6 VIOLATION OF ORDER TO DISABLE THE RED LIGHTS
7 The Preliminary Injunction at p. 14:25-26.ordered TRFD to disable the red lights
8 on the front of the building. The lights are not disabled, and are currently in use
9 being left on all night on a nightly basis. Schmid dec. below at p. 12:21
VIOLATION OF ORDER RE USE OF THE PARKING LOT
10
The Preliminary Injunction p. 15: 1- 8.disallowed parking other than as necessary
11
responding to emergency calls. TRFD routinely violates this order, including the
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recent parking of approximately 7 vehicles for an illegal meeting in the storage
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building. Schmid dec. below at p. 13;7
14 VIOLATION OF ORDER RE USE OF THE GARAGE FOR MEETINGS
15 The Preliminary Injunction at p. 15:1-3.ordered meetings and other events in the
16 garage are not allowed. See also Preliminary Injunction at p. 8:6-14. The garage
17 has been used for meetings and there was a recent illegal meeting or gathering in
18 the storage garage . Schmid dec. below at p. 13:16
VIOLATION OF ORDER TO EMPTY THE PROPANE TANK
19
The Preliminary Injunction at p. 15:9-26.ordered TRFD to empty the propane
20
tank and keep it empty and not used . The tank is not drained or empty and still
21
connected and in use. Schmid dec. below at p. 13;21
22
VIOLATION OF ORDER TO DECOMMISSION THE HEATER
23 The Preliminary Injunction at p. 15:15-26.ordered the heater disconnected and
24 decommissioned. The heater has not decommissioned or disconnected. Schmid
25 dec. below at p.13;28
26
27 By seeking contempt for the forgoing violations, plaintiffs are not conceding that other
violations do not exist nor are they waiving any right to seek contempt for such violations. This
28
PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT
2
application is based upon C.C.P. §§1209 et seq., the points and authorities below, the
1
declaration of Frear Stephen Schmid below, and the files and records in this action. Pursuant to
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C.R.C. 3.1202(a), the following names, addresses, and telephone numbers for TRFD’s counsel
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are known by plaintiffs: William L. Adams, WILLIAM L. ADAMS, P.C. P.O. Box 1050
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Windsor, CA 95492, (707) 236-2176 E-mail: bill@wladamspc.com
5 PLEASE TAKE FURTHER NOTICE that a contempt proceeding can be either civil or
6 criminal in nature. If the court finds you, TRFD, in contempt, the possible civil and criminal
7 penalties include substantial fines. Plaintiffs will request the Court, should contempt be found,
8 to order a fine of $1000, per day for each violation.
9 EX PART RELIEF SEEKING AN OSC IS PROPER
It is well established law that an application for an Order to Show Cause re contempt is
10
initiated by an ex parte application. Arthur v. Superior Court (1965) 62 Cal.2d 404, 408:“ In
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such cases an affidavit must be presented to the court stating the facts constituting the contempt,
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an order to show cause must be issued, and a hearing on the facts must be held by the judge.
13
(Code Civ. Proc., §§1212-1217.)” Here, this ex parte application is most appropriate due to the
14 fact that plaintiffs were successful in establishing an “imminent threat of irreparable injury” in
15 order to obtain the issuance of the subject Preliminary Injunction. See Preliminary
16 Injunction,p.6:4-7:11.Unless the Preliminary Injunction is enforced, it is nothing but a paper
17 tiger allowing TRFD to inflict the previously adjudged “imminent threat of irreparable injury”
18 on plaintiffs. Also, an OSC is most appropriate as the underlying Preliminary Injunction was
issued to enjoin public nuisance declared by the Sonoma County Code. Preliminary Injunction
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p.6:19-7:11
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NOTICE AND A COMPLETE COPY OF THIS EX PARTE APPLICATION WERE
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PROPERLY GIVEN, TRFD ACKNOWLEDGED RECEIPT OF THE NOTICE AND IT
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OPPOSES THE APPLICATION
23 As verified by the declaration below, attached hereto as exhibit 1, is a true and correct copy
24 of an emails starting at 4:52 p.m on Friday July 21, 2023, in which plaintiffs gave all parties
25 and attorneys, including TRFD and its attorney Mr. Adams the requisite notice of this ex parte
26 application. The following is the start of the e-mail chain:
27
On Friday, July 21, 2023 at 04:52:36 PM PDT, Frear Stephen Schmid
wrote:
28
PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT
3
Hi Bill,
1
As you know the DCA recently issued its remittitur, so now jurisdiction for
2 enforcement of the injunction is again fully vested in the Superior Court. TRFD
has acted repeatedly in knowing disregard of the preliminary injunction. Most
3 overtly, on this past Tuesday, July 18, it held a meeting for several hours in the
storage building, including parking in the parking area of at least seven vehicles.
4
We will be keeping track of any further violations, and unless not promptly and
5 completely abated we will move for contempt of court against your client.
Hopefully, we will not need to burden the court with such a motion. To this end,
6 please have the propane tank immediately drained, and also disconnect and
decommission the heater and show us proof thereof.
7
Having received no response plaintiffs sent the following email:
8
9 On Jul 27, 2023, at 2:46 PM, Frear Stephen Schmid wrote
10 Hi Bill- I have received no response to my email below, most importantly no
denial that your client, TRFD, is in violation of the injunction as set forth below,
11 the violation of which were and are apparent to us. Accordingly, your client
12 leaves us no choice but to seek an order of contempt.
13 Attorney Adams responded as follows:
14
On Thursday, July 27, 2023 at 04:00:32 PM PDT, William Adams
15 wrote:
16 Mr Schmid -
I am traveling and will address the issues you raise with my client upon my return
17
next week.
18 Bill Adams
19 Sent from my iPhone
20
Having waited almost a week and having heard nothing further from Attorney Adams,
21 plaintiffs emailed:
22
On Wednesday, August 2, 2023 at 10:13:22 AM PDT, Frear Stephen Schmid
23 wrote:
24 Hi Bill- the remittitur issued July 12, and the decision reversing the void
modification of the preliminary injunction issued in May. Thus, you and your
25
client have had ample notice and time to comply with the injunction. I don't
26 understand what you needed to address with TRFD per your July 27 email below
or why you could not have done so immediately upon the issuance of the
27 remittitur, if not before, but it is now Wednesday, August 2, and I still have not
received any response from you. In the meantime, TRFD has been continuously
28
in violation of the injunction and thus in contempt of court. Unless prompt
PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT
4
compliance is demonstrated, plaintiffs will appear ex parte concerning this matter
1
on Monday, August 7,2023.
2
Also, when can we expect payment from TRFD for the appellate costs ($1262.35)
3 awarded plaintiffs?
4
Once again, Attorney Adams did not respond so plaintiffs emailed him as follows giving
5 him the notice of the subject ex parte application.
6
On Friday, August 4, 2023 at 09:55:53 AM PDT, Frear Stephen Schmid
7
wrote:
8
Good morning Bill,
9
10 As you have ignored our repeated requests to deal with your client's violations of
the preliminary injunction, plaintiffs hereby gives you and your client TRFD
11 notice that plaintiffs will make an ex parte application, per local court procedure,
on Monday, August 7, 2023 at 10:30 in Dept 19 of the Sonoma County Superior
12
Court for the issuance of an order to show cause why defendant Two Rock Fire
13 Department aka Two Rock Volunteer Fire Department (TRFD) should not be held
in contempt of the Court's preliminary Injunction issued on August 4, 2021. The
14 application will be made on the grounds that TRFD willfully has failed to
comply with the provisions of the preliminary injunction forbidding the use of the
15
building for meeting purposes, forbidding the use of the parking lot for uses other
16 than responding to emergency calls, by failing to drain and keep empty the
propane tank, by failing to disconnect and decommission the interior heater and
17 by failing to disable the red lights on the front of the structure. The application
will be based, inter alia, upon Code of Civil Procedure sections 1209 et seq., a
18
memorandum in support thereof, the declaration(s) thereof and the files and
19 records in this action.
20 Once again Attorney Adams provided no response so plaintiffs emailed him to ask if
21 he/his client would be opposing the ex parte to which he replied as follows:
22 On Friday, August 4, 2023 at 02:37:38 PM PDT, William Adams
wrote:
23
Plaintiffs Mr. and Mrs. Schmid –
24
25 After you sent your email at the end of the day on Friday 7/21/23 which I
reviewed on Monday 7/24/23, I notified you I was traveling and would get back
26 to you this week after I was able to confer with my clients These communications
are still underway because my clients are also are in the midst of summer travel,
27
and, as you know, Two Rock Fire recently became part of the Gold Ridge Fire
28 Protection District. Accordingly, your demand for an immediate response and
PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT
5
assertion that I am ignoring your communications are unfounded and
1
unreasonable.
2
You have made one allegation regarding an assemblage of firefighters on 7/18/23
3 at the Two Rock Fire building. I am available on Tuesday or Wednesday next
week to discuss this issue and the August 2021 Order.
4
5 I request you withdraw your threat of filing a claim for contempt of court against
the fire department via an ex parte application on Monday morning 8/7/23. I note
6 that you have chosen not to provide any proposed pleadings or purported
evidence. In the event you refuse to withdraw this ex parte notice, Two Rock Fire
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will oppose Plaintiffs’ ex parte application
8
Plaintiffs subsequently provided Attorney Adams a complete copy of this application
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and supporting papers shortly after its completion on Sunday, August 6, 2023. See
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attached proof of service.
11
12
STATEMENT OF FACTS
13
The Setting
14 Plaintiffs own and live on property at 7585 Valley Ford Road in the rural Two Rock Valley.
15 On their property, they engage in various agricultural activities including cattle, sheep and free
16 range laying hens.
17 In November 2018, at the request of Paul Martin, vice president of TRFD, plaintiffs signed
a waiver of set back requirement for the rear of a proposed truck storage garage (60’x 90’) for its
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fire equipment that TRFD was wishing to build on a parcel narrow in depth located at 7599
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Valley Ford Road. The plaintiffs’ property encircles that parcel on three sides. The proposed
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storage garage required a conditional use permit. In order to obtain the use permit for the storage
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building, Mr. Martin advised plaintiffs that Permit Sonoma was requiring a waiver of the twenty-
22 foot rear set back for the building, reducing setback for the building to 5 feet. Wishing to be
23 accommodating, plaintiffs signed a waiver expressly limited as to” the rear of the proposed
24 building” only.
25 The use permit
26 Due to plaintiffs’ accommodation, the use permit ultimately issued albeit improperly without
the notice and hearing required by state law and California due process. TRFD obtained the
27
28
PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT
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conditional use permit to build an “unconditioned metal building” (i.e., an unheated building) to
1
“be used to store fire trucks and apparatus only” on the parcel. The use permit in part provides:
2
The existing Fire Hall at 7618 Valley Ford Road (about 300 feet to the NW; APN
3
022-110-001) will be retained for meetings, training, fundraising events, and
4
similar uses. The proposed garage will be used to store fire trucks and apparatus
5 only; no water or septic service is proposed at the new garage. (emphasis added )
6 Thus, per the use permit TRFD was to continue to and agreed to using its fire station across the
7 street from the storage building at 7618 Valley Ford Road for meetings, training, fundraising
8 events, and similar uses. In contrast, the storage building 7599 Valley Ford Road was limited to
9 “be used to store fire trucks and apparatus only.” (emphasis added ) TRFD had agreed to all the
conditions of the use permit and did not appeal any of them.
10
The Fraud-the bait: pitch a “simple storage garage” and the switch: a full-blown fire
11
station
12
However, while the proposed building was being “pitched as a simple storage garage” (in
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the words of TRFD’s civil engineer shepherding the building through the use permit process) ,
14 TRFD had hidden its true intentions to build and operate a full-blown fire station on the
15 premises at 7599 Valley Ford Road. And after the issuance of the use permit, TRFD simply set
16 upon a path of ignoring the use permit and the county codes to operate a full-blown fire station
17 on the premises, even going so far as to remove its sign from its real fire station across the
18 street at 7618 Valley Ford Road . Plaintiffs maintain they were misled as the nature and extent
of the proposed building and project by TRFD, which inter alia has negatively impacted their
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property and their rights therein.
20
In the lead action SCV-266225, plaintiffs were granted the subject Preliminary Injunction
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enjoining several aspects of TRFD’s egregious violations of the use permit. See order filed
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August 4, 2021, attached hereto as exhibit 2. Also, in the consolidated action SCV-266731
23 against the defendant County for its violation of its own codes and state law pertaining to the
24 use permit and activities on the subject parcel, the County’s motion for summary judgment was
25 thoroughly rejected. See order filed November 9, 2021.
26 TRFD’s Various Unsuccessful Attacks On The Preliminary Injunction
27 TRFD has unsuccessfully attacked the Preliminary Injunction at least four times. The first
attack was an untimely motion for reconsideration filed August19, 2021. Next, TRFD. appealed
28
PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT
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the injunction on Sept. 9,2021, and requested a stay of the injunction which request was denied
1
on October 8,2021. After seeking multiple postponements of time to file its opening brief,
2
TRFD ultimately dismissed its appeal. Finally, TRFD obtained a void order modifying the
3
injunction on February 17, 2022. The First Appellate District, by decision dated May 11,2023
4
ruled the modification was void and awarded plaintiffs cost on appeal (which TRFD has thus
5 not paid). Thereafter, TRFD made an ex parte application to modify the Preliminary Injunction,
6 which the Court denied on June 6, 2023. Remittitur of the plaintiffs’ successful appeal of the
7 void modification order issued on July 12, 2023. Thus, the appellate decision is final, and this
8 Court has jurisdiction to consider this application.
9 ARGUMENT
10 I. BACKGROUND
As decided in the Preliminary Injunction, at p. 8:6-14, TRFD received a use permit for the
11
limited purpose of a storage garage “while the existing Fire Hall [nearby across the road] will
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be retained for meetings, training, fundraising events, and similar uses.” TRFD has refused to
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abide by its use permit and likewise has repeatedly violated the injunction. Plaintiffs had hoped
14
that the issues would all be resolved based upon the settlement reached before Judge Zuniga and
15 the recent settlement conference before Judge Pardo. All hopes having been dashed, and recent
16 violations following the remittitur referenced above, have forced plaintiffs to seek contempt
17 against TRFD due to its knowing commissions of public nuisances previously enjoined.
18 II. AN ORDER DIRECTING TRFD TO SHOW CAUSE WHY IT SHOULD NOT BE
19 FOUND IN CONTEMPT OF COURT IS JUST AND NECESSARY
"Disobedience of any lawful judgment, order, or process of the court" is contempt. C.C.P. §
20
1209 (a)(5). Generally, a contempt proceeding involves four substantive issues : (1) willful
21
disobedience; (2) ability to comply; (3) actual knowledge of the order; and (4) rendition of a
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valid order. Conn v. Sup. Court (1987) 196 Cal.App.3d 774, 784. As discussed more fully
23
below, the Preliminary Injunction is a valid order, TRFD knew of the order, TRFD had to the
24 ability to comply and TRFD has willfully disobeyed the order.
25 A. TRFD Willfully Disobeyed the Preliminary Injunction.
26 Willful disobedience is not limited to a deliberate intention to disregard a court order, but
27 also encompasses "an indifferent disregard of the duty to obey [a court order] promptly." In re
28 Kraft (1970) 10 Cal.App.3d 355, 372 .A disclaimer of the intent to commit contempt is no
PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT
8
defense where contempt appears from the circumstances constituting the act. City of Vernon v.
1
Superior Ct. (1952) 38 Cal. 2d 509, 518. Thus, where a defendant had knowledge of the terms
2
of an injunction and failed to comply, "it can, be reasonably inferred that their inaction was
3
intentional. ... " (Ibid.) Further, even diligent, yet unsuccessful, efforts to comply are not
4
sufficient to avoid a finding of contempt.· McFarland v. Superior Court of Merced County
5 (1924) 194 Cal. 407, 423.). Here, TRFD has willfully and consciously disobeyed the
6 injunction . This is shown by the facts that it has previously undertaken steps to comply with the
7 injunction such as disabling the red lights, disconnecting the heater, and removing the propane
8 tank. See Schmid dec. p. 12:21 Having done so once it clearly understands what the injunction
9 enjoines, but is now willfully refusing to comply with it.
B. TRFD Had and Has the Ability to Comply with the Preliminary Injunction.
10
There is no doubt that TRFD has the ability to comply with the injunction. First, it had previously
11
acted in compliance with the injunction by completely removing the offending propane tank ,
12
disabling lights, and decommissioning. the heater and not holding meetings in the garage . See
13
Schmid dec. p. 13:21 Such previous actions of compliance were reversed apparently in bad
14 faith “ belief” in the void modification order.
15 C. TRFD Has Actual Knowledge of the Preliminary Injunction.
16 There can be no doubt TRFD has actually knowledge of the Preliminary Injunction were served
17 on its outside counsel, which raises the presumption that it has actual knowledge of the orders.
18 People v. Sup. Ct. (1965) 239 Cal.App.2d 99, 104 ("Proof of service of the order upon defendant's
attorney is sufficient to raise the disputable presumption that the attorney had performed his duty
19
and communicated his knowledge of the order to his client."); Mattos v. Sup. Ct. (1939) 30
20
Cal.App.2d 641, 647 Aside from this presumption, TRFD has taken action it could have only
21
taken with knowledge of the Preliminary Injunction, to wit it previously disabled lights, its
22
previously disconnected/decommissioned the heater See Schmid dec. 13:28 Such previous
23 actions of compliance were reversed apparently in bad faith “ belief” in the void modification
24 order.
25 D. The Preliminary Injunction is a Valid Order.
26 There is no question that the Preliminary Injunction is a valid order of this Court. First, TRFD
27 has never challenged the validity of the order, or the Court’s authority to issue it. Also, to the
extent it even had any bases to challenge such, it has waived it by dismissing its prior appeal. The
28
PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT
9
law of the case of the two appellate actions in this matter bar any assertion of invalidity. TRFD ,
1
by appearing through counsel at the numerous hearings in this matter and having filed numerous
2
motions and an appeal in this matter has submitted itself to the personal jurisdiction of this Court
3
and the Appellate Court. This Court has subject matter jurisdiction to issue an injunction under
4
C.C.P. § 526 due to TRFD’s violations of California law, of county code, of public and private
5 nuisance law.
6 E. TRFD's Contempt of Court Justifies the Severest Possible Penalty.
7 Each violation of the Preliminary Injunction was and is a separate contempt of the Court
8 justifying the maximum penalty available. See Conn v. Superior Court, supra, 196 Cal.App.3d at
9 787 [each "separate insult[] to the authority of the court" constitutes a contempt of court]. A fine
of $1,000.00 per day for each violation is justified.
10
11
.VI. CONCLUSION
12
For the reasons set forth above, plaintiffs are entitled to the Order to Show Cause re Contempt
13
sought hereby on an ex parte basis.
14 Dated: August 6, 2023 Respectfully submitted.
15
16
17 s/Frear Stephen Schmid
18 FREAR STEPHEN SCHMID
19 Attorney for plaintiffs FREAR STEPHEN
SCHMID and ASTRID SCHMID
20
21
22
///
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///
26
27 ////
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PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT
10
1 DECLARATION OF FREAR STEPHEN SCHMID IN SUPPORT OF EX PARTE
2 APPLICATION
3 I, Frear Stephen Schmid, declare as follow:
4 I am the attorney for and one of the plaintiffs in lead action # SCV-266225 and as such
5 have personal knowledge of the facts set forth in and verified by this declaration.
6 My wife, Astrid Schmid , is the other plaintiff. in action # SCV-266225
7 Plaintiffs gave defendant Two Fire Department and its attorney, William L. Adams, the
8 requisite notice of the foregoing ex parte application. Attached hereto as exhibit 1 is a true and
9 correct copy of the email tarting on Friday, July 21, 2023, at 04:52:36 PM PDT . Included in that
10 the emails is the following email, giving all parties and attorneys, including TRFD and its
11 attorney Mr. Adams the requisite notice of this ex parte application:
12 On Friday, August 4, 2023 at 09:55:53 AM PDT, Frear Stephen Schmid
13 wrote:
14
Good morning Bill,
15
As you have ignored our repeated requests to deal with your client's violations of
16 the preliminary injunction, plaintiffs hereby gives you and your client TRFD
notice that plaintiffs will make an ex parte application, per local court procedure,
17
on Monday, August 7, 2023 at 10:30 in Dept 19 of the Sonoma County Superior
18 Court for the issuance of an order to show cause why defendant Two Rock Fire
Department aka Two Rock Volunteer Fire Department (TRFD) should not be held
19 in contempt of the Court's preliminary Injunction issued on August 4, 2021. The
application will be made on the grounds that TRFD willfully has failed to
20
comply with the provisions of the preliminary injunction forbidding the use of the
21 building for meeting purposes, forbidding the use of the parking lot for uses other
than responding to emergency calls, by failing to drain and keep empty the
22 propane tank, by failing to disconnect and decommission the interior heater and
by failing to disable the red lights on the front of the structure. The application
23
will be based, inter alia, upon Code of Civil Procedure sections 1209 et seq., a
24 memorandum in support thereof, the declaration(s) thereof and the files and
records in this action.
25
26
For clarity, defendant Two Rock Fire Department is the only defendant in action #SCV-266225;
27
and the subject of Preliminary Injunction, a true and correct copy of which is attached as exhibit
28
PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT
11
1 2 hereto. Mr. King’s client, the County of Sonoma is not the subject of the Preliminary Injunction .
2 Nonetheless, he was copied in on the foregoing email. And has been served with a complete copy
3 of this application.
4
5 In action# SCV-266225 the only attorney of record is William Adam, WILLIAM L. ADAMS,
6 P.C. P.O. Box 1050 Windsor, CA 95492, (707) 236-2176 E-mail: bill@wladamspc.com
7
Upon prompting from plaintiffs , Attorney Adams emailed that TRFD would oppose the
8
9 application, although he provided no basis therefor.
10
I wrote and have read the Statement of Facts set forth above in the above ex parte
11
application and know those facts of my own personal knowledge to be true and correct. Also, I
12
know that the exhibits referenced therein and those attached hereto (Exhibits 1-3) are true and
13
correct copies of the originals. As to Exhibit 3, it is the proposed order.
14
As to the following violations for which an order of contempt is sought, I know these
15
violations exist based upon my personal observations of the subject premises and activities at
16
the subject premises commonly known as 7599 Valley Ford Road, Petaluma. CA. Such violations
17
were and are readily observable, deducible, and perceivable to me and by me from my property
18
and /or from the public road in front of 7599 Valley Ford Road. I also note that Attorney Adams
19
did not deny the violations or submit any evidence of correction, despite my invitation in my July
20
21, 2023 e-mail.
21
As to the VIOLATION OF ORDER TO DISABLE THE RED LIGHTS
22
The Preliminary Injunction at p. 14:25-26.ordered TRFD to disable the red lights on the front of
23
the building. The lights are not disabled and are currently in use being left on all night on a nightly
24
basis. I do know that at an earlier point intime TRFD in in fact did not have them on and claimed
25
to have disabled them, to wit
26
27 Brian M. Sanders
To:Frear Stephen Schmid,wadams@johnstonthomas.com
28 Cc:michael.king@sonoma-county.org,JJ Minioza,Gregory Mase,Desiree Parkinson
PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT
12
Wed, Aug 11, 2021 at 8:35 PM
1 Mr. Schmid:
2
I am informed that the red lights at the front of the building were disabled before today.
3
4 Also, TRFD has disabled other lights to conform to the injunction. Based on this and its abilities
5 to disable and reactivate the red lights, TRFD has the ability to disable the red lights.
6
7 As to the VIOLATION OF ORDER RE USE OF THE PARKING LOT,
8 the Preliminary Injunction p. 15: 1- 8.disallowed parking other than as necessary responding to
9 emergency calls. TRFD routinely violates this order, including the recent parking of
10 approximately 7 vehicles for an illegal meeting or gathering in the storage building .on July 18,
11 2023 for several hours in the storage building, I have witnessed TRFD’s ability to comply with
12 the injunction regarding meetings as I have witnessed it holding meeting in its Fire Hall across
13 the Road after the Preliminary Injunction as it is required to do per the use permit and saw the
14 meeting’s participants likewise park across the road.
15
16 As to the VIOLATION OF ORDER RE USE OF THE GARAGE FOR MEETINGS,
17 The Preliminary Injunction p. 15: 1- 3 ordered meetings and other events in the garage are not
18 allowed. See also Preliminary Injunction at p. 8:6-14.ordered activities The garage has been
19 used for meetings and there was a recent an illegal meeting or gathering in the storage garage
20 on July 18, 2023 for several hours.
21
As to the VIOLATION OF ORDER TO EMPTY THE PROPANE TANK
22
the Preliminary Injunction at p. 15:9-26.ordered TRFD to empty the propane tank and
23
keep it empty and not used . The tank is not drained or empty and still connected and in
24
use. TRFD was previously able to conform to the injunction by completely removing the
25 tank fron the premises, but then latter illegally reinstaled it and connected it and had it
26 refilled. Accordingly, TRFD has the abilty to comply with the Preliminary Injunction.
27
28 As to the VIOLATION OF ORDER TO DECOMMISSION THE HEATER
PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT
13
the Preliminary Injunction at p. 15:15-26.ordered the heater disconnected and
1
decommissioned. The heater is not decommissioned or disconnected. Previously TRFD
2
decommissioned the heater per the Preliminary Injunction, but since has recommissioned
3
it . This demonstrates it has the ability to decommission it again.
4
5
I, Frear Stephen Schmid, declare under penalty of perjury that the foregoing is true and correct
6
and that this declaration was executed August 6, 2023 in the County of Sonoma, California
7
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Frear Stephen Schmid
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PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT
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EXHIBIT 1
EXHIBIT 2
EXHIBIT 3
1 FREAR STEPHEN SCHMID CSB # 96089
7585 VALLEY FORD ROAD,
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PETALUMA, CA 94952
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TELEPHONE: (415) 788-5957
EMAIL: frearschmid@aol.com
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5 Attorney for plaintiffs
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SONOMA
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12 FREAR STEPHEN SCHMID AND ASTRID Case No. SCV-266225 and consolidated
SCHMID actions SCV-266731 and SCV-270339
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Plaintiffs, {Proposed) ORDER PLAINTIFFS’ EX
14 PARTE APPLICATION FOR OSC RE
v. CONTEMPT
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TWO ROCK FIRE DEPARTMENT
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Defendant
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20 IT IS HEREBY ORDERED, good cause appearing based upon the Ex Parte Application that
21 Plaintiffs FREAR STEPHEN SCHMID and ASTRID SCHMID’s Request for a hearing be set
22 for Order to Show Cause Re: Contempt, is GRANTED.
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Plaintiffs having presented to this Court sufficient grounds to initiate a contempt proceeding,
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defendant Two Fire Department is ordered to appear on August ___, 2023 at____ .m. in
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26 Courtroom 19 of the above-entitled Court to prove why it is not in contempt of this Court’s
27 Preliminary Injunction dated August 4, 2021.
28 IT IS FURTHER ORDERED THAT:
PLAINTIFFS’ OBJECTION TO INSPECTION DEMAND
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This Order Setting the Hearing on the Order to Show Cause shall be served on defendant TWO
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2 ROCK FIRE DEPARTMENT by email through William Adams, its attorney, no later than
3 August 8, 2023 by 5 p.m. Proof of such service shall be filed no later than August 9, 2023.
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Any opposition papers to the Order to Show Cause shall be filed and served on Plaintiffs
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through its attorney, by email, no later than 9 court days before the hearing date set above;
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with proof of such service. Reply papers, if any, shall be filed and served on TRFD through its
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8 attorney, by email no later than 5 court days before the hearing date set above, with proof of
9 such service.
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12 Dated: _________________________________________
JUDGE OF THE SUPERIOR COURT
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PLAINTIFFS’ OBJECTION TO INSPECTION DEMAND
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Preview
1 FREAR STEPHEN SCHMID CSB # 96089 7585 VALLEY FORD ROAD, 2 PETALUMA, CA 94952 3 TELEPHONE: (415) 788-5957 EMAIL: frearschmid@aol.com 4 5 Attorney for Plaintiffs 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF SONOMA 9 10 FREAR STEPHEN SCHMID AND ASTRID Case No. SCV-266225 and consolidated 11 SCHMID actions SCV-266731 and SCV-270339 12 Plaintiffs, Assigned to Judge Pardo for all purposes 13 v. PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT AND 14 TWO ROCK FIRE DEPARTMENT DECLARATION OF FREAR STEPHEN SCHMID IN SUPPORT THEREOF 15 Defendant Ex Parte Date: August 7, 2022 16 Time: 10:30 a.m. 17 Department: 19 Trial Date: January14, 2024 18 19 20 EX PARTE APPLICATION 21 To defendant Two Rock Fire Department, aka Two Rock Volunteer Fire Department and its 22 attorney: Pursuant to California Rule of Court 3.1200 et seq., plaintiffs Frear Stephen Schmid and 23 Astrid Schmid (“plaintiffs”) hereby apply ex parte for an order directed to defendant Two Rock 24 Fire Department, aka Two Rock Volunteer Fire Department (hereinafter TRFD) to show cause 25 re contempt of court for its violation the preliminary injunction (hereinafter Preliminary 26 Injunction) issued August 4, 2021 enjoining several aspects of TRFD’s violations of the use 27 permit pertaining to the use of the property commonly known as 7599 Valley Ford Road, 28 Petaluma, CA. Plaintiffs seek an OSC hearing date of August 30, 2023 or soon thereafter as the PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT 1 matter may be heard, with TRFD’s opposition due 9 court days before the hearing and 1 plaintiffs’ reply due 5 court days prior to the hearing. Plaintiffs seek said scheduling due to the 2 urgency of having TRFD comply with the Preliminary Injunction, its use permit, and the 3 County zoning code because the ongoing violations thereof are having a daily interference with 4 plaintiffs’ use and enjoyment of their property. This application is made on the grounds that 5 TRFD has willfully failed to comply with the Preliminary Injunction as follows: 6 VIOLATION OF ORDER TO DISABLE THE RED LIGHTS 7 The Preliminary Injunction at p. 14:25-26.ordered TRFD to disable the red lights 8 on the front of the building. The lights are not disabled, and are currently in use 9 being left on all night on a nightly basis. Schmid dec. below at p. 12:21 VIOLATION OF ORDER RE USE OF THE PARKING LOT 10 The Preliminary Injunction p. 15: 1- 8.disallowed parking other than as necessary 11 responding to emergency calls. TRFD routinely violates this order, including the 12 recent parking of approximately 7 vehicles for an illegal meeting in the storage 13 building. Schmid dec. below at p. 13;7 14 VIOLATION OF ORDER RE USE OF THE GARAGE FOR MEETINGS 15 The Preliminary Injunction at p. 15:1-3.ordered meetings and other events in the 16 garage are not allowed. See also Preliminary Injunction at p. 8:6-14. The garage 17 has been used for meetings and there was a recent illegal meeting or gathering in 18 the storage garage . Schmid dec. below at p. 13:16 VIOLATION OF ORDER TO EMPTY THE PROPANE TANK 19 The Preliminary Injunction at p. 15:9-26.ordered TRFD to empty the propane 20 tank and keep it empty and not used . The tank is not drained or empty and still 21 connected and in use. Schmid dec. below at p. 13;21 22 VIOLATION OF ORDER TO DECOMMISSION THE HEATER 23 The Preliminary Injunction at p. 15:15-26.ordered the heater disconnected and 24 decommissioned. The heater has not decommissioned or disconnected. Schmid 25 dec. below at p.13;28 26 27 By seeking contempt for the forgoing violations, plaintiffs are not conceding that other violations do not exist nor are they waiving any right to seek contempt for such violations. This 28 PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT 2 application is based upon C.C.P. §§1209 et seq., the points and authorities below, the 1 declaration of Frear Stephen Schmid below, and the files and records in this action. Pursuant to 2 C.R.C. 3.1202(a), the following names, addresses, and telephone numbers for TRFD’s counsel 3 are known by plaintiffs: William L. Adams, WILLIAM L. ADAMS, P.C. P.O. Box 1050 4 Windsor, CA 95492, (707) 236-2176 E-mail: bill@wladamspc.com 5 PLEASE TAKE FURTHER NOTICE that a contempt proceeding can be either civil or 6 criminal in nature. If the court finds you, TRFD, in contempt, the possible civil and criminal 7 penalties include substantial fines. Plaintiffs will request the Court, should contempt be found, 8 to order a fine of $1000, per day for each violation. 9 EX PART RELIEF SEEKING AN OSC IS PROPER It is well established law that an application for an Order to Show Cause re contempt is 10 initiated by an ex parte application. Arthur v. Superior Court (1965) 62 Cal.2d 404, 408:“ In 11 such cases an affidavit must be presented to the court stating the facts constituting the contempt, 12 an order to show cause must be issued, and a hearing on the facts must be held by the judge. 13 (Code Civ. Proc., §§1212-1217.)” Here, this ex parte application is most appropriate due to the 14 fact that plaintiffs were successful in establishing an “imminent threat of irreparable injury” in 15 order to obtain the issuance of the subject Preliminary Injunction. See Preliminary 16 Injunction,p.6:4-7:11.Unless the Preliminary Injunction is enforced, it is nothing but a paper 17 tiger allowing TRFD to inflict the previously adjudged “imminent threat of irreparable injury” 18 on plaintiffs. Also, an OSC is most appropriate as the underlying Preliminary Injunction was issued to enjoin public nuisance declared by the Sonoma County Code. Preliminary Injunction 19 p.6:19-7:11 20 NOTICE AND A COMPLETE COPY OF THIS EX PARTE APPLICATION WERE 21 PROPERLY GIVEN, TRFD ACKNOWLEDGED RECEIPT OF THE NOTICE AND IT 22 OPPOSES THE APPLICATION 23 As verified by the declaration below, attached hereto as exhibit 1, is a true and correct copy 24 of an emails starting at 4:52 p.m on Friday July 21, 2023, in which plaintiffs gave all parties 25 and attorneys, including TRFD and its attorney Mr. Adams the requisite notice of this ex parte 26 application. The following is the start of the e-mail chain: 27 On Friday, July 21, 2023 at 04:52:36 PM PDT, Frear Stephen Schmid wrote: 28 PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT 3 Hi Bill, 1 As you know the DCA recently issued its remittitur, so now jurisdiction for 2 enforcement of the injunction is again fully vested in the Superior Court. TRFD has acted repeatedly in knowing disregard of the preliminary injunction. Most 3 overtly, on this past Tuesday, July 18, it held a meeting for several hours in the storage building, including parking in the parking area of at least seven vehicles. 4 We will be keeping track of any further violations, and unless not promptly and 5 completely abated we will move for contempt of court against your client. Hopefully, we will not need to burden the court with such a motion. To this end, 6 please have the propane tank immediately drained, and also disconnect and decommission the heater and show us proof thereof. 7 Having received no response plaintiffs sent the following email: 8 9 On Jul 27, 2023, at 2:46 PM, Frear Stephen Schmid wrote 10 Hi Bill- I have received no response to my email below, most importantly no denial that your client, TRFD, is in violation of the injunction as set forth below, 11 the violation of which were and are apparent to us. Accordingly, your client 12 leaves us no choice but to seek an order of contempt. 13 Attorney Adams responded as follows: 14 On Thursday, July 27, 2023 at 04:00:32 PM PDT, William Adams 15 wrote: 16 Mr Schmid - I am traveling and will address the issues you raise with my client upon my return 17 next week. 18 Bill Adams 19 Sent from my iPhone 20 Having waited almost a week and having heard nothing further from Attorney Adams, 21 plaintiffs emailed: 22 On Wednesday, August 2, 2023 at 10:13:22 AM PDT, Frear Stephen Schmid 23 wrote: 24 Hi Bill- the remittitur issued July 12, and the decision reversing the void modification of the preliminary injunction issued in May. Thus, you and your 25 client have had ample notice and time to comply with the injunction. I don't 26 understand what you needed to address with TRFD per your July 27 email below or why you could not have done so immediately upon the issuance of the 27 remittitur, if not before, but it is now Wednesday, August 2, and I still have not received any response from you. In the meantime, TRFD has been continuously 28 in violation of the injunction and thus in contempt of court. Unless prompt PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT 4 compliance is demonstrated, plaintiffs will appear ex parte concerning this matter 1 on Monday, August 7,2023. 2 Also, when can we expect payment from TRFD for the appellate costs ($1262.35) 3 awarded plaintiffs? 4 Once again, Attorney Adams did not respond so plaintiffs emailed him as follows giving 5 him the notice of the subject ex parte application. 6 On Friday, August 4, 2023 at 09:55:53 AM PDT, Frear Stephen Schmid 7 wrote: 8 Good morning Bill, 9 10 As you have ignored our repeated requests to deal with your client's violations of the preliminary injunction, plaintiffs hereby gives you and your client TRFD 11 notice that plaintiffs will make an ex parte application, per local court procedure, on Monday, August 7, 2023 at 10:30 in Dept 19 of the Sonoma County Superior 12 Court for the issuance of an order to show cause why defendant Two Rock Fire 13 Department aka Two Rock Volunteer Fire Department (TRFD) should not be held in contempt of the Court's preliminary Injunction issued on August 4, 2021. The 14 application will be made on the grounds that TRFD willfully has failed to comply with the provisions of the preliminary injunction forbidding the use of the 15 building for meeting purposes, forbidding the use of the parking lot for uses other 16 than responding to emergency calls, by failing to drain and keep empty the propane tank, by failing to disconnect and decommission the interior heater and 17 by failing to disable the red lights on the front of the structure. The application will be based, inter alia, upon Code of Civil Procedure sections 1209 et seq., a 18 memorandum in support thereof, the declaration(s) thereof and the files and 19 records in this action. 20 Once again Attorney Adams provided no response so plaintiffs emailed him to ask if 21 he/his client would be opposing the ex parte to which he replied as follows: 22 On Friday, August 4, 2023 at 02:37:38 PM PDT, William Adams wrote: 23 Plaintiffs Mr. and Mrs. Schmid – 24 25 After you sent your email at the end of the day on Friday 7/21/23 which I reviewed on Monday 7/24/23, I notified you I was traveling and would get back 26 to you this week after I was able to confer with my clients These communications are still underway because my clients are also are in the midst of summer travel, 27 and, as you know, Two Rock Fire recently became part of the Gold Ridge Fire 28 Protection District. Accordingly, your demand for an immediate response and PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT 5 assertion that I am ignoring your communications are unfounded and 1 unreasonable. 2 You have made one allegation regarding an assemblage of firefighters on 7/18/23 3 at the Two Rock Fire building. I am available on Tuesday or Wednesday next week to discuss this issue and the August 2021 Order. 4 5 I request you withdraw your threat of filing a claim for contempt of court against the fire department via an ex parte application on Monday morning 8/7/23. I note 6 that you have chosen not to provide any proposed pleadings or purported evidence. In the event you refuse to withdraw this ex parte notice, Two Rock Fire 7 will oppose Plaintiffs’ ex parte application 8 Plaintiffs subsequently provided Attorney Adams a complete copy of this application 9 and supporting papers shortly after its completion on Sunday, August 6, 2023. See 10 attached proof of service. 11 12 STATEMENT OF FACTS 13 The Setting 14 Plaintiffs own and live on property at 7585 Valley Ford Road in the rural Two Rock Valley. 15 On their property, they engage in various agricultural activities including cattle, sheep and free 16 range laying hens. 17 In November 2018, at the request of Paul Martin, vice president of TRFD, plaintiffs signed a waiver of set back requirement for the rear of a proposed truck storage garage (60’x 90’) for its 18 fire equipment that TRFD was wishing to build on a parcel narrow in depth located at 7599 19 Valley Ford Road. The plaintiffs’ property encircles that parcel on three sides. The proposed 20 storage garage required a conditional use permit. In order to obtain the use permit for the storage 21 building, Mr. Martin advised plaintiffs that Permit Sonoma was requiring a waiver of the twenty- 22 foot rear set back for the building, reducing setback for the building to 5 feet. Wishing to be 23 accommodating, plaintiffs signed a waiver expressly limited as to” the rear of the proposed 24 building” only. 25 The use permit 26 Due to plaintiffs’ accommodation, the use permit ultimately issued albeit improperly without the notice and hearing required by state law and California due process. TRFD obtained the 27 28 PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT 6 conditional use permit to build an “unconditioned metal building” (i.e., an unheated building) to 1 “be used to store fire trucks and apparatus only” on the parcel. The use permit in part provides: 2 The existing Fire Hall at 7618 Valley Ford Road (about 300 feet to the NW; APN 3 022-110-001) will be retained for meetings, training, fundraising events, and 4 similar uses. The proposed garage will be used to store fire trucks and apparatus 5 only; no water or septic service is proposed at the new garage. (emphasis added ) 6 Thus, per the use permit TRFD was to continue to and agreed to using its fire station across the 7 street from the storage building at 7618 Valley Ford Road for meetings, training, fundraising 8 events, and similar uses. In contrast, the storage building 7599 Valley Ford Road was limited to 9 “be used to store fire trucks and apparatus only.” (emphasis added ) TRFD had agreed to all the conditions of the use permit and did not appeal any of them. 10 The Fraud-the bait: pitch a “simple storage garage” and the switch: a full-blown fire 11 station 12 However, while the proposed building was being “pitched as a simple storage garage” (in 13 the words of TRFD’s civil engineer shepherding the building through the use permit process) , 14 TRFD had hidden its true intentions to build and operate a full-blown fire station on the 15 premises at 7599 Valley Ford Road. And after the issuance of the use permit, TRFD simply set 16 upon a path of ignoring the use permit and the county codes to operate a full-blown fire station 17 on the premises, even going so far as to remove its sign from its real fire station across the 18 street at 7618 Valley Ford Road . Plaintiffs maintain they were misled as the nature and extent of the proposed building and project by TRFD, which inter alia has negatively impacted their 19 property and their rights therein. 20 In the lead action SCV-266225, plaintiffs were granted the subject Preliminary Injunction 21 enjoining several aspects of TRFD’s egregious violations of the use permit. See order filed 22 August 4, 2021, attached hereto as exhibit 2. Also, in the consolidated action SCV-266731 23 against the defendant County for its violation of its own codes and state law pertaining to the 24 use permit and activities on the subject parcel, the County’s motion for summary judgment was 25 thoroughly rejected. See order filed November 9, 2021. 26 TRFD’s Various Unsuccessful Attacks On The Preliminary Injunction 27 TRFD has unsuccessfully attacked the Preliminary Injunction at least four times. The first attack was an untimely motion for reconsideration filed August19, 2021. Next, TRFD. appealed 28 PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT 7 the injunction on Sept. 9,2021, and requested a stay of the injunction which request was denied 1 on October 8,2021. After seeking multiple postponements of time to file its opening brief, 2 TRFD ultimately dismissed its appeal. Finally, TRFD obtained a void order modifying the 3 injunction on February 17, 2022. The First Appellate District, by decision dated May 11,2023 4 ruled the modification was void and awarded plaintiffs cost on appeal (which TRFD has thus 5 not paid). Thereafter, TRFD made an ex parte application to modify the Preliminary Injunction, 6 which the Court denied on June 6, 2023. Remittitur of the plaintiffs’ successful appeal of the 7 void modification order issued on July 12, 2023. Thus, the appellate decision is final, and this 8 Court has jurisdiction to consider this application. 9 ARGUMENT 10 I. BACKGROUND As decided in the Preliminary Injunction, at p. 8:6-14, TRFD received a use permit for the 11 limited purpose of a storage garage “while the existing Fire Hall [nearby across the road] will 12 be retained for meetings, training, fundraising events, and similar uses.” TRFD has refused to 13 abide by its use permit and likewise has repeatedly violated the injunction. Plaintiffs had hoped 14 that the issues would all be resolved based upon the settlement reached before Judge Zuniga and 15 the recent settlement conference before Judge Pardo. All hopes having been dashed, and recent 16 violations following the remittitur referenced above, have forced plaintiffs to seek contempt 17 against TRFD due to its knowing commissions of public nuisances previously enjoined. 18 II. AN ORDER DIRECTING TRFD TO SHOW CAUSE WHY IT SHOULD NOT BE 19 FOUND IN CONTEMPT OF COURT IS JUST AND NECESSARY "Disobedience of any lawful judgment, order, or process of the court" is contempt. C.C.P. § 20 1209 (a)(5). Generally, a contempt proceeding involves four substantive issues : (1) willful 21 disobedience; (2) ability to comply; (3) actual knowledge of the order; and (4) rendition of a 22 valid order. Conn v. Sup. Court (1987) 196 Cal.App.3d 774, 784. As discussed more fully 23 below, the Preliminary Injunction is a valid order, TRFD knew of the order, TRFD had to the 24 ability to comply and TRFD has willfully disobeyed the order. 25 A. TRFD Willfully Disobeyed the Preliminary Injunction. 26 Willful disobedience is not limited to a deliberate intention to disregard a court order, but 27 also encompasses "an indifferent disregard of the duty to obey [a court order] promptly." In re 28 Kraft (1970) 10 Cal.App.3d 355, 372 .A disclaimer of the intent to commit contempt is no PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT 8 defense where contempt appears from the circumstances constituting the act. City of Vernon v. 1 Superior Ct. (1952) 38 Cal. 2d 509, 518. Thus, where a defendant had knowledge of the terms 2 of an injunction and failed to comply, "it can, be reasonably inferred that their inaction was 3 intentional. ... " (Ibid.) Further, even diligent, yet unsuccessful, efforts to comply are not 4 sufficient to avoid a finding of contempt.· McFarland v. Superior Court of Merced County 5 (1924) 194 Cal. 407, 423.). Here, TRFD has willfully and consciously disobeyed the 6 injunction . This is shown by the facts that it has previously undertaken steps to comply with the 7 injunction such as disabling the red lights, disconnecting the heater, and removing the propane 8 tank. See Schmid dec. p. 12:21 Having done so once it clearly understands what the injunction 9 enjoines, but is now willfully refusing to comply with it. B. TRFD Had and Has the Ability to Comply with the Preliminary Injunction. 10 There is no doubt that TRFD has the ability to comply with the injunction. First, it had previously 11 acted in compliance with the injunction by completely removing the offending propane tank , 12 disabling lights, and decommissioning. the heater and not holding meetings in the garage . See 13 Schmid dec. p. 13:21 Such previous actions of compliance were reversed apparently in bad 14 faith “ belief” in the void modification order. 15 C. TRFD Has Actual Knowledge of the Preliminary Injunction. 16 There can be no doubt TRFD has actually knowledge of the Preliminary Injunction were served 17 on its outside counsel, which raises the presumption that it has actual knowledge of the orders. 18 People v. Sup. Ct. (1965) 239 Cal.App.2d 99, 104 ("Proof of service of the order upon defendant's attorney is sufficient to raise the disputable presumption that the attorney had performed his duty 19 and communicated his knowledge of the order to his client."); Mattos v. Sup. Ct. (1939) 30 20 Cal.App.2d 641, 647 Aside from this presumption, TRFD has taken action it could have only 21 taken with knowledge of the Preliminary Injunction, to wit it previously disabled lights, its 22 previously disconnected/decommissioned the heater See Schmid dec. 13:28 Such previous 23 actions of compliance were reversed apparently in bad faith “ belief” in the void modification 24 order. 25 D. The Preliminary Injunction is a Valid Order. 26 There is no question that the Preliminary Injunction is a valid order of this Court. First, TRFD 27 has never challenged the validity of the order, or the Court’s authority to issue it. Also, to the extent it even had any bases to challenge such, it has waived it by dismissing its prior appeal. The 28 PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT 9 law of the case of the two appellate actions in this matter bar any assertion of invalidity. TRFD , 1 by appearing through counsel at the numerous hearings in this matter and having filed numerous 2 motions and an appeal in this matter has submitted itself to the personal jurisdiction of this Court 3 and the Appellate Court. This Court has subject matter jurisdiction to issue an injunction under 4 C.C.P. § 526 due to TRFD’s violations of California law, of county code, of public and private 5 nuisance law. 6 E. TRFD's Contempt of Court Justifies the Severest Possible Penalty. 7 Each violation of the Preliminary Injunction was and is a separate contempt of the Court 8 justifying the maximum penalty available. See Conn v. Superior Court, supra, 196 Cal.App.3d at 9 787 [each "separate insult[] to the authority of the court" constitutes a contempt of court]. A fine of $1,000.00 per day for each violation is justified. 10 11 .VI. CONCLUSION 12 For the reasons set forth above, plaintiffs are entitled to the Order to Show Cause re Contempt 13 sought hereby on an ex parte basis. 14 Dated: August 6, 2023 Respectfully submitted. 15 16 17 s/Frear Stephen Schmid 18 FREAR STEPHEN SCHMID 19 Attorney for plaintiffs FREAR STEPHEN SCHMID and ASTRID SCHMID 20 21 22 /// 23 24 25 /// 26 27 //// 28 PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT 10 1 DECLARATION OF FREAR STEPHEN SCHMID IN SUPPORT OF EX PARTE 2 APPLICATION 3 I, Frear Stephen Schmid, declare as follow: 4 I am the attorney for and one of the plaintiffs in lead action # SCV-266225 and as such 5 have personal knowledge of the facts set forth in and verified by this declaration. 6 My wife, Astrid Schmid , is the other plaintiff. in action # SCV-266225 7 Plaintiffs gave defendant Two Fire Department and its attorney, William L. Adams, the 8 requisite notice of the foregoing ex parte application. Attached hereto as exhibit 1 is a true and 9 correct copy of the email tarting on Friday, July 21, 2023, at 04:52:36 PM PDT . Included in that 10 the emails is the following email, giving all parties and attorneys, including TRFD and its 11 attorney Mr. Adams the requisite notice of this ex parte application: 12 On Friday, August 4, 2023 at 09:55:53 AM PDT, Frear Stephen Schmid 13 wrote: 14 Good morning Bill, 15 As you have ignored our repeated requests to deal with your client's violations of 16 the preliminary injunction, plaintiffs hereby gives you and your client TRFD notice that plaintiffs will make an ex parte application, per local court procedure, 17 on Monday, August 7, 2023 at 10:30 in Dept 19 of the Sonoma County Superior 18 Court for the issuance of an order to show cause why defendant Two Rock Fire Department aka Two Rock Volunteer Fire Department (TRFD) should not be held 19 in contempt of the Court's preliminary Injunction issued on August 4, 2021. The application will be made on the grounds that TRFD willfully has failed to 20 comply with the provisions of the preliminary injunction forbidding the use of the 21 building for meeting purposes, forbidding the use of the parking lot for uses other than responding to emergency calls, by failing to drain and keep empty the 22 propane tank, by failing to disconnect and decommission the interior heater and by failing to disable the red lights on the front of the structure. The application 23 will be based, inter alia, upon Code of Civil Procedure sections 1209 et seq., a 24 memorandum in support thereof, the declaration(s) thereof and the files and records in this action. 25 26 For clarity, defendant Two Rock Fire Department is the only defendant in action #SCV-266225; 27 and the subject of Preliminary Injunction, a true and correct copy of which is attached as exhibit 28 PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT 11 1 2 hereto. Mr. King’s client, the County of Sonoma is not the subject of the Preliminary Injunction . 2 Nonetheless, he was copied in on the foregoing email. And has been served with a complete copy 3 of this application. 4 5 In action# SCV-266225 the only attorney of record is William Adam, WILLIAM L. ADAMS, 6 P.C. P.O. Box 1050 Windsor, CA 95492, (707) 236-2176 E-mail: bill@wladamspc.com 7 Upon prompting from plaintiffs , Attorney Adams emailed that TRFD would oppose the 8 9 application, although he provided no basis therefor. 10 I wrote and have read the Statement of Facts set forth above in the above ex parte 11 application and know those facts of my own personal knowledge to be true and correct. Also, I 12 know that the exhibits referenced therein and those attached hereto (Exhibits 1-3) are true and 13 correct copies of the originals. As to Exhibit 3, it is the proposed order. 14 As to the following violations for which an order of contempt is sought, I know these 15 violations exist based upon my personal observations of the subject premises and activities at 16 the subject premises commonly known as 7599 Valley Ford Road, Petaluma. CA. Such violations 17 were and are readily observable, deducible, and perceivable to me and by me from my property 18 and /or from the public road in front of 7599 Valley Ford Road. I also note that Attorney Adams 19 did not deny the violations or submit any evidence of correction, despite my invitation in my July 20 21, 2023 e-mail. 21 As to the VIOLATION OF ORDER TO DISABLE THE RED LIGHTS 22 The Preliminary Injunction at p. 14:25-26.ordered TRFD to disable the red lights on the front of 23 the building. The lights are not disabled and are currently in use being left on all night on a nightly 24 basis. I do know that at an earlier point intime TRFD in in fact did not have them on and claimed 25 to have disabled them, to wit 26 27 Brian M. Sanders To:Frear Stephen Schmid,wadams@johnstonthomas.com 28 Cc:michael.king@sonoma-county.org,JJ Minioza,Gregory Mase,Desiree Parkinson PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT 12 Wed, Aug 11, 2021 at 8:35 PM 1 Mr. Schmid: 2 I am informed that the red lights at the front of the building were disabled before today. 3 4 Also, TRFD has disabled other lights to conform to the injunction. Based on this and its abilities 5 to disable and reactivate the red lights, TRFD has the ability to disable the red lights. 6 7 As to the VIOLATION OF ORDER RE USE OF THE PARKING LOT, 8 the Preliminary Injunction p. 15: 1- 8.disallowed parking other than as necessary responding to 9 emergency calls. TRFD routinely violates this order, including the recent parking of 10 approximately 7 vehicles for an illegal meeting or gathering in the storage building .on July 18, 11 2023 for several hours in the storage building, I have witnessed TRFD’s ability to comply with 12 the injunction regarding meetings as I have witnessed it holding meeting in its Fire Hall across 13 the Road after the Preliminary Injunction as it is required to do per the use permit and saw the 14 meeting’s participants likewise park across the road. 15 16 As to the VIOLATION OF ORDER RE USE OF THE GARAGE FOR MEETINGS, 17 The Preliminary Injunction p. 15: 1- 3 ordered meetings and other events in the garage are not 18 allowed. See also Preliminary Injunction at p. 8:6-14.ordered activities The garage has been 19 used for meetings and there was a recent an illegal meeting or gathering in the storage garage 20 on July 18, 2023 for several hours. 21 As to the VIOLATION OF ORDER TO EMPTY THE PROPANE TANK 22 the Preliminary Injunction at p. 15:9-26.ordered TRFD to empty the propane tank and 23 keep it empty and not used . The tank is not drained or empty and still connected and in 24 use. TRFD was previously able to conform to the injunction by completely removing the 25 tank fron the premises, but then latter illegally reinstaled it and connected it and had it 26 refilled. Accordingly, TRFD has the abilty to comply with the Preliminary Injunction. 27 28 As to the VIOLATION OF ORDER TO DECOMMISSION THE HEATER PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT 13 the Preliminary Injunction at p. 15:15-26.ordered the heater disconnected and 1 decommissioned. The heater is not decommissioned or disconnected. Previously TRFD 2 decommissioned the heater per the Preliminary Injunction, but since has recommissioned 3 it . This demonstrates it has the ability to decommission it again. 4 5 I, Frear Stephen Schmid, declare under penalty of perjury that the foregoing is true and correct 6 and that this declaration was executed August 6, 2023 in the County of Sonoma, California 7 8 9 10 11 12 s/ Frear Stephen Schmid Frear Stephen Schmid 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ EX PARTE APPLICATION FOR OSC RE CONTEMPT 14 EXHIBIT 1 EXHIBIT 2 EXHIBIT 3 1 FREAR STEPHEN SCHMID CSB # 96089 7585 VALLEY FORD ROAD, 2 PETALUMA, CA 94952 3 TELEPHONE: (415) 788-5957 EMAIL: frearschmid@aol.com 4 5 Attorney for plaintiffs 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SONOMA 10 11 12 FREAR STEPHEN SCHMID AND ASTRID Case No. SCV-266225 and consolidated SCHMID actions SCV-266731 and SCV-270339 13 Plaintiffs, {Proposed) ORDER PLAINTIFFS’ EX 14 PARTE APPLICATION FOR OSC RE v. CONTEMPT 15 TWO ROCK FIRE DEPARTMENT 16 Defendant 17 18 19 20 IT IS HEREBY ORDERED, good cause appearing based upon the Ex Parte Application that 21 Plaintiffs FREAR STEPHEN SCHMID and ASTRID SCHMID’s Request for a hearing be set 22 for Order to Show Cause Re: Contempt, is GRANTED. 23 Plaintiffs having presented to this Court sufficient grounds to initiate a contempt proceeding, 24 defendant Two Fire Department is ordered to appear on August ___, 2023 at____ .m. in 25 26 Courtroom 19 of the above-entitled Court to prove why it is not in contempt of this Court’s 27 Preliminary Injunction dated August 4, 2021. 28 IT IS FURTHER ORDERED THAT: PLAINTIFFS’ OBJECTION TO INSPECTION DEMAND 1 This Order Setting the Hearing on the Order to Show Cause shall be served on defendant TWO 1 2 ROCK FIRE DEPARTMENT by email through William Adams, its attorney, no later than 3 August 8, 2023 by 5 p.m. Proof of such service shall be filed no later than August 9, 2023. 4 Any opposition papers to the Order to Show Cause shall be filed and served on Plaintiffs 5 through its attorney, by email, no later than 9 court days before the hearing date set above; 6 with proof of such service. Reply papers, if any, shall be filed and served on TRFD through its 7 8 attorney, by email no later than 5 court days before the hearing date set above, with proof of 9 such service. 10 11 12 Dated: _________________________________________ JUDGE OF THE SUPERIOR COURT 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ OBJECTION TO INSPECTION DEMAND 2